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*********************************************** 
LIME ROCK PARK, LLC v. PLANNING AND

ZONING COMMISSION OF THE

TOWN OF SALISBURY

(SC 20237)

(SC 20238)

(SC 20239)

Robinson, C. J., and Palmer, McDonald, Mullins,

Kahn, Ecker and Vertefeuille, Js.

Syllabus

Pursuant to the statute (§ 14-164a (a)) governing motor vehicle racing, such

racing ‘‘may be conducted at any reasonable hour of any week day or

after twelve o’clock noon on any Sunday,’’ and ‘‘[t]he legislative body

of the . . . town in which the race or exhibition will be held may issue

a permit allowing a start time prior to twelve o’clock noon on any

Sunday, provided no such race or exhibition shall take place contrary

to the provisions of any . . . town ordinances.’’

The plaintiff, which owns property in the town of Salisbury, brought an

administrative appeal in the trial court, challenging the validity of certain

amendments to the town’s zoning regulations concerning the racing of

motor vehicles that the defendant planning and zoning commission had

adopted in 2015. Motor vehicle racing had taken place on a racetrack

on the property since 1957, when the town had no zoning regulations.

In 1958, a group of town residents and entities brought a nuisance action

against the owners of the property at that time, alleging that the noise

and traffic associated with the racing activities interfered with the enjoyment of their own properties. The trial court rendered judgment in 1959

for the plaintiffs and granted a permanent injunction prohibiting racing

activities on the property on Sundays, limiting mufflered racing activities

to certain times on weekdays, and prohibiting unmufflered racing except

during certain hours on Tuesdays, ten Saturdays a year, and certain

holidays. Shortly thereafter, the town adopted zoning regulations for

the first time, which allowed racing activities only during such hours

as permitted by statute. In 1966 and 1968, the parties to the nuisance

action entered into court approved stipulations that modified the court’s

original judgment with respect to, inter alia, certain aspects of unmufflered racing activity but maintained the ban on racing on Sundays.

Sometime thereafter, the commission revised the zoning regulations to

provide that racing activities on racetracks were specifically restricted

to the hours permitted by the 1959 court order. The parties to the

nuisance action entered into another stipulation in 1988, and the judgment was again modified accordingly. In 2013, the commission again

revised the zoning regulations to provide that racing activities on racetracks were restricted to the hours permitted by the 1959 court order

and the subsequent, related court orders. In 2015, the commission again

amended the regulations and, in doing so, stated that those amendments

were intended to maintain the status quo by codifying the restrictions

that already were in place by virtue of the prior revisions of the regulations that incorporated by reference the previous court orders. The

plaintiff challenged the commission’s adoption of the 2015 amendments

on numerous grounds, including the provision of the amendments prohibiting all racing activities on Sundays, which the plaintiff claimed was

preempted by § 14-164a (a). The trial court permitted L Co., a group of

entities and individuals who own property near the racetrack, to intervene in the appeal. L Co. contended that the plaintiff had waived its

right to challenge the provision barring racing on Sunday because the

plaintiff’s predecessor in interest previously had stipulated to that limitation on the use of the property, and the 2015 amendments were intended

to codify those stipulations. Following a trial, the court rejected L Co.’s

waiver argument, sustained the portion of the plaintiff’s appeal claiming

that the regulation prohibiting racing on Sunday was preempted by

§ 14-164a (a), and denied the plaintiff’s appeal in all other respects.

Thereafter, the plaintiff, the commission, and L Co. filed separate
appeals. Held:

1. The trial court correctly determined that the plaintiff did not waive its

right to challenge the provision of the 2015 amendments prohibiting

racing activities on the property on Sundays:

a. Although a stipulated judgment has attributes of a private contract,

which merely memorializes the bargained for position of the parties

and generally may not be modified without the consent of the parties,

a stipulated judgment also is a final judicial order, the prospective

provisions of a court approved stipulated judgment are injunctive in

nature, and the court, therefore, retains ongoing jurisdiction over the

stipulated judgment during the duration of its existence and may modify

it upon a showing of changed circumstances; accordingly, there was no

merit to L Co.’s claims that the plaintiff’s predecessor in interest, by

entering into the stipulated judgments in 1966 and 1968 prohibiting

racing on Sundays, had permanently waived the right of its successors

to seek a modification to the stipulations, and that, by waiving its right

to modify the stipulations, the plaintiff’s predecessor in interest also

had waived its successor’s right to challenge zoning regulations that

codified the terms of the stipulations.

b. L Co.’s claim that, even if the stipulated judgments were injunctive

in nature, the plaintiff and its predecessor in interest waived the right

to challenge any modifications to the zoning regulations codifying the

terms of the stipulations because they continuously abided by those

terms for almost fifty years was unavailing, there having been no authority for the proposition that a party waives its right to seek a modification

of an injunctive order, or to challenge the codification of such an order,

merely by abiding by its terms.

c. This court declined to review L Co.’s claim that, even if the stipulated

judgments were injunctive in nature and, therefore, subject to judicial

modification, the plaintiff waived its right to challenge the prohibition

on Sunday racing because the plaintiff and its predecessor in interest

did not bring an administrative appeal to challenge the commission’s

prior amendments to the regulations incorporating by reference the

court’s orders prohibiting Sunday racing: L Co. provided no authority

or analysis for the proposition that a party’s failure to challenge a zoning

amendment bars the party from challenging a subsequent amendment

that was intended to recodify the original amendment in different language, and, therefore, the issue was inadequately briefed; moreover,

even if this court assumed that a party cannot challenge an amendment

to zoning regulations that merely recodifies a preexisting regulation

using different language, in light of comments made by the commission’s

counsel and L. Co. itself during deliberations on the adoption of the

2015 amendments, it was not clear that the purpose of the 2015 amendments was merely to recodify the previous amendments, and L Co.

provided no analysis with respect to that issue.

2. The trial court incorrectly concluded that § 14-164a (a) preempted the

provision of the 2015 amendments prohibiting racing activities on Sundays: this court, having determined that the language of § 14-164a (a)

was not clear and unambiguous, examined extratextual sources and the

genealogy of the statute and concluded that § 14-164a (a) was prohibitory

for preemption purposes in that it was intended only to bar municipalities

from allowing racing activities that were statutorily prohibited, that is,

racing during unreasonable hours on weekdays and before 12 p.m. on

Sundays without a permit, and that it was not intended to confer the

absolute right to engage in motor vehicle racing activities that were

statutorily permitted; accordingly, § 14-164a (a) did not preempt the

more restrictive provision of the 2015 amendments prohibiting all racing

activities on Sundays; moreover, that interpretation of § 14-164a (a) as

prohibitory did not render the statute meaningless because it still barred

municipalities from allowing racing activities during unreasonable hours

on weekdays and before 12 p.m. on Sundays without a permit, and it

was of no consequence that § 14-164a (a) allows towns to adopt ordinances that are more restrictive than the statute, whereas, in the present

case, the restrictions on racing activities on Sundays were imposed

by zoning regulation, because the words ‘‘ordinance’’ and ‘‘regulation’’

frequently are used interchangeably, and the plaintiff did not explain

why the legislature would have intended to limit the application of § 14-

164a (a) solely to enactments by a town’s legislative body via ordinance

and to exclude enactments by a town’s zoning commission via zoning regulation.
3. The trial court incorrectly concluded that the word ‘‘weekday,’’ as used

in the 2015 amendments, did not include Saturday and, accordingly, that

mufflered racing is prohibited on Saturdays under the 2015 amendments;

notwithstanding L Co.’s claim that the modern usage of the word ‘‘weekday,’’ which was not specifically defined by the zoning regulations,

excludes both Saturday and Sunday, this court was persuaded, and both

the plaintiff and the commission agreed, that ‘‘weekday,’’ as used in

the 2015 amendments, was intended to include Saturday, as numerous

dictionaries define ‘‘weekday’’ to include Saturday, this court’s older

case law used the word ‘‘weekday’’ to refer to any day of the week other

than Sunday, and the language used in the 1959 memorandum of decision

in the nuisance action, as well as in the language of the 1988 stipulation

and a certain provision of the 2015 amendments, all strongly suggested

that the word ‘‘weekday’’ was meant to include Saturday.

4. The trial court correctly concluded that the provision of the 2015 amendments restricting unmufflered racing activities did not constitute a noise

control ordinance for purposes of the Noise Pollution Control Act (§ 22a73) and, therefore, did not require the approval of the Commissioner

of Energy and Environmental Protection in order for it to be effective;

the 2015 amendments contemplated two distinct uses of the property

in question, namely, mufflered racing and unmufflered racing, those

uses had two different noise levels, the regulations provided different

operating days and times for those different activities, and a zoning

regulation that differentiates between distinct land uses that produce

different noise levels for purposes of determining whether a specific

use is appropriate for a property does not by itself specify noise levels

and, therefore, does not constitute a municipal noise control ordinance

for purposes of § 22a-73.

5. The trial court incorrectly determined that the commission acted within its

authority when it adopted, as part of the 2015 amendments, regulations

requiring that the plaintiff obtain a special permit and site plan as a

condition to filing a petition seeking an amendment to the 2015 amendments, and, because those regulations arbitrarily restricted the persons

who could seek an amendment to the zoning regulations, they were

invalid: the commission’s claim that the plaintiff lacked standing to

challenge the special permit requirement because it did not bar the

plaintiff from filing a petition seeking an amendment to the regulations

was unavailing, as the plaintiff was adversely affected by such a requirement; furthermore, both the commission and L Co. conceded that, under

the special permit requirement, persons other than the plaintiff who

were affected by the racing activities on the property and the 2015

amendments regulating those activities, such as neighboring landowners, would not be able to seek an amendment to the 2015 amendments,

and such a restriction on the classes of affected persons who could

seek an amendment to the zoning regulations was therefore arbitrary.

Argued November 13, 2019—officially released May 22, 2020*

Procedural History

Appeal challenging the validity of certain amendments to the zoning regulations of the town of Salisbury

pertaining to the operation of racetracks and uses

accessory to racetracks, brought to the Superior Court

in the judicial district of Litchfield, where Lime Rock

Citizens Council, LLC, was permitted to intervene as a

defendant; thereafter, the case was tried to the court,

J. Moore, J.; judgment sustaining in part the appeal;

subsequently, the court granted the parties’ motions to

reargue; thereafter, the court opened and amended its

judgment, from which the parties filed separate appeals.

Reversed in part; judgment directed.

Timothy S. Hollister, with whom were Andrea L.

Gomes and, on the brief, Joette Katz and Jessica ColinGreene, for the appellant in Docket No. SC 20237 and

the appellee in Docket Nos. SC 20238 and SC 20239

(intervening defendant).
Charles R. Andres, for the appellant in Docket No.

SC 20238 and the appellee in Docket Nos. SC 20237

and SC 20239 (named defendant).

Maureen Danehy Cox, with whom were James K.

Robertson, Jr., and Jennifer Sills Yoxall, for the appellant in Docket No. SC 20239 and the appellee in Docket

Nos. SC 20237 and SC 20238 (plaintiff).

VERTEFEUILLE, J. These appeals arise from the

adoption by the defendant, the Planning and Zoning

Commission (commission) of the Town of Salisbury

(town), of certain amendments to the town’s zoning

regulations restricting motor vehicle racing activities

on property owned by the plaintiff, Lime Rock Park,

LLC. The plaintiff appealed to the trial court from the

adoption of the amendments. Thereafter, the intervening defendant, Lime Rock Citizens Council, LLC (council), filed a motion to intervene in the appeal, which

the trial court granted. After a trial to the court, the court

sustained the plaintiff’s appeal in part and dismissed it

in part. All three parties appealed from the decision,

raising numerous claims.1 We conclude that the trial

court incorrectly (1) sustained the portion of the plaintiff’s appeal claiming that the provision of the amended

regulations prohibiting racing activities on Sundays was

preempted by General Statutes § 14-164a (a),2

(2) denied

the portion of the appeal claiming that the commission

lacked the authority to condition the filing of a petition

to amend the regulations on obtaining a special permit,

and (3) concluded that the amended regulations prohibited racing activities on Saturdays. We further conclude

that the trial court correctly (1) determined that the

plaintiff did not waive its right to challenge the regulation prohibiting Sunday racing, and (2) denied the portion of the plaintiff’s appeal claiming that the amendments’ restrictions on unmufflered racing are subject

to the provision of General Statutes § 22a-73 (c), requiring the Commissioner of Energy and Environmental

Protection to approve municipal noise control ordinances. Accordingly, we affirm in part and reverse in

part the trial court’s judgment.

The record reveals the following facts, which were

found by the trial court or that are undisputed, and

procedural history. It is appropriate to warn the reader

at the outset that these facts reveal a long and complex

history of disagreement between the owners of the

property on which the racing activities take place and

neighboring landowners regarding the use of the property. The plaintiff owns property located at 497 Lime

Rock Road in the town (property). Since 1957, motor

vehicle races and other contests and demonstrations

of speed and skill have been conducted on a racetrack

located on the property. In addition, the property has

been the site of automobile shows and exhibitions, food

concessions, camping, and television, movie and radio

productions, with the associated use of lighting and
sound equipment. At the time that these activities commenced in 1957, the town had no zoning regulations.

In 1958, a group of town residents and entities

brought a nuisance action against the then owners of

the property, in which they alleged that the racing activities on the property generated excessive noise, traffic

and disruptive behavior that interfered with the plaintiffs’ enjoyment of their property. See Adams v. Vaill,

158 Conn. 478, 480, 262 A.2d 169 (1969) (Vaill III) (discussing allegations of original nuisance action). After

a hearing, the trial court in the nuisance action rendered

judgment in favor of the plaintiffs and granted a permanent injunction prohibiting the property owners from

conducting racing activities on Sundays. In addition,

the injunction limited mufflered racing activities to

weekdays between 9 a.m. and 10 p.m., and prohibited

unmufflered racing except during specified hours on

Tuesdays, ten Saturdays per year, and certain holidays.

See Adams v. Vaill, Superior Court, judicial district of

Litchfield, Docket No. 15,459 (May 12, 1959) (Vaill I);

see also Vaill III, supra, 480–81.

Shortly after the trial court rendered judgment in

Vaill I, the town adopted zoning regulations for the first

time. The regulations placed the property in a ‘‘Rural

Enterprise’’ zoning district, in which a track for racing

motor vehicles and accessory uses were permitted uses.

Salisbury Zoning Regs. (1959) § 8.1.17. The regulations

also allowed racing ‘‘during such hours as are permitted

by [s]tatute.’’ Id., § 8.1.17.1. At the time, the controlling

statute provided that ‘‘any race, contest or demonstration of speed or skill with a motor vehicle as a public

exhibition . . . may be conducted at any reasonable

hour of any week day or after the hour of two o’clock

in the afternoon of any Sunday, provided no such race

or exhibition shall take place contrary to the provisions

of any city, borough or town ordinances.’’ General Statutes (1958 Rev.) § 29-143 (a).

In 1966, the parties to the Vaill case entered into a

stipulation providing that the judgment in Vaill I would

be modified to provide that the prohibition of Sunday

racing applied to both mufflered and unmufflered racing, as well as several other changes. See Adams v.

