author: ROBINSON, J.

text:
    ROBERT LORENZ ET AL. v. INLAND WETLANDS AND WATERCOURSES COMMISSION OF THE TOWN OF OLD SAYBROOK ET AL.
    (AC 30043)
    (AC 30044)
    DiPentima, Robinson and Hennessy, Js.

      Argued January 14
    officially released October 12, 2010

      Roger Reynolds, with whom, on the brief, were Erich Heinonen and Lynn Kelly, law student interns, for the appellants (plaintiffs).

      Joseph Rubin, associate attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and David H. Wrinn and Kimberly P. Massicotte, assistant attorneys general, for the appellant (defendant commissioner of environmental protection).

      Michael E. Cronin, Jr., for the appellee (named defendant).

      David M. Royston, with whom, on the brief, was Katharine S. Gillespie, for the appellee (defendant River Sound Development, LLC).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The plaintiffs, Robert Lorenz, Carol Lorenz-Holland and the Connecticut Fund for the Environment, Inc., appeal from the judgment of the trial court, Aurigemma, J., dismissing their appeal from the decision by the defendant inland wetlands and watercourses commission of the town of Old Saybrook (commission) that approved an application to permit regulated activity relating to the construction of a private country club and golf course in a wetlands area, as submitted by the defendant River Sound Development, LLC (River Sound). On appeal, the plaintiffs argue that Judge Aurigemma impermissibly: (1) overturned a prior ruling in this case by the court, Munro, J., which held that an illegal condition required by the permit application was integral and could not be excised by the court to allow approval of the remainder of the application; (2) upheld the commission’s failure to comply with the law of the case established by Judge Munro’s decision; (3) upheld the commission’s approval of a modified application to engage in regulated activity in a wetland without first considering the factors articulated in General Statutes § 22a-41; and (4) upheld the commission’s decision to allow new commission members to vote on the modified application without having attended the original hearings. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of these appeals. In January, 2000, River Sound applied for two wetlands permits from the commission. The first was for a twenty-five lot subdivision that included a golf course lot, while the second was for a private country club that included an eighteen hole golf course. In connection with the second application, of the 239.4 acres that were the subject of the development, regulated activities were proposed to take place on approximately 7.19 acres of wetlands, which was to include the removal of forest canopy for the construction of cart paths and fairways. The construction of tees, greens, paved paths or roads, and buildings were not proposed for this wetland area. There were, however, approximately 32 acres of regulated activity that were proposed for areas within 100 feet of the wetlands boundary, and the proposed activity in that area included the construction of greens, tees, fairways and cart paths. The commission entertained River Sound’s application at a February 17, 2000 public hearing and during several continuations thereof. During that time, the commission heard from experts on behalf of River Sound, as well as from its own consultants. In addition, abutting property owners also were heard from, which brought into focus a general concern that the proposed application of fertilizer and pesticides to the golf course could impact their groundwater supplies. On the basis of this information, the commission evaluated the application in light of the considerations set forth in § 10 of the inland wetlands and watercourses regulations of the town of Old Saybrook (Old Saybrook regulations) and in § 22a-41.

On July 11, 2000, the commission approved the application, subject to several conditions. The ninth provision of the fourth condition required River Sound to file a bond in the amount of $300,000 with the commission before it would be permitted to disperse any chemicals on its golf course. The bond was to remain in effect throughout the life of the golf course and, in the event the course should close, for at least five years thereafter. The stated purpose of this bond was to “insure full compliance with the . . . condition with regard to the full implementation of [River Sound’s] Integrated Pest Management Plan” and to serve as “security for the payment of any and all damages and/or claims for damages by any person or property adversely affected by the activities of [River Sound] with respect to the Integrated Pest Management Plan.”

The plaintiffs appealed to the Superior Court from the commission’s approval, arguing that they had not received proper notice of the public hearing and that the commission’s approval was impermissible because the bond requirement imposed an illegal condition as part of the approval. In her memorandum of decision dated May 12, 2004, Judge Munro held that the plaintiffs had received proper notice but sustained the appeal on the ground that the bond condition was illegal. In support of its conclusion, the court held that the bond was illegal because (1) it was not a performance bond countenanced by Old Saybrook’s wetland regulations and, therefore, was beyond the scope of the commission’s authority, and (2) it did not, “by the terms of its language, protect the wetlands and watercourses.” After concluding that the condition was illegal, the court next determined that the condition was integral to the application because the explicit language of the condition provided that failure to comply with its requirements would be grounds for revocation of the permit. Thus, because the court determined that the commission would not have granted the permit without the bond condition, it consequently held that it was without authority to excise that condition from the otherwise unobjectionable permit and remanded the matter “to the commission for further consideration in light of [that] decision.”

River Sound filed a motion to open and to modify the court’s judgment, which Judge Munro denied on July 14, 2004. Thereafter, pursuant to § 11.6 of the Old Saybrook regulations, River Sound submitted an application to the commission on August 13, 2004, to modify its original application so as to conform it to the court’s ruling without being required to file a new application that would require the entire process to start anew. The modified application removed the illegal bond condition previously included in provision nine of condition four and amended the language of the performance and maintenance bond requirements set forth in condition eight to “assure the full implementation of [River Sound’s] Integrated Pest Management Plan” and to “ensure the correction of any inadequacies or problems which may occur with respect to . . . implementation of the Integrated Pest Management Plan . . . .”

At its meeting on November 18,2004, the commission considered the modified application to determine whether it should be approved or an entirely new application should be required. The focus of this inquiry centered on whether the illegal bond condition that had been removed from the original application was a sine qua non for approval of that application and whether the new provisions added in the modified application to ensure implementation of the integrated pest management plan were sufficient. In reaching their conclusion, the commission members reviewed in detail (1) the record concerning the original application, including the exhibits and the motion of the commission to approve that application, and (2) the details of the judgment rendered by Judge Munro. Additionally, the commission members participated in various discussions with counsel and each other to ensure that they were “sufficiently familiar with the facts of the original application, the original decision, and the [c]ourt [j]udgment to make a fully-informed vote on the [modified application].” The commission voted to approve the modified application on November 18, 2004.

On January 5, 2005, the plaintiffs appealed from the commission’s approval of the modified permit to the Superior Court. The appeal was dismissed by the court, Aurigemma, J., on February 19, 2008. In reaching her conclusion, Judge Aurigemma concluded that: (1) the commission had not violated Judge Munro’s decision by deciding on remand that the impermissible bond condition in the original application was not integral to the overall application because Judge Munro had not ruled that the bond was “substantively integral”; (2) the commission did not err in allowing commission members to vote on the modified application who were not members of the commission when it voted to approve the original application; and (3) the commission did not err in allowing a modified application to proceed without considering the factors enumerated in § 22a-41 both because those guideposts had been considered for the approval of the original application and because the commission’s regulations expressly provide authority for it to approve modified permit applications. These appeals followed.

I

The plaintiffs’ first two arguments are directly related to each other, and we address them contemporaneously. The gravamen of their argument is that Judge Aurigemma incorrectly concluded that the commission was free to eschew Judge Munro’s holding that the bond condition in the original application could not be severed from that application, as it was the law of the case and was binding on both the commission and on Judge Aurigemma. We are not persuaded.

