Matthies v. Killingworth PZC

Full title: SHERIDAN MATTHIES v. KILLINGWORTH PLANNING AND ZONING COMMISSION ET AL

Court: Connecticut Superior Court Judicial District of Middlesex at Middletown

Date published: May 18, 2010

2010 Ct. Sup. 11298 (Conn. Super. Ct. 2010)

Opinion

No. MMX-CV-09-4009859-S

May 18, 2010

MEMORANDUM OF DECISION

BURGDORFF, J.

I. STATEMENT OF APPEAL

The plaintiff, Sheridan Matthies, has filed an administrative appeal of the decision of the Killingworth planning and zoning commission (PZC), granting the defendant Limerick Farms, LLC's (Limerick) application for special exception. (Ret. of Rec. #39.) Specifically, the special exception application filed by Limerick sought to amend a special exception that had been granted by the PZC in 1996, which had permitted a boarding and riding stable as well as horse trailer storage on the property. The PZC approved the present special exception application on December 16, 2008, in part, allowing Limerick (1) to increase the number of commercially boarded horses from thirteen to eighteen; (2) to construct a new 7200 square foot barn with twelve additional horse stalls; (3) to construct a 1200 square foot addition to the existing hay barn; (4) to add seventeen additional parking spaces, bringing the total parking spaces for the commercial stables to thirty, and two new signs; and (5) to expand the riding lessons from adult only to all ages, including children, and offer therapeutic riding lessons. The PZC did not approve Limerick's request for six horse shows per year.

The plaintiff contends that the PZC's decision to approve the application was illegal, arbitrary, capricious and an abuse of its discretion because (A) the PZC had no jurisdiction to approved Limerick's application because it was submitted under outdated zoning regulations; (B) the PZC had no authority to impose a condition limiting the total number of horses for commercial and personal boarding at thirty; (C) §§ 500-43A(7)(C) and 500-43B(6) the Killingworth zoning regulations are void and unenforceable; and (D) the PZC acted illegally, arbitrarily and in abuse of its discretion by granting in part Limerick's special exception application because the record does not contain substantial evidence to support the decision.

II. FACTUAL BACKGROUND

Before addressing the issues raised by the parties, a detailed factual recitation is required. The plaintiff is the owner of property located at 566 North Roast Meat Hill Road in Killingworth, Connecticut. Limerick owns a 26.5-acre parcel of land situated located at 552 and 558 North Roast Meat Hill Road in Killingworth. The plaintiff's property abuts Limerick's property, and both properties are located in the Rural Residential District. The plaintiff previously owned the subject property at 558 North Roast Meat Hill Road, but sold it to Limerick in 2006. During the plaintiff's ownership of the property, she was allowed to operate a commercial boarding and riding stable to accommodate thirteen rider-owned horses, by invitation only. (Ret. of Rec. Addendum-Greystone statement of use.) In 1996, the PZC restricted horse trailer storage, requiring that it not be visible from the road. (Ret. of Rec. #1, Memorandum of Decision 6-4-98.) Limerick, by way of its application in October 2009, proposed to expand its commercial horse farm by increasing the number of boarded horses from thirteen to eighteen, adding a 7200 square foot barn, constructing a 1200 square foot addition to an existing hay barn, adding parking and expanding riding lessons to include children and adults of all ages and therapeutic lessons, adding seventeen parking spaces and holding six horse shows per year. (Ret. of Rec. #1.) The Rural Residential District is the only residential district in the town of Killingworth. Killingworth Zoning Regs., § 500-6. (Ret. of Rec. #42.)

In its accompanying statement of use, Limerick states in relevant part: "The applicant seeks an amendment to special exemption granted in 1996 for expansion of a boarding or riding stable at 558 North Roast Meat Hill Road, as permitted by Section 61A.2(F) of the Zoning Regulations." (Ret. of Rec. #1.) Limerick, in its statement of use, sought four new uses: (1) to increase the number of commercially boarded horses from thirteen to eighteen; (2) to make certain structural additions such as a 7200 square foot barn over the existing tennis court, a 1200 square foot addition to an existing hay barn and seventeen new parking spaces for a total of thirty-two parking spaces with ten horse trailer spaces in the paddock area; (3) to expand its lessons to include adults and children of all ages and to include therapeutic lessons; and (4) to hold six horse shows per year.

In filing its application, Limerick included outdated references to various sections of the Killingworth zoning regulations, including § 61A.2(F) as noted above, and § 120G, which set forth the standards for special exceptions. The application also cites various subsections of § 120G and § 130A. (Ret. of Rec. #1.) The zoning regulations for the town of Killingworth were renumbered and codified in Chapters 40, 45 and 500 of the code of the town of Killingworth effective July 1, 2008. (Ret. of Record #43.) The PZC supplemented the record with "Zoning Regulations April 3, 2001" which were in effect immediately prior to the adoption of a compilation and codification of the Killingworth zoning regulations on June 26, 2008. The codified provisions are "substantially the same" as the prior regulations and "are intended as a continuation of such regulations and not as new enactments . . ." (Ret. of Rec. § 460-2.) There was no change in the content of the zoning provisions, simply a change in the numbering. (Ret. of Rec. #12, pp. 13-4, Ret. of Rec. #28, Ret. of Rec. #42.) Limerick's application provided a statement of the substance of each referenced zoning provision. The legal notices published on November 18, 2008, and November 25, 2008, specify that "a copy of this application is on file with the Killingworth Town Clerk." (Ret. of Rec. #5, #6 and #8.)

Section 61A.2(F) of the regulations was recodified as § 500-43B(6), which provides:

Livery, boarding or riding stables, provided that they are contained on lots containing not less than five acres of minimum build able lot area (Appendix B) belonging to Soil Class A, B, C or D (Appendix A). No more than 12 horses may be kept on such a lot. One additional horse up to a maximum of 25 is permitted for each additional acre of land belonging to Soil Class A, B, C or D. No barn or shelter shall be located and no animals housed less than 50 feet from any property line. Manure piles shall be located and maintained so as to prevent runoff of manure and other polluting materials onto adjacent properties, roads, wells, or watercourses. Adequate fencing and structures shall be installed and maintained so as to confine all animals to the premises of the owner. Adequate off-street parking shall be provided.

(Ret. of Rec. #42.)

Testimony was presented at the hearing that there were a total of six additional acres which could support an additional six horses after subtracting the initial five acres which permitted no more than twelve horses. Limerick testified that it had eleven total qualified acres which allowed twelve horses for the first five acres and one additional horse for each remaining qualified acre. Thus, Limerick sought the right to commercially board eighteen horses.

With regard to the number of privately allowed horses, § 500-43A(7)(c) of the zoning regulations provides:

Certain other animals. The keeping of horses, ponies, burros, donkeys, llamas, sheep, goats and cattle is permitted provided that no more than three such animals are kept on a lot of not less than two acres. Three additional animals are permitted for each acre in addition to two acres. (Ret. of Rec. #42.)