Vaill, Superior Court, judicial district of Litchfield,

Docket No. 15,459 (March 2, 1966) (Vaill II) (stipulation

between parties). The judgment was again modified in

1968 by a court order prohibiting unmufflered racing

on the property. See Adams v. Vaill, Superior Court,

judicial district of Litchfield, Docket No. 15,459 (August

26, 1968), aff’d, 158 Conn. 478, 262 A.2d 169 (1969).

The impetus for this modification was the legislature’s

amendment of General Statutes (Cum. Supp. 1967) § 14-

80 (c) to provide that the use of unmufflered motor

vehicles was prohibited not only on public streets, but

in all locations. See Vaill III, supra, 158 Conn. 482–84;

see also Public Acts 1967, No. 846 (deleting words
‘‘while such motor vehicle is being operated upon a

street or highway’’ from statute prohibiting use of motor

vehicles without mufflers).

In 1977 and 1978, a flurry of appeals were brought

from certain decisions of the Salisbury Zoning Board

of Appeals to the trial court regarding the activities that

were permitted on the property (ZBA actions). The ZBA

actions were resolved when the parties entered into a

stipulation restricting the use of the property by campers and the hours that campers would be permitted to

use the track entrance, as well as restricting the parking

of nonofficial motor vehicles during certain hours of

the day. Judgment was rendered accordingly in each

of the ZBA actions (ZBA judgments).

At some point after March 11, 1974—the date on

which the second revision to the Salisbury zoning regulations was adopted—and before February 23, 1981—

the date on which the sixth revision was adopted—

the commission amended the regulations applicable to

racing activities on the property to provide that ‘‘[n]o

races shall be conducted on any such track except

during such hours as are permitted by [c]ourt [o]rder

dated [May 12, 1959],’’ the date of the judgment in Vaill

I.

3 Salisbury Zoning Regs. (1985) § 415.1. Before that

amendment, the regulations continuously had provided

that no races could be conducted ‘‘except during such

hours as are permitted by [s]tatute.’’ See Salisbury Zoning Regs. (1959) § 8.1.17.1; Salisbury Zoning Regs.

(1974) § 415.1. In 1975, the commission again amended

the regulations to provide that the operation of a commercial racetrack was a special permit use.4 See Salisbury Zoning Regs. (1985) § 412.

In 1988, the parties to the Vaill case5 entered into a

stipulation to prohibit motorcycle racing on the property and to allow some unmufflered racing in recognition of the legislature’s amendment to General Statutes

(Supp. 1969) § 14-80 (c) in 1969 to provide an exception

to the prohibition on using a motor vehicle without a

muffler when the vehicle is operated in a race. See

Adams v. Vaill, Superior Court, judicial district of Litchfield, Docket No. 15,459 (March 21, 1988) (Vaill IV)

(stipulation between parties); see also Public Acts 1969,

No. 17, § 1. The judgment was modified accordingly.6

In 2013, the commission amended the regulations to

provide that ‘‘[n]o races shall be conducted on any such

track except during such hours as permitted by [c]ourt

[o]rder dated [May 12, 1959] and subsequent related

[c]ourt [o]rders on file in the Planning and Zoning

Office, or the Town Clerk’s Office.’’ Salisbury Zoning

Regs. (2013) § 221.2 (a).

The amendments to the town’s zoning regulations

that are the subject of the present appeals were adopted

on November 16, 2015 (2015 amendments).7

In its ruling

approving the amendments, the commission stated that

the amendments were intended to maintain the status
quo by codifying the restrictions on racing activities

that were already part of the town’s zoning scheme

by virtue of the previous regulations incorporating the

terms of the stipulated judgment in Vaill IV and the

ZBA judgments. The plaintiff appealed from the commission’s adoption of the amendments pursuant to General Statutes §§ 8-8 and 8-9 on the ground that the commission had ‘‘acted illegally, arbitrarily, capriciously

and in abuse of its discretion’’ when it adopted them.

Specifically, the plaintiff contended that the amendments violated the requirement of General Statutes § 8-

2

8

that zoning regulations be in conformity with the

comprehensive plan; § 8-2 does not authorize the commission to engraft restrictions contained in judicial

judgments into the zoning regulations; and the amendments did not serve any legitimate land use purpose.

In addition, the plaintiff contended that the regulations

limiting days and hours of racing activities were preempted by § 14-164a (a); the regulations restricting

unmufflered racing improperly regulated noise in violation of the requirement of § 22a-73 (c) that the Commissioner of Energy and Environmental Protection approve

municipal noise control ordinances; the commission

exceeded its authority under General Statutes § 8-3 (c)

by requiring the plaintiff to file an application for a

special permit, as well as a site plan, as a condition for

seeking an amendment to the regulations; the regulations constituted illegal spot zoning; and the regulations

did not conform to the town’s plan of conservation and

development. The commission and the council disputed

these claims. In addition, the council contended that

the plaintiff had waived its right to challenge the provision of the 2015 amendments prohibiting Sunday racing

because its predecessor in interest had stipulated to

that limitation on the use of the property in Vaill II

and Vaill IV, which the amendments were intended

to codify.

After a trial, the trial court concluded that the commission had not exceeded the authority conferred by

§ 8-2 when it adopted the 2015 amendments incorporating the terms of the stipulated judgments in Vaill II

and Vaill IV and the ZBA judgments; § 14-164a (a) did

not preempt the commission from regulating the hours

of racing activities on weekdays but did preempt the

commission from prohibiting racing on Sundays; the

restrictions on unmufflered racing do not constitute a

noise control ordinance subject to § 22a-73 (c); it was

within the commission’s authority to require the plaintiff to file an application for a special permit before

it could seek an amendment to the regulations; the

amendments did not constitute illegal spot zoning; and

the amendments conformed to the town’s plan of conservation and development.9

In addition, the court

determined that, because the amendments permitted

mufflered racing only on any ‘‘weekday,’’ which the

court concluded means Monday through Friday, they
did not allow mufflered racing on Saturdays.10 The court

rejected the council’s claim that the plaintiff, through

its predecessor in interest, had waived any right to

challenge the prohibition on Sunday racing when it

entered into the stipulations that the amendments were

intended to codify. Accordingly, the court sustained the

portion of the plaintiff’s appeal challenging § 221.1 (a)

(1) of the 2015 amendments, which prohibits all racing

activities on Sundays; see footnote 7 of this opinion;

and denied the appeal in all other respects.

These appeals followed. See footnote 1 of this opinion. The council claims in its appeal that the trial court

incorrectly determined that the plaintiff had not waived

its right to challenge the 2015 amendments’ prohibition

on Sunday racing. In addition, both the council and the

commission claim that the court incorrectly determined

that § 14-164a (a) preempts the regulation prohibiting

racing activities on Sundays. The plaintiff contends that

the trial court incorrectly concluded that (1) the 2015

amendments allow mufflered racing only on any weekday, which does not include Saturdays,11 (2) if the 2015

amendments prohibit mufflered racing on Saturdays,

that prohibition was not preempted by § 14-164a (a),

(3) the 2015 amendments’ restrictions on unmufflered

racing are not subject to the provisions of § 22a-73 (c),

and (4) the commission had the authority to adopt the

regulations requiring the plaintiff to obtain a special

permit as a precondition to seeking an amendment to

the regulations.

I

Because it is potentially dispositive, we first address

the council’s claim that the plaintiff waived its right to

challenge § 221.1 (a) (1) of the 2015 amendments, which

prohibits racing activities on the property on Sundays,

because its predecessor in interest stipulated in Vaill

II and Vaill IV to that limitation on the use of the

property, and the plaintiff and its predecessor have

continuously abided by those stipulations.12 The council

contends that, unlike an injunctive order, a stipulated

judgment is a contract between the parties and is not

subject to later modification by the trial court in light of

changed circumstances. In addition, the council claims

that, even if the stipulated judgments were subject to

modification, the plaintiff waived its right to challenge

the prohibition on Sunday racing when it and its predecessor in interest failed to appeal from previous amendments to the zoning regulations that codified the terms

of the stipulated judgments. The plaintiff contends that

it did not waive its right to challenge the prohibition

on Sunday racing because (1) the stipulated judgments

were injunctive in nature, and courts always retain jurisdiction to modify injunctions in light of changed circumstances, and (2) even if the plaintiff waived its right to

seek later modifications of the stipulated judgments,

that waiver does not apply to its right to challenge the
amendments to the zoning regulations. We agree with

the plaintiff that the stipulated judgments were injunctive in nature and, therefore, were subject to the ongoing jurisdiction of the trial court to modify them in light

of changed circumstances. Accordingly, we reject the

council’s claim that the plaintiff waived its right to challenge the prohibition on Sunday racing.

We begin with the standard of review. Ordinarily,

whether a person has waived a right is a question of

fact subject to review for clear error. See AFSCME,

Council 4, Local 704 v. Dept. of Public Health, 272

Conn. 617, 622, 866 A.2d 582 (2005). ‘‘[W]hen a trial

court makes a decision based on pleadings and other

documents, [however] rather than on the live testimony

of witnesses, we review its conclusions as questions of

law.’’ State v. Lewis, 273 Conn. 509, 516–17, 871 A.2d

986 (2005). Because the trial court’s determination in

the present case was based solely on the pleadings and

stipulated judgments, our review is plenary.

We next review the substantive law of waiver.

‘‘Waiver is the intentional relinquishment or abandonment of a known right or privilege.’’ (Internal quotation

marks omitted.) AFSCME, Council 4, Local 704 v. Dept.

of Public Health, supra, 272 Conn. 623. ‘‘Waiver is based

upon a species of the principle of estoppel and where

applicable it will be enforced as the estoppel would be

enforced. . . . Estoppel has its roots in equity and

stems from the voluntary conduct of a party whereby

he is absolutely precluded, both at law and in equity,

from asserting rights [that] might perhaps have otherwise existed . . . . Waiver does not have to be

express, but may consist of acts or conduct from which

waiver may be implied. . . . In other words, waiver

may be inferred from the circumstances if it is reasonable to do so.’’ (Citations omitted; internal quotation

marks omitted.) Id.

In support of its claim that the plaintiff waived its

right to challenge the 2015 amendments’ prohibition on

Sunday racing, the council relies heavily on the principle that a stipulated judgment constitutes ‘‘a contract

of the parties acknowledged in open court and ordered

to be recorded by a court of competent jurisdiction.’’

Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192

(1956). ‘‘The essence of the [stipulated] judgment is that

the parties to the litigation have voluntarily entered into

an agreement setting their dispute or disputes at rest

and that, upon this agreement, the court has entered

judgment conforming to the terms of the agreement.’’

Id. ‘‘It necessarily follows that if the judgment conforms

to the stipulation it cannot be altered or set aside without the consent of all the parties, unless it is shown

that the stipulation was obtained by fraud, accident or

mistake.’’ Id., 460–61.

Thus, the council contends that (1) unlike an ordinary

judgment granting a permanent injunction in a private
nuisance action, which can be modified if relevant circumstances change; see Vaill III, supra, 158 Conn. 482

(‘‘[i]t cannot be doubted that courts have inherent

power to change or modify their own injunctions where

circumstances or pertinent law have so changed as to

make it equitable to do so’’); a stipulated judgment in

a private nuisance action cannot be modified in the

absence of a showing of fraud, accident or mistake,

and (2) when a party has stipulated to a permanent,

unmodifiable limitation on the use of a particular property in a private nuisance action, the party has implicitly

waived the right to challenge any zoning regulation

that is consistent with that limitation.13 In other words,

the council contends the plaintiff’s predecessor in interest waived the right to challenge any zoning regulation

codifying the terms of the stipulated judgments because

the stipulations were not modifiable injunctions.

We are not persuaded. Although a stipulated judgment has attributes of a private contract that ‘‘merely

memorializes the bargained for position of the parties’’;

Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983);

‘‘[t]he terms of [a stipulated judgment or consent]

decree, unlike those of a simple contract, have unique

properties. A consent decree has attributes of both a

contract and of a judicial act.’’ Id.; see also id. (‘‘[a]

consent decree . . . is also a final judicial order’’).

Accordingly, ‘‘[o]nce approved, the prospective provisions of the consent decree operate as an injunction.

. . . The injunctive quality of consent decrees compels

the court to: [1] retain jurisdiction over the decree during the term of its existence . . . [2] protect the integrity of the decree with its contempt powers . . . and

[3] modify the decree should changed circumstances

subvert its intended purpose.’’ (Citations omitted;

emphasis added; internal quotation marks omitted.) Id.

Similarly, the court in Mendly v. Los Angeles, 23 Cal.

App. 4th 1193, 28 Cal. Rptr. 2d 822 (1994), observed

that, ‘‘[i]n a stipulated judgment, or consent decree,

litigants voluntarily terminate a lawsuit by assenting to

specified terms, which the court agrees to enforce as

a judgment. . . . As the [California Supreme Court]

has recognized, stipulated judgments bear the earmarks

both of judgments [rendered] after litigation and contracts derived through mutual agreement . . . . It is

settled that where there has been a change in the controlling facts upon which a permanent injunction was

granted, or the law has been changed, modified or

extended, or where the ends of justice would be served

by modification or dissolution, the court has the inherent power to vacate or modify an injunction where

the circumstances and situation of the parties have so

changed as to render such action just and equitable.

. . . This principle governs even though the judgment

providing the injunctive relief is predicated upon stipulation of the parties.’’ (Citations omitted; internal quotation marks omitted.) Id., 1206–1207; see also Carson v.
American Brands, Inc., 450 U.S. 79, 84 n.9, 101 S. Ct.

993, 67 L. Ed. 2d 59 (1981) (characterizing prospective

relief obtained in consent decree as injunctive); Steele

v. Guardianship & Conservatorship of Crist, 251 Kan.

712, 719–20, 840 P.2d 1107 (1992) (quoting Williams v.

Vukovich, supra, 720 F.2d 920, with approval); 46 Am.

Jur. 2d 569, Judgments § 190 (2017) (‘‘[P]rospective provisions of a consent decree operate as an injunction.

This injunctive quality compels the court to: (1) retain

jurisdiction over the decree during the terms of its existence; (2) protect the integrity of the decree with its

contempt powers; and (3) modify the decree should

changed circumstances subvert its intended purpose.’’

(Footnote omitted.));14 cf. Housing Authority v.

Lamothe, 225 Conn. 757, 767, 627 A.2d 367 (1993) (‘‘[a]

stipulated judgment, although obtained by the consent

of the parties is binding to the same degree as a judgment obtained through litigation’’ (emphasis added;

internal quotation marks omitted)).

We agree with these authorities that the prospective

provisions of a stipulated judgment are injunctive in

nature and, therefore, may be modified by the court

upon a showing of changed circumstances. We further

note that the council does not dispute that a stipulated

judgment can always be modified by consent of all of

the parties. See Gillis v. Gillis, 214 Conn. 336, 340, 572

A.2d 323 (1990). We therefore reject the council’s claim

that, by entering into the stipulated judgments, the

plaintiff’s predecessor in interest somehow permanently waived the right of its successors in interest to

seek any modification of the stipulations. Accordingly,

we reject the council’s claim that, by waiving its right

to modify the stipulations, the plaintiff’s predecessor in

interest waived its successors’ right to challenge zoning

regulations that codified the terms of the stipulations.