As an initial matter, we set forth the applicable standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, one review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) DeSena v. Waterbury, 249 Conn. 63, 72-73, 731 A.2d 733 (1999); Colliers, Dow & Condon, Inc. v. Schwartz, 88 Conn. App. 445, 452, 871 A.2d 373 (2005). In this case, Judge Aurigemma drew a conclusion of law in determining the impact on the parties of Judge Munro’s determination that the bond condition was integral to the original application. Our review, therefore, is plenary.

The legal impact of Judge Munro’s determination that the bond condition was integral to the original permit application is usefully informed by a brief review of our jurisprudence concerning the role of the courts in reviewing decisions by an administrative agency. “The administrative appeal is simply a review of whether the agency could have decided as it did, not a ‘transfer of jurisdiction’ to the court for its determination of a ‘better’ decision.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 592. Thus, while courts have taken care to avoid “judicial usurpation of the administrative functions of the authority”; (internal quotation marks omitted) Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979); they, nevertheless, have invoked their authority in limited situations to decree the modification of an administrative agency decision with a view toward ending further litigation. See Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990); cf. Levine v. Zoning Board of Appeals, 124 Conn. 53, 59, 198 A. 173 (1938) (“[w]here the foundations sufficient to support a judgment are found to exist, a modification of the judgment rendered is proper with a view of ending the litigation”). Consequently, the guiding principle that is distilled from this body of precedent is the necessary distinction between what a court has authority to do in the interest of judicial economy, as opposed to those future decisions that it must leave to an agency to resolve out of respect for administrative deference.

In the context of a contested condition that a land use agency has imposed on a permit application, and which a court has determined to be illegal, a court is limited in the relief it can provide. “Although the imposition of an unlawful condition does not necessarily render a zoning authority’s entire decision illegal and inefficacious . . . where the void condition was an essential or integral component of the zoning authority’s decision it cannot be upheld.” (Citation omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 202-203, 635 A.2d 1220 (1994). Thus, if the court concludes that the unlawful condition is not integral, it can modify the application by excising the unlawful condition and uphold the remainder of the agency’s decision. Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 354-55, 232 A.2d 916 (1967) (“The imposition of a void condition, however, does not necessarily render the whole decision illegal and inefficacious. If the decision is otherwise supported by sufficient grounds as found by the board, a modification of the decision may be decreed with a view toward ending further litigation.”); see Langer v. Planning & Zoning Commission, 163 Conn. 453, 313 A.2d 44 (1972). If, however, “an integral condition is invalid, then an otherwise valid [application] is also invalid.” Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996). Accordingly, the question of whether an illegal condition is integral to an application relates only to what type of relief the court can grant. It has no bearing on whether an administrative agency subsequently can excise the illegal condition and approve the remainder of the application.

In this case, Judge Munro concluded that the bond condition set forth in provision nine of condition four of the original permit application was integral to the overall application. The impact of that decision was that the court was unable to sever the illegal condition to uphold the remainder of the application and instead was obligated to sustain the appeal to accord sufficient deference to the commission. Contrary to the plaintiffs’ arguments, that determination had no bearing on whether the commission could sever the unlawful condition and approve a modified application. Indeed, the plaintiffs’ arguments to the contrary would frustrate the very puipose of the rule: instead of affording greater deference to the administrative agency, a rule that a court’s integrality conclusion is binding on the agency, too, would be an “impermissible judicial usurpation of the administrative functions of the authority.” (Internal quotation marks omitted.) Thorne v. Zoning Commission, supra, 178 Conn. 206. Accordingly, while Judge Munro’s decision barred the commission from approving a modified application that retained the illegal bond condition, the commission was free to entertain a modified application that excised the illegal condition.

II

The plaintiffs next argue that Judge Aurigemma’s decision impermissibly upheld the commission’s approval of a modified application to engage in regulated activity in a wetland without first considering the factors articulated in § 22a-41. Specifically, the plaintiffs aver that, although the commission held extensive public hearings and considered the factors set forth in both § 22a-41 and in § 10.2 of the Old Saybrook regulations prior to approving the original application, the commission was obligated to undergo the same analysis during its review of the modified application. The defendants counter that because the commission had already considered the requisite factors in approving the original application and because General Statutes § 22a-42a (d) (1) only requires consideration of the factors enumerated in § 22a-41 when issuing a permit to conduct regulated activities and not when considering an application to modify one condition on a permit that was already approved, the commission was not required to go over the same ground it covered in approving the original application. We agree with the defendants.

We begin by noting the relevant standard of review. “The application of a statute to a particular set of facts is a question of law to which we apply a plenary standard of review.” In re T.K., 105 Conn. App. 502, 506, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). Similarly, “[a]s with any issue of statutory construction, the inteipretation of a charter or municipal ordinance presents a question of law, over which our review is plenary.” (Internal quotation marks omitted.) Kelly v. New Haven, 275 Conn. 580, 607, 881 A.2d 978 (2005). Accordingly, “we must decide whether [the trial court’s] conclusions [of law] are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) DeSena v. Waterbury, supra, 249 Conn. 73.

We also note the relevant statutes. Section 22a-42a (d) (1) provides in relevant part: “In granting, denying or limiting any permit for a regulated activity the inland wetlands agency, or its agent, shall consider the factors set forth in section 22a-41 . . . .” Moreover, § 10.2 of the Old Saybrook regulations provides additional factors to consider “[i]n carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes . . . .” Finally, § 11.6 of the Old Saybrook regulations provides in relevant part: “If the Commission denies the permit, or if it grants a permit with terms, conditions, limitations or modifications, the applicant may attempt to modify the proposal to the Commission’s satisfaction. The Commission shall determine whether the proposed modification requires the filing of a new application. ...”

In this case, River Sound submitted a modified application that removed the illegal bond condition previously included in provision nine of condition four and amended the language of the performance bond requirement set forth in condition eight to “assure the full implementation of [River Sound’s] Integrated Pest Management Plan” and to “ensure the correction of any inadequacies or problems which may occur with respect to . . . implementation of the Integrated Pest Management Plan . . . .” Thus, this modified application was not a permit to engage in new regulated activity and did not require the commission to reconsider the guideposts set forth in § 22a-41. See Consolini v. Inland Wetlands Commission, 29 Conn. App. 12, 16, 612 A.2d 803 (1992) (new permit application not required because commission concluded revised plan fit within contours of permits already granted for that regulated activity); R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 24:11, p. 735 (new application to land use agency not necessary simply to “clarify a condition of approval imposed by the agency or to make minor changes to the approval or a condition which does not affect the agency’s action”); cf. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 35:1, p. 320 (“[w]here the appeal is sustained, it is the duty of the agency to proceed according to law even if not instructed how to proceed, which often involves reconsideration of the application without another public hearing”). Accordingly, we conclude that the commission was not required to reconsider the guidelines set forth in § 22a-41 or in § 10.2 of the Old Saybrook regulations because it was not considering an application for new regulated activity and the commission had authority pursuant to § 11.6 of the Old Saybrook regulations to approve the modified application without requiring a new application.

Ill

Finally, the plaintiffs argue that Judge Aurigemma impermissibly upheld the commission’s decision to allow new commission members to vote on the modified application without having attended the original hearings. Specifically, the plaintiffs aver that of the seven commission members who voted on the original application, only two of them were on the commission that approved the modified application and that these new members were informed insufficiently with respect to the original application to make an informed decision with respect to the modified application. We disagree.

