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*********************************************** 
WILLIAM PATTY ET AL. v. PLANNING AND

ZONING COMMISSION OF THE

TOWN OF WILTON ET AL.

(AC 40710)

Alvord, Bright and Bear, Js.

Syllabus

The plaintiffs appealed to the trial court from the decision by the defendant

Planning and Zoning Commission of the Town of Wilton granting an

application of the defendant W Co. for an amendment to an existing

special permit and for site plan approval to allow the installation of an

artificial turf field at a school. The trial court rendered judgment dismissing the appeal, from which the plaintiffs, on the granting of certification,

appealed to this court. They claimed that the trial court improperly

concluded that the commission’s approval did not include alleged trailers

on the property that were prohibited by the zoning regulations. Held

that the plaintiffs having failed to raise their claim regarding the legality

of the alleged trailers before the commission, this court declined to

review the claim; because the plaintiffs failed to set forth their claim

that certain storage containers shown on a site plan submitted by W

Co. were trailers prohibited by the zoning regulations until their appeal

to the trial court, the commission, which was in the best position to

interpret its own regulations, was never provided with an opportunity

to evaluate the claim.

Argued November 14, 2018—officially released February 26, 2019

Procedural History

Appeal from the decision of the named defendant

granting the application of the defendant Wilton Youth

Football, Inc., for an amendment to an existing special

permit and for site plan approval to allow the installation of an artificial turf field at a school, brought to

the Superior Court in the judicial district of StamfordNorwalk and tried to the court, Jacobs, J.; judgment

dismissing the appeal, from which the plaintiffs, on the

granting of certification, appealed to this court.

Affirmed.

Paul A. Sobel, for the appellants (plaintiffs).

Matthew C. Mason, for the appellee (defendant Wilton Youth Football, Inc.).

Barbara M. Schellenberg, for the appellees (named

defendant et al.).
Opinion

ALVORD, J. The plaintiffs, William Patty and Eliot

Patty, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant

Planning and Zoning Commission of the Town of Wilton

(commission), granting the application of the defendant

Wilton Youth Football, Inc.,1

for an amendment to an

existing special permit and for site plan approval to

allow the installation of an artificial turf field at the

Middlebrook School in Wilton.2 On appeal, the plaintiffs

claim that the court improperly concluded that the commission’s approval did not include prohibited trailers

on the property. Specifically, the plaintiffs claim that

the only evidence in the record before the commission

was that the defendant’s application included trailers

that were prohibited by § 29-4.C.9 of the Wilton Zoning

Regulations (regulations). Our review of the record

reveals that the plaintiffs failed to raise this claim before

the commission, and, accordingly, we decline to

review it.

The following facts and procedural history are relevant to this appeal. Middlebrook School is located at

131 School Road and is situated in an R-2A district.

Schools are allowed in this district by special permit.

The school property includes an athletic field, which

is used for sports and other activities. On May 6, 2015,

the defendant filed an application with the commission3

to amend the existing special permit for Middlebrook

School ‘‘to allow the renovation of the existing natural

grass field to an artificial turf field . . . .’’ The defendant’s application also provided for the relocation of

existing field lighting and for the installation of new

field lighting.

The commission held a public hearing on the defendant’s application that commenced on June 22, 2015,

and was further continued to July 13, July 27, and September 15, 2015. The plaintiffs, owners of abutting property, were represented by counsel at the hearing and

vigorously opposed the application. Several other individuals attended the hearing, some speaking in favor of

the proposal and others speaking against it. Numerous

exhibits were submitted to the commission.

After the public hearing was closed, the commission

discussed the application on September 15, September

28, and October 13, 2015, as evidenced by the transcripts

filed with this court. On October 13, 2015, the commission approved ‘‘the installation of an artificial turf field

at Middlebrook School,’’ subject to certain enumerated

conditions, but denied ‘‘the relocation, placement or

replacement of new or existing permanent and/or temporary lighting on the field site.’’

The plaintiffs appealed to the Superior Court, challenging the defendant’s standing to file the application

with the commission4 and claiming that the commis-
sion’s approval allowed for the relocation and continued use of outdoor storage trailers that are prohibited

by the regulations. The plaintiffs filed their prehearing

brief in support of their appeal on September 16, 2016,

in which they argued, inter alia, that the commission’s

approval encompassed the defendant’s use of prohibited storage trailers. The defendant’s response in its

prehearing brief filed on November 10, 2016, which

was adopted by the commission and the town, was as

follows: ‘‘Based on our review of the record, the legality

of the existing storage containers on the [p]roperty was

not raised before the [commission], only that they were

unsightly, would have to be relocated as part of the

project, and the [commission] [s]taff [r]eport suggested

consideration of a more ‘permanent solution.’ ’’

(Emphasis in original.) Additionally, the defendant

stated that various submissions to the commission indicate that the alleged ‘‘trailers’’ were identified as ‘‘storage containers.’’ Further, the defendant argued that the

containers did not fall within the definition of ‘‘trailer’’

set forth in § 29-2.B.166 of the regulations.

In their reply brief filed on November 18, 2016, the

plaintiffs argued that the commission’s staff report

referred to the containers as ‘‘storage trailers’’ and that

the defendant’s response to the staff report likewise

described the containers as ‘‘trailers.’’ The plaintiffs did

not respond to the defendant’s statement that the issue

of the legality of the containers on the property had

not been raised before the commission.