To the extent that the council claims that, even if

the stipulated judgments were injunctive in nature, the

plaintiff and its predecessor in interest waived the right

to challenge any modifications to the zoning regulations

that codified the stipulations by abiding by their terms

for almost fifty years, we disagree. We are unaware of

any authority for the proposition that a party waives

the right to seek a modification of an injunctive order

by abiding by its terms, much less that the party waives

the right to challenge the codification of the various

orders and stipulations in zoning regulations.15

The council finally claims that the plaintiff waived

its right to challenge the 2015 amendments’ prohibition

on Sunday racing when it and its predecessor in interest

failed to challenge previous regulations that prohibited

Sunday racing, specifically, the 1975 amendment providing that ‘‘[n]o races shall be conducted on any such

track except during such hours as are permitted by

[c]ourt [o]rder dated [May 12, 1959, in Vaill I]’’; Salisbury Zoning Regs. (1985) § 415.1; and the 2013 amend-
ment, which provided that ‘‘[n]o races shall be conducted on any such track except during such hours as

permitted by [c]ourt [o]rder dated [May 12, 1959, in

Vaill I] and subsequent related [c]ourt [o]rders on file

in the Planning and Zoning Office, or the Town Clerk’s

Office.’’ Salisbury Zoning Regs. (2013) § 221.2 (a). The

council contends that the plaintiff ‘‘forfeit[ed]’’ its right

to appeal because the 2015 amendments merely recodified the previous prohibition on Sunday racing activities.

We decline to review this claim because it is inadequately briefed. First, the council has provided no

authority or analysis to support its claim that a party’s

failure to challenge a zoning amendment bars the party

from challenging a subsequent amendment that was

intended to recodify the original amendment in different

language.16 Second, and perhaps more fundamental, it

is far from clear that the purpose of the 2015 amendments was merely to recodify the previous amendments, and the council has provided no analysis on that

issue.17 Specifically, although it is clear that, before the

2015 amendments were adopted, the substance of the

regulations would be effectively modified whenever the

judgment in the Vaill case was modified, it is not entirely

clear whether that feature of the regulations survived

the amendments. As the trial court noted, counsel for

the commission, Charles R. Andres, acknowledged, during a November 16, 2015 meeting of the commission

to deliberate on the 2015 amendments, that the 2013

amendment was ambiguous as to whether its reference

to the ‘‘[c]ourt [o]rder . . . and subsequent related

[c]ourt [o]rders’’ was intended to include modifications

to the injunction in Vaill I that were made subsequent

to the adoption of the amendment. Salisbury Zoning

Regs., (2013) § 221.2 (a). Andres questioned whether an

arrangement under which the town’s zoning regulations

would be effectively amended by modifying an injunction in a private nuisance action would be legal, but

he acknowledged that the 2013 amendment could be

interpreted in that manner and argued that the 2015

amendments were intended to remove that ambiguity.18

Moreover, in the council’s written presentation to the

commission in support of the proposed amendments,

which was presented to the town on October 19, 2015,

the council contended that the use of the property was

controlled by various orders and stipulations in the

Vaill case, that ‘‘the burden of monitoring, enforcing,

and reacting to proposed modifications to the injunctions and stipulations, and expansions or modifications

of operations, is placed on the private parties [to the

Vaill case]’’; (emphasis omitted); and that the amendments were necessary to bring the racing activities on

the property ‘‘under the control of the town through

its zoning regulations.’’ The council also pointed out

that the plaintiff was attempting to expand racing activities on the property in its September 4, 2015 motion to
modify the injunction in the Vaill case; see footnote 6

of this opinion; thereby ‘‘underscor[ing]’’ the need for

the zoning regulations.

Thus, the council implicitly acknowledged in the proceedings before the commission that the 2013 amendment left control of the hours that racing activities

would be permitted on the property to the ongoing

jurisdiction of the trial court in the Vaill nuisance

action, that, if the trial court in Vaill were to modify

the injunction to eliminate the prohibition on Sunday

racing activities, the 2013 amendment would not operate independently to prohibit them, and that the 2015

amendments were intended to remedy that situation.

Indeed, the commission stated expressly in its reasons

for approving the 2015 amendments that one reason was

to ‘‘eliminate the possibility that the zoning regulations

could be deemed to be amended if there were to be an

amendment to a court judgment in the Vaill [case].’’ If

the 2015 amendments in fact had that effect, they would

not merely have recodified the 2013 amendment,

because, unlike that amendment, they froze in time the

restrictions on the use of the property that were already

in place in the Vaill case, subject only to the procedures

for amending zoning regulations. Even if we were to

assume that the council is correct that a party cannot

challenge an amendment to zoning regulations that

merely recodifies a preexisting regulation, the council

provides no analysis explaining why that change would

not be substantive or, if it was, why the plaintiff would

be barred from challenging it because it failed to challenge the 2013 amendment. Accordingly, for all of the

foregoing reasons, we reject the council’s claim that

the trial court incorrectly determined that the plaintiff

did not waive its right to challenge the 2015 amendments’ prohibition on Sunday racing.

II

We next address the defendant’s claim that the trial

court incorrectly determined that § 14-164a (a) preempts § 221.1 (a) (1) of the 2015 amendments, prohibiting racing activities on the property on Sundays.19 We

conclude that § 14-164a (a) is a prohibitory statute20

and does not preempt zoning regulations restricting the

hours of racing activities on the property on any day

of the week or hour of the day, or regulations prohibiting such activities altogether.

The issues raised by the parties require us to interpret

§ 14-164a (a). ‘‘Issues of statutory construction raise

questions of law, over which we exercise plenary

review. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the

apparent intent of the legislature. . . . In seeking to

determine that meaning, General Statutes § 1-2z directs

us first to consider the text of the statute itself and its

relationship to other statutes. If, after examining such

text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield

absurd or unworkable results, extratextual evidence of

the meaning of the statute shall not be considered. . . .

The test to determine ambiguity is whether the statute,

when read in context, is susceptible to more than one

reasonable interpretation. . . . When a statute is not

plain and unambiguous, we also look for interpretive

guidance to the legislative history and circumstances

surrounding its enactment, to the legislative policy it

was designed to implement, and to its relationship to

existing legislation and [common-law] principles governing the same general subject matter . . . .’’ (Citation omitted; internal quotation marks omitted.) State

v. Moreno-Hernandez, 317 Conn. 292, 299, 118 A.3d

26 (2015).

We next review the legal principles governing statutory preemption of local regulations. ‘‘[A] local ordinance is preempted by a state statute whenever the

legislature has demonstrated an intent to occupy the

entire field of regulation on the matter . . . or . . .

whenever the local ordinance irreconcilably conflicts

with the statute. . . . Whether an ordinance conflicts

with a statute or statutes can . . . be determined [only]

by reviewing the policy and purposes behind the statute

and measuring the degree to which the ordinance frustrates the achievement of the state’s objectives.’’ (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 232, 662 A.2d

1179 (1995).

‘‘A test frequently used to determine whether a conflict exists is whether the ordinance permits or licenses

that which the statute forbids, or prohibits that which

the statute authorizes; if so, there is a conflict. If, however, both the statute and the ordinance are prohibitory

and the only difference is that the ordinance goes further in its prohibition than the statute, but not counter

to the prohibition in the statute, and the ordinance does

not attempt to authorize that which the legislature has

forbidden, or forbid that which the legislature has

expressly authorized, there is no conflict.’’ (Internal

quotation marks omitted.) Id., 235.

As we noted, ‘‘[w]hether an ordinance conflicts with

a statute or statutes can . . . be determined [only] by

reviewing the policy and purposes behind the statute

and measuring the degree to which the ordinance frustrates the achievement of the state’s objectives. . . .

Therefore, [t]hat a matter is of concurrent state and

local concern is no impediment to the exercise of

authority by a municipality through the enactment of

an ordinance, so long as there is no conflict with the

state legislation. . . . Where the state legislature has

delegated to local government the right to deal with a

particular field of regulation, the fact that a statute also

regulates the same subject in less than full fashion does

not, ipso facto, deprive the local government of the
power to act in a more comprehensive, but not inconsistent, manner. . . .

‘‘Therefore, merely because a local ordinance,

enacted pursuant to the municipality’s police power,

provides higher standards than a statute on the same

subject does not render it necessarily inconsistent with

the state law. Whether a conflict exists depends on

whether the ordinance permits or licenses that which

the statute forbids, or prohibits that which the statute

authorizes. If, however, both the statute and the ordinance are prohibitory and the only difference is that

the ordinance goes further in its prohibition than the

statute, but not counter to the prohibition in the statute,

and the ordinance does not attempt to authorize that

which the legislature has forbidden, or forbid that which

the legislature has expressly authorized, there is no

conflict. . . . Where a municipal ordinance merely

enlarges on the provisions of a statute by requiring

more than a statute, there is no conflict unless the

legislature has limited the requirements for all cases.’’

(Citations omitted; internal quotation marks omitted.)

Modern Cigarette, Inc. v. Orange, 256 Conn. 105, 119–

20, 774 A.2d 969 (2001).

Thus, the question that we must address is whether

§ 14-164a (a) was intended only to prohibitracing activities during unreasonable hours on weekdays and

before noon on Sundays without a permit, as the council

and the commission claim, in which case the commission would not be preempted from adopting more

restrictive regulations, or, instead, the statute was

intended to confer the absolute right to conduct racing

activities during reasonable hours on weekdays and

after noon on Sundays, as the plaintiff claims, in which

case the statute would preempt more restrictive local

regulations.

We begin our analysis with a review of the language

of the statute. Section 14-164a (a) provides in relevant

part: ‘‘No person shall operate a motor vehicle in any

race, contest or demonstration of speed or skill with a

motor vehicle as a public exhibition except in accordance with the provisions of this section. Such race or

exhibition may be conducted at any reasonable hour

of any week day or after twelve o’clock noon on any

Sunday. The legislative body of the city, borough or

town in which the race or exhibition will be held may

issue a permit allowing a start time prior to twelve

o’clock noon on any Sunday, provided no such race or

exhibition shall take place contrary to the provisions

of any city, borough or town ordinances. . . .’’

We conclude that § 14-164a (a) is ambiguous as to

whether it is prohibitory or, instead, confers a right to

engage in motor vehicle racing activities that conform

to the conditions of the statute. The first sentence of

§ 14-164a (a) is clearly prohibitory, and it strongly suggests that the legislature believed that, left unregulated,
motor vehicle racing activities would be likely to create

a nuisance. Thus, for preemption purposes, it would be

reasonable to expect that the subsequent provisions of

the statute would specify the only conditions under

which towns have the authority to allow racing activities, not the conditions under which towns are required

to allow racing. Taken in isolation, however, the second

sentence reasonably can be read as conferring a right

to engage in racing activities during reasonable hours

on weekdays and after noon on Sundays, which would

preempt towns from imposing more restrictive regulations. We conclude, therefore, that there is a tension

between these sentences that gives rise to ambiguity.

In reaching the conclusion that § 14-164a (a) is ambiguous, we acknowledge that the third sentence of the

statute allowing towns to issue permits to race before

noon on Sundays ‘‘provided no such race . . . shall

take place contrary to the provisions of any city, borough or town ordinances’’ (proviso clause) arguably

supports the plaintiff’s position that the statute confers

the absolute right to conduct racing activities during

reasonable hours on weekdays and before noon on

Sundays, because, if the statute were prohibitory, the

clause would be superfluous. General Statutes § 14-164a

(a). In other words, if the statute was intended only to

specify the conditions under which towns cannot allow

racing, the preemption doctrine would not prevent

towns from imposing stricter regulations, and there

would be no need for the legislature to expressly confer

the authority to do so. We also acknowledge that, as

the trial court concluded, the grammatical structure of

the third sentence and the statute as a whole supports

the interpretation that the proviso clause modifies only

the first clause of the third sentence and not the second

sentence.21 Finally, we acknowledge that, if the proviso

clause is not superfluous, and if it applies only to the

first clause of the third sentence of § 14-164a (a), it

would be reasonable to conclude that the second sentence was intended to specify the racing activities that

towns cannot prohibit, not the only racing activities that

towns can allow. We conclude, however, that, although

these considerations arguably support the plaintiff’s

position that § 14-164a (a) preempts towns from prohibiting racing activities that the statute permits, with the

exception of racing activities before noon on Sundays,

they do not overcome the inherent ambiguity of the

statute. Accordingly, we may ‘‘look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was

designed to implement, and to its relationship to

existing legislation and [common-law] principles governing the same general subject matter . . . .’’ (Internal

quotation marks omitted.) State v. Moreno-Hernandez,

supra, 317 Conn. 299.

In our search for guidance, we turn first to the genealogy of § 14-164a. As the trial court recognized, the legis-
lation that is now codified at § 14-164a (a) was first

enacted in 1935. See General Statutes (Cum. Supp. 1935)

§ 898c. Section 898c (a) provided that race contests

that were open to the public were prohibited unless

the Commissioner of State Police issued a certificate

approving the race, after determining that certain safety

conditions were met. In 1939, the statute was amended

to provide that the Commissioner of State Police was

authorized to provide a racing permit ‘‘naming a definite

date for such race or exhibition, which may be conducted at any reasonable hour on any week day or after

the hour of two o’clock in the afternoon of any Sunday,

provided no such race or exhibition shall take place

contrary to the provisions of any city, borough or town

ordinances.’’ General Statutes (Supp. 1939) § 827e (a).

Thus, the statute made clear for the first time that towns

could prohibit racing activities on any day of the week

or hour of the day.

In 1973, the statute was again amended to provide

that the Commissioner of Motor Vehicles rather than

the Commissioner of State Police could issue a permit

for racing activities. See Public Acts 1973, No. 73-672,

codified at General Statutes (Rev. to 1975) § 14-164a

(a). The statute continued to provide that towns could

prohibit such activities altogether. In 1975, the statute

was amended to change the time that Sunday racing

activities could start from 2 p.m. to 12 p.m. See Public

Acts 1975, No. 75-404, § 1, codified at General Statutes

(Rev. to 1977) § 14-164a (a).

After the legislature made additional changes to § 14-

164a (a) in 1984 and 1985, the statute provided in relevant part: ‘‘The Commissioner of Motor Vehicles, upon

receipt of such application and fee, shall cause an

inquiry to be made concerning the condition of the race

track or place of exhibition and all of the appurtenances

thereto and, if he finds no unusual hazard to participants

in such race or exhibition or to persons attending such

race or exhibition, he may issue a permit naming a

definite date for such race or exhibition, which may be

conducted at any reasonable hour of any week day or

after twelve o’clock noon on any Sunday, provided no

such race or exhibition shall take place contrary to the

provisions of any city, borough or town ordinances.

. . .’’ General Statutes (Rev. to 1987) § 14-164a (a).

Thus, towns were still expressly authorized to prohibit

any or all motor vehicle racing.

In 1998, § 14-164a (a) was again amended to provide

in relevant part:22 ‘‘The Commissioner of Motor Vehicles, upon receipt of such application and fee, shall

cause an inquiry to be made concerning the condition

of the race track or place of exhibition and all of the

appurtenances thereto and, if he finds no unusual hazard to participants in such race or exhibition or to

persons attending such race or exhibition, he may issue

a permit naming a definite date for such race or exhibi-
tion, which may be conducted at any reasonable hour

of any week day or after twelve o’clock noon on any

Sunday. [, provided] The Commissioner, with the

approval of the legislative body of the city, borough or

town in which the race or exhibition will be held, may

issue a permit allowing a start time prior to twelve

o’clock noon on any Sunday, provided no such race or

exhibition shall take place contrary to the provisions

of any city, borough or town ordinances. . . .’’ Public

Acts 1998, No. 98-182, § 3 (P.A. 98-182), codified at General Statutes (Rev. to 1999) § 14-164a (a).

