Opinion
CV196020813S
01-09-2020
Jerry Waters, Building Official Town of Barkhamsted v. The Dean Martel Trust, Dean Martel Trustee
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shaban, Dan, J.
MEMORANDUM OF DECISION RE MOTION TO STRIKE #121
Shaban, J.
Following the completion of the court trial in this action, the parties were directed to file post-trial briefs which they did. The defendant has filed a motion to strike portions of the plaintiff’s brief arguing that he has improperly referenced sections of the Barkhamsted zoning regulations and the Connecticut state building code as they were not admitted into evidence at the time of trial and therefore references to specific sections are hearsay. He also argues that a copy of the request to admit appended to the plaintiff’s brief is also hearsay for the same reason. The plaintiff has filed an objection to the motion (#122). Oral argument was held by the court on December 16, 2019.
In his argument against the motion to strike, the plaintiff contends that the motion is procedurally improper as it is not filed with respect to one of the enumerated bases set forth in Practice Book § 10-39. The court finds this reasoning to be one of form over substance and therefore not favored. "It is the substance of a motion ... that governs its outcome, rather than how it is characterized in the title given to it by the movant." State v. Taylor, 91 Conn.App. 788, 792, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). The defendant’s motion has properly raised an issue for the court’s consideration.
In support of his argument that the town zoning regulations and state building code should not be considered by the court as they were not entered into evidence at trial, the defendant cites Housing Authority v. Brown, 23 Conn.App. 366, 369, 579 A.2d 1110 (1990) and Fernandes v. Zoning Board Of Appeals, 24 Conn.App., 49, 56, 585 A.2d 703, cert. granted in part, 218 Conn. 909, 591 A.2d 811 (1991). However, a review of those cases reveals that while they stand for the proposition cited, they have long since been superseded by General Statutes § 52-163 which specifically states that: "The court shall take judicial notice of: (1) Private or special acts of this state, (2) regulations of any agency of this state, as defined in section 4-166, (3) ordinances of any town, city or borough of this state, and (4) regulations of any board, commission, council, committee or other agency of any town, city or borough of this state." Notably, the language of the statute is mandatory.
At trial, there was considerable testimony relative to the claim that the defendant had failed to comply with the town’s zoning regulations and the state building code. Several exhibits were placed into evidence which made reference to the applicable state building code. Pl. Exs. 2, 3, 5, 6, 7, 9. The complaint itself made reference to town regulations § 195-75 with respect to its claim that it had the right to inspect the properties owned by the defendant. The town is authorized to enforce the state building code pursuant to General Statutes § 29-261(b). Collectively, these were at the center of the action brought by the plaintiff and are relevant to the issue before the court. During the trial, the defendant had ample opportunity to cross-examine the plaintiff’s witnesses, which included both the current zoning enforcement officer and the building official, on the topic of compliance with the state building code and town regulation which they were attempting to enforce. There was no attempt at trial by the defendant, nor any evidence presented, to indicate that the building code or regulations did not exist.
"The building official or assistant building official shall pass upon any question relative to the mode, manner of construction or materials to be used in the erection or alteration of buildings or structures, pursuant to applicable provisions of the State Building Code and in accordance with rules and regulations adopted by the Department of Administrative Services. They shall require compliance with the provisions of the State Building Code, of all rules lawfully adopted and promulgated thereunder and of laws relating to the construction, alteration, repair, removal, demolition and integral equipment and location, use, accessibility, occupancy and maintenance of buildings and structures, except as may be otherwise provided for." General Statutes § 29-261(b).
Under § 1-2 of the Connecticut Code of Evidence, the purpose of the Code is set forth, in relevant part, as follows: "... to promote the growth and development of the law of evidence through interpretation of the Code and through judicial rule making to the end that the truth may be ascertained and proceedings justly determined." With that goal in mind, Article II of the Code allows the court to take judicial notice of certain facts at any stage of the proceeding. § 2-1. Under § 2-2(b), "[t]he court may take judicial notice without a request of a party to do so. Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned." While notice is preferable, it is not required. Moore v. Moore, 173 Conn. 120, 121-22, 376 A.2d 1085 (1977). Because General Statutes § 52-163 obviates the need to take formal evidence of the state building code and any town regulation, the court can take judicial notice of both as they are matters of established fact the accuracy of which cannot be questioned.
However, before doing so in this matter, the court shall provide the parties an opportunity to be heard on whether the court should take judicial notice of the state building code and town regulations as described above. Either party may file an objection to the court’s intention to do so within ten calendar days of the date of this decision. Should an objection be filed by either party, a hearing will be scheduled for the purposes of oral argument. Any ruling by the court on the defendant’s motion shall be deferred until such a hearing. Should no objection be filed by either party within the ten-day period, the court will then act on the motion.
So ordered.