On November 18 and 25, 2008, the PZC published legal notice that on December 2, 2008, a public hearing would be held on Limerick's special exception application, referring interested members of the public to review the application on file with the Killingworth town clerk. (Ret. of Rec. #6, #8 and #9.) A public hearing was held on December 2, 2008. (Ret. of Rec. #11 and #12.) On December 16, 2008, the PZC approved Limerick Farm's application but denied the request to allow the holding of horse shows. (Ret. of Rec. #16 and 36.)

The town of Killingworth published two legal notices, the first on November 18, 2008, and the second on November 25, 2008, relative to Limerick's special exception application #247. (Ret. of Rec. #4, #6 and #8.) At the hearing, Limerick made its presentation via its attorney, its engineer, Thomas Stevens, and its traffic engineer, Alan Ness. The site plan was presented, and there was a discussion of the proposed new construction. (Ret. of Rec. #13, Tr. pp. 3-8 and pp. 9-10.) Ness also presented a traffic study indicating that the site distances were not ideal for North Roast Meat Hill Road, but the intersectional site distances were met assuming cars traveled at speeds not greater than twenty-nine miles per hour.

At a public hearing in December 2, 2008, the PZC heard extensive professional and technical testimony on behalf of the application and received a large number of exhibits in support of the testimony and the application. Among those who spoke in support of the application were Peter Sipples, Limerick's attorney, who made a presentation on behalf of Limerick. (Ret. of Rec. #12, pp. 2-9.) Also present at the public hearing was Tom Stevens, a professional engineer and land surveyor who presented the site plan and the proposed new construction on the property. (Ret. of Rec. #12, pp. 10-12.) Ness, Principal Engineer at the firm of Barkan Ness, speaking in support of the application, noted that the expansion proposed by Limerick would not have a major impact on traffic. (Ret. of Rec. #12, pp. 12-18.) Ness also submitted an extensive traffic report indicating that "[t]he additional traffic generated by the Killingworth Equestrian Center at 552 and 558 North Roast Meat Hill Road is anticipated to have a minimal impact on the area roadways." (Ret. of Rec. #19, p. 7.) Also submitted at the public hearing was a letter from Connecticut state archaeologist Nicholas F. Bellantoni, PhD, noting that the project should have no effect on any of the state's archaeological resources (Ret. of Rec. #18); a letter from John Himmelman, chairman of the Killingworth inland wetlands and watercourses commission, noting that no wetlands permit was required for Limerick (Ret. of Rec. #21); and a copy of the sanitation review/fire protection review from the Killingworth building and sanitation department. (Ret. of Rec. #32.)

Neighbors who supported the application spoke at the hearing. (Ret. of Rec. #12, pp. 54-55.) The majority of those who voiced opposition to the application expressed concern with an increase in traffic, which Ness, in his traffic report, deemed would be minimal. (Ret. of Rec. #12, p. 7.) The applicant's presentation was the subject of extensive questions by the PZC, Matthies' attorney and members of the public attending the hearing. (Ret. of Rec. #12, pp. 54-55.)

After the hearing, the PZC deliberated at length on December 2, 2008, and December 16, 2009. (Ret. of Rec. #13 16.) At the December 2, 2008 deliberations, the PZC members determined there were no great concerns with three out of the four parts of the application. The only concern they expressed concerned the holding of horse shows at Limerick Farm. (Ret. of Rec. #1.3, p. 38.) The PZC analyzed and discussed § 500-43A(7)(c) and § 500-43B(6) of the zoning regulations (formerly § 61A.1(g) and § 61A.2(F), respectively). (Ret. of Rec. #13, pp. 2-6, 9-15.) The PZC then determined that § 500-43A(7)(c) set the maximum number of horses, both privately owned and commercially boarded, allowed on one's property. The maximum number of horses for use on any property in the zone would start at three for the first two acres and then increase at the rate of two per acre thereafter. The PZC determined that this number is calculated by looking at the net buildable acres on one's property. The gross acres of property would be reduced by the amount of wetlands, soil types, etc. to obtain the net buildable acres, which would be used to determine the maximum number of horses. If any number of the total allowable horses are commercially boarded, a special exception is required under § 500-43B(6). The number of commercially boarded horses is subtracted from the maximum and the difference represents the number of private or personal horses that may be kept on the property. The PZC determined that the maximum number of horses of either type allowed on the property is thirty. Since the applicant requested a permit for eighteen commercially boarded horses, and the PZC found that § 500-43A(7)(c) applied to the total number of horses, the PZC set a limit of twelve private or personal horses in addition to the eighteen commercially boarded horses requested. (Ret. of Rec. #36.)

The PZC also spent time analyzing other factors such as the nature, location, size, intensity and other structural and functional characters of the proposed expansion as well as its effect on the neighboring premises, traffic and the environment pursuant to § 500-155 of the regulations. (Ret. Of Rec. #13, pp. 16, 35-38.)

As previously noted, on December 16, 2008, the PZC voted to approve in part and reject in part Limerick's application. It approved eighteen commercially boarded horses and a maximum of twelve additional horses for private use. (Ret. of Rec. #36.) It also approved the 7200 square foot barn and hay barn addition, as well as the additional parking spaces and signs on Limerick Farm. It further granted Limerick's request for lessons for adults and children of all ages. It unanimously denied Limerick's proposal to hold six horse shows at Limerick Farm each year due to its concerns for the "quiet enjoyment, usefulness [and] value of the premises in the general neighborhood as it relates to noise and odor and illumination." (Ret. of Rec. #16, pp. 2-4.) The plaintiff appealed this decision to the Superior Court, and the hearing in this matter was held before this court on February 1, 2010.

III. STANDARD OF REVIEW

In considering the issues raised in this appeal, the scope of review is limited. Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676, 559 A.2d 1174 (1989). The function of the court in such a review is to determine whether the board acted fairly or on valid reasons with the proper motives. Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964). The court is limited to determining whether the record reasonably supports the conclusions reached by the board. Burnham v. Planning Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983). The court cannot substitute its judgment for the liberal discretion conferred by the legislature on the board. The court is limited to granting relief only when it can be shown that the board acted arbitrarily or illegally and consequently abused its statutory authority. Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958). The burden rests on the plaintiff to prove the impropriety of the board's action. Burnham v. Planning Zoning Commission, supra, 189 Conn. 266. It is not the function of the court to rehear the matter or question the wisdom of the defendant board in taking the action it did. The court is limited to determining whether or not the board's action can be supported by the law. Bokoff v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. 113700 (November 18, 1998, Purtill, J.T.R.).

"It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).

"Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Emphasis in original; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). "Because the interpretation of the regulations presents a question of law, [the court's] review is plenary." (Internal quotation marks omitted.) Id., 21. "A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." (Internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002).

"The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . The evidence, however, to support any such decision must be substantial . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty." (Citations omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006).

The burden of proof to show that the PZC acted improperly is on the plaintiff. Village Builders, Inc. v. Town Planning Zoning Commission, 145 Conn. 218, 222, 140 A.2d 477 (1958). "[T]he reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993).

Special Exceptions

General Statutes § 8-2 provides in relevant part that zoning regulations "may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning or zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values."