The final amendment to § 14-164a (a) that is relevant

to this appeal was made in 2004. See 2004 Public Acts,

No. 04-199, § 11. The 2004 amendment made the following changes:23 ‘‘No person shall operate a motor vehicle

in any race, contest or demonstration of speed or skill

with a motor vehicle as a public exhibition [until a

permit for such race or exhibition has been obtained

from the Commissioner of Motor Vehicles] except in

accordance with the provisions of this section. [Any

person desiring to manage, operate or conduct such a

motor vehicle race or exhibition shall make application

in writing to said commissioner at least ten days prior

to the race or exhibition and such application shall

set forth in detail the time of such proposed race or

exhibition, together with a description of the kind and

number of motor vehicles to be used and such further

information as said commissioner may require. Such

application shall be accompanied by a fee of seventyfive dollars. The Commissioner of Motor Vehicles, upon

receipt of such application and fee, shall cause an

inquiry to be made concerning the condition of the race

track or place of exhibition and all of the appurtenances

thereto and, if the commissioner finds no unusual hazard to participants in such race or exhibition or to

persons attending such race or exhibition, the commissioner may issue a permit naming a definite date for

such] Such race or exhibition [, which] may be conducted at any reasonable hour of any week day or after

twelve o’clock noon on any Sunday. The [commissioner,

with the approval of the] legislative body of the city,

borough or town in which the race or exhibition will

be held [,] may issue a permit allowing a start time prior

to twelve o’clock noon on any Sunday, provided no

such race or exhibition shall take place contrary to the

provisions of any city, borough or town ordinances.

. . .’’ Public Acts 2004, No. 04-199, § 11, codified at

General Statutes (Rev. to 2005) § 14-164a (a).

The plaintiff contends that, when the legislature

amended the statute in 1998 by splitting the second

sentence of the statute into two sentences and leaving

the proviso clause attached only to the third sentence

governing Sunday racing activities before noon, it

evinced an intent to confer the right to conduct racing

activities during reasonable hours on weekdays and

after noon on Sundays. For the following reasons, we
disagree.

As the foregoing genealogy of § 14-164a shows, and

the plaintiff does not dispute, from 1939 through 1998,

§ 14-164a (a) and its predecessor statutes expressly contemplated that towns would have the authority to

restrict racing activities that were statutorily permitted

or to prohibit them altogether. Thus, during that period,

the statute was clearly prohibitory for preemption purposes, that is, it barred towns from allowing racing

activities that were statutorily prohibited. It did not

require towns to allow racing activities that were statutorily permitted. It is reasonable to conclude that the

legislature enacted the statutory prohibition on racing

during unreasonable hours and on Sundays because it

believed that motor vehicle racing, with its attendant

noise, fumes, crowds, traffic congestion, danger to participants and spectators, and other potential disruptions, was likely to create a nuisance if not restricted

by statute. Indeed, § 14-164a (d) imposes criminal penalties for violations of the statute. We cannot perceive

why, in 1998, the legislature would suddenly have spun

180 degrees and come to the conclusion that motor

vehicle racing is so socially valuable that it must be

protected from unduly burdensome regulation by

towns.

Indeed, nothing in the legislative history of P.A. 98-

182 suggests that the purpose of the amendment, which

split what previously had been one sentence into two

sentences and left the proviso clause attached to the

language in the new third sentence authorizing the Commissioner of Motor Vehicles to issue a permit for racing

activities before noon on Sunday subject to town

approval,

24 was to divest towns of their preexisting

authority to further restrict or prohibit altogether racing

activities that the statute permitted. To the contrary,

Jose ́ O. Salinas, the Commissioner of the Department

of Motor Vehicles, submitted written testimony on the

proposed legislation in which he stated that its purpose

was to ‘‘place the decision to extend the operating hours

of [motocross] racing on Sundays at the municipal level

. . . .’’ Conn. Joint Standing Committee Hearings,

Transportation, Pt. 2, 1998 Sess., p. 477; see also id.,

p. 374, remarks of Commissioner Salinas (purpose of

proposed legislation was ‘‘to allow municipalities to

extend [motocross] racing [before] noon on Sundays’’).

Thus, Salinas’ testimony shows that the purpose of the

amendment was to authorize municipalities to allow

racing before noon on Sundays, subject to the permit

requirement, not to deprive them of their preexisting

authority to prohibit racing activities after noon. If the

legislature had intended such a radical departure from

the policy underlying the original statute, it surely

would have discussed that reason for the change during

the debate on the proposed legislation and used clearer

language to express its intent.25 See, e.g., Stafford v.

Roadway, 312 Conn. 184, 195, 93 A.3d 1058 (2014) (‘‘It
is axiomatic that a radical departure from an established

policy cannot be implied. It must be expressed in

unequivocal language.’’ (Internal quotation marks omitted.)). Accordingly, it is reasonable to conclude that

the legislature split the second sentence of § 14-164a

(a) into two sentences in 1998 simply because the sentence had become unwieldy with the addition of the

new language, and that it left the proviso clause in its

previous location without realizing that the change in

sentence structure reasonably could be interpreted as

changing the function of the clause.

Moreover, under the plaintiff’s interpretation, § 14-

164a (a) would be simultaneously prohibitory and permissive. That is, it would both categorically prohibit

racing activities that do not meet the statutory criteria—

i.e., racing activities on weekdays during unreasonable

hours or before noon on Sunday without a permit26—

and confer an absolute right to conduct racing activities

that meet the statutory criteria. The plaintiff has cited

no other examples of statutes in which the legislature

has evinced an intent both to place restrictions on an

activity, presumably to mitigate its inherently dangerous and disruptive nature, and to confer an absolute

right to engage in the same activity. While we recognize

that such statutes may exist, it is reasonable to conclude

that they ordinarily would involve uses with extraordinary social value, such as utilities or hospitals.27 There

is no indication that the legislature attached such value

to motor vehicle racing activities.

Finally, we cannot perceive why the legislature would

suddenly have concluded in 1998 that it was necessary

to impose a uniform statewide rule allowing motor vehicle racing activities seven days a week, regardless of

the character of the area in which the activities take

place. As the commission points out, racing activities

on Sunday afternoons in an indoor arena in a nonresidential, urban area may be entirely appropriate,

whereas the same activities on an outdoor track in a

heavily populated suburban location could be

extremely disruptive. We conclude, therefore, that § 14-

164a (a) does not preempt the provision of the 2015

amendments prohibiting racing activities on Sundays.28

In support of its claim to the contrary, the plaintiff

contends that, ‘‘under the [commission’s] interpretation, whether someone could conduct racing activities

would always be based on the zoning regulations. As

such, the [statutory seven day] grant [of permission to

conduct racing activities during reasonable hours on

weekdays, after noon on Sundays and before noon on

Sundays with a permit] would be of no effect—and thus

meaningless—with respect to whether someone could

conduct racing activities.’’ (Emphasis in original.) The

statute is not meaningless if it is prohibitory, however,

because it bars towns from allowing motor vehicle racing during unreasonable hours on weekdays and before
noon on Sundays without a permit, which they otherwse

would have the authority to do.

The plaintiff also contends that the trial court correctly concluded that the first sentence of General Statutes § 8-13,29 which allows zoning commissions to adopt

regulations that are more restrictive than restrictions

imposed by statute, does not authorize towns to adopt

stricter temporal limitations on particular land uses

than those imposed by statute. The trial court concluded that, under this court’s decision in Mallory v.

West Hartford, 138 Conn. 497, 500, 86 A.2d 668 (1952),

§ 8-13 authorizes zoning commissions only to adopt

stricter physical standards than those imposed by statute, such as the ‘‘size of yards, number of stories and

the like.’’ Even if that were the case, however, that

would mean only that § 8-13 simply does not apply

to the 2015 amendments, not that it renders the 2015

amendments unenforceable. In other words, if the trial

court were correct that the first sentence of § 8-13 did

not expressly authorize the commission to adopt the

2015 amendments because the statute applies only to

physical standards, then the second sentence providing

that, ‘‘[i]f the provisions of any other statute, bylaw,

ordinance or regulation require a greater width or size

of yards, courts or other open spaces or a lower height

of building or a fewer number of stories or a greater

percentage of lot area to be left unoccupied or impose

other and higher standards than are required by the

regulations made under authority of the provisions of

this chapter, the provisions of such statute, bylaw, ordinance or regulation shall govern,’’ would not render the

amendments unenforceable. If § 8-13 does not apply to

the temporal restrictions of the 2015 amendments, they

would still be subject to common-law preemption principles, under which towns acting through their zoning

commissions may adopt regulations that are more

restrictive than prohibitory statutes governing the same

subject matter. See, e.g., Modern Cigarette, Inc. v.

Orange, supra, 256 Conn. 119–20.

To the extent that the plaintiff contends that § 8-

13 effectively preempts the common-law preemption

doctrine as applied to statutes controlling land use, we

disagree. The preemption doctrine embodies commonsense principles that are designed to ensure that the

legislative will is not overridden by municipal ordinances and regulations. We can perceive no reason why

the legislature would have wanted to force courts that

are confronted with prohibitory land use statutes, like

§ 14-164a (a), to treat them as if they conferred the

absolute right to engage in the conduct that is not prohibited, thereby changing the intended effect of the

statutes.30 Accordingly, we reject this claim.

Finally, the plaintiff contends that, even if § 14-164a

(a), like its predecessor statutes, allows towns to adopt

ordinances that are more restrictive than § 14-164a (a)
with respect to the hours during and days on which

racing activities can occur, the town’s zoning regulations are not ordinances within the meaning of the

proviso clause of the third sentence of the statute.31 See

General Statutes § 14-164a (a) (‘‘provided no such race

. . . shall take place contrary to the provisions of any

city, borough or town ordinances’’). The plaintiff points

out that the legislature has always distinguished

between regulations and ordinances. See, e.g., General

Statutes § 8-13 (‘‘[i]f the regulations made under authority of the provisions of this chapter require a greater

width or size of yards, courts or other open spaces or

a lower height of building or a fewer number of stories

or a greater percentage of lot area to be left unoccupied

or impose other and higher standards than are required

in any other statute, bylaw, ordinance or regulation,

the provisions of the regulations made under the provisions of this chapter shall govern’’).32 In addition, the

plaintiff points out that ‘‘ordinance’’ is defined by General Statutes § 1-1 (n) as ‘‘an enactment under the provisions of [General Statutes §] 7-157,’’ which, in turn,

provides that ‘‘[o]rdinances may be enacted by the legislative body of any town . . . .’’ General Statutes § 7-

157 (a). Because a zoning commission is not the legislative body of a town, the plaintiff contends, it cannot

enact ordinances. The plaintiff further relies on this

court’s decision in Bora v. Zoning Board of Appeals,

161 Conn. 297, 288 A.2d 89 (1971), in which this court

held that, because General Statutes § 30-91 authorized

towns, ‘‘by [a] vote of a town meeting or by ordinance,

[to] reduce the number of hours during which [sales of

liquor] shall be permissible,’’ and because a board of

zoning appeals did not have the power to enact an

ordinance, the board exceeded its powers when it

granted a variance reducing the number of hours that

a cafe ́ that served liquor could operate. (Internal quotation marks omitted.) Id., 302; see General Statutes § 30-

91 (d).

The council claims that, to the contrary, when a town

creates a zoning commission, it delegates the town’s

legislative authority to control land use to that commission. Accordingly, any regulations adopted by the commission are ordinances, just as they would be if enacted

by the town’s legislative body. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (4th

Ed. 2015) § 1:2, p. 5 (‘‘[a]ll of the land use statutes are

based upon the police power, which allows regulation

of use of property because uncontrolled use would be

harmful to the public interest’’); id., p. 6 (‘‘[m]unicipal

land use regulation must be carried out by ordinance,

and the ordinance must be consistent with the enabling

statute’’). The council and the commission also point

out that the words ‘‘ordinance’’ and ‘‘regulation’’ are

frequently used interchangeably by the legislature and

the courts. See, e.g., General Statutes § 8-2i (a) (referring to ‘‘any zoning regulation . . . imposed by ordi-
nance, regulation or pursuant to any special permit,

special exception or subdivision plan’’); General Statutes § 15-91 (authorizing municipalities to adopt ‘‘airport zoning regulations’’); General Statutes § 19a-438

(c) (6) (referring to ‘‘the zoning ordinances of the municipality’’); General Statutes § 21a-62c (c) (referring to

‘‘municipal . . . zoning ordinances’’); General Statutes

§ 25-109g (a) (authorizing zoning commission to ‘‘revise

the zoning ordinances’’); General Statutes § 30-44 (referring to ‘‘the zoning ordinance of any city or town’’); see

also, e.g., NPC Offices, LLC v. Kowaleski, 320 Conn.

519, 531 n.5, 131 A.3d 1144 (2016) (referring to ‘‘zoning

ordinances’’); Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 238 (referring to ‘‘the . . .

zoning ordinance’’); Fairlawns Cemetery Assn., Inc. v.

Zoning Commission, 138 Conn. 434, 437, 86 A.2d 74

(1952) (observing that ‘‘the zoning commission adopted

an ordinance’’); Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 219,

821 A.2d 269 (2003) (‘‘the fact that [the statute at issue]

refers to local ordinances, while the commission has

labeled the enactment at issue . . . a zoning regulation, is of no consequence’’ (emphasis in original)).

We agree with the council and the commission.

Although there may be circumstances under which the

distinction between the words ‘‘ordinance’’ and ‘‘regulation’’ is significant, the words frequently are used interchangeably, and the plaintiff has not explained why

the legislature would have wanted to limit the proviso

clause of § 14-164a (a) and its predecessor statutes to

enactments by the legislative body of a town and to

exclude enactments by a zoning commission.33 Accordingly, we reject this claim.

III

We next address the plaintiff’s claim that the trial

court incorrectly determined that the word ‘‘weekday,’’

as used in the 2015 amendments to the zoning regulations, does not include Saturdays. We agree with the

plaintiff.

This claim requires us to interpret article § 221.1 (a)

(2) (A) of the 2015 amendments. See footnote 7 of this

opinion. ‘‘Because the interpretation of the regulations

presents a question of law, our review is plenary. . . .

Additionally, zoning regulations are local legislative

enactments . . . and, therefore, their interpretation is

governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must

be interpreted in accordance with the principle that a

reasonable and rational result was intended . . . . The

process of statutory interpretation involves the determination of the meaning of the statutory language [or . . .

the relevant zoning regulation] as applied to the facts of

the case, including the question of whether the language

does so apply.’’ (Internal quotation marks omitted.)

Trumbull Falls, LLC v. Planning & Zoning Commis-
sion, 97 Conn. App. 17, 21–22, 902 A.2d 706 (2006).

Section 221.1 (a) (2) (A) provides that ‘‘[a]ctivity with

mufflered racing car engines shall be permitted . . .

[o]n any weekday between [9 a.m.] and [10 p.m.] provided, however, that such activity may continue beyond

the hour of [10 p.m.] without limitation on not more

than six . . . occasions during any one calendar year.’’

