157 Conn.App. 656
Conn. App. Ct.2015Background
- Plaintiff Arthur Ogden owned a parcel partly zoned commercial and partly residential in Columbia; the zoning enforcement officer (Valente) issued two cease-and-desist orders for operating a construction/contractor’s yard on the commercial portion without required approvals/certificate of zoning compliance.
- Ogden applied for and received a special-exception/site-plan approval for a contractor’s yard (recorded), but failed to satisfy the conditions of the site plan or obtain a certificate of zoning compliance.
- The Zoning Board of Appeals (board) held hearings and, by 4–1 vote, upheld the second cease-and-desist order, finding Ogden had been operating a contractor’s yard prior to obtaining a certificate.
- Ogden appealed to Superior Court arguing (inter alia) the contractor’s yard regulation was vague/unenforceable and that the board’s determination lacked substantial evidence; the trial court sustained his appeal on both grounds.
- The board appealed to the Appellate Court, which reviewed (1) whether the vagueness claim was properly before the court and whether the regulation was unconstitutionally vague as applied to Ogden, and (2) whether the board’s decision was supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of “construction/contractor’s yard” regulation | Regulation is ambiguous/undefined; must be construed in Ogden’s favor; enforcement violated due process | Board: court should not consider vagueness not raised below; regulation is sufficiently definite and Ogden had notice | Appellate Court: constitutional vagueness claim could be raised in court; but Ogden failed to prove beyond reasonable doubt the regulation was vague as applied—he had notice and was not shown to be victim of arbitrary enforcement; trial court erred to the extent it invalidated enforcement on vagueness grounds |
| Sufficiency of evidence supporting board’s decision | Ogden: activities were lawful nursery/site-plan work; court credited his trial testimony and found lack of substantial evidence | Board: record contained testimony, photos, resident testimony showing equipment stored, trips to job sites, sign and advertising—sufficient evidence to support finding of contractor’s yard | Appellate Court: board’s factual findings were supported by substantial evidence in the record; trial court improperly substituted its judgment and relied on evidence outside the administrative record; therefore the board’s decision must be sustained |
Key Cases Cited
- Dragan v. Conn. Med. Examining Bd., 223 Conn. 618 (Conn. 1992) (administrative-review waiver rule; issues not raised before agency ordinarily not considered on appeal)
- Finkenstein v. Administrator, Unemployment Comp. Act, 192 Conn. 104 (Conn. 1984) (declining review of claims not raised before reviewing board)
- Burnham v. Administrator, Unemployment Comp. Act, 184 Conn. 317 (Conn. 1981) (courts should not set aside agency decisions on unpresented grounds because agency was deprived of opportunity to rule)
- Cumberland Farms, Inc. v. Groton, 262 Conn. 45 (Conn. 2002) (administrative agencies lack authority to decide constitutional questions)
- Stepney, LLC v. Fairfield, 263 Conn. 558 (Conn. 2003) (failure to exhaust administrative remedies excused for constitutional claims when agency cannot grant adequate relief)
- Bombero v. Planning & Zoning Comm’n, 218 Conn. 737 (Conn. 1991) (landowner may raise invalidity of regulation in appeal from cease-and-desist)
- Graff v. Zoning Bd. of Appeals, 277 Conn. 645 (Conn. 2006) (standard for vagueness challenges; presumption of validity)
- Bottone v. Westport, 209 Conn. 652 (Conn. 1989) (vagueness test: ordinary person must be able to know permitted/prohibited conduct)
- Barberino Realty & Dev. Corp. v. Planning & Zoning Comm’n, 222 Conn. 607 (Conn. 1992) (burden to show regulation vague as applied rests with challenger)
- State v. Winot, 294 Conn. 753 (Conn. 2010) (question of vagueness reviewed de novo)
- R & R Pool & Patio, Inc. v. Zoning Bd. of Appeals, 257 Conn. 456 (Conn. 2001) (adequacy of notice from cease-and-desist when site-plan submissions show awareness)
- Municipal Funding, LLC v. Zoning Bd. of Appeals, 270 Conn. 447 (Conn. 2004) (substantial-evidence standard; courts must not substitute their judgment for agency’s factfinding)
- O’Donnell v. Police Commission, 174 Conn. 422 (Conn. 1978) (court’s role on administrative appeal is to examine the record before the board, not retry the case)
- Gada v. Zoning Bd. of Appeals, 151 Conn. 46 (Conn. 1963) (where zoning regulations are permissive, uses not specifically permitted are excluded)