Without citing a case dealing with a modified application before a wetlands commission, the plaintiffs rely on analogous case law for the general proposition that “[i]t is a requisite of [an administrative hearing] that the board members making the decision consider and appraise the evidence.” Watson v. Howard, 138 Conn. 464, 468, 86 A.2d 67 (1952). More specifically, the plaintiffs maintain that “[a] new commission member cannot vote on matters where the public hearing concluded before that commissioner was appointed,” which they contend, cannot be ameliorated by commission members “acquainting himself sufficiently with the issues raised and the evidence and the arguments presented at the public hearing.” Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971). That reading of our case law, however, is too narrow. Our jurisprudence in this area teaches that “[t]he purpose of the public hearing is ... to inform the members of the commission as to the reasons why the change should or should not be made. . . . Yet, occasions may arise where, because of illness or other inability, a member may be unable to attend the hearing. Such a member should not be prohibited from voting on a change provided he seek[s] to make and . . . [has] the means to make an informed decision, one that is based on knowledge sufficient for wise and proper judgment.” (Citation omitted; internal quotation marks omitted.) Id., 41-42. Thus, the general principle relevant to our adjudication of the issue in this case is that a commission member needs to perform the due diligence necessary to make an informed decision on the specific issue before him or her. Accordingly, we conclude that the commission members who were not on the commission when the original application was approved were permitted to vote on the modified application, provided that they were sufficiently informed of issues to make a wise and proper judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the commission and River Sound, the commissioner of environmental protection (commissioner) intervened as a defendant in this case and filed a separate appeal, although the commissioner supports the position taken by the plaintiffs. Accordingly, our reference to the plaintiffs in this opinion shall include the commissioner.

       River Sound is the successor in interest to the land and wetland permit applications that are the subject of this appeal, having acquired its interest therein from The Preserve, LLC, through a foreclosure action that took place while this matter was on appeal before Judge Munro.

       That application was denied on March 18,2006, and River Sound’s appeal from that denial to the Superior Court was dismissed on February 19, 2008. River Sound appealed from that dismissal to this court, and we affirmed the dismissal in a separate opinion. River Sound Development, LLC v. Inland Wetlands & Watercourses Commission, 122 Conn. App. 644, 2 A.3d 928 (2010).

         Section 11.6 of the Old Saybrook regulations provides in relevant part: “If the Commission denies the permit, or if it grants the permit with terms, conditions, limitations or modifications, the applicant may attempt to modify the proposal to the Commission’s satisfaction. The Commission shall determine whether the proposed modification requires the filing of a new application. . . .”

       Our understanding that the purpose of a court’s determining whether a condition is integral is to serve as bulwark against judicial encroachment on administrative prerogative is further buttressed by the separate, although analogous, single conclusion of law doctrine. “That doctrine provides that when the action of an agency is overturned, and it appears as a matter of law that there is only one single conclusion that the [agency] could reasonably reach, the trial court can direct the agency to take the action on remand.” (Internal quotation marks omitted.) Newtown v. Keeney, 234 Conn. 312, 321 n.4, 661 A.2d 589 (1995). Our Supreme Court has explained that “[i]n the absence of such circumstances . . . the court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action. For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.” Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753-54, 345 A.2d 9 (1974). In either situation— where a court has to determine whether a condition is integral or where a court has to determine whether an agency is left with a single path forward in light of its decision—the purpose of the rule is to accord proper deference to the administrative agency; it is not to further limit an administrative agency’s options in complying with a court’s ruling.

       The plaintiffs assert two arguments in this regard. The first argument is that the commission was barred from excising the bond condition because Judge Munro had concluded that it was integral and that conclusion was, therefore, the law of the case. The law of the case doctrine is the “well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court. . . . The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding except when the question comes before a higher court . . . and applies both to remands for new trial . . . and to remands for articulation.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Daniels, 209 Conn. 225, 237, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). In this case, the plaintiffs’ reliance on the law of the case doctrine is misplaced. Although the trial court may have performed an appellate type function when it reviewed the bond condition, Judge Munro’s conclusion regarding the integrality of the bond provision stated a limit on what the court could do and not a limit on what the commission could do. Therefore, the law of the case doctrine is not applicable.
      The second argument is that the commission’s decision to remove the bond condition and to approve the modified application was an impermissible collateral attack on Judge Munro’s integrality conclusion. In connection with the plaintiffs’ collateral attack argument, it is likewise without merit. A collateral attack on a judgment is “an attempt to avoid, evade, or deny the force and effect of a judgment in an indirect maimer and not in a direct proceeding as prescribed by law . . . .” 47 Am. Jur. 2d 332, Judgments § 744 (2006). In this case, the commission did not attempt to avoid the force of the judgment rendered by Judge Munro by eschewing a portion of that judgment, which implicated the court’s authority to act and did not affect the authority of the commission to consider a modified application.

       General Statutes § 22a-41 (a) provides: “In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration ail relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;
      “(2) The applicant’s purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses;
      “(3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;
      “(4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and
      “(6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.”

       Indeed, even the court in Watson explained that “[the board member absent from the public hearings] did not receive the benefit which the evidence and the arguments might have provided, nor did his subsequent efforts to acquaint himself with the facts overcome the handicap to which he was subjected. It appears that he did not examine all of the evidence presented to the other members.” Watson v. Howard, supra, 138 Conn. 468. Far from announcing a bright line rule that a commissioner who was not a member of the commission at the time the relevant public hearings were held cannot participate in a subsequent vote on the application that was the subject of those hearings, the dicta in Watson suggests that commissioners nevertheless can familiarize themselves with the record and participate in related votes.

       We note that the case law cited by the plaintiffs related to the specific interpretation of General Statutes § 8-3. Accordingly, Watson and its progeny are not controlling of the issues here.

       Although the plaintiffs argue on appeal that, in addition to their claim that the commission members were required to assess the modified application in light of § 22a-41, the information that the commission members did review was inadequate to make an informed decision, that issue was not addressed by Judge Aurigemma, and the plaintiffs did not seek an articulation from the court to resolve that issue. Consequently, we do not address that issue on appeal. See Zahringer v. Zahringer, 262 Conn. 360, 370, 815 A.2d 75 (2003) (“Our rules regarding the need to seek an articulation of the factual basis of the trial court’s decision are well settled. It is the responsibility of the appellant to move for an articulation in order to clarify the basis of the trial court’s decision should such clarification be necessary for effective appellate review of the issue on appeal. ... It is, therefore, the responsibility of the appellant to move for an articulation or clarification of the record when the trial court has failed to state the basis of a decision.” [Citations omitted.]).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    ALFRED MARULLI ET AL. v. WOOD FRAME CONSTRUCTION COMPANY, LLC
    (AC 30795)
    Gruendel, Beach and West, Js.

      Argued May 25
    officially released October 19, 2010

      Sean E. Donlan, for the appellant (defendant).

      John J. Carta, Jr., for the appellees (plaintiffs).
   Opinion

GRUENDEL, J.