The town’s zoning regulations do not define ‘‘weekday.’’

Although the plaintiff acknowledges that the word can

refer to any day of the week except Saturday and Sunday, as the trial court found, it points out that a number

of dictionaries define ‘‘weekday’’ to include Saturdays.

See American Heritage College Dictionary (2d Ed. 1991)

p. 1371 (defining ‘‘weekday’’ as ‘‘1. [a]ny day of the week

except Sunday,’’ and ‘‘2. [a]ny day exclusive of the days

of the weekend’’); Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003) p. 1418 (defining ‘‘weekday’’ as

‘‘a day of the week except Sunday or sometimes except

Saturday and Sunday’’); see also Webster’s New International Dictionary (2d Ed. 1957) p. 2896 (defining ‘‘weekday’’ as ‘‘[a]ny day of the week except Sunday; a working

day’’). In addition, the plaintiff points out that a number

of older Connecticut cases use the word ‘‘weekday’’ to

refer to any day of the week except Sunday. See Mason

v.Board of Zoning Appeals, 143 Conn. 634, 635, 124 A.2d

920 (1956) (referring to ‘‘Sundays as well as weekdays’’);

Cadwell v. Connecticut Railway & Lighting Co., 84

Conn. 450, 456, 80 A. 285 (1911) (referring to ‘‘week

days and . . . Sundays’’); Frost v. Plumb, 40 Conn. 111,

116 (1873) (referring to ‘‘a week day, or . . . the Sabbath’’); Scofield v. Eighth School District, 27 Conn. 498,

499 (1858) (preliminary statement of facts and procedural history) (referring to ‘‘week days and . . . Sundays’’). Accordingly, the plaintiff contends that ‘‘weekday’’ is ambiguous.

In support of its contention that, as used in § 221.1 (a)

(2) (A) of the 2015 amendments, the word ‘‘weekday’’

includes Saturdays, the plaintiff relies on the memorandum of decision that the trial court issued in Vaill I

before rendering judgment, in which the court noted

that ‘‘residents of Lime Rock often invite visitors and

friends to spend the weekend there and to enjoy the

peaceful surroundings of the beautiful countryside,’’

and that ‘‘operation of the [racetrack] on Sundays

proves to be especially annoying and irritating to the

plaintiffs.’’ The court concluded that ‘‘the noise does

not have the same effect on other days, and the track

could be operated on every other day of the week

. . . .’’ The plaintiff contends that this language shows

that, as used in the Vaill I memorandum of decision,

the word ‘‘weekend’’ meant Sunday, thereby implying

that all other days were weekdays. The plaintiff also

points out that both § 221.1 (a) (4) of the 2015 amendments and the stipulation in Vaill IV contain provisions

prohibiting ‘‘the revving or testing of mufflered . . .

car engines on Saturdays . . . prior to [9 a.m.] and
after [6 p.m.],’’ strongly suggesting that the use of such

engines was permitted during the remainder of the day.

The commission acknowledges that the 2015 amendments were intended to codify the terms of the 1988

stipulated judgment in Vaill IV and concedes that the

plaintiff and its predecessor in interest have, pursuant

to their understanding of the terms of that judgment,

conducted mufflered racing activities on the property

on Saturdays for decades, without complaint by the

Vaill plaintiffs or other affected landowners.34 Accordingly, the commission concedes that, as used in § 221-

1 (a) (2) (A) of the 2015 amendments, the word ‘‘weekday’’ includes Saturdays.

The council contends that, to the contrary, under

ordinary modern usage, the word ‘‘weekday’’ means

any day that does not occur on the ‘‘weekend,’’ which

means Saturday and Sunday. The council also points

out that the 2015 amendments distinguish weekdays

from Saturdays in some respects.

We are persuaded by the plaintiff’s arguments, as

well as the commission’s concession, that the word

‘‘weekday,’’ as used in § 221.1 (a) (2) (A) of the 2015

amendments, was intended to include Saturdays. The

council’s reliance on the fact that there are some differences between the restrictions imposed on racing activities from Monday through Friday and those imposed

on Saturday racing is misplaced because there is no

reason that the commission could not impose distinct

regulations on Saturday racing even if Saturday is a

weekday. Accordingly, we conclude that the trial court

incorrectly determined that mufflered racing is prohibited on Saturdays under the 2015 amendments to the

zoning regulations.35

IV

We next address the plaintiff’s claim that the trial

court incorrectly determined that § 221.1 (a) (3) of the

2015 amendments restricting unmufflered racing activities is not a noise control ordinance within the meaning

of § 22a-73 (b), which, to be effective, would require

the approval of the Commissioner of Energy and Environmental Protection (commissioner) pursuant to

§ 22a-73 (c).36 The plaintiff contends that § 221.1 (a)

(3) is a noise control ordinance subject to § 22a-73 (c)

because it differentiates the treatment of unmufflered

racing activities, which are loud, from mufflered activities, which are less loud. We disagree.

Whether the restrictions on unmufflered racing activities constitute a noise control ordinance for purposes

of § 22a-73 is a question of statutory interpretation, over

which our review is plenary. See, e.g., State v. MorenoHernandez, supra, 317 Conn. 299. The principles governing our interpretation of statutes are set forth in part

II of this opinion. Because none of the parties contends

that § 22a-73 is plain and unambiguous as to what con-
stitutes a noise regulation subject to § 22a-73, we may

‘‘look for interpretive guidance to the legislative history

and circumstances surrounding its enactment, to the

legislative policy it was designed to implement, and to

its relationship to existing legislation and [commonlaw] principles governing the same general subject matter . . . .’’ (Internal quotation marks omitted.) Id.

Section 22a-73 is part of the Noise Pollution Control

Act (act), General Statutes § 22a-67 et seq. The legislative policy that the act was designed to implement is

set forth in § 22a-67.37 That statute expressly recognizes

that land uses that create excessive noise constitute a

potential nuisance and that it is the policy of the state

to promote an environment that is ‘‘free from noise that

jeopardizes the health and welfare of [Connecticut’s]

citizens . . . .’’ General Statutes § 22a-67 (b). Pursuant

to that policy, the commissioner is authorized to ‘‘adopt

. . . a comprehensive state-wide program of noise regulation . . . .’’ General Statutes § 22a-69 (a).

Pursuant to § 22a-73 (a), ‘‘it is the public policy of

the state to encourage municipal participation by means

of regulation of activities causing noise pollution

. . . .’’ To that end, ‘‘[a]ny municipality may adopt . . .

a noise control ordinance which may include the following: (1) Noise levels which will not be exceeded in

specified zones or other designated areas; (2) designation of a noise control officer and the designation of

an existing board or commission, or the establishment

of a new board or commission to direct such program;

(3) implementation procedures of such program and

the relation of such program to other plans within the

jurisdiction of the municipality; (4) procedures for

assuring compliance with state and federal noise regulations; [and] (5) noise level restrictions applicable to

construction activities, including limitation on on-site

hours of operation.’’ General Statutes § 22a-73 (b).

With these provisions in mind, we preliminarily

observe that we see no evidence, and the plaintiff makes

no claim, that the act was intended to deprive municipalities, acting through their zoning commissions, of

their undisputed authority to consider noise as a factor

when they regulate the uses that may be permitted on

specific properties. It is well established that ‘‘[t]he

central concern of zoning is the interaction of land uses,

and an attempt to order those uses to minimize their

adverse impacts on each other. The idea is to prevent

nuisances before they occur . . . .’’ T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 35. This

court has repeatedly recognized that excessive noise is

a type of nuisance that can be regulated pursuant to

the zoning authority conferred on municipalities by § 8-

2. See Cambodian Buddhist Society of Connecticut,

Inc. v. Planning & Zoning Commission, 285 Conn. 381,

440, 941 A.2d 868 (2008) (planning and zoning commission’s denial of special exception to build Buddhist
temple was supported by substantial evidence when

‘‘the commission reasonably could have concluded that

a parking lot for 148 cars would be a significant source

of noise and disruption in the neighborhood’’); Husti

v. Zuckerman Property Enterprises, Ltd., 199 Conn.

575, 582, 508 A.2d 735 (‘‘[P]erformances at an outdoor

amphitheater located in a residential area threatened

the quality of life and the safety of the inhabitants of

the neighborhood by causing noise, attracting crowds,

and creating traffic congestion. These are precisely the

kinds of dangers that zoning is meant to combat; see

General Statutes § 8-2; and that justify content-neutral

regulation of the time, place, and manner of expression.’’ (Footnote omitted.)), appeal dismissed, 479 U.S.

802, 107 S. Ct. 43, 93 L. Ed. 2d 6 (1986). Indeed, the

plaintiff concedes that the act does not prevent zoning

commissions from considering noise ‘‘as a factor in

deciding whether a proposed new use [is] appropriate

for a particular location’’ pursuant to the zoning authority conferred by § 8-2.

The plaintiff contends, however, that, once a particular use of a property has been permitted, zoning commissions cannot continue to regulate the noise level that

is produced by the use without obtaining the approval

of the commissioner pursuant to § 22a-73 (c). In support

of this claim, the plaintiff relies on Berlin Batting

Cages, Inc. v. Planning & Zoning Commission, supra,

76 Conn. App. 199. In that case, the defendant planning

and zoning commission of the town of Berlin appealed

from the judgment of the trial court sustaining the plaintiff’s appeal from the defendant’s denial of an application seeking site plan approval to construct a go-cart

track on its property. Id., 200. The defendant claimed,

among other things, that the trial court improperly had

concluded that § X (D) (3) of the Berlin Zoning Regulations38 was ineffective because it conflicted with the

act. Id., 215–16. The defendant contended that § X (D)

(3) was not a noise control ordinance for purposes of

the act because it ‘‘applie[d] only to site plan review

while an ordinance adopted pursuant to [the act] would

regulate noise emissions in all situations and not merely

when a site plan is under review.’’ (Internal quotation

marks omitted.) Id., 218.

The Appellate Court in Berlin Batting Cages, Inc.,

disagreed. The court concluded that, by adopting the

act, ‘‘the legislature has undertaken to preempt that

field of legislation [i.e., noise pollution control] and to

require that local efforts aimed at noise pollution control comply with the requirements [that] it has enumerated by statute.’’ Id., 217. The court further concluded

that § 8-2 did not ‘‘confer authority [to] the zoning commission to promulgate regulations concerning noise

pollution and, moreover, we certainly do not read that

language to contradict the [act].’’ Id., 218. Because the

defendant had not complied with the requirement of

§ 22a-73 (c) that noise control ordinances be approved
by the commissioner, the Appellate Court concluded

that the zoning regulation was ineffective. Id., 217–19.

Accordingly, the Appellate Court upheld the trial court’s

ruling that § X (d) (3) could not provide a basis for

denying the site plan. Id., 219.

The plaintiff in the present case contends that Berlin

Batting Cages, Inc., supports its position for two reasons. First, it claims that, although the defendant in

that case would have had the authority under § 8-2 to

consider noise as a factor in deciding whether to allow

the use sought by the plaintiff,39 the decision establishes

that zoning commissions cannot regulate noise after a

use had been approved without obtaining the approval

of the commissioner. Thus, the plaintiff appears to contend that, once the commission permitted racing activities on the property in the present case, any further

attempt to regulate the noise level of those activities

would constitute a noise control ordinance for purposes

of the act. Second, the plaintiff contends that, under

Berlin Batting Cages, Inc. v. Planning & Zoning Commission, supra, 76 Conn. App. 199, zoning commissions

that want to regulate noise must adopt a ‘‘comprehensive program of noise regulation’’; (emphasis added;

internal quotation marks omitted) id., 216; and they

cannot adopt noise control ordinances that target specific properties.

The flaw in the plaintiff’s first argument is that, even

if the plaintiff were correct that the commission cannot

regulate the noise level of a land use that it has permitted without obtaining the approval of the commissioner,

the plaintiff incorrectly assumes that the use that the

2015 amendments permit is ‘‘racing activities.’’ In fact,

the amendments contemplate two distinct uses of the

property—mufflered racing activities and unmufflered

racing activities—with two different noise levels. We

can perceive no reason why, if the commission has the

authority under § 8-2 to consider noise as a factor when

determining whether a particular land use is appropriate—which the plaintiff concedes—it would not have

the authority to allow mufflered racing while prohibiting or placing greater restrictions on unmufflered racing on the basis of their different noise levels. It would

make little sense, for example, to conclude that, if a

zoning commission were to permit racing activities by

noiseless electric vehicles as an appropriate use of a

property under the authority conferred by § 8-2, it could

not thereafter prohibit or restrict unmufflered monster

truck racing on the property without running afoul of

the act, even though the act would not have affected

the commission’s authority to prohibit unmufflered racing as a ‘‘new use’’ if it had not previously allowed

electric vehicle racing. We conclude, therefore, that a

zoning regulation that differentiates between distinct

land uses that produce different noise levels for purposes of determining whether a specific use is appropriate for a property does not, ipso facto, specify
‘‘[n]oise levels which will not be exceeded in specified

zones or other designated areas’’; (emphasis added)

General Statutes § 22a-73 (b) (1); and, therefore, does

not constitute a municipal noise control ordinance for

purposes of the act.

This conclusion disposes of the plaintiff’s second

argument.40 Even if we were to assume that a town that

wishes to establish a noise control program pursuant

to the act must adopt a comprehensive program, we

have concluded that the 2015 amendments did not constitute a noise control ordinance within the meaning of

the act. We conclude, therefore, that the trial court

correctly determined that the commission was not

required to obtain the commissioner’s approval of

§ 221.1 (a) (3) of the 2015 amendments, pursuant to

§ 22a-73 (c), before the regulation could be effective.41

V

Finally, we address the plaintiff’s contention that the

trial court incorrectly determined that the commission

had the authority under §§ 8-2 and 8-3 (c)42 to adopt

§§ 221.1 (a) (8) and 221.3 (d) of the 2015 amendments

(special permit provisions), which provide that the

respective subsections of the amendments ‘‘may be

amended by the [c]ommission upon filing and approval

of . . . a special permit application in compliance with

all requirements of these regulations . . . .’’ We agree

with the plaintiff.

The following additional procedural history is relevant to our consideration of this claim. In support of

its determination that the commission had the authority

to adopt the special permit provisions, the trial court

relied on the Appellate Court’s decision in Taylor v.

Zoning Board of Appeals, 65 Conn. App. 687, 783 A.2d

526 (2001). In that case, the plaintiffs operated a nonconforming sand and gravel quarry on their property.

Id., 690. The plaintiffs and their predecessors in title

had operated the quarry for several decades, but, in

1990, the town of Wallingford amended its zoning regulation to allow quarry operations if the owner obtained

a special permit. Id. The plaintiffs obtained a permit and

renewed it twice but ultimately let the permit expire.

Id. Thereafter, the town’s zoning enforcement officer

issued a cease and desist order to the plaintiffs. Id.,

690–91. The plaintiffs appealed from the order to the

zoning board of appeals (board), claiming that, because

their quarry operation was a preexisting nonconforming

use, they were not required to obtain a special permit.

Id., 691. The board denied the appeal on the ground

that the plaintiffs had waived their right to continue to

use their property as a nonconforming use when they

applied for a special permit. Id.

