No. CV 01 0076260 S
February 9, 2006
MEMORANDUM OF DECISION RE MOTION TO REARGUE
On January 12, 2006, this court entered its decision in the companion cases of Wysocki v. Ellington, Superior Court, judicial district of Tolland, Docket No. CV 01 0076260 (January 12, 2006, Klaczak, J.), and Old Lot No. 30, LLC v. Ellington, Superior Court, judicial district of Tolland, Docket No. CV 01 0076261 (January 12, 2006, Klaczak, J.). These cases involved appeals from the board of assessment appeals of the town of Ellington.
On January 31, 2006, the plaintiff, Wysocki, filed a motion to reargue pursuant to Practice Book § 11-11 and cited five separate grounds for his motion. Thereafter, this court reviewed the briefs filed in this case, the transcript of the hearing on September 26, 2005, and this court's decision of January 12, 2006.
Only docket number CV 01 0076260 appears in the caption on the plaintiff's motion to reargue, although the caption name is James B. Wysocki, et al. This referenced docket number pertains only to Wysocki's case, while Old Lot No. 30, LLC's case had a separate docket number in the original appeal. Therefore, this court will assume that only Wysocki, and not Old Lot No. 30, LLC, is moving to reargue at this time.
The first ground that the plaintiff relies on is a claim of equitable estoppel. It appears that if an equitable estoppel claim was raised, it was not raised by the plaintiff, but by the defendant, at the September 26 hearing. (Transcript, September 26, 2005, pp. 30, 32-33.) Inasmuch as the claim may be attributed to the plaintiff, it was not succinctly formulated as such at this hearing and, the claim, with accompanying case law, was absent from his brief. "[T]he purpose of reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked . . ." (Citation omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001). Even if an estoppel claim had been sufficiently raised, it would not have had a controlling effect on this court's original decision.
As to grounds two through four, the court has fully addressed these issues in its original decision.
Finally, the plaintiff claims that this court improperly took judicial notice of more current zoning regulations than those included in the return of record. The most current zoning regulations are on file with the state library and are available through the town of Ellington's website. General Statutes § 52-163 provides that a "court shall take judicial notice of . . . ordinances of any town . . . and . . . regulations of any board, commission, council, committee or other agency of any town, city or borough of this state."
In Olsen v. Zoning Board of Appeals, 5 Conn.App. 455, 456, 499 A.2d 1168 (1985), the appellate court determined that it may take judicial notice of zoning regulations. Subsequently, in Fernandes v. Zoning Board of Appeals, 24 Conn.App. 49, 56, 585 A.2d 703, cert. granted, 218 Conn. 909, 591 A.2d 811 (1991), the appellate court concluded that because of the "problem of availability and accuracy of zoning regulations," it would not take judicial notice of the zoning regulations in that case "when they [were] not made part of the record or when only a small portion [was] presented." In the present case, the defendant included in the record the zoning regulations. Although the ones he included were superseded by more current regulations, these newer ones are available to the public in the state library and through the town's web site, and, as a result, do not compromise their accuracy or interfere with their accessibility.
Accordingly, the motion to reargue is denied.