"When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied." (Internal quotation marks omitted.) Martland v. Zoning Commission, 114 Conn.App. 655, 661, 971 A.2d 53 (2009). Accordingly, in deciding Limerick's application, the PZC was acting in an administrative capacity. To approve a special exception, the PZC must be satisfied that the manner in which the applicant proposes to use its property satisfies all conditions imposed by the regulations. Anastasi v. Zoning Commission, 163 Conn. 187, 190-91, 302 A.2d 258 (1972).

General Statutes § 8-3c also governs the issuance of special permits and special exceptions. Subsection (a) of that section requires an applicant for a special exception or special permit involving "an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive," to "submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for a special permit or special exception." Section 8-3c(b) requires that the planning and zoning commission "hold a public hearing on an application or request for a special permit or special exception . . ." That subsection further provides, inter alia, that the "commission shall not render a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency . . ."

Since regulations are local legislative enactments, their interpretation is governed by the same principals that apply to the construction of statutes. Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416, 920 A.2d 1000 (2007). "A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court . . . The court is not bound by the legal interpretation of the ordinance by the [commission] . . . If a [commission's] time-tested interpretation of a regulation is reasonable, however, that interpretation should be accorded great weight by the courts." (Internal quotation marks omitted.) Vivian v. Zoning Board of Appeals, 77 Conn.App. 340, 344, 822 A.2d 374 (2003). "As part of the special permit approval procedure, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." (Internal quotation marks omitted.) Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 228, 826 A.2d 249 (2003).

IV. JURISDICTION

General Statutes § 8-8(b) governs appeals from decisions of planning and zoning commissions to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).

A. Aggrievement

The plaintiff has appealed under the provision of General Statues § 8-8(b) which provides in part that: "Any person aggrieved by any decision of a board may take an appeal to the superior court." To establish the aggrievement, a party must allege facts which, if proven, would constitute aggrievement as a matter of law and prove the truth of those allegations. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 676 A.2d 831 (1996). "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003).

"Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial. Winchester Woods Associates v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest." (Citations omitted; internal quotation marks omitted.) Mountinho v. Planning Zoning Commission, 278 Conn. 660, 664-65, 899 A.2d 26 (2006).

The court must first review the complaint to determine if the plaintiff has properly alleged aggrievement. The plaintiff has alleged in her complaint that she is statutorily aggrieved "because she owns land abutting the property of Limerick Farms and is furthermore classically aggrieved because the proposed Special Exception activities will adversely affect the plaintiff's pond and land from surface water and manure runoff, her view, and her property values." (Appeal, ¶ 9.) Evidence on the subject of aggrievement at trial, including the plaintiff's testimony, confirmed that the plaintiff is the owner of property that abuts the subject property. General Statutes § 8-8(a)(1) defines an aggrieved person as "any person owning land that abuts or is within the radius of 100 feet of any portion of the land involved in the decision of the board." The plaintiff is, therefore, statutorily aggrieved pursuant to § 8-8(a)(1) by the decision of the PZC because she owns land abutting the property of Limerick Farms. Accordingly, it is not necessary to consider whether the plaintiff is also classically aggrieved.

B. Timeliness and Service of Process

General Statutes § 8-8(b) provides that "[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f) provides that "[s]ervice of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows: . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal." General Statutes § 52-57(b) provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows: . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."

Notice of the decision was published in the Hartford Courant on December 23, 2008. (ROR, Item 32.) On December 30, 2008, this appeal was commenced by service of two copies of process on the PZC, by leaving two "true and attested copies" of the appeal with the Killingworth town clerk. Accordingly, the court finds that this appeal is timely and that service of process was proper.

V. DISCUSSION

In its appeal complaint, the plaintiff alleges that the decision of the PZC in approving Limerick's application was illegal, arbitrary, capricious and an abuse of the discretion vested in it in numerous respects. Nevertheless, she has not presented any argument in support of several of these grounds, so they need not be repeated here. "Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Accordingly, the court will address only those claims that are set forth in her briefs or presented at oral argument. As noted above, these claims are that the PZC's decision to approve the application was illegal, arbitrary, capricious and an abuse of its discretion because (A) the PZC had no jurisdiction to approve Limerick's application because it was submitted under outdated zoning regulations; (B) the PZC had no authority to impose a condition limiting the total number of horses for commercial and personal boarding at thirty; (c) §§ 500-43A(7)(c) and 500-43B(6) the Killingworth zoning regulations are void and unenforceable; and (D) the PZC acted illegally, arbitrarily and in abuse of its discretion by granting in part Limerick's special exception application because the record does not contain substantial evidence to support the decision. These issues will be addressed in turn.

A. Whether the PZC Lacked Jurisdiction to Approve Limerick's Application Because It Referenced Outdated Zoning Regulation Numbers.

The plaintiff argues that the PZC lacked jurisdiction to approve Limerick's application because it was submitted under outdated zoning regulations. The plaintiff claims that the PZC acted illegally, arbitrarily and in abuse of its discretion because "the legal notice referencing the wrong regulations is defective." (Plaintiff's Brief, p. 1.) The Killingworth zoning regulations, as well as other chapters of the code of the town of Killingworth, were amended and renumbered on June 3, 2008. (Ret. of Rec. #43.) The previously enumerated sections addressing special exceptions were renumbered. For example, § 120G was renumbered as § 500-155. Section 61A.2(F), governing commercially boarded horses and riding stables, was renumbered as § 500-43B(6). Section 61A.1(G), pertaining to boarding of private horses, was renumbered as § 500-43A(7). Apart from renumbering and minor formatting changes, the renumbered provisions are identical to the provisions they replaced. Limerick's application did not recite the current provisions of the zoning code when it filed its special exception application on October 9, 2008. (Ret. of Rec. #1.)

The legal notices for Limerick's application that were published stated only that Limerick sought a special exception "for Special Principal Use, Residential District for Boarding/Riding Stable, for property located at 552 558 North Roast Meat Hill Road, Killingworth, Tax Map 17, Parcel 06 06D, Zone Rural Residence. A copy of this application is on file with the Killingworth Town Clerk." (Ret. of Rec. #6 and 8.) The legal notices did not state the number of horses to be boarded commercially, the 7200 square foot addition, horse shows, or a change in the scope of the lessons be offered. Neither the portion of § 61A.1(G) regarding the limitation on the number of private horses nor its newer counterpart, § 500-43A(7)(c), were referenced anywhere in the application.

In the published notice, the public was directed to review the application on file with the Killingworth town clerk. At issue, therefore, is whether this reference to the application, which, in turn, referenced outdated section numbers of the regulations, satisfied the applicable notice requirements of General Statutes § 8-3. Compliance with the notice requirements is a mandatory prerequisite to the validity of a zoning commission's action. Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978). The absence of an adequate legal notice creates a jurisdictional defect rendering the hearing and any decision predicated thereon void. Koepke v. Zoning Board of Appeals, 223 Conn. 171, 176-77, 610 A.2d 1301 (1992).