The plaintiffs then appealed to the trial court. Id. The

trial court dismissed the appeal on the ground that the

town’s zoning regulations permitted the conversion of
a nonconforming use into a permitted use. Id. The court

further concluded that, even if the plaintiffs’ use continued to be nonconforming, the town had the authority

to regulate the use in the interest of public health, safety

and welfare. Id., 691–92.

The plaintiffs appealed from the judgment of dismissal to the Appellate Court, which concluded that

the trial court had incorrectly determined that the town

had the authority to convert the plaintiffs’ nonconforming use into a permitted use because, ‘‘[o]nce a nonconforming use is established, the only way it can be lost

is through abandonment.’’ Id., 695. The Appellate Court

also concluded, however, that the town had the authority to regulate the nonconforming use to protect the

public health, safety and welfare, ‘‘provided it is done

reasonably’’; (emphasis omitted; internal quotation

marks omitted) id., 697; and that the special permit

requirement was a reasonable regulation. Id., 698.

Accordingly, the Appellate Court affirmed the judgment

of the trial court. Id.

In the present case, the trial court found that ‘‘the

regulation of racing, camping and parking at the track

[had] been ambiguous, jumbled, sloppy and confusing

prior to the 2015 . . . amendments.’’ In addition, the

court found that, ‘‘even though [racing activities have]

been a specially permitted use since 1975, the [plaintiff]

has never applied for or received a special permit.’’

The court concluded that, consistent with Taylor, ‘‘[i]t

would provide a necessary benefit to the public to have

a site plan of the [property] on file in the zoning office,

detailing important aspects of its operation like sanitation and parking.’’ The trial court further concluded

that, under this court’s decision in Zimnoch v. Planning & Zoning Commission, 302 Conn. 535, 29 A.2d

898 (2011), the commission was not precluded by § 8-

3 (c) from ‘‘combining a zone change application with

a special permit application.’’ See id., 552 (‘‘although

the considerations and actions taken by the commission

in reviewing the zone change application are slightly

different in operation when compared to the special

exception permit application, we have uncovered no

requirement, statutory, regulatory or otherwise, that

precludes the town from combining these applications

into one process’’ (footnote omitted)). Accordingly, the

trial court concluded that, under Taylor, the special

permit provisions were a reasonable regulation of the

plaintiff’s nonconforming use.

The plaintiff now contends that, regardless of

whether the commission could order the plaintiff to

discontinue its racing activities until it obtained a special permit, as was done in Taylor,

43 the trial court’s

reliance on Zimnoch v. Planning & Zoning Commission, supra, 302 Conn. 535, to support its conclusion

that the commission had the authority to require it to

apply for a special permit as a condition for seeking
an amendment to the zoning regulations was misplaced

because that case is distinguishable from the present

case. The plaintiff also contends that the special permit

provisions are arbitrary and unreasonable because they

effectively bar any person except the plaintiff from

seeking an amendment. The council and the commission dispute these claims. The commissioner also contends that the plaintiff lacks standing to raise them

because the special permit provisions do not bar it from

filing a petition to amend the regulations.

‘‘It is, of course, fundamental that no zoning regulations are valid unless they are within the police power.

They must bear a reasonable relation to the public welfare and that relation must be within at least one of the

particulars specified in the enabling statute. . . . It

must be borne in mind that the courts will not substitute

their judgment for that of the legislative body if the

question whether a zoning ordinance is consistent with

the public welfare in any of the particulars specified in

the statute is fairly debatable. . . . A zoning ordinance

will be held invalid only if it is palpably unjust, unreasonable or arbitrary.’’ (Citations omitted.) Fairlawns

Cemetery Assn., Inc. v. Zoning Commission, supra,

138 Conn. 440; see also Schwartz v. Town Planning &

Zoning Commission, 168 Conn. 285, 294, 362 A.2d 1378

(1975) (zoning regulations were valid when plaintiffs

presented no evidence that they were ‘‘unreasonable,

arbitrary or confiscatory’’). The validity of a zoning regulation is a question of law over which our review is

plenary. See, e.g., Jackson, Inc. v. Planning & Zoning

Commission, 118 Conn. App. 202, 206, 982 A.2d 1099

(2009), cert. denied, 294 Conn. 931, 986 A.2d 1056

(2010).

Because it implicates the trial court’s subject matter

jurisdiction, we first address the commission’s claim

that the plaintiff lacks standing to challenge the special

permit provisions on the ground that they bar other

persons from seeking to amend the regulations. In support of this claim, the commission cites Lauer v. Zoning

Commission, 220 Conn. 455, 465, 600 A.2d 310 (1991).

In Lauer, the defendant, John Angeloni, applied for and

obtained a special permit to operate a horse riding

academy on his property. Id., 456–58. The plaintiff, who

owned land within 100 feet of Angeloni’s property; id.,

458 n.6; claimed that the failure of the zoning commission to give notice of the special permit proceedings

to an adjoining town, as required by General Statutes

(Rev. to 1989) § 8-3h, deprived the commission of subject matter jurisdiction over the special permit application. Id., 459. This court concluded that the failure to

give notice pursuant to § 8-3h did not implicate the

commission’s subject matter jurisdiction but merely

provided for ‘‘personal notice.’’ Id., 464–65. This court

further concluded that the plaintiff had no standing to

raise the claim on appeal that the commission had failed

to give personal notice to the adjoining town. Id., 465.
We conclude that Lauer is distinguishable from the

present case. Unlike the plaintiff in Lauer, who was in

no way affected by the zoning commission’s failure to

notify an adjoining town of the special permit proceedings, the plaintiff in the present case is adversely

affected by the requirement that it obtain a special

permit before it may seek an amendment to the zoning

regulations.44 We conclude, therefore, that the plaintiff

has standing to raise the claim that the special permit

provisions are arbitrary because they restrict the persons who can seek an amendment to the zoning regulations. A conclusion to the contrary would mean that

the plaintiff would be burdened by a facially invalid

regulation. In this regard, we note that this court in

Lauer implicitly recognized that, if § 8-3h had been subject matter jurisdictional, the plaintiff would have had

standing to raise the claim that the commission had

failed to comply with it. See id.

We now turn to the merits of the plaintiff’s claim that

the trial court’s reliance on Zimnoch was misplaced

and that the special permit provisions are arbitrary. We

agree with the plaintiff. In Zimnoch, the defendant,

Pond View, LLC (Pond View), owned land in the town

of Monroe, part of which fell within a DB-2 business

and commercial zone and part of which fell within a

residential zone. Zimnoch v. Planning & Zoning Commission, supra, 302 Conn. 537, 539. Pursuant to town

zoning regulations that required a landowner that

wanted to change the zone in which its land was located

to a design district to file simultaneously a petition to

establish the design district and an application for a

special exception permit, Pond View filed a combined

application for a design district zone change and a special exception permit. See id., 539.45 The application

was denied, and a series of appeals followed; id., 540–56;

the substance of which has no bearing on the present

case. In the course of explaining the applicable regulatory scheme, this court stated in Zimnoch that it had

‘‘uncovered no requirement, statutory, regulatory or

otherwise, that precludes the town [of Monroe] from

combining these applications [for a zone change and

for a special permit] into one process.’’ Id., 552. Indeed,

we noted that ‘‘combining zone and permit applications

helps expedite the process and ensures that a commission makes the most informed decision possible.’’ Id.,

553.

In the present case, the trial court appears to have

concluded that Zimnoch stands for the general proposition that a petition to amend zoning regulations may

be conditioned on the simultaneous filing of a special

permit application. In Zimnoch, however, the regulation that governed petitions to change the zone in which

a particular property was located to a design district

was specifically directed to the owners of the property.

See id., 549 n.11 (quoting Monroe Zoning Regs., § 117-
900, providing that ‘‘ ‘[t]he owner or owners of a tract

of land may petition for the establishment of a design

district’ ’’). Presumably, this was because only the owners would have standing to seek to designate their property as a design district. Any person who would be

affected by the proposed change, however, would be

able to protect his or her interests by participating in

the public hearings on the petition. See id., 549 n.12

(citing Monroe Zoning Regs., § 117-905 (A)); see also

footnote 45 of this opinion. In contrast, in the present

case, many persons other than the plaintiff have interests that are affected by the racing activities on the

plaintiff’s property and the 2015 amendments, whose

interests could be protected by filing a petition to amend

the regulations. For example, neighboring landowners

might want to seek an amendment changing or reducing

the number of hours that racing activities are permitted.

Under the special permit provisions, they have no ability

to do so. The council and the commission—which concede this point—have cited no authority for the proposition that the commission is empowered to arbitrarily

restrict the classes of affected persons who can seek

to amend particular zoning regulations.46 We conclude,

therefore, that the special permit provisions are

invalid.47

We further note that, to the extent that the commission adopted the special permit provisions in order to

force the plaintiff to file an application for a special

permit before it could expand racing activities on the

property, the provisions would appear to be unnecessary. The sole justification for the plaintiff’s position

that it is not required to apply for a special permit to

continue its present activities on the property is that

those activities predated the adoption of the regulation

requiring a special permit to conduct racing activities

in 1975. Thus, the plaintiff contends that, contrary to

the holding of the Appellate Court in Taylor v. Zoning

Board of Appeals, supra, 65 Conn. App. 687, conducting

the current level of racing activities without the need

to obtain a special permit is, in effect, a preexisting

nonconforming use that the commission cannot abrogate by regulation.48 The plaintiff makes no claim, however, that it could expand its racing activities on the

property without first seeking an amendment to the

zoning regulations and obtaining the required special

permit.49 Cf. R. Fuller, 9B Connecticut Practice Series:

Land Use Law and Practice (4th Ed. 2015) § 52:2, p. 226

(‘‘[t]he zoning regulations . . . may allow [for] expansion of a nonconforming use by special permit’’ (footnote omitted)).

VI

In summary, we conclude that the trial court correctly

determined that (1) the plaintiff did not waive its right to

challenge the 2015 amendments’ prohibition on Sunday

racing, and (2) the 2015 amendments’ restrictions on
unmufflered racing are not subject to the provisions

of § 22a-73. We further conclude that the trial court

incorrectly determined that (1) § 14-164a (a) preempted

the regulation prohibiting racing activities on the plaintiff’s property on Sundays, (2) the 2015 amendments

prohibit mufflered racing activities on Saturdays, and

(3) the commission acted within its authority when it

adopted the regulations requiring the plaintiff to obtain

a special permit as a condition for filing a petition to

amend the 2015 amendments.

The judgment is reversed insofar as the trial court

determined that § 14-164a (a) preempted the regulation

prohibiting racing activities on Sundays and the case is

remanded with direction to render judgment dismissing

the plaintiff’s appeal with respect to that claim; the

judgment is reversed insofar as the trial court ruled

that the 2015 amendments prohibited mufflered racing

activities on Saturdays and the case is remanded with

direction to vacate that ruling; the judgment is reversed

insofar as the trial court determined that the commission had the authority to adopt the regulations requiring

the plaintiff to obtain a special permit as a condition

for filing a petition to amend the 2015 amendments and

the case is remanded with direction to render judgment

sustaining the plaintiff’s appeal with respect to that

claim; the judgment is affirmed in all other respects.

In this opinion the other justices concurred.

* May 22, 2020, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 Upon the granting of certification pursuant to General Statutes § 8-8 (o),

the parties appealed to the Appellate Court, and we transferred the appeals

to this court pursuant to General Statutes § 51-199 (c) and Practice Book

§ 65-1.

2 General Statutes § 14-164a (a) provides in relevant part: ‘‘No person shall

operate a motor vehicle in any race, contest or demonstration of speed or

skill with a motor vehicle as a public exhibition except in accordance with

the provisions of this section. Such race or exhibition may be conducted

at any reasonable hour of any week day or after twelve o’clock noon on

any Sunday. The legislative body of the city, borough or town in which the

race or exhibition will be held may issue a permit allowing a start time prior

to twelve o’clock noon on any Sunday, provided no such race or exhibition

shall take place contrary to the provisions of any city, borough or town

ordinances. . . .’’

3 The trial court noted that the parties were unable to provide any documentation regarding the adoption of this regulation. On the basis of a copy

of the 1974 revision of the zoning regulations that contained handwritten

references to the third through sixth revisions of the Salisbury zoning regulations, as well as a handwritten notation containing the text of the amendment

referring to the judgment in Vaill I, the court found that the amendment

had been adopted at some point between the adoption of the second and

sixth revisions.

4 Neither the parties nor the trial court has explained how the court arrived

at its conclusion that this amendment was adopted in 1975. The conclusion

is undisputed, however.

5 At the time of the 1988 modification, the Lime Rock Protection Committee, Inc., had been substituted as the plaintiff in the Vaill case and the then

owner of the property, Lime Rock Associates, Inc., had been substituted as

the defendant.

6 On September 4, 2015, the plaintiff in the present case, which is a defendant in the Vaill case, again sought to modify the injunction in Vaill. Specifically, in its motion, the plaintiff sought to modify the present terms of the

injunction by, among other things, (1) allowing it to conduct unmufflered

racing activities on one Sunday per year after 12 p.m., (2) allowing mufflered
racing activities on twenty Sundays per year; (3) allowing a start time of 9

a.m. for mufflered racing activities in the ‘‘[u]pper [a]rea’’ of the property

on Sundays and after 12 p.m. on the racetrack, (3) changing the racing start

time on Fridays from 10 a.m. to 9 a.m. and changing the finish time on

Saturdays from 6 p.m. to 7 p.m., (4) allowing unmufflered racing activities

on Fridays, and (5) reducing the number of Tuesdays that the plaintiff can

conduct unmufflered racing activities from fifty-two per year to twenty per

year, and allowing the plaintiff to conduct unmufflered racing activities on

five Thursdays per year instead of on Tuesdays. The proceedings on the

plaintiff’s motion for modification have been stayed pending resolution of

these appeals.

7 The 2015 amendments to the regulations provide: ‘‘221.1 Track for Racing

Motor Vehicles

‘‘A track for racing motor vehicles, excluding motorcycles, as well as for

automotive education and research in safety and for performance testing

of a scientific nature, private auto and motorcycle club events, car shows,

and certain other events identified in section 221.2 are permitted subject

to the issuance of a special permit in compliance with the procedures and

standards of these regulations and also subject to the following:

‘‘a. No motor vehicle races shall be conducted on any such track except

in accordance with the following parameters:

‘‘(1) All activity of mufflered or unmufflered racing cars upon the asphalt

track or in the paddock areas shall be prohibited on Sundays.

‘‘(2) Activity with mufflered racing car engines shall be permitted as

follows:

‘‘A. On any weekday between [9 a.m.] and [10 p.m.] provided, however, that

such activity may continue beyond the hour of [10 p.m.] without limitation

on not more than six . . . occasions during any one calendar year.

‘‘B. Permissible mufflers are those which meet the standards set forth in

Section 14-80 (c) of the General Statutes of Connecticut, Revision of 1959,

or as the same may be amended from time to time.

‘‘(3) Activity with unmufflered racing car engines shall be permitted as

follows:

‘‘A. On Tuesday afternoon of each week between [12 p.m.] and [6 p.m.].

‘‘B. On Saturdays, not more than ten . . . in number in each calendar

year, between the hours of [9 a.m.] and [6 p.m.].

‘‘C. On the ten . . . Fridays which precede the said ten . . . Saturdays

between the hours of [10 a.m.] and [6 p.m.] for the purpose of testing,

qualifying or performing such other activities as may be necessary or incidental to the direct preparation for races on the Saturdays specified, provided

that no qualifying heats or races shall be permitted on such Fridays.