The defendant, Wood Frame Construction Company, LLC, appeals from the judgment of the trial court vacating the arbitration award in favor of the defendant for breach of a construction contract (contract) by the plaintiffs, Alfred Marulli and Barbara Marulli. On appeal, the defendant claims that the court improperly (1) determined that the arbitrator committed misconduct in summarily closing the arbitration proceedings without providing the plaintiffs an adequate opportunity to present their case and (2) vacated the arbitration award without remanding the case to the arbitrator to determine the threshold issue of whether the contract complied with the Home Improvement Act (act). We reverse the judgment of the trial court.

In the summer of 2006, the. defendant commenced arbitration proceedings pursuant to the contract against the plaintiffs before Michael F. Giordano, an arbitrator appointed by the American Arbitration Association. Of principal legal significance during the proceedings was whether the contract was valid under the act. Nevertheless, that issue often was overshadowed by disagreements between the plaintiffs and Giordano with respect to various aspects of the arbitration, such that in August, 2006, the plaintiffs moved to disqualify Giordano on grounds of partiality and impropriety.

Despite the disagreements, the parties continued with arbitration into January, 2007, when a tentative settlement was reached. Then, in July, 2007, the defendant requested a new arbitration hearing, to which the plaintiffs objected. On August 28, 2007, Giordano held a conference call with the parties to consider the plaintiffs’ objection, after which he concluded that enough information had been presented to render a decision without the need for further proceedings of any kind. Subsequently, Giordano awarded the defendant $200,000 for breach of the contract.

In January, 2008, the plaintiffs filed an application to vacate the arbitration award, and the court initially denied that application, confirming the original award of $200,000. The plaintiffs then filed amotion to reargue, which the court granted on June 4, 2008. In so doing, the court vacated its previous order, ruling that Giordano had failed “to consider the enforceability of the contract in light of the alleged violations of the [act]” and therefore “failed to comply with the rule of Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 856 A.2d 364 (2004) . . . ,” Finally, on January 29, 2009, in a memorandum of decision, the court affirmed its June 4 ruling, granting the plaintiffs’ application to vacate and adding that Giordano had “summarily closed the [arbitration] hearing . . . without providing the plaintiffs a full and fair opportunity to question the defendant and present evidence of their own” in contravention of General Statutes § 52-418 (a) (3). This appeal followed.

I

The defendant first claims that the court improperly vacated the arbitration award pursuant to § 52-418 (a) (3) because the record was insufficient to permit a ruling as to the propriety of the arbitrator’s decision to close the arbitration as of August 28, 2007. We agree.

We begin with the applicable legal principles and standard of review governing our analysis. Our Supreme Court has stated: “[F]or many years [we have] wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. . . . Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator’s powers, the parties are generally bound by the resulting award. . . . Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings. . . . The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it ... . [W]e have . . . recognized three grounds for vacating an [arbitrator’s] award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418. . . .

“[Arbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which reheve [s] the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision. . . . Indeed, it is within the broad discretion of arbitrators to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily. . . . This relaxation of strict evidentiary rules is both necessary and desirable because arbitration is an informal proceeding designed, in part, to avoid the complexities of litigation. Moreover, arbitrators generally are laypersons who bring to these proceedings their technical expertise and professional skills, but who are not expected to have extensive knowledge of substantive law or the subtleties of evidentiary rules. . . .

“A trial court’s decision to vacate an arbitrator’s award under § 52-418 involves questions of law and, thus, we review them de novo. ... To establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418 (a) (3) requires more than a showing that an arbitrator committed an error of law. . . . Rather, a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the [arbitrator]. . . .

“[T]o vacate an arbitrator’s award on the ground of misconduct under § 52-418 (a) (3), the moving party must establish that it was substantially prejudiced by the improper ruling. . . . This requirement that the moving party establish substantial prejudice is consistent with the showing that this court requires to order a new trial when a trial court makes an improper evidentiary ruling in a civil trial. ... In such cases, a new trial will be ordered only when the improper evidentiary ruling [likely] would [have] affect[ed] the result.” (Citations omitted; emphasis added; internal quotation marks omitted.) Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 473-77, 899 A.2d 523 (2006).

“Our inquiry, however, does not end here. . . . The concept of arbitral misconduct does not lend itself to a precise definition but is, instead, best illustrated by example. . . . Among the actions that have been found to constitute such misconduct on the part of an arbitrator as would warrant vacating an arbitration award are the following: participation in ex parte communications with a party or a witness, without the knowledge or consent of the other party ... ex parte receipt of evidence as to a material fact, without notice to a party . . . holding hearings or conducting deliberations in the absence of a member of an arbitration panel, or rendering an award without consulting a panel member . . . undertaking an independent investigation into a material matter after the close of hearings and without notice to the parties . . . and accepting gifts or other hospitality from a party during the proceedings. . . . An award may likewise be set aside on the basis of procedural error by an [arbitrator] if, for instance, the [arbitrator] arbitrarily denies a reasonable request for postponement of a hearing ... or commits an egregious evidentiary error, such as refusing to hear material evidence or precluding a party’s efforts to develop a full record. . . . Though not exhaustive, these examples of arbitral misconduct delineate the broad contours of conduct that is unacceptable and prohibited under § 52-418 (a) (3). The presumptive validity of consensual arbitration awards depends upon the underlying integrity of the arbitration process. When that integrity is tainted either by actual impropriety or the appearance of impropriety, the arbitration award cannot be permitted to stand.” (Internal quotation marks omitted.) Krassner v. Ansonia, 100 Conn. App. 203, 210-11, 917 A.2d 70 (2007).

On appeal, the defendant claims that the court improperly vacated the arbitration award because the record does not support a ruling that Giordano failed to consider adequately additional evidence from the plaintiffs following the August 28, 2007 conference call. Additionally, the defendant maintains that the court improperly ruled that “[t]he unrefuted facts in this case indicate that the arbitrator summarily closed the hearing . . . .” (Internal quotation marks omitted.)

It is important to note that at the time Giordano held the August 28, 2007 conference call, the parties had been involved in arbitration for more than one year, with formal hearings having lasted from August, 2006, until January 24, 2007. Although the record does not reveal the substance and content of those hearings, or the extent to which the parties presented evidence in support of their claims, by counsel’s own admission, the plaintiffs “[c]ould . . . have insisted that the case proceed” after the conference call took place. Instead, the plaintiffs’ counsel allowed the case to proceed to a final arbitration award. Nonetheless, in its memorandum of decision vacating the award, the court reasoned that Giordano “summarily closed the [arbitration hearings],” and thus departed from the requirements of § 52-418 (a) (3) by denying the “plaintiffs a full and fair opportunity to question the defendant and present evidence of their own.”

In contrast to the trial court’s characterization of events, the record demonstrates that Giordano held extensive arbitration hearings in this matter and ultimately concluded that enough information had been presented to issue an award. Moreover, in light of well established precedent emphasizing the presumptive validity and propriety of the arbitration process in general, and arbitral decision making in particular, we decline to accept the proposition that, in the absence of evidentiary support, Giordano engaged in arbitral misconduct simply by ending the arbitration as of August 28, 2007. See Stutz v. Shepard, 279 Conn. 115, 129, 901 A.2d 33 (2006) (expressing “clear preference for making every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings”); Board of Education v. Civil Service Employees Affiliates, Local 760, 88 Conn. App. 559, 566-67, 870 A.2d 473 (2005) (“in applying this general rule of deference to an arbitrator’s award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings” [internal quotation marks omitted]); Metropolitan District Commission v. AFSCME, Council 4, Local 184, 37 Conn. App. 1, 7, 654 A.2d 384 (1995) (“the trial court [is] required to presume that the actions of the [arbitrator] were proper” in the absence of affirmative evidence to the contrary, citing O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145-47, 523 A.2d 1271 [1987]), aff'd, 237 Conn. 114, 676 A.2d 825 (1996).

