Opinion
No. CV 07 4006269 S
November 4, 2008
MEMORANDUM OF DECISION
Procedural Background
On or about December 21, 2006, a notice of violation and request for voluntary compliance was issued to the plaintiff John Ruggieri by the Town of Putnam Zoning Enforcement Officer (hereinafter "ZEO"). See ROR Item B. The violation involved the contents of trailers located at 117 Providence Street and stored outside, which the ZEO found to violate the following Town of Putnam Zoning Regulations (hereinafter "Regulations"): (1) storage of flammable or explosive materials not permitted under Section 720; (2) the storage facility had not been approved by the State Fire Marshal under Section 1308-8; and (3) the activity and business conducted was potentially hazardous; had potential to cause detrimental effect to adjacent property; had fire or explosive hazards that had potential to produce dangerous exposure to adjacent property. See id.
The plaintiff appealed this determination by the ZEO to the Town of Putnam Zoning Board of Appeals (hereinafter "ZBA") on or about January 16, 2007. See ROR Item C. On March 20, 2007, a public hearing was held by the ZBA. See ROR Item H. The public hearing was continued to April 17, 2007, and then further continued by request of the plaintiff to June 13, 2007. See id.; see also ROR Item I; ROR Item O. On June 13, 2007, the public hearing was closed. See ROR Item V p. 138-39. On July 17, 2007, the plaintiff's appeal was denied because it failed to garner the four votes necessary to overturn a decision by a ZEO according to Conn. Gen. Stat. § 8-7. See ROR Item Z. (There was a motion to disagree with the ZEO decision. Three voted in favor of the motion, two against.) The within appeal followed.
Facts
Plaintiff is a pyrotechnician and the owner of Ocean State Pyrotechnics. He holds a federal high explosives manufacturer's license and is certified to display special effects and fireworks in several states. He has been engaged in the pyrotechnics business for more than forty years in all and has been a licensed fireworks "shooter" since 1983. In addition, he is engaged in the seasonal retail sale of unregulated "fountains" and "sparklers" in Connecticut.
The Notice of Violation to the plaintiff was issued for "storage of flammable or explosive materials" in a commercial zone.
Aggrieved
The plaintiff is aggrieved.
Discussion
Section 720 of the Putnam Zoning Regulations effective April 16, 1987 (EX DD) is a schedule of uses and zoning districts. It prohibits "Storage of flammable or explosive materials" in this commercial zone. (EX DD p. 22 p. 25.)
Plaintiff argues that the ZBA's interpretation of these six words to preclude storage of unregulated consumer products is arbitrary and unreasonable and that such an interpretation is not supported by the record.
Plaintiff is correct that neither "flammable nor explosive materials" is defined in the regulations. The record is clear that plaintiff is storing "sparklers" or "fountains" which are not otherwise regulated in Connecticut. The plaintiff's essential argument is that the regulation is so broad as to be unenforceable.
"Under our well established standard of review, [the Supreme Court] ha[s] recognized that [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts . . . 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 . . . We have determined, therefore, that . . . deference to an agency's interpretation of a statutory term is unwarranted when the construction of a statute has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation. (Internal quotation marks omitted.) Heim v. Zoning Board of Appeals, 228 Conn. 628, 634, 953 A.2d 877 (2008).
The court has found no evidence that the zoning regulation at issue previously has been subjected to judicial scrutiny, and, if the record does not reflect that the ZBA accorded the regulation a time-tested interpretation, then the court may "exercise plenary review in accordance with . . . well established rules of statutory construction." Heim v. Zoning Board of Appeals, supra, 228 Conn. 634.
In Heim v. Zoning Board of Appeals, an applicant sought to obtain a zoning permit to operate a veterinary clinic on a parcel. One of the issues was whether the trial court properly determined that a veterinary clinic constituted a "medical, dental, or similar health-oriented facility" as permitted by the town's zoning regulations. The court concluded that the trial court had properly determined that a veterinary clinic did fall within the regulatory definition as a "health-oriented facility." Heim v. Zoning Board of Appeals, supra 288 Conn. 630-31. Outlining the appropriate standard of review, the court began with the regulatory text. It recognized that "health-oriented" was not otherwise defined or explained in the zoning regulations, and it emphasized that "[i]f a . . . regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) Id., 636.
In the present case, "flammable" is defined in pertinent part as "capable of being easily ignited and of burning quickly" and "firework" is defined as "a device for producing a striking display by the combustion of explosive or flammable compositions." Merriam-Webster's Collegiate Dictionary (10th Ed. 1998).
Accordingly, given the posture of this case, where the regulation has not been subjected to judicial scrutiny, or a zoning authority has not accorded the regulation a time-tested interpretation, the court may exercise its plenary review. The court may exercise this plenary review by utilizing the rules of statutory construction, including availing itself of the pertinent dictionary definitions.
Applying this plenary review, while recognizing that the term "firework" includes items which are explosive and far more flammable, these items are flammable.
The appeal is dismissed.