‘‘D. In such event the scheduled activity for any of the said ten . . .

Saturdays must be rescheduled for a ‘rain date,’ then the said ‘rain date’

and the Friday preceding it shall not be considered as one of the ten . . .

days referred to in [p]aragraphs (b) and (c) above.

‘‘E. On Memorial Day, Fourth of July and Labor Day between the hours

of [9 a.m.] and [6 p.m.].

‘‘(i) In the event any of said holidays falls on a Tuesday, Thursday or a

Friday, there may be unmufflered activity on the day preceding the holiday

between the hours of [12 p.m.] and [6 p.m.], but in the event the permissible

unmufflered activity of the Tuesday next preceding the holiday shall be forfeited.

‘‘(ii) In the event any of said holidays falls on a Sunday, the next day

(Monday) will be considered the holiday for these purposes.

‘‘(iii) In no event shall any such holidays increase the number of Saturdays

of permissible unmufflered activity beyond ten . . . as provided in [p]aragraph (b) above.

‘‘(4) Prohibited activity upon the track property shall include the revving or

testing of mufflered or unmufflered car engines on Saturdays and permitted

holidays prior to [9 a.m.] and after [6 p.m.], excepting the transportation of

said vehicles to and from the paddock areas on or off their respective

trailers, which transporting, unloading or loading shall not commence before

7:30 a.m. or extend beyond 7:30 p.m.

‘‘(5) The use of the track loudspeakers before [8 a.m.] and after [7 p.m.]

is prohibited.

‘‘(6) A ‘racing car,’ for purposes of this subsection, is defined as any car

entered in an event on an asphalt track.

‘‘(7) Racing of motorcycles is prohibited. Nevertheless, specifically permitted are nonracing motorcycle activities including but not limited to demonstrations, instruction, timing, testing, practice and photography.
‘‘(8) The parameters set forth in this subsection may be amended by the

[c]ommission upon filing and approval of (1) a special permit application

in compliance with all requirements of these regulations, including a site

plan identifying the location of all uses, accessory uses, buildings, structures,

pavement, and all other improvements on the relevant property, and amendments to any of the parameters set forth above; and (2) a petition to amend

the zoning regulations setting forth alternative parameters for this subsection.

‘‘b. Where the land on which a race track is situated abuts or faces a

residential zone district, there shall be a minimum of fifty foot buffer strips

along each yard, or part thereof, so abutting or facing, which shall contain

a screen of shrubbery not less than fifteen feet in width nor less than six

feet in height within one year of the adoption of this amendment to the

regulations. This screen shall thereafter be suitably and neatly maintained

by the owner, tenant and/or their agent. Any such screen shall consist of

at least fifty percent evergreens so as to maintain a dense screen at all

seasons of the year.

‘‘c. The lot shall have adequate frontage on or access to a principal traffic

street or street capable of handling the volume of traffic to be generated

thereon. The access and service roads connecting with the principal traffic

street or streets shall be so located and designed as to avoid unsafe traffic

conditions or congestion. Traffic control devices and lighting of access

points at or across street or access intersections shall be provided at the

expense of the owner when required and provision shall be made for safe

pedestrian traffic to, from and within the lot. The design and location of

access and intersections with public highways shall be subject to the

approval of the [s]electmen for a town road or the Connecticut Department

of Transportation for a state highway.

‘‘d. Adequate off-street parking shall be provided to accommodate the

vehicles of employees, proprietors, participants, customers, visitors and

others.

‘‘e. Not more than three signs, not more that [fifty] square feet each,

advertising the use of the premises shall be permitted. Any sign not consistently visible from off the premises is permitted. Directional signs, not more

than six square feet each, are permitted.

‘‘f. No sign, with the exception of scoreboards, visible off the premises

shall be illuminated by exposed tubes or other exposed light sources, nor

shall any flashing sign be visible from off the premises. Spot or other lighting

of any sign, building, structure, land track, parking space or any other part

of the premises shall be so arranged that the light source is not visible from

any point off the premises.

‘‘221.2 Accessory [u]ses to a track for racing motor vehicles may include:

retail stores, professional or business offices, fire or emergency services,

ATMs, restaurants, and food stands. Accessory uses may also include the

use of the premises for automobile shows, sale of motor vehicles during

racing events, sale of automotive parts and accessories; car washes, auto

service and repairs; filling stations; commercial parking; laundry; equipment

storage; racing schools and clubs; indoor theaters; and other similar activities

that are accessory to the operation of a recreational race track herein

permitted. Other accessory uses may include the production, showing, or

performance of television, motion picture or radio programs with their

related lighting and sound equipment.

‘‘221.3 Camping by spectators and participants is allowed as an accessory

use to permissible automobile racing events subject to the following

restrictions:

‘‘a. All camping and camping vehicles shall be limited to locations within

the infield of any asphalt race track existing as of the effective date of

this regulation.

‘‘b. No motor vehicles shall be parked in any [r]ace [t]rack outfield during

the hours of [10 p.m.] to [6 a.m.] except those which are (1) on official track

business; and (2) parked in the parking lot existing as of the effective date

of this regulation.

‘‘c. No traffic other than emergency or service vehicles shall be allowed

between the hours of [11 p.m.] and [6 a.m.] on any accessway into any race

track that abuts property located at 52 White Hollow Road.

‘‘d. The standards set forth in this subsection may be amended by the

[c]ommission upon filing and approval of (1) a special permit application

in compliance with all requirements of these regulations, including a site

plan identifying the location of all uses, accessory uses, buildings, structures,

pavement, and all other improvements on the relevant property, and amend-
ments to any of the restrictions set forth above; and (2) a petition to amend

the zoning regulations setting forth alternative standards for this subsection.

‘‘221.4 The following uses are deemed not to be accessory uses to a

track for racing motor vehicles but are allowed subject to a special permit:

Fireworks displays (with the exception of a single evening display during

the annual Independence Day period in early July for charitable purposes),

concerts, flea markets, craft fairs, food shows, non-automotive trade shows,

and garden shows.

‘‘221.5 If the holder of a special permit for a track for motor vehicle racing

leases or otherwise authorizes a private organization to use all or part of

its property to a third party, it shall require said party to comply with all

provisions of these regulations, the special permit, and its conditions.

‘‘221.6 If any portion of this section . . . shall be found by a court of

competent jurisdiction to be illegal, it is the intent of this [c]ommission no

part of [this] [s]ection . . . shall remain valid, including the amended table

of uses adopted simultaneously herewith providing that a track for racing

of motor vehicles shall be allowed by special permit in the [rural enterprise]

[d]istrict; it being the intent of the [c]ommission that, if it is found that the

[c]ommission lacks authority to regulate any aspect of [r]ace [t]rack use as

set forth herein, then a track for [r]acing of [m]otor [v]ehicles shall be found

to not be permitted in the [rural enterprise] [d]istrict, and any race track

use in existence at the time of the adoption of these regulations shall have

such rights as may exist as a nonconforming use under these regulations

and Connecticut law.’’ (Footnote omitted.) Salisbury Zoning Regs. (2015)

§§ 221.1 through 221.6.

We note that paragraph (a) of § 221.1 includes the following footnote:

‘‘The parameters set forth [in paragraph (a)] are identical to those set forth

in [the amended judgment in Vaill IV], which parameters were previously

incorporated by reference in the zoning regulations.’’ Salisbury Zoning Regs.

(2015) § 221.1 (a) n.1.

Section 221.6 of the 2015 amendments was repealed on April 6, 2016.

8 General Statutes § 8-2 (a) provides in relevant part: ‘‘The zoning commission of each city, town or borough is authorized to regulate, within the

limits of such municipality . . . the location and use of buildings, structures

and land for trade, industry, residence or other purposes . . . .’’

9 The trial court issued its first memorandum of decision on January 31,

2018, sustaining the appeal in part and denying it in part, and it rendered

judgment accordingly. Thereafter, all three parties filed motions to reargue.

The trial court granted the motions to reargue, opened the judgment and

issued an amended memorandum of decision on July 17, 2018, which superseded the original memorandum of decision in all respects.

10 The parties did not address in the proceedings before the trial court

the issue of whether the word ‘‘weekday,’’ as used in the amendments,

includes Saturdays. The commission and the plaintiff appear to have

assumed that ‘‘weekday’’ includes Saturdays, whereas the council appears

to have assumed that it does not. The trial court reached its conclusion

that mufflered racing is not allowed on Saturdays in the portion of its

memorandum of decision summarizing the contents of the amendments.

11 As we have explained, the plaintiff did not raise this claim in the proceedings before the trial court but appears to have assumed, sub silentio, that

the word ‘‘weekday,’’ as used in the 2015 amendments, includes Saturdays,

whereas the council appears to have made the contrary assumption. See

footnote 10 of this opinion. Because the record is adequate for review, the

parties have briefed the issue, and neither the commission nor the council

objects to our review, we review the claim.

12 After the plaintiff, which is a defendant in the Vaill case, filed a motion

to modify the judgment in Vaill, the council filed a motion to intervene in

that case, which the trial court granted. The commission states in its brief

to this court that, ‘‘because the council’s waiver argument relies on specific

pleadings and stipulations in a matter [in which] the commission is not a

party,’’ it took no position on this claim in the trial court and takes no

position on the council’s claim on appeal.

13 We note that the plaintiff makes no claim that the stipulations in Vaill

II and Vaill IV are not binding on it or that, if its predecessor in interest

waived the right to challenge amendments to the zoning regulations that

were consistent with the terms of those stipulations, it would not be bound

by that waiver. It claims only that there was no such waiver.

14 Indeed, we note that, under Connecticut law, a restrictive covenant

running with the land, which is a purely private agreement, may be modified

in light of changed circumstances. See, e.g., Bueno v. Firgeleski, 180 Conn.
App. 384, 396, 183 A.3d 1176 (2018). Accordingly, even if the plaintiff were

correct that the stipulations in Vaill II and Vaill IV effectively constituted

restrictive covenants that run with the land, that would not mean that the

owners of the property would be bound by the terms of the stipulations

forever, regardless of whether a change in circumstances subverted their

purpose.

15 We acknowledge that it is possible that the plaintiff’s actions may have

given rise to reliance interests the trial court could consider when determining whether the injunction should be modified. That question, however, is

not before the court in the present case, and we express no opinion on it.

We conclude only that the plaintiff is not barred from ever challenging

the terms of the stipulations in any forum merely because it abided by

their terms.

16 The council cites authority for the proposition that, when an appeal

from a zoning decision is available, a party cannot forgo the appeal and

later bring a collateral attack on the decision. See Cavallaro v. Durham,

190 Conn. 746, 748, 462 A.2d 1042 (1983) (‘‘[a]n independent action may not

be used to test the very issue [that] an appeal is designed to test’’). This

begs the question, however, by assuming that an appeal from an amendment

to the zoning regulations that purportedly recodifies a preexisting regulation

in different language constitutes an impermissible collateral attack on the

original regulation, which is the very claim that the council is making in

the first instance.

17 The council does contend that the trial court incorrectly found that the

2015 amendments did not merely recodify the 2013 amendment because

the 2013 amendment restricted only the hours that racing activities were

permitted on the property and did not prohibit racing on Sundays. We agree

with the council and the commission that, by incorporating the order in

Vaill I, as subsequently modified, the 2013 amendment prohibited racing

activities on the property on Sundays because the order, as modified, permitted zero hours of racing activities on Sundays. Thus, the prohibition on

Sunday racing in the 2015 amendments recodified that prohibition.

18 We recognize that, at a September 8, 2015 public hearing on the proposed

amendments, the chairman of the commission, Michael W. Klemens, indicated that he did not believe that the 2013 amendment was intended to

incorporate modifications to the injunction in the Vaill case that occurred

after the date that the amendment was adopted. We emphasize that we

express no opinion as to whether this position was correct. Rather, we

decline to review the council’s claim that the plaintiff forfeited its right

to challenge the 2015 amendment when it failed to appeal from the 2013

amendment because the council has provided no analysis on this issue in

its brief to this court.

19 For its part, the plaintiff contends that the trial court incorrectly determined that the commission could regulate weekday racing activities in any

manner under § 14-164a (a), except to ensure that the activities occurred at

reasonable hours. Thus, the plaintiff appears to contend that the commission

cannot prohibit racing activities during reasonable hours on weekdays.

Because the plaintiff makes no claim that the 2015 amendments actually

prohibit weekday racing during reasonable hours, this claim is hypothetical,

and we ordinarily would not address it. See, e.g., Esposito v. Specyalski,

268 Conn. 336, 350, 844 A.2d 211 (2004) (‘‘[w]e are not compelled to decide

claims of right which are purely hypothetical or are not of consequence as

guides to the present conduct of the parties’’ (internal quotation marks

omitted)). We note, however, that it necessarily follows from our conclusion

that § 14-164a (a) does not preempt towns from adopting zoning regulations

that are more restrictive of Sunday racing activities than the statute because

the statute is prohibitory in that the statute would not preempt the commission from prohibiting racing activities during any hours on any day of the

week.

20 As we explain more fully subsequently in this opinion, a prohibitory

statute is a statute that restricts the subjects of the statute from engaging

in certain activities, in contrast to a permissive statute, which confers permission to engage in certain activities. When a statute is prohibitory, towns

cannot permit activities that the statute prohibits, whereas, if a statute is

permissive, towns cannot prohibit activities that the statute permits.

21 In its primary brief to this court, the commission expounds at length

on its claim that the trial court’s grammatical analysis was incorrect because

the word ‘‘provided’’ can be interpreted as meaning ‘‘and,’’ in which case

the proviso clause would not be a dependent subordinate clause, but an

independent clause. Even if that were the case, however, the structure and
grammar of the statute would still support the conclusion that ‘‘such race,’’

as used in the proviso clause, refers only to the races described in the first

clause of the third sentence, i.e., races before 12 p.m. on Sunday. We also

disagree with the commission’s claim that the references to ‘‘such race’’ in

the first and third sentences of § 14-164 (a) must be interpreted as having

the same meaning, i.e., all races that the statute regulates. It is reasonable

to conclude that the phrase ‘‘such race’’ has the same meaning in the sense

that it refers to the immediately antecedent use of the word ‘‘race.’’

22 The language that was deleted in 1998 is indicated by brackets, and the

language that was added is indicated by italics.

23 Again, the language that was deleted is indicated by brackets, and the

language that was added is indicated by italics.

24 As we explained, before the 1998 amendment, racing activities before

12 p.m. on Sunday were categorically prohibited.

25 The plaintiff concedes that nothing in the legislative history of P.A. 98-

182 indicates that the legislature intended to confer an absolute right to

conduct racing activities during reasonable hours on weekdays and after

noon on Sundays.

26 Notwithstanding its contention that § 14-164a (a) is a ‘‘permissive’’ statute, the plaintiff does not appear to claim that towns could enact zoning

regulations that would, for example, permit racing activities twenty-four

hours a day, seven days a week. Any such interpretation would ignore the

first sentence of § 14-164a (a), providing that ‘‘[n]o person shall operate a

motor vehicle in any race . . . except in accordance with the provisions

of this section.’’ It would also mean that there was no need for the legislature

to adopt the 1998 amendment to § 14-164a (a) authorizing the issuance of

a permit to conduct racing activities before noon on Sundays subject to the

approval of the municipality.