The Appellate Court has addressed this issue in the context of a special exception application in Lauver v. Planning Zoning Commission, 60 Conn.App. 504, 760 A.2d 513 (2000). In that case, a neighbor appealed from the planning and zoning commission's granting of a special exception allowing a landowner to continue its gravel excavation operation. Id., 506. There was a clerical error in the original special exception application, in which the subject excavation site was identified as being located in the town of Scotland, when the site was actually located on the portion of the subject property that was located in the abutting town of Canterbury. Id. Although the applicant agreed to file an amended application, the commission caused notice of a public hearing on the original application to be published. Id., 507. The applicant subsequently filed an amended application, but publication of the notice of the public hearing on that application failed to meet the timing requirements of General Statutes § 8-3(a). Nevertheless, the commission held the hearing as noticed and subsequently approved the permit. Id. The plaintiff appealed, and the trial court sustained the appeal because it concluded that the amended application differed from the original application and, therefore, required its own notice, which was not published in accordance with § 8-3(a). Id., 507-08. The defendant applicant appealed from the trial court's decision to the Appellate Court. Id., 505.

In support of his appeal, the applicant argued "that the commission continued the hearing on his original application from May 9 [the date scheduled for the hearing on the original defective application, at which time that application was neither heard nor listed on the agenda] to June 13, 1996 [the date of the hearing on the amended application], and that a separate notice was not necessary to consider his amended application. [The applicant] also argue[d] that the public was not misled by his original application because if interested parties had gone to the commission's office and reviewed the application and map, they would have seen that the excavation site was in Canterbury, not Scotland. Further, he claim[ed] that the public could not have been confused because the commission can make decisions only about land situated in Canterbury, not Scotland. He also assert[ed] that the plaintiff ha[d] raised form over substance because hundreds of individuals turned out at the public hearing and a substantial effort was made to oppose the granting of the permit." Id., 508.

In rejecting the applicant's arguments, Appellate Court reasoned that "[z]oning commissions are required to provide adequate published notice of a public hearing to be held on an application or request for a special permit or special exception . . . Specifically, this court has held that the purpose behind the notice requirement of § 8-3 is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing . . .

"A defect in the content of the notice cannot be cured by proof that some members of the public received actual notice, or appeared at the hearing . . . Before this court can conclude that any action taken by the board is valid, the notice provision must be complied with fully." (Citations omitted; internal quotation marks omitted.) Id., 509-10. The court further rejected the applicant's argument "that the notice was sufficient because the public knew about the application and could have gone to the commission's office to look at the map of the subject property." Id., 511. The court explained: "[W]e are unpersuaded by the defendant's argument that the general public should have cross-referenced the application number with city hall records, or that earlier newspaper articles had connected the property to [the applicant for the permit]. The statute does not call for cumulative notice, nor does it ask that the general public employ the skills of a research librarian to determine where the subject property is located. The act of giving statutory notice is much too important to be done by way of informal, unofficial or chancy cross-referencing." Id. Because the original application contained an inaccurate description of the location of the proposed activities, the Appellate Court agreed with the trial court's conclusion that the amended application was different from the original application and that, therefore, a separate notice was required. Id.

Although certain aspects of the present case are similar to those of Lauver, important factual differences distinguish the two cases. It is noted that the legal notice in the present case does not reference any regulations; rather, the application itself contains the erroneous references. (See Ret. of Rec. #1, #3, #6 and #8.) Similarly, the "clerical error" in Lauver was present in the application, rather than the notice. The legal notice in both cases referenced the application that was filed with the town clerk. Nevertheless, whereas the error in the application in Lauver misidentified the location of the proposed activity, required the public to resolve a discrepancy between the location stated on the face of the application and the location depicted on the map and to otherwise gain an understanding of the true nature of the application by cross-referencing information from multiple sources, the error in the application in the present case is neither misleading nor requires the members of the public to employ the skills of a research librarian in order to determine the nature of the proposed activities. Although the application, which is referenced in the notice, refers to outdated section numbers of the regulations, the purpose, nature and location of the proposed activities are accurately described in the notice. The notice references an application filed by Limerick Farm, LLC, the use requested (Special Principal Use, Residential District for Boarding/Riding Stable), the property address (552 and 558 North Roast Meat Hill Road, Killingworth), the tax map (Tax Map 17, Parcel 08 and 06D), and the zone (Rural Residence). Thus, the legal notices provided the public with a summary of the essential elements of the application and, therefore, are sufficient to meet the statutory notice requirements.

The issue of whether the content of the legal notice is adequate is a question of fact in each case. R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 17:1, p. 521. The purpose of the statutory prehearing notice requirements is to fairly and sufficiently apprise the public of the proposed action, so as to enable intelligent preparation for participating in the public hearing. R.B. Kent Sons, Inc. v. Planning Commission, 21 Conn.App. 370, 378, 573 A.2d 760 (1990). The burden of proof that the notice was inadequate or defective is on the persons asserting its insufficiency. Peters v. Environmental Protection Board, 25 Conn.App. 164, 170, 593 A.2d 975 (1991).

The legal notice of the public hearing was adequate to fairly and sufficiently apprise those who may be affected by the proposed action of the nature and character of the action. See Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972) ("the purpose behind the notice requirement of § 8-3 is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing" [internal quotation marks omitted]). Therefore, the notice was valid and the PZC had jurisdiction to act on Limerick's application. Both the application and the legal notice state that the use requested is a boarding/riding stable. Both state that the use is proposed in the Rural Residence District and that it requires a special exception. (Ret. of Rec. #1, #6 and #8.) The statement of use attached to the application (Ret. of Rec. #1) contains a detailed explanation of the proposed uses, including the background and historical facts germaine to the application, a detailed description of the proposed uses and structures, and a legal discussion of the regulatory requirements applicable to the special exception application. Although the legal discussion includes references to outdated section numbers, the regulatory requirements are described in detail sufficient to enable one reviewing the application "to prepare intelligently for the hearing." See Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. 47.

The commission determined that the mere changes in the numbering of the regulation sections did not invalidate the application or require a continuance of the public hearing (Ret. of Rec. #12, pp. 103-05.) The commission did not act illegally, arbitrarily or in abuse of its discretion in so finding. The plaintiff has provided no authority to support the proposition that incorporation of outdated zoning regulation section numbers in a land use application invalidates a published notice of a hearing on that application and, therefore, requires the reversal of the agency's decision on that application. For these reasons, the appeal is not sustained on that basis.

B. Whether the PZC Lacked Authority to Impose a Condition Limiting the Total Number of Horses for Commercial and Personal Boarding at Thirty Horses.

The plaintiff next contends that the PZC did not have the authority to impose a condition limiting the total number of horses for commercial and personal boarding at thirty horses. The plaintiff argues that the PZC made a determination concerning the maximum number of commercially boarded and privately kept horses by setting a limit of thirty total horses for Limerick Farm, which the plaintiff contends is excessive. Further, this condition was not part of the application and is therefore illegal and void. Thus, she argues, the PZC had no authority to impose a condition limiting the total number of horses for commercial and private use.