Here, the court vacated the arbitration award based on the arguments of counsel and without a sufficient evidentiary hearing to assess whether Giordano’s decision truly deviated from the requirements of § 52-418 (a) (3). Additionally, the court was incorrect in ruling that the facts were “unrefuted” as to whether Giordano “summarily closed” the arbitration. Indeed, a main point of contention between the parties during the initial proceedings before the court was whether Giordano’s decision to conclude the arbitration as of August 28, 2007, was appropriate. Without evidence illustrating that Giordano’s determination to forgo additional hearings amounted to impropriety, and in light of the presumptive validity of the arbitrator’s actions, we are unable to conclude that Giordano’s decision deprived the plaintiffs of a full and fair hearing in violation of § 52-418 (a) (3). See Krassner v. Ansonia, supra, 100 Conn. App. 212. Accordingly, we hold that the court improperly vacated the arbitration award on the ground of arbitral misconduct.

II

The defendant next claims that the court improperly vacated the arbitration award without first remanding the case to the arbitrator for clarification to determine the threshold question of whether the contract complied with the act. Because we conclude that the court erred in ruling that the arbitrator “neither made reference to [the issue of the contract’s validity] nor ruled on it” in contravention of § 52-418 (a) (4), we reverse the judgment of the trial court.

The following additional facts are relevant to our resolution of the defendant’s claim. On December 7, 2006, Giordano requested that both parties present briefs addressing the contract’s validity under the act. As the court describes, “[i]t is clear that the question of the contract’s enforceability was consistently raised as an issue for the arbitrator to consider and resolve.” Though a definitive ruling as to the contract’s validity was never explicitly articulated by the arbitrator, the eventual award entered in favor of the defendant was premised on a breach of the contract by the plaintiffs. Also, in its initial order confirming the arbitration award, the court ruled that “[a] review of the briefs and contracts does not disclose a violation of the Home Improvement Act.” However, in its memorandum of decision vacating the award, the court ruled that the arbitrator’s failure to definitively decide the issue of the contract’s validity violated § 52-418 (a) (4) and the rule set forth in Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. 65. Furthermore, the court denied the defendant’s request to remand the matter to the arbitrator to determine the contract’s validity, ruling that such a remand would be futile in light of the court’s determination that the arbitrator engaged in misconduct.

In its memorandum of decision vacating the arbitration award, the corut’s reasoning is based primarily on its interpretation of our Supreme Court’s ruling in Nussbaum. In Nussbaum, our Supreme Court was confronted with the jurisdictional dichotomy that exists between trial courts and arbitrators with respect to questions of contractual enforceability. Id., 70. More specifically, the issue in Nussbaum was whether the arbitrator, as opposed to the trial court, in an unrestricted arbitration had the authority to determine whether the very contract that provided for arbitration between the parties itself was statutorily unenforceable. Id., 74-75. Finding that such a claim “does not pertain to the validity of the arbitration agreement itself,” our Supreme Court ruled that similar questions of contractual enforceability “must be decided in the first instance by the arbitrator.” Id., 78.

While the ruling in Nussbaum appears at first blush to endorse the concept that arbitrators are required to explicitly pass on any and all factual and legal disputes that may be raised by parties to an arbitration, this is not the case. Rather, the holding of Nussbaum is narrower in that it simply delineates the appropriate roles played by the arbitrator and the trial court respectively during the arbitration process. Contrary to the trial court’s interpretation that Nussbaum “requires that the arbitrator [explicitly] rule” on the issue of the contract’s validity, Nussbaum requires only that it be the arbitrator, as opposed to the trial court, that decides the issue in the first instance. Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. 78. Nussbaum does not stand for the proposition that arbitrators must expressly pass judgment on all issues presented to them for fear that their awards will be vacated.

Our determination in this regard is supported by this court’s ruling in Economos v. Liljedahl Bros., Inc., 86 Conn. App. 578, 862 A.2d 312 (2004), aff'd, 279 Conn. 300, 901 A.2d 1198 (2006), decided shortly after Nussbaum. In Economos, the trial court granted the plaintiffs application to vacate an underlying arbitration award, concluding that the arbitrator “failed to [specifically] address [several] claims raised by the plaintiffs” dining the arbitration. Id., 580. On appeal, we reversed the decision of the trial court, holding that “[i]f the submission [for arbitration] is unrestricted ... an arbitrator is not required to decide the issues presented according to law. . . . [This is because] [w]here the submission [for arbitration] does not otherwise state, the [arbitrator is] empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the [arbitrator] was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the [arbitrator’s] decision of the legal questions involved. . . . [Thus], [w]e emphasize . . . that [§ 52-418 (a) (4)] ... is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.” (Citation omitted; internal quotation marks omitted.) Id., 584-85.

The record in the present case undermines the claim that the arbitrator ignored the issue of the contract’s validity under the act or otherwise failed to appropriately resolve the dispute in the first instance. To the contrary, as previously discussed, the arbitrator thoroughly explored the enforceability question via briefs and hearings with counsel. Although it is true that Giordano never overtly articulated his determination in this regard, his award of damages in favor of the defendant for breach of contract necessarily contemplates that the contract is valid. Indeed, were it otherwise, there could be no award for breach.

We take this opportunity to underscore the fact that our Supreme Court has adopted principles of federal precedent allowing a court to “remand [an arbitration issue] without vacating a case to an arbitrator for clarification of a final award” should there be confusion underlying the award or the arbitration process. Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474, 485, 857 A.2d 893 (2004), cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed. 2d 723 (2005). Not only does this preserve the presumptive validity of arbitration awards in general, but, from a practical perspective, “we are reluctant to erase the work surrounding [the] belabored arbitration [process], causing further delay, more time, and more resources to be expended, [especially] when a deficiency may be corrected by a simple clarification” by the arbitrator. Id., 494. In the present case, if the court was unclear as to whether or not the arbitrator adequately addressed the issue of the contract’s validity, then, consistent with Hartford Steam Boiler Inspection & Ins. Co., it had the discretion to remand for clarification to the arbitrator; id., 485; which it did not do. Rather, the court presumed inattention and incompleteness on the part of the arbitrator and his award, respectively. Because we must presume the correctness of the actions and determinations of the arbitrator; Metropolitan District Commission v. AFSCME, Council 4, Local 184, supra, 37 Conn. App. 7; and because the arbitrator’s award of damages for breach of contract necessarily found that the contract was valid, we conclude that the arbitrator appropriately considered whether the contract was enforceable and, thus, reverse the judgment of the trial court. We further conclude that, because remand to the arbitrator is unnecessary as to the question of the contract’s enforceability, judgment confirming the arbitration award should enter.