The trial court held a hearing on December 20, 2016.5

On April 18, 2017, the court issued its memorandum of

decision dismissing the plaintiff’s administrative

appeal. In its decision, the court noted that it had heard

the testimony of witnesses and the arguments of counsel and that it had reviewed the trial exhibits and the

record before the commission. After concluding that

the defendant had standing to file the subject application with the commission, the court next addressed the

issue regarding the alleged prohibited trailers. The court

determined that (1) the comment in the commission’s

staff report about ‘‘trailers’’ addressed ‘‘their appearance and location’’ on the property, (2) the staff ‘‘did

not raise the issue of whether [the containers] were

prohibited’’ by the regulations, (3) the defendant’s site

layout plan ‘‘depicts and labels’’ the alleged trailers as

‘‘four storage containers,’’ (4) the plaintiffs’ counsel did

not mention that the alleged trailers violated the regulations at the June 22, 2015 public hearing or in the letter

he submitted to the commission in opposition to the

defendant’s application, and (5) no evidence was submitted to the commission to show that the containers

were ‘‘vehicles,’’ which is part of the definition of ‘‘trailers’’ set forth in the regulations.6 The court then concluded that the commission’s approval of the

defendant’s application ‘‘does not include the approval

of prohibited trailers upon the subject property.’’ The
plaintiffs filed the present appeal after this court

granted their petition for certification to appeal.

In their appellate brief, the plaintiffs argue that the

only evidence before the commission was that the containers were prohibited trailers. In response, the defendant, the commission, and the town, in their appellate

brief, argue that this court should not consider the plaintiffs’ claim about the legality of the alleged trailers

because that issue was never raised before and

addressed by the commission. Our review of the record

reveals that the plaintiffs failed to raise this claim before

the commission.7 Therefore, we decline to review it.

‘‘Our Supreme Court has previously held that [a] party

to an administrative proceeding cannot be allowed to

participate fully at hearings and then, on appeal, raise

claims that were not asserted before the board. We

have made it clear that we will not permit parties to

anticipate a favorable decision, reserving a right to

impeach it or set it aside if it happens to be against

them, for a cause which was well known to them before

or during the trial. . . . Dragan v. Connecticut Medical

Examining Board, 223 Conn. 618, 632, 613 A.2d 739

(1992) . . . . Furthermore, [t]o allow a court to set

aside an agency’s determination upon a ground not

theretofore presented . . . deprives the [agency] of an

opportunity to consider the matter, make its ruling,

and state the reasons for its action.’’ (Citation omitted;

internal quotation marks omitted.) Ogden v. Zoning

Board of Appeals, 157 Conn. App. 656, 665, 117 A.3d

986, cert. denied, 319 Conn. 927, 125 A.3d 202 (2015).

The plaintiffs first raised this claim before the trial

court. In his appellate brief and during oral argument

before this court, the plaintiffs’ counsel admitted that

‘‘the existence of the trailers issue was not known to the

undersigned until reviewing the record in preparation

of the appeal.’’8 This claim should have been raised

before the commission, so that it could determine

whether the existing storage containers9 on the property

were prohibited trailers, as that term is defined in its

regulations, and whether their relocation as proposed

in the defendant’s application would violate those regulations. ‘‘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, 603, 789 A.2d 478, cert.

denied, 260 Conn. 901, 793 A.2d 1088 (2002).

In the present case, the plaintiffs failed to set forth

their claim that the storage containers shown on the

defendant’s plan were trailers prohibited by the regulations until their appeal to the trial court. As a result, the

commission was never provided with an opportunity to

evaluate this claim. Accordingly, we decline to review it.

The judgment is affirmed.
In this opinion the other judges concurred.

1 We refer to Wilton Youth Football, Inc., as the defendant in this opinion.

2 The town of Wilton (town) is the owner of the subject property and was

also named as a defendant in this action.

3 The town, as the owner of the subject property, provided written authorization for the defendant to file the subject application with the commission.

4 The standing issue was adjudicated in favor of the defendant by the trial

court, and that issue is not before this court.

5 This court has not been provided with a transcript of the hearing before

the trial court.

6 Section 29-2.B.166 of the regulations provides: ‘‘TRAILER: Any vehicle

which is, has been, or may be mounted on wheels designed to be towed or

propelled by another vehicle which is self-propelled, and may or may not

be equipped with sleeping or cooking accommodations, or afford traveling

accommodations, or for the transportation of goods, wares or merchandise.’’

7 During the four days of the public hearing on the subject application,

the only mention of ‘‘trailers’’ was made by the defendant’s counsel when

he responded to the comments in the staff report. He indicated that the

‘‘trailers,’’ which ‘‘store playing equipment,’’ had to be relocated to accommodate ‘‘the grading for the field.’’ At no point was the legality of the containers

discussed at the public hearing or during the three days of deliberations by

the commission when reviewing the defendant’s application. Further, the

commission’s approval, with conditions, does not mention the containers.

8 The same attorney represented the plaintiffs before the commission, the

Superior Court, and this court, and, accordingly, he had all of the information

he needed to challenge the containers as trailers at the time of the public

hearing.

9 There is no dispute that the containers were already on the property;

the only issue before the commission regarding those containers was their

relocation. If, indeed, the containers were trailers, as defined in the regulations, and their presence on the property was in violation of the regulations,

an enforcement action by the zoning authority would have been an appropriate remedy.