General Statutes § 8-2 allows a commission to issue a special exception provided that the application meets the criteria set forth in the zoning regulations. In this case, Limerick requested to increase the number of commercially boarded horses from thirteen to eighteen. (Ret. of Rec. # 1, statement of use, p. 1.) Although a commission may not impose a condition that is not warranted by the zoning regulations, imposition of void condition will not always invalidate a commission's otherwise valid decision. Parish of St. Andrew's Protestant Episcopal Church v. Zoning Board of Appeals, supra, 155 Conn. 354-55 (although board had no authority to impose, as condition of use of property for gasoline service station, requirement that owner convey eleven-foot strip of land to city, court revoked and set aside that requirement while declining to reverse board's decision). The issue of whether a condition invalidates a special exception depends on whether the condition is an integral part of the approval of the permit. Id., 355. In Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 574 A.2d 212 (1990), the Supreme Court held that a condition attached to a variance voided the variance itself because it was integral to the board's decision to grant the variance application. Id., 66-67. In that case, the plaintiff applied to the ZBA to enlarge a pond on his property and excavate a second pond to raise trout and to irrigate his crops. The ZBA approved the variance but required the plaintiff to obtain a temporary soil extraction permit from the planning commission. Because the planning commission was not authorized to issue a soil extraction permit for land within the flood plain district, the condition was impossible to satisfy. Consequently, the applicant appealed from the imposition of that condition. The trial court invalidated the condition, but upheld the decision to grant the variance, reasoning that the condition was not "integral" to the approval and, therefore, severable. The Supreme Court reversed, reasoning that, in light of the "massive amount of soil" to be removed and the comprehensive nature of the soil removal regulations applicable to soil removal operations, which "address not only criteria for evaluation of the site and the method of extraction, but also the public safety and welfare as it will be affected once the soil is actually loaded onto trucks and taken from the site onto public highways;" Id., 67; the requirement to obtain a soil extraction permit was an integral part of the approval. The court explained: "[W]e cannot assume that the board would have granted the variance if it had been aware that the condition it imposed . . . could not be fulfilled." Id. See also Gorman Construction Co. v. Planning Zoning Commission, 35 Conn.App. 191, 199-200, 644 A.2d 964 (1994) (reversing decision of trial court, which had stricken invalid condition requiring access to public water supply but had allowed subdivision approval to stand, because condition was integral part of the commission's determination and could not be severed; decision reversed in part and remanded to trial court to be remanded to commission for further proceedings); see generally 9 R. Fuller, supra, 22:17, pp. 681-84 (discussing limitations on agency authority to impose conditions on approvals of special exception).

Here, the plaintiff contends that because the PZC set a total combined limit of horses that could be boarded at Limerick, the special exception granted by the PZC should be declared void. In support of this claim, she notes that the application was for a special exception for eighteen boarding horses, not personal horses, and that, nevertheless, the approval contained the added restriction of "12 additional horses kept for private use making a total of 30 horses on 11 net buildable acres." (Ret. of Rec. #36.)

The defendants point out the incongruity of the plaintiff raising this issue. This limitation of thirty total horses, both personal and boarding combined, would serve to limit the applicant's use of its property and to protect the plaintiff and others in the neighborhood. Limerick has accepted this limitation and has not appealed this decision. The plaintiff, on the other hand, has chosen the unusual procedure of asking the court to invalidate a condition that not only serves to resolve the issue of the total number of horses allowed on the premises, an issue raised at the public hearing, but also protects and benefits the plaintiff.

The defendants also question whether the validity of a condition imposed in approving a special exception can be challenged by anyone other than the applicant. Thus, they question whether the plaintiff has standing to raise this issue. "[S]tanding . . . focuses on the party seeking to get his complaint before the court and not the issues he wishes to have adjudicated." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491-92, 400 A.2d 726 (1978). Although the defendants raise this issue, they offer no relevant legal authority to support the proposition that a plaintiff that is statutorily aggrieved for the purposes of appealing from a decision of a planning and zoning commission to issue a special exception lacks standing to challenge certain aspects of that permit. The authority upon which the defendant PZC relies is inapposite. For example, Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 483, involved the issue of aggrievement generally. It does not support the proposition that a plaintiff must establish aggrievement as to each issue raised in its appeal. Furthermore, although the plaintiff Mystic Seaport, Inc., was limited in the issues it could raise on appeal, such constraint was the result of the restrictive language of General Statutes § 22a-19, the statute under which it claimed to be statutorily aggrieved, because that statute grants standing for the limited purpose of raising environmental issues. Id., 490. Neither that case nor the portion of Robert Fuller's treatise cited by the defendant PZC; 9 R. Fuller, supra, § 22:17, and 9A R. Fuller, supra, § 32:7; support the defendants' argument. Section 22:17 merely discusses limitations on agency authority to impose conditions on approvals of special exceptions. Although § 32:7 states that "[i]n some cases, the defendant may validly question whether a plaintiff has standing to decide some of the issues in the case even if he can prove aggrievement to a sufficient extent to get the court to decide the merits of the appeal;" 9A R. Fuller, supra, § 32:7, p. 199; no legal authority is cited in support, and no cases discussed in the remainder of that section address limitations on standing under circumstances analogous to those of the present case. See generally 9A R. Fuller, supra, § 32:7. Accordingly, the court turns to the merits of the plaintiff's claim that the "condition" at issue is unlawful.

In order for a planning and zoning commission to approve a special exception, it must determine that the proposed use of property (1) is expressly permitted under the zoning regulations, (2) satisfies the standards set forth in the zoning regulations, and (3) satisfies "conditions necessary to protect the public health, safety, convenience and property values." (Internal quotation marks omitted.) Housatonic Terminal Corp. v. Planning Zoning Board, 168 Conn. 304, 307, 362 A.2d 1375 (1995), citing General Statutes § 8-2. "[C]onditions attached to a special permit are not per se invalid. Rather, their validity must be determined on a case-by-case basis. A key determinant in whether a condition to a special permit is valid is that condition's relationship to the action sought by the applicant." Kobyluck v. Planning Zoning Commission, 84 Conn.App. 160, 171, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004).

Section 500-43A(7)(c) of the regulations provides that in a residential use "[t]he keeping of horses . . . is permitted provided that no more than three such animals are kept on a lot of not less than two acres. Three additional animals are permitted for each acre in addition to two acres." (Ret. of Rec. #42, p. 500:26.) Under this section, Limerick is authorized to have thirty privately owned horses on its property without the need for a special exception. (Ret. of Rec. #13, pp. 10-13.) Thus, this section refers to a use permitted as of right for which a special exception is not necessary. It is noted that the PZC approved Limerick's application to increase the number of commercially boarded horses as required under § 500-43B(6) with the clarification that Limerick was allowed an additional twelve horses for private use based on the property's eleven net buildable acres. (Ret. of Rec. #13, pp. 10-14.) As such, the court finds that although the PZC's memorandum of decision includes in the approval of eighteen horses for boarding the additional provision for twelve "additional horses kept for private use" (Ret. of Rec. #36), the statements in the memorandum of decision regarding private horses do not impose any additional constraints on the applicant beyond those imposed by the regulations themselves. These statements serve merely to advise the applicant of the PZC's interpretation of its regulations, specifically the relationship between § 500-43A(7)(c) and § 500-43B(6). These statements clarify that § 500-43A(7)(c) serves to limit the total number of horses allowed on the property, while § 500-43B(6) allows some of those horses permitted as of right to be boarded horses allowed by special exception. This interpretation is supported by the language of the regulations.

"Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . The burden of proof is on the plaintiff to demonstrate that the board acted improperly." (Citations omitted; internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). Generally, conditions imposed by the PZC in issuing special exceptions are authorized by the regulations. See generally Killingworth Zoning Regs., art. XXX, § 500-187 (Conditions of Certain Special Exceptions) (Ret. of Rec. #42, pp. 500:104-500:108.) In addition, the PZC's interpretation of §§ 500-43A(7)(c) and 500-43B(6) of the regulations to provide a method of calculating the maximum number of horses that may be allowed when both private and boarded horses are present is reasonable, rational and supported by the language of the regulations themselves. For this reason, to the extent that the limitation on the number of private horses constitutes a "condition," such condition is not invalid. Accordingly, it is not necessary for the court to consider whether it can be severed from the rest of the PZC's decision. Because the record discloses that the PZC correctly interpreted and applied the regulations, the PZC's decision setting forth the limit on the total number of horses, rather than simply the number of horses that may be boarded, was not unreasonable, arbitrary or illegal.

C. Whether §§ 500-43A(7)(c) and 500-43B(6) of the Killingworth Zoning Regulations Are Void and Unenforceable.

The plaintiff has also argues that § 500-43A(7)(c), § 500-43B(6) and Appendix B are "illegal, unconstitutional, and void for vagueness in violation of the plaintiff's due process rights . . . failing to establish a meaningful and clear limit on the total number of horses (commercially and privately owned) that can be boarded at Limerick Farm, LLC." (Plaintiff's brief, p. 25, quoting Appeal, p. 3, ¶ 10(d)). In support, she argues that although there is a defined limit of commercially boarded horses under § 500-43B(6), the regulations do not set a limit of the total number of combined private and commercially boarded horses set forth in either § 500-43B(6) or § 500-43A(7)(c). The plaintiff maintains that although § 500-43B(6) limits the number of horses that may be permitted based on soil types, § 500-43A(7)(c) contains no such limitation and, accordingly, the PZC's permission of thirty horses on the property has no basis in the regulations. She argues that in the absence of such a limitation or formula in the regulations to limit the combined number of horses based on soil types, she had no way of anticipating the PZC's approval of a thirty-horse facility prior to the public hearing. She maintains that "[i]f Limerick is allowed to board thirty (30) horses and ride them in the paddock adjacent to Matthies' land, her property interests will be harmed without due process of law." (Plaintiff's brief, p. 27.)

The defendants argue that these sections of the regulations establish a clear and meaningful limit on the total number of horses that can be boarded and, therefore, meet the rational basis standard. They maintain that, as applied to the facts presented with Limerick's application, the regulations allow the eighteen commercially boarded horses and twelve private horses on the property approved by the PZC. Accordingly, they contend, the regulations at issue may be constitutionally applied to the facts of this case. They maintain that the numbers and types of horses permitted by the PZC in this case is based on a reasonable interpretation of the regulations. Moreover, the defendants argue that the plaintiff cannot demonstrate that there was no rational basis upon which the PZC set the combined limit of thirty horses. They maintain that the regulations provide a standard that can be applied in all cases of this nature so as to reduce the likelihood of the PZC to act in a capricious manner. Referring to the language of the regulations, they note that § 500-43A(7)(c) is subject to two possible interpretations. Under the first interpretation, the applicant would be limited to seventy-two horses on the twenty-five-acre parcel.¹ Under the second possible interpretation of this section, the applicant would be limited to thirty horses because the property contains eleven buildable acres. The defendants maintain that the PZC, therefore, had a rational basis to interpret the regulations at issue using the second interpretation thereby limiting the number of horses to thirty. They maintain that reading § 500-43A(7)(c) together with § 500-43B(6), the soil-based limitation in the latter section should be deemed applicable to the former. Further, they maintain that § 500-43A(7)(c) sets forth a limit of the number of horses of all types allowed on any property in the zone, and that if a property owner wants any of those horses to be permitted under § 500-43B(6), such specially permitted horses would necessarily be deducted from the overall number of horses permitted as of right. This court agrees with the defendants.

1 Although the defendant PZC argues that the property would be limited to seventy-two horses on the twenty-five-acre parcel under this interpretation, the court notes that, in the application, the acreage is listed as "26 ±." Under the first interpretation set forth by the PZC in this portion of its brief, therefore, the parcel would accommodate seventy-five horses, not seventy-two, as each additional acre beyond the first two acres would allow three additional horses. Nevertheless, this discrepancy does not affect the court's analysis of the validity of the regulations at issue.

The standard of review applicable in the context of a constitutional challenge to a provision set forth in the Killingworth zoning regulations was articulated by the Supreme Court in Graff v. Zoning Board of Appeals, 277 Conn. 645, 672-73, 894 A.2d 285 (2006). In that case, the court set forth the standard of review as follows: "A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity . . . To demonstrate that [a statute] is unconstitutionally vague as applied to [her], the [plaintiff] therefore must . . . demonstrate beyond a reasonable doubt that [she] had inadequate notice of what was prohibited or that [she was] the victim of arbitrary and discriminatory enforcement . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning." (Internal quotation marks omitted.) Id., 672-73.

"The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue . . . To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute] . . . Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case." (Internal quotation marks omitted.) Rocque v. Farricielli, 269 Conn. 187, 204-05, 848 A.2d 1206 (2004).

Here, the plaintiff's claim that the regulations at issue are void for vagueness is without merit. As the defendant argues, the regulations at issue could reasonably be applied to the facts of the subject application in only one way: to limit the total combined number of horses permitted on the applicant's property to thirty horses, eighteen of which may be commercially boarded horses. The only other possible interpretation would allow as many as seventy-five horses, a number far greater than that desired by the plaintiff and properly rejected by the PZC. As the defendants note, under Rocque, the plaintiff must demonstrate as a threshold matter that the regulation may not be applied constitutionally to the facts of the case. The plaintiff has not met this burden because the PZC's decision allowing eighteen commercially boarded horses with the ability to have twelve additional horses for private use is based on the only reasonable interpretation of the zoning regulations.

Moreover, the plaintiff cannot show that there was no rational basis upon which the PZC set the combined limit of 30 horses. "A regulation should be as precise as the subject matter requires, and adequate and sufficient enough to allow the commission to perform its obligations. As long as the regulations provide a standard that can be applied to all cases of a like nature so as to reduce the likelihood if allowing a zoning agency to act in a capricious manner, the regulations will not be deemed to contain meaningless standards that can lead to unpredictable results." Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 233. "A court that is faced with two equally plausible interpretations of regulatory language . . . properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." (Internal quotation marks omitted.) Enfield v. Enfield Shade Tobacco, LLC, 265 Conn. 376, 828 A.2d 596 (2003). As discussed above, the PZC had a rational basis to interpret the regulations in the manner that it did. Had they interpreted § 500-43A(7)(c) to allow seventy-five horses on the applicant's property, the number of horses allowed would be too high and would not account for the characteristics relevant to the suitability of the particular parcel at issue for that number of horses. Therefore, it had a rational basis for construing the zoning regulations to take soil type into account in this manner. For these reasons, the plaintiff's appeal is not sustained on this basis.