The judgment is reversed and the case is remanded with direction to render judgment granting the defendant’s application to confirm the arbitration award and denying the plaintiffs’ application to vacate the award.

In this opinion the other judges concurred.

       Although we refer to the parties according to their designations in the trial court, it is helpful to note that the defendant initially commenced proceedings as the plaintiff in the underlying arbitration.

       See General Statutes § 20-418 et seq.

       The record is devoid of any ruling as to this motion. However, because Giordano continued to serve as arbitrator well after August 2, 2006, we presume the motion was denied.

       Although the court’s June 4, 2008 order states that the arbitration award is “vacated,” this determination was only made pursuant to the plaintiffs’ motion to reargue. Accordingly, the court’s June 4, 2008 ruling does not address the merits of the plaintiffs’ arguments for vacating the arbitration award. Rather, the governing decision in this respect is the January 29, 2009 memorandum of decision.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       During the May 17, 2008 hearing on the plaintiffs’ motion to reargue, the plaintiffs’ counsel stated in part: “Couldlhave insisted thatthe caseproceed? Yes, I suppose I could have, although I think I had incurred enough rancor from the arbitrator to that point. So, I just went along with [Giordano’s decision to conclude the proceedings].”

       As discussed in part I of this opinion, we have concluded that the court’s decision with regard to arbitral misconduct was erroneous.

       Although our decision in Economos v. Liljedahl Bros., Inc., supra, 86 Conn. App. 585, discusses at length the three-pronged test adopted by our Supreme Court to evaluate claims under § 52-418 (a) (4), there is no discussion in the memorandum of decision for the case at bar as to this analysis, and the parties have not addressed it in their briefs. Nevertheless, our disposition of this appeal remains unaffected.

       Here, the court determined that remand to the arbitrator pursuant to Hartford Steam. Boiler Inspection & Ins. Co. would be “futile” because of its erroneous conclusion that Giordano had engaged in misconduct. Because we have found no misconduct on the part of Giordano, the court’s determination with respect to remand under Hartford Steam Boiler Inspection & Ins. Co. is also incorrect.


author: ROBINSON, J. FLYNN, C. J., BORDEN, J.,

text:
    ELISE PIQUET v. TOWN OF CHESTER ET AL.
    (AC 30440)
    Flynn, C. J., and Robinson and Borden, Js.

      Argued January 7
    officially released October 19, 2010

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and Mark A. Balaban, for the appellant (plaintiff).

      John S. Bennet, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The plaintiff, Elise Piquet, appeals from the judgment of the trial court rendered in favor of the defendants, the town of Chester and its planning and zoning commission, granting their motion for summary judgment. Specifically, the plaintiff claims that the court improperly (1) required her to bear the burden of proof in providing evidence that there was a genuine issue of material fact in opposition to the defendants’ motion for summary judgment and (2) found that the Chester zoning regulations prohibit private burials on residential properly. We conclude that the trial court lacked subject matter jurisdiction and, accordingly, reverse the judgment.

The record reveals the following facts and procedural history. The plaintiff is the owner of property at 28 South Wig Hill Road in Chester. The plaintiff resided with her husband, Christopher J. Shaboe Doll, at their residence on the property for fourteen years prior to his death on October 13, 2004. The plaintiff alleges that she and her husband wanted to be buried side by side in Chester, and, accordingly, on October 24, 2004, the plaintiff interred her husband’s remains in the backyard of her property under the supervision of a licensed funeral director. On June 8, 2005, Chester’s zoning compliance officer issued a cease and desist order with regard to the burial for violation of the Chester zoning regulations. On August 12, 2005, the plaintiff filed an appeal from the cease and desist order with the Chester zoning board of appeals, seeking a variance. On or about September 16, 2005, the zoning compliance officer specifically informed the plaintiff that the burial was not permitted as a principal use or a special principal use in the residential district where the plaintiffs property was located, pursuant to § 40A of the Chester zoning regulations. The zoning compliance officer, however, withdrew the cease and desist order for the purpose of allowing the plaintiff time to remedy the violation. On October 15, 2005, the plaintiff notified the zoning board of appeals that she was withdrawing her objection to the cease and desist order, without prejudice.

On October 26, 2007, the plaintiff commenced an action in the trial court, requesting a judgment declaring that she has the right to use her property for the interment of her husband and, upon her death, for her interment as well. On April 28, 2008, the defendants filed a motion for summary judgment. On September 30, 2008, the court granted the motion in a memorandum of decision and rendered judgment in favor of the defendants. This appeal followed.

Before reaching the merits of the plaintiffs appeal, we must first determine whether the court had subject matter jurisdiction over her action for a declaratory judgment. This issue is resolved by an analysis of whether the plaintiff properly exhausted her administrative remedies. The plaintiff, in her supplemental brief, argues that she is contesting the validity, rather than the interpretation, of Chester’s zoning regulations and that such a determination is excluded from the doctrine of administrative remedy exhaustion. Although the plaintiff asserts in her supplemental brief that a declaratory action is the proper forum in which to challenge the validity of an ordinance or regulation, as was stated in her appellate brief, “[t]he only issue before the [trial] court was the clarity of the Chester zoning regulations on the issue of accessory use.” The issue clearly before the court was the zoning compliance officer’s interpretation of the regulations concerning accessory use, not the validity of the regulations concerning accessory use. This court is concerned with substance, not labels, and for that reason relabeling an argument does not change the legal issue any more than baking shoes in an oven changes them into bread. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). Further, the plaintiff argues that the defendants already have expressed that her private burial was prohibited by the town’s zoning regulations, making any further action to the zoning enforcement officer or the zoning board of appeals futile. Finally, she argues that only the trial court can grant her the necessary relief of an injunction against Chester and all of its agencies. We disagree with the plaintiff’s arguments and conclude that she has failed to exhaust her administrative remedies.

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . This requirement reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment. . . . We have recognized, however, certain limited exceptions to the exhaustion requirement. Such exceptions include . . . where local procedures cannot effectively, conveniently or directly determine whether the plaintiff is entitled to the relief claimed.” (Citations omitted; internal quotation marks omitted.) O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995). “[W]e have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate.” (Citations omitted; internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 565, 821 A.2d 725 (2003).

In the present case, in June, 2005, the plaintiff was issued a cease and desist order by the zoning compliance officer, in response to a complaint from the department of public health. In response, the plaintiff filed an appeal to the zoning board of appeals for a variance from the cease and desist order. On September 16, 2005, the zoning compliance officer wrote a letter to the plaintiff, affirming her belief that the plaintiff was in violation of the zoning regulations, but notifying the plaintiff that she was “withdrawing the June 8, 2005 cease [and] desist order” to allow the plaintiff time to remedy the situation, “whether by [the plaintiffs] pending application for a [v]ariance or otherwise . . . .” Subsequently, in October, 2005, the plaintiff withdrew her appeal of the cease and desist order and her variance request without prejudice. Thereafter, the zoning compliance officer did not resume any action against the plaintiff.