27 For similar reasons, we reject the plaintiff’s suggestion that towns have

the authority under § 8-2; see footnote 8 of this opinion; to prohibit racing

activities altogether and to prohibit them in certain zones, but, once towns

permit racing activities, they cannot regulate the days and hours on which

the activities occur more strictly than § 14-164a (a). First, this contention

seems to contradict claims made elsewhere by the plaintiff that § 14-164a

(a) grants an absolute right to conduct racing at certain hours on certain

days of the week and that the legislature ‘‘explicitly limit[ed] local control

to Sunday prenoon activities . . . .’’ Second, we cannot perceive why the

legislature would simultaneously conclude that racing activities are so potentially disruptive and dangerous that they may be prohibited altogether but

are so socially valuable that, when they are allowed, they must be allowed

seven days a week during certain hours.

28 Having concluded that § 14-164a (a) is prohibitory for preemption purposes, we need not address the plaintiff’s claim that the trial court incorrectly

determined that ‘‘week day,’’ as used in § 14-164a (a), does not include

Saturdays because, even if the plaintiff were correct, the statute would not

preempt the commission from restricting Saturday racing activities more

strictly than the statute. We address in part III of this opinion the plaintiff’s

claim that the trial court incorrectly concluded that the word ‘‘weekday,’’

as used in the 2015 amendments, does not include Saturdays.

29 General Statutes § 8-13 provides: ‘‘If the regulations made under authority of the provisions of this chapter require a greater width or size of yards,

courts or other open spaces or a lower height of building or a fewer number

of stories or a greater percentage of lot area to be left unoccupied or impose

other and higher standards than are required in any other statute, bylaw,

ordinance or regulation, the provisions of the regulations made under the

provisions of this chapter shall govern. If the provisions of any other statute,

bylaw, ordinance or regulation require a greater width or size of yards,

courts or other open spaces or a lower height of building or a fewer number

of stories or a greater percentage of lot area to be left unoccupied or impose

other and higher standards than are required by the regulations made under

authority of the provisions of this chapter, the provisions of such statute,

bylaw, ordinance or regulation shall govern.’’

30 In Mallory v. West Hartford, supra, 138 Conn. 497, this court construed

a provision of a special act; see 19 Spec. Acts 939, No. 469, § 20 (1925)

(Spec. Act No. 469); that contained language identical to the language of

§ 8-13 and authorized the town of West Hartford to create zoning districts.

See Mallory v. West Hartford, supra, 499–500. The plaintiff contended that,

because a statute setting forth procedures for approving a zone change

contained higher standards than those followed by the zoning commission,

which complied with certain special laws passed by the legislature, Spec.
Act No. 469 rendered the procedures followed by the zoning commission

unenforceable. Id. This court concluded that Spec. Act No. 469 was concerned only with statutes governing the ‘‘size of yards, number of stories

and the like,’’ and did not apply to statutes governing procedures. Id., 500.

Thus, the court distinguished between substantive statutes and procedural

statutes, not between statutes governing physical standards and statutes

governing other substantive zoning standards, such as § 14-164a (a). We

note that this court in Mallory did not address the question of whether or

how general preemption principles would apply to the plaintiff’s claim. We

need not decide whether Mallory was correctly decided or, if it was, whether

the trial court correctly applied it, because, even if the trial court correctly

determined that § 8-13 applies only to physical standards, it does not render

the 2015 amendments unenforceable. We note, however, that either § 8-13

applies only to statutes governing physical standards under Mallory, as the

trial court concluded, in which case other substantive zoning statutes would

be subject to common-law preemption principles, or § 8-13 applies to all

statutes governing land use, which would lead to the same result because

§ 8-13 incorporates general preemption principles.

31 The plaintiff does not indicate whether it raised this claim in the trial

court. Because the council and the commission make no claim that the

issue is unreviewable, the parties have briefed the issue, and the plaintiff

cannot prevail, we review it. See Blumberg Associates Worldwide, Inc. v.

Brown & Brown of Connecticut, Inc., 311 Conn. 123, 157–58, 84 A.3d 840

(2014) (‘‘[r]eview of an unpreserved claim may be appropriate . . . when

the minimal requirements for review are met and . . . the party who raised

the unpreserved claim cannot prevail’’ (citation omitted; emphasis omitted;

footnote omitted))

32 Section 8-13 originally was enacted in 1949. See General Statutes (1949

Rev.) § 847.

33 We further note that the plaintiff itself contends that the 2015 amendments to the zoning regulations constitute a municipal ‘‘ordinance,’’ as that

word is used § 22a-73. See part IV of this opinion.

34 The council contends that there is no evidence in the record to support

the conclusion that the plaintiff and its predecessor in interest have regularly

conducted racing activities on Saturdays. As we indicated, however, the

parties did not raise this issue in the trial court, presumably because they

had simply made assumptions about the meaning of the word ‘‘weekday.’’

See footnote 10 of this opinion. Thus, the parties had no reason to believe

that they were required to submit evidence on the issue. Inasmuch as the

council makes no claim that, if given the opportunity, it could present

evidence that mufflered racing has not taken place on Saturdays since the

stipulation in Vaill IV, we conclude that we may rely on the plaintiff’s

representation and the commission’s concession that such racing has taken

place. We also may take judicial notice of the plaintiff’s public event calendar

for 2020, which indicates that racing activities are scheduled to occur on

certain Saturdays. See, e.g., Lime Rock Park, ‘‘IMSA Northeast GP’’ (indicating that sports car race will be held on plaintiff’s property on Saturday, July

18, 2020), available at http://www.limerock.com/node/1429 (last visited May

18, 2020). See generally Moore v. Moore, 173 Conn. 120, 123 n.1, 376 A.2d

1085 (1977) (court may take judicial notice of facts that ‘‘are common

knowledge and those which are capable of accurate and ready demonstration’’ (internal quotation marks omitted)).

35 As we already indicated, we need not address the plaintiff’s claim that

the trial court incorrectly, albeit implicitly, determined that the term ‘‘week

day,’’ as used in § 14-164a (a), does not include Saturdays because, regardless

of whether it does, the commission would not be preempted from restricting

Saturday racing activities more strictly than the statute or prohibiting them

altogether. See footnote 28 of this opinion. We further note that the council

has made no claim that, if we conclude that the 2015 amendments allow

Saturday racing activities, that portion of the amendments is preempted by

§ 14-164a (a) because, by failing to include Saturday racing in permitted

racing activities, the statute prohibits it. Accordingly, the question of whether

§ 14-164a (a) preempts the provisions of the 2015 amendments allowing

Saturday racing activities is not before us. We are compelled to observe,

however, that, as we indicated, Saturday was considered a weekday under

ordinary usage at the time that the statute was adopted. We also find it

unlikely that the legislature would have imposed a prohibition on Saturday

racing by omitting any reference to that day in the statute or that it would

have placed greater restrictions on Saturday racing than on Sunday racing.

36 General Statutes § 22a-73 provides in relevant part: ‘‘(a) To carry out
and effectuate the purposes and policies of this chapter it is the public policy

of the state to encourage municipal participation by means of regulation of

activities causing noise pollution within the territorial limits of the various

municipalities. To that end, any municipality may develop and establish a

comprehensive program of noise regulation. Such program may include a

study of the noise problems resulting from uses and activities within its

jurisdiction and its development and adoption of a noise control ordinance.

‘‘(b) Any municipality may adopt, amend and enforce a noise control

ordinance which may include the following: (1) Noise levels which will not

be exceeded in specified zones or other designated areas; (2) designation

of a noise control officer and the designation of an existing board or commission, or the establishment of a new board or commission to direct such

program; (3) implementation procedures of such program and the relation

of such program to other plans within the jurisdiction of the municipality;

(4) procedures for assuring compliance with state and federal noise regulations; (5) noise level restrictions applicable to construction activities, including limitation on on-site hours of operation.

‘‘(c) No ordinance shall be effective until such ordinance has been

approved by the commissioner. No ordinance shall be approved unless it

is in conformity with any state noise control plan, including ambient noise

standards, adopted pursuant to section 22a-69 or any standards or regulations adopted by the administrator of the United States Environmental

Protection Agency pursuant to the Noise Control Act of 1972 . . . or any

amendment thereto. Notwithstanding the provisions of this subsection, any

municipality may adopt more stringent noise standards than those adopted

by the commissioner, provided such standards are approved by the commissioner.’’

37 General Statutes § 22a-67 provides: ‘‘(a) The legislature finds and

declares that: (1) Excessive noise is a serious hazard to the health, welfare

and quality of life of the citizens of the state of Connecticut; (2) exposure

to certain levels of noise can result in physiological, psychological and

economic damage; (3) a substantial body of science and technology exists

by which excessive noise may be substantially abated; (4) the primary

responsibility for control of noise rests with the state and the political

subdivisions thereof; (5) each person has a right to an environment free

from noise that may jeopardize his health, safety or welfare.

‘‘(b) The policy of the state is to promote an environment free from

noise that jeopardizes the health and welfare of the citizens of the state of

Connecticut. To that end, the purpose of this chapter is to establish a means

for effective coordination of research and activities in noise control, to

authorize the establishment of state noise emission standards and the

enforcement of such standards, and to provide information to the public

respecting noise pollution.’’

38 The zoning regulation provided: ‘‘Noise—Any noise emitted outside the

property from which it originates shall comply with the provisions of Sections 22a-69-1 to 22a-69-7.4 of the Regulations of the Connecticut Department

of Environmental Protection (Control of Noise).’’ (Internal quotation marks

omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission,

supra, 76 Conn. App. 215, quoting Berlin Zoning Regs., § X (D) (3).

39 In this regard, we agree with the plaintiff that, when the Appellate Court

stated in Berlin Batting Cages, Inc. v. Planning & Zoning Commission,

supra, 76 Conn. App. 218, that § 8-2 did not ‘‘confer authority in the zoning

commission to promulgate regulations concerning noise pollution,’’ it did

not mean that zoning commissions have no authority under § 8-2 to consider

noise as a factor when determining whether a particular use of the land is

appropriate. Rather, the Appellate Court concluded only that zoning commissions have no authority, other than that conferred by the act, to adopt

regulations like § X (D) (3) of the Berlin zoning regulations, which incorporated §§ 22a-69-1 through 22a-69-7.4 of the Regulations of Connecticut State

Agencies; see footnote 38 of this opinion; and, therefore, § X (D) (3) constituted a noise control ordinance subject to the requirements of the act.

Because the state regulations that were incorporated in § X (D) (3) expressly

set forth specific noise levels that may not be exceeded in specified zones,

we agree with the Appellate Court’s assessment. See General Statutes § 22a73 (b) (1) (town may adopt noise control ordinances, including ‘‘[n]oise

levels which will not be exceeded in specified zones’’); see also Regs.,

Conn. State Agencies § 22a-69-2 (designating noise zones); Regs., Conn.

State Agencies § 22a-69-3 (specifying allowable noise levels for designated

noise zones).

40 We note that the trial court rejected the plaintiff’s broader claim that
the 2015 amendments constitute illegal spot zoning, and the plaintiff has

not challenged that ruling on appeal.

41 Accordingly, we need not address the commission’s claim that the trial

court’s ruling may be affirmed on the alternative ground that the restrictions

on unmufflered racing set forth in § 211.1 (a) (3) of the 2015 amendments

were not based solely on noise impacts, but also on other impacts, such as

traffic and property values.

42 General Statutes § 8-3 (c) provides in relevant part: ‘‘All petitions

requesting a change in the regulations or the boundaries of zoning districts

shall be submitted in writing and in a form prescribed by the commission

and shall be considered at a public hearing within the period of time permitted under section 8-7d. . . .’’

43 The plaintiff strongly suggests that, contrary to the trial court’s determination, it could not be required to obtain a special permit in order to continue

its present operations on the property because there was no requirement

for a special permit when it began the operations. The plaintiff does not

address the Appellate Court’s decision in Taylor v. Zoning Board of Appeals,

supra, 65 Conn. App. 687, holding that preexisting as of right uses may be

subject to a special permit requirement. We need not address the thorny

issue of whether Taylor was correctly decided and whether the commission

could, therefore, order the plaintiff to cease its racing activities until it

obtained a special permit, however, because we conclude that, even if the

commission could do so under Taylor, it could not require the filing of a

special permit application as a general condition for filing a petition to

amend the regulations.

44 As we discuss subsequently in this opinion, we recognize that the plaintiff cannot expand the racing activities on the property without obtaining

a special permit. In the absence of the special permit provisions, however,

there would be nothing to prevent the plaintiff from seeking an amendment

to the zoning regulations to permit expanded activities without actually

seeking a special permit to do so. We will not presume that the plaintiff

could have no good reason to pursue this course.

45 The relevant portions of the Monroe zoning regulations that then were

in effect are as follows: ‘‘Section 117-900 of the Monroe zoning regulations

. . . provide[d] in relevant part: ‘The owner or owners of a tract of land

may petition for the establishment of a design district (D) only, coincidentally

with an application for special exception permit and development proposal

which shall be proposed and developed in conformance with these regulations. . . . In [d]esign [d]istricts, the existing use of land shall not be

changed . . . until a site plan of development shall have been prepared by

the owner of such land, and approved by the [c]ommission, and a [s]pecial

[e]xception shall have been granted . . . .’ ’’ (Emphasis omitted.) Zimnoch

v. Planning & Zoning Commission, supra, 302 Conn. 549 n.11.

‘‘Section 117-905 (A) of the Monroe zoning regulations . . . provide[d]

in relevant part: ‘An application for a change of zoning classification to a

design district shall be submitted in complete form . . . . The [c]ommission

shall hold a public hearing on the proposed change of zone and special

exception application, as required by the General Statutes.’

‘‘Section 117-907 (A) of the Monroe zoning regulations . . . provide[d]

in relevant part: ‘A change of zone to a design district shall not become

effective until the required special exception shall have been approved by

the [c]ommission . . . .’ ’’ (Emphasis omitted.) Zimnoch v. Planning &

Zoning Commission, supra, 302 Conn. 549 n.12.

46 Although the commission concedes that only the plaintiff may seek an

amendment to the zoning regulations, it claims that this restriction is not

arbitrary because only the plaintiff has standing to do so. The commission

does not explain why a neighboring landowner who is adversely affected

by racing activities on the property would not have standing to seek an

amendment to the zoning regulations to change the activities that are permitted.

47 It is possible that, under Zimnoch, a regulation requiring the owner of

any property who conducts racing activities that are subject to the 2015

amendments to file a special permit application as a condition for filing a

petition to amend the regulations to expand the permitted use would be

valid. The special permit provisions provide, however, that the commission

cannot grant any petition to amend the zoning regulations unless it first

approves a special permit application.

48 The commission takes no position on this issue.

49 The plaintiff contended in the regulatory proceedings before the commission that, notwithstanding the series of injunctive orders in the Vaill case
restricting its use of the property since May 12, 1959, unlimited racing

and camping activities on the property are a protected nonconforming use

because those activities predated the adoption of the town’s zoning regulations in 1959. Accordingly, it contended that the proposed amendments

codifying the restrictions contained in the Vaill orders and the ZBA judgments would be invalid because they would deprive the plaintiff of its vested

property rights without compensation. It does not renew that claim on

appeal to this court.