D. Whether the PZC Acted Illegally, Arbitrarily and in Abuse of its Discretion by Granting in Part Limerick's Special Exception.

Finally, the plaintiff argues that the PZC acted illegally, arbitrarily and in abuse of its discretion by granting in part Limerick's special exception. The plaintiff alleges that the record lacks substantial evidence to support the PZC's decision. The plaintiff claims that the PZC lacked substantial evidence when it found that the application met the standards of § 500-155 of the regulations and the general conditions of § 500-187 of the regulations. The plaintiff cites four items of information that she claims were missing and necessary to provide substantial evidence to approve the special exception application. Each of these items will be addressed in turn.

First, the plaintiff contends that Limerick's engineer failed to present an evaluation of the existing manure containment areas in accordance with the DEP's nonpoint source pollution control program. In support of this claim, she maintains that § 500-43B(6) requires manure piles to be located and maintained to prevent runoff. Although the plaintiff is correct in noting that § 500-43B(6) requires manure piles to "be located and maintained so as to prevent runoff of manure and other polluting materials onto adjacent properties, roads, wells, or watercourses," this provision does not require submission of an evaluation prepared by an engineer. Moreover, the record contains substantial evidence demonstrating that the manure piles will be located and maintained in accordance with § 500-43B(6). As Limerick notes, Brian Fitzsimmons, speaking on its behalf, explained at the public hearing with regard to manure, "we have a dumpster arrangement and we have it removed when it's filled and our intention clearly is to continue to do that. If we have to do it more frequently, we'll do it more frequently. I mean the issue for us is to keep the area clean and to minimize the smells and the runoff. So . . . it's not an issue for us with five more horses or with ten more horses to be able to accommodate the manure and removal of the manure from the property." (Ret. of Rec., # 12, p. 105.) Further, the existing dumpster area and manure containment area, as well as surrounding improvements and topographic features are depicted on the site plans submitted to the commission. (Ret. of Rec., #44, sheet 4.) Also, as Limerick notes, the Connecticut Water Company offered recommendations concerning manure management, with which Limerick agreed to comply. (Ret. of Rec. #31 and #12, pp. 23-26.) Accordingly, the record contains substantial evidence to show that manure will be stored on the property in a manner that will prevent runoff.

The plaintiff next argues that § 500-137 required Limerick to present a soil and erosion and sediment control plan and that Limerick failed to provide such a plan in its application. Although she asserts that "John Paul Garcia, P.E. pointed this out in his report" and that "Commissioner Lou Annino noted this was missing during the deliberations," the plaintiff offers no legal authority demonstrating that submission of a soil and erosion and sediment control plan is an essential requirement of a special exception application in Killingworth. Section 500-43B(6), which provides for the special exception issued by the PZC in this case, does not mention § 500-137 or soil and erosion sediment control plans. Section 500-43B provides in relevant part that the uses set forth in that section may be permitted by the commission by special exception "subject to the conditions prescribed in or pursuant to Article XXX . . ." Although Article XXX sets forth the conditions "subject to which a special exception shall be granted when reference is made in these regulations to this Article XXX," these do not include a requirement that a soil and erosion and sediment control plan be submitted with the application materials. Further, as Limerick notes, the record contains substantial evidence demonstrating that soil erosion and sediment control have been adequately addressed by Limerick. At the public hearing, the applicant explained measures that have been taken to control erosion and sedimentation. (See, e.g., Ret. of Rec. #12, pp. 105-06, remarks of Brian Fitzsimmons.) Also, the plans submitted with the application contain extensive detailed information concerning the measures that will be taken to address these issues. (Ret. of Rec., #44, sheet 9.) Accordingly, the plaintiff's claim regarding the lack of a soil and erosion and sediment control plan is without merit.

Next, the plaintiff claims that the department of health requested that the applicant provide a plan containing "Best Management Practices" both before and after the proposed construction and that Limerick never submitted such a plan. In support of this assertion, the plaintiff refers to a letter dated October 27, 2008, from Lori Mathieu, public health services manager, drinking water section of the department of public health, in which Mathieu states that the department requests the opportunity to review the project. In her letter, she asked the PZC to request certain information from the applicant to be submitted to the department of public health, including a site plan, a plan for "construction Best Management Practices," and a plan for "post construction Best Management Practices (for example: Stormwater management and manure management)." This letter does not support the plaintiff's claim that the absence of such information required the PZC to deny the application. First, the letter from the department of public health does not require such information to be submitted to the PZC; rather, it merely asked the PZC to request that that information be submitted to the department of public health in connection with the department's goal of protecting and preserving the water supply. This letter from the department did not expand the regulatory requirements necessary for approval of Limerick's application by the PZC, it merely requested the PZC to impose such requirements. At the public hearing on December 2, 2008, the applicant's engineer, Thomas A. Stevens, P.E., addressed this issue. When asked by Chairman Lentz whether the information requested by the department of public health in its October 27, 2008 letter had been submitted, Stevens replied, "Yes." (Ret. of Rec. #12, p. 20.) He further explained: "We sent the . . . Department of Health a quick electronic form in response to the quick electronic notification was the letter. We sent them the full set of plans and applications for the project. Latest contact we had with them was this morning and the issue, the main issue they had was to whether or not we had to form our own water company. It was kind of a shock to have them look in that direction but in any rate the Killingworth High School has less than a thousand people. They have a rule that if there is a water supply source within a mile that serves a thousand people or more we have to investigate extending the water to this property. That's not the case. They have an application they want us to fill out for their file and we are going to do so. We have not done it but they said that from what they saw with the revised plans and the application and the cover letter, they just file it and that will be the end of their concern . . ." (Ret. of Rec. #12, pp. 20-21.) A review of the record, therefore, reveals that sufficient information had been submitted to the department of public health and that, even if some of the requested information had not been submitted, the submission of such information to the department need not have been required by the PZC for its approval of the application before it. Although § 500-155, which sets forth standards applicable to special exception applications, requires the PZC to consider "[t]he effect of the proposed use upon neighboring natural, recreational, historical, or scenic parks, playgrounds, monuments, buildings or preserves and upon neighboring wetlands and watercourses and the natural ecological processes and function thereof," nothing in that section requires the PZC to require submission of any information requested by another agency in order to address such concerns. Moreover, the record shows that the department of health's concerns were addressed by the applicant's engineer. The record contains substantial evidence to show that the proposed development did not present any concerns with regard to existing and future sources of public drinking water and that requiring submission of any outstanding information requested in the department of health's October 27, 2008 letter would not be necessary. Accordingly, Limerick's failure to submit any such information to the department of health would not have required the PZC to deny the application.