Section 140G of the Chester zoning regulations concerns the powers and duties of the zoning board of appeals. Section 140G.1 provides that the zoning board of appeals shall have the power “[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the [z]oning [c]ompliance [o]fficer.” The regulations do not set forth a specific definition for what constitutes a decision from the zoning compliance officer. In the letter dated September 16, 2005, the compliance officer reiterated the basis for her finding that the zoning regulations do not permit private burials in the residential district in which the plaintiffs property is located. The zoning compliance officer then declared that she was not pursuing legal action based on her interpretation of the zoning regulations. She did not, however, abandon her interpretation but, rather, declared her intention, at least temporarily, to suspend taking action based on that interpretation. The September 16, 2005 letter was a decision by the zoning compliance officer from which the plaintiff could have appealed to the zoning board of appeals, or she could have amended her then pending appeal to include the September 16,2005 letter. Accordingly, we conclude that the trial court did not have subject matter jurisdiction over the plaintiffs action for a declaratory judgment.

The judgment is reversed and the case is remanded with direction to dismiss the action.

In this opinion FLYNN, C. J., concurred.

FLYNN, C. J.,

concurring. I concur fully in the majority opinion. I agree with the plaintiff, Elise Piquet, that the zoning commission’s legal argument distilled down to its essence, is that the commission can grant no relief to the plaintiff because its zoning regulation is permissive. I also agree that accessory uses are not defined by the Chester zoning regulations. However, § 20 of the regulations describes a lot as an area capable of being occupied by one principal building “and the accessory buildings or uses customarily incident to it.” (Emphasis added.) I further agree with the plaintiff that there was a complete absence of any affidavit or other documentary evidence from the defendants as to what was “customarily incident” attached to the commission’s motion for summary judgment filed by the commission and the defendant town of Chester. Without such evidence, there was nothing that the plaintiff had an obligation to rebut.

Nevertheless, because our review is plenary and subject matter jurisdiction may be raised at any time; see Ross v. Zoning Board of Appeals, 118 Conn. App. 90, 96, 983 A.2d 11 (2009) (court may act on own motion and should do so when lack of jurisdiction is involved); I therefore concur that the judgment of the trial court should be reversed and the case remanded with direction to dismiss the action because the plaintiff had administrative remedies, to which she did not avail herself.

When the plaintiff apparently inquired of the state department of public health (department) as to what the requirements were for a burial on private property, the department responded in a letter dated January 4, 2005, inter alia, that pursuant to General Statutes § 19a-313, a burial or entombment is prohibited except in an “established cemetery controlled by a municipality, ecclesiastical society or cemetery association, or in a private burying ground or structure approved by the . . . [department . . . .” The letter also stated that the plaintiff needed to verify with her local planning and zoning commission whether there were local requirements that would prohibit the use of her property as a burying ground.

On June 8, 2005, the zoning compliance officer issued a cease and desist order to the plaintiff, specifically stating that the department had made a complaint to the zoning office. The cease and desist order stated that private burials were not permitted on the plaintiff’s property, and it ordered the plaintiff to comply with the zoning regulations within thirty days. The plaintiff then appealed from that order to the Chester zoning board of appeals. Because of apparent public outcry, however, the zoning enforcement officer withdrew the order, and the plaintiff then withdrew her appeal without prejudice.

Thereafter, the plaintiff filed a declaratory judgment action in the Superior Court, seeking a twofold declaration that she had a right to keep her husband buried on the property and that she had a right to be buried there herself after her death. She claimed that these private burials were accessory uses under the Chester zoning regulations. The commission, however, has not ruled on whether the plaintiffs burial requests are permissible as accessory uses under its regulations. The town apparently has no interest in disinterring the plaintiffs husband, as evidence by its withdrawal of the cease and desist order, and, to the extent that she, understandably, wants to be buried next to her husband on her property, she can seek zoning approval for that purpose. Although the plaintiff argues that making such a request would be futile because the zoning compliance officer already has told her that such uses are not permitted, a zoning compliance officer’s opinion, whether official or unofficial, does not end the administrative remedies available to the plaintiff. See General Statutes §§ 8-6 and 8-7.

As explained in Stepney, LLC v. Fairfield, 263 Conn. 558, 821 A.2d 725 (2003): “The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. . . . [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes . . . Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993); Pet v. Dept. of Health Services, [207 Conn. 346, 353, 542 A.2d 672 (1988)]; such as when recourse to the administrative remedy would be futile or inadequate. . . . Fish Unlimited v. Northeast Utilities Services Co., [254 Conn. 1, 13, 756 A.2d 262 (2000), overruled in part on other grounds by Waterbury v. Washington, 260 Conn. 506, 545, 800 A.2d 1102 (2002)]. Because of the policy behind the exhaustion doctrine, we construe these exceptions narrowly. See, e.g., O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995) (actual bias, rather than mere potential bias, of administrative body renders resort to administrative remedies futile); Polymer Resources, Ltd. v. Keeney, supra, 561 (mere conclusory assertion that agency will not reconsider decision does not excuse compliance, on basis of futility, with exhaustion requirement); Housing Authority v. Papandrea, [222 Conn. 414, 432, 610 A.2d 637 (1992)] (fact that commissioner of housing previously indicated how he would decide plaintiffs challenge to voucher program did not excuse compliance, on ground of futility, with exhaustion requirement).” (Internal quotation marks omitted.) Stepney, LLC v. Fairfield, supra, 565.

In the present case, the plaintiff cannot circumvent the administrative process simply because she believes that she will lose at the local level. She had a right to request the local building official to approve her burial site, and if the official decided not to do so, to appeal from that decision pursuant to General Statutes §§ 8-7 and 8-8 to the zoning board of appeals, which has never passed on the issue and to file an administrative appeal to the Superior Court if the board did not grant relief. If the zoning board of appeals decided that it was an accessory use, then she would have no need to resort to the courts. Declaratory judgment relief was not appropriate at this stage of the case. Accordingly, I agree with the majority opinion to reverse the judgment and remand the case with direction to dismiss the declaratory judgment action.

Finally, I state my agreement with the majority author’s decision not to declare judicially as a matter of public policy that interment of persons in private burial plots can never be an accessory use of residential property in this state, as is stated in the dissenting opinion.

At the outset, I note that by enacting General Statutes § 8-2, the General Assembly committed to “the zoning commission” power to regulate within “each such municipality” the “use” of “land” for “residence or other purposes.”

The zoning authority of the town of Westport found that private burial plots in a residential zone were an accessory use to residential property owned by one of the nation’s prominent families in New York’s financial world, and Judge Coceo of the Superior Court agreed with that finding in 300 PRW Associates v. Planning & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV-91-0288554-S (September 21, 1992) (7 Conn. L. Rptr. 400). What accessory uses customarily are allowed in any given town or city is something best left to each municipality to decide on the basis of the authority granted under § 8-2, other provisions of title 8, chapter 124, of the General Statutes and pursuant to its own regulations. For example, in Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 264 A.2d 552 (1969), our Supreme Court stated “whether the raising of chickens and goats was an accessory use—one which was subordinate and customarily incidental to property located in the center of town and used for residential purposes . . . [was] a determination [that was] peculiarly within the knowledge of the local board.” Id., 514. The court also explained that “what is meant by accessory use . . . may often present and depend upon questions of fact, or involve or be open to a legal exercise of discretion by the administrative officials and the board of appeals.” (Internal quotation marks omitted.) Id., 513.

For all of these reasons I concur in the majority opinion.