Finally, the plaintiff asserts that § 500-150 requires that Limerick supply all items in § 500-151. She maintains that § 500-151(c) required a sanitation permit and an inland wetlands permit. She also asserts that General Statutes § 8-3c required the PZC to give due consideration to the report of the wetlands agency. Since neither a sanitation report nor an inland wetlands report was presented, she contends, "[t]hese flaws are fatal to a completed application!" (Plaintiff's brief, p. 29.)

Notwithstanding the vehemence of the plaintiff's assertions, she has not provided any legal analysis in support thereof. Section 500-151 merely requires an applicant for a special exception to submit "[a] certified copy of any inland wetland permit required to authorize any use or improvement to which such application relates and a sanitation certificate and data as prescribed by § 485-12F of the Killingworth Subdivision Regulations." (Ret. of Rec. #42, p. 500:92.) A review of the record reveals that the inland wetlands and watercourses commission reviewed the only relevant aspect of Limerick's proposal, specifically its proposal to replace an existing paddock fence with a removable fence, and determined that no wetlands permit would be required. (Ret. of Rec. #21.) Accordingly, substantial evidence in the record shows that no permit was needed from the inland wetlands and watercourses commission and, accordingly, none would have been required to be submitted to the PZC in connection with its application. Although the plaintiff is correct in noting that § 8-3c(b) provides in relevant part: "The commission shall not render a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency," as noted above, the inland wetlands and watercourses commission reviewed the application and determined that no wetlands permit was necessary. The record before the PZC contains a copy of the wetlands agency's report stating its conclusion. Although the plaintiff asserts that this short letter does not qualify as a "report" under § 8-3c(b), it has offered no authority for this assertion. Within the context of the statutory language of § 8-3c(b), specifically the preceding sentence requiring the inland wetlands agency to submit "a report with its final decision," the requirement for the PZC to give "due consideration" to that "report" is satisfied where, as here, the inland wetlands agency has unequivocally stated that "no wetlands permit will be required" and a copy of that statement is made part of the record. The regulatory requirements concerning Limerick's submission of any necessary inland wetlands permits and the PZC's "due consideration" of the inland wetlands agency's report, therefore, have been fulfilled.

The only issue remaining to be resolved, therefore, is whether Limerick's alleged failure to provide "a sanitation certificate and data as prescribed by § 485-12F of the Killingworth Subdivision Regulations" is fatal to the PZC's decision. The court notes that this application was not for the establishment of a new facility but rather for an amendment to a special exception already granted and a use already in existence. The proposal was, essentially, to add a twelve-stall barn, expand an existing hay barn, provide additional parking and to increase the number of horses that may be boarded from thirteen to eighteen. (Ret. of Rec., #1.)

"While a commission may have discretion to deny an application because it is incomplete . . . the rule is that a special permit application and site plan must be in substantial compliance with the applicable regulations . . . Substantial compliance with a statute or regulation is such compliance with the essential requirements of the statute or regulation as is sufficient to assure its objectives . . . What constitutes substantial compliance, of course, is a matter depending on the facts of each particular case." (Citations omitted; emphasis added; internal quotation marks omitted.) Mailloux v. Planning Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. 318723 (December 21, 1995, Levin, J.). In the present case, it is not clear whether the certificate required by § 500-151(c) was included in the application materials submitted to the commission in support of Limerick's application. That section of the regulations fails to define the term "sanitation certificate," and § 485-12F of the Killingworth subdivision regulations, which is referenced in § 500-151(c) is not part of the record in this appeal.

Moreover, the plaintiff has not provided any authority to support its assertion that failure to provide such a certificate is "fatal to a completed application" as she argues. The language used in § 500-151 pertaining to the sanitation certificate does not support the plaintiff's suggestion that compliance is mandatory. "The test to be applied in determining whether a statute [or regulation] is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply . . . A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision." (Citation omitted; internal quotation marks omitted.) Lauer v. Zoning Commission, 246 Conn. 251, 262, 716 A.2d 840 (1998).

Under the test outlined in Lauer v. Zoning Commission, supra, 246 Conn. 262, the language at issue in § 500-151 is merely directory and Limerick's alleged failure to comply, even if proven, would not be fatal to its application. In Lauer, the Supreme Court held that the regulation at issue in that case, which set forth certain notice requirements, ² was directory rather than mandatory. It explained that the regulation at issue, which required the commission to refer the application to various town, state and federal agencies with a request for an advisory report, "clearly pertains to order, system and dispatch rather than any matter of substance. The essence of the thing to be accomplished by § 5.1.2 and the related zoning regulations is the ultimate determination of whether the special permit should be issued under the applicable regulations, considering relevant factors such as: traffic concerns; safety from fire, panic, flood, erosion, air pollution, water pollution and other dangers; population density; conservation of property values; the provision of adequate light, air and privacy; and the adequate provision for transportation, water, schools, parks and other public requirements . . . The requirement of the provision in § 5.1.2 of timely notice to certain agencies is simply a matter of convenience designed to facilitate the information gathering and decision-making process, which is fully entrusted to the town zoning commission . . . Therefore, the notice requirement of § 5.1.2 cannot be said to affect the substance of the application, but rather only its processing.

2 As stated in Lauer, "§ 5.1.2 [of the Redding zoning regulations provide[d] in relevant part: `One copy of the application, including all maps, plans and reports, shall be referred within 10 days of receipt, by the Commission, to the following Town agencies with a request for an advisory report: Board of Selectmen, Conservation Commission, Health Department, Planning Commission. Referral shall also be made to the appropriate regional, state or federal agencies where their jurisdiction is involved, and the Commission may require the applicant to furnish additional copies of application materials to meet these requirements . . .'" Lauer v. Zoning Commission, supra, 246 Conn. 261-62.

"Furthermore, as indicated in past cases, it is important to our determination that there is no accompanying language that expressly invalidates any action taken after noncompliance with § 5.1.2. See Katz v. Commissioner of Revenue Services, [ 234 Conn. 614, 617, 662 A.2d 762 (1995)]; Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, [ 225 Conn. 432, 440, 623 A.2d 1007 (1993)]; Jones v. Mansfield Training School, [ 220 Conn. 721, 727, 601 A.2d 507 (1992)] . . . [Section] 5.1.2 contains no language suggesting that any action taken without notice to, or input from, any agency will have any effect on the continuing validity of its decision on a special permit application. We conclude, therefore, that § 5.1.2 is directory rather than mandatory."

Similarly, the regulatory requirement in the present case directing the applicant to submit a copy of a sanitation certificate with its application is directory, not mandatory. The regulations do not require the PZC to utilize the certificate in any particular manner, nor do they contain any language suggesting that an applicant's failure to provide such certificate requires denial of a special exception application. Accordingly, the PZC's decision to approve the application in part despite the apparent failure by Limerick to submit a copy of the sanitation certificate was not arbitrary or illegal.

VI. CONCLUSION

The plaintiff has failed to demonstrate that the commission acted illegally, arbitrarily or in the abuse of its discretion. The decision reached was based on honest judgment which was reasonably and fairly exercised after a full hearing and lengthy deliberation. The record contains substantial evidence in support of the commission's decision, including evidence provided by the commission members' personal knowledge of the existing boarding stable operation. The appeal is dismissed.