BORDEN, J.,

dissenting. I disagree with the majority’s conclusion that the trial court lacked subject matter jurisdiction because the plaintiff, Elise Piquet, had not exhausted her administrative remedies. I conclude, to the contrary, that there was no viable administrative remedy to exhaust. I also conclude, however, that the judgment should be affirmed, on the ground that the plaintiffs claim, namely, that burial of her husband on her property is an accessory use of the property, is flawed as a matter of law. I therefore dissent from the majority’s direction to remand the case for its dismissal and would affirm the judgment on the merits.

I

I turn, first, to the majority’s conclusion that the trial court lacked subject matter jurisdiction because the plaintiff had not exhausted her administrative remedies. The basis for this conclusion is that the September 16, 2005 letter from the zoning compliance officer of the defendant town of Chester withdrawing her cease and desist order was a “decision,” within the meaning of § 140G.1 of the zoning regulations of the town of Chester, by that officer, from which the plaintiff could have appealed to the Chester zoning board of appeals in order to seek a different legal interpretation of the applicable zoning regulations. In my view, that is too slim a reed to support the majority’s conclusion.

I first note that the issue of subject matter jurisdiction was raised sua sponte by this court after oral argument; neither defendant, namely, the town or its planning and zoning commission, had raised such a claim, either in the trial court or in this court. Although, of course, that cannot be determinative of such a question of subject matter jurisdiction, it does suggest a certain frailty in the majority’s conclusion when, apparently, those officials who have the responsibility of defending the town’s interpretation of the zoning regulations did not think that the plaintiff had failed to exhaust her administrative remedies.

The undisputed relevant facts are as follows. On June 8, 2005, the zoning compliance officer issued her cease and desist order, the purpose of which was to require the plaintiff to disinter her husband’s remains from her property. On August 12, 2005, the plaintiff filed her appeal to the zoning board of appeals from that order, seeking “an appeal of the . . . [c]ease and [d]esist [o]rder and a variance regarding private burial” on her property. By letter of September 16, 2005, the zoning compliance officer, after reiterating her position that the zoning regulations did not provide for a private burial on residential property, informed the plaintiff as follows: “I would prefer that the legal issues relating to your husband’s burial on Chester Land Trust property be resolved by the real parties in interest who are yourself, the Chester Land Trust and the Connecticut Department of [Public] Health.

“In order to allow you, the Land Trust and the Department of [Public] Health sufficient time to remedy the situation, whether by your pending application for a Variance or otherwise, I am hereby WITHDRAWING the June 8, 2005 Cease and Desist Order. I am also WITHDRAWING the June 8, 2005 Cease [and] Desist order issued to the Chester Land Trust.

“I must emphasize that the purpose of the Withdrawal is to give the parties time to remedy the violation. If the violation is not remedied, it may be necessary for me to revisit the matter and determine what, if any, further action I would need to take to appropriately enforce the Chester Zoning Regulations.” (Emphasis added.)

Section 140G.1 of the zoning regulations gives the zoning board of appeals the power to “hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the [zjoning [compliance [o]fficer . . . .” The letter of withdrawal cannot reasonably be considered a “decision” by the zoning compliance officer. Read sensibly, it was not a “decision” by that officer; it was, instead, at the most, the postponement or deferral of a decision.

As a matter of statutory interpretation, the principles of which apply to zoning regulations; Hasychak v. Zoning Board of Appeals, 296 Conn. 434, 442, 994 A.2d 1270 (2010); the terms “order, requirement or decision” must be read together. See Director of Health Affairs Policy Planning v. Freedom of Information Commission, 293 Conn. 164, 171, 977 A.2d 148 (2009). Both “order” and “requirement” strongly suggest an element of command and definiteness that is amenable to the filing of an appeal to the zoning board of appeals, from which the recipient can reasonably understand, after reading the zoning regulations, that her next step is to file such an appeal. Thus, “order” and “requirement” strongly suggest a scenario in which the zoning compliance officer has told the property owner what she must do, and in such a way that she would reasonably understand, from reading the zoning regulations, that her next step is to appeal from that order or requirement to the zoning board of appeals. Indeed, that is precisely what the officer’s cease and desist order did. The word “decision,” therefore, should be read in the same vein. It should be read as implying an element of command and definiteness that is amenable to the filing of an appeal with the zoning board of appeals and be framed in such a way that the property owner can reasonably understand, from reading the zoning regulations, that her next step is to file such an appeal. The zoning compliance officer’s letter of September 16, 2005, utterly fails this test.

First, it was, by its own terms, a withdrawal of her prior order, leaving that order wholly without legal effect. Second, it made clear that its purpose was to give time to the plaintiff, as well as the land trust and the department of public health, neither of which were parties to the plaintiff’s appeal to the zoning board, “to remedy the violation.” Third, the language used by the zoning compliance officer in notifying the plaintiff of her withdrawal of the cease and desist order was at best ambiguous. She urged the parties—whom she identified as the plaintiff, the land trust and the department of public health—to “resolve” the matter; she did not specifically tell the plaintiff to disinter her husband’s remains. This left open, at least, the possibility of a resolution that would not involve disinterment. She then informed the plaintiff that, if the matter were not resolved, “it may be necessary” for her to revisit the matter, and then to “determine what, if any, further action” she would need to take. (Emphasis added.) In sum, this withdrawal of the cease and desist order, leaving that order without any legal effect, cannot reasonably be read as having the elements of command and definiteness suggested by the language “order, requirement or decision” of the zoning compliance officer. It was not a “decision” in any realistic sense; it was, instead, the postponement or deferral of a decision. Finally, it is unfair to the plaintiff to conclude that, having received this withdrawal notice and having read the zoning ordinances, she had been reasonably informed that she must then appeal to the zoning board of appeals from an ambiguous withdrawal of a no longer existing cease and desist order.

Thus, the plaintiff was left in a position in which the only administrative sanction that had been issued—the cease and desist order—had been specifically withdrawn, yet the public official with responsibility to enforce the zoning regulations had expressed her opinion that the plaintiffs burial of her husband’s remains violated those regulations and had advised the plaintiff to proceed by seeking a variance from the zoning board of appeals “or otherwise . ...” As I will explain, the variance route would have obviously been legally ineffective; therefore, the plaintiff took the only route available to her, namely, filing this declaratory judgment action. That was the “otherwise” that the zoning compliance officer had suggested. Given this unusual procedural posture of the zoning compliance officer, it is simply perverse, in my view, to throw the plaintiff out of court on the ground that she failed to exhaust her nonexistent administrative remedies.

Furthermore, it is clear that the zoning compliance officer’s uninformed suggestion that the plaintiff seek a variance from the zoning board of appeals would have led the plaintiff into an exercise in futility. It is black letter administrative law that one need not exhaust an administrative remedy that would be futile. Garcia v. Hartford, 292 Conn. 334, 340, 972 A.2d 706 (2009); Neiman v. Yale University, 270 Conn. 244, 258-59, 851 A.2d 1165 (2004). It is equally black letter zoning law that a zoning variance must be based on some unavoidable obstacle created by the property and not on a personal preference of the property owner. Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996). The plaintiffs request for a variance to permit her to bury her husband’s remains in her backyard would be the epitome of a personal preference and not an obstacle created by the property.

II

Having concluded that the trial court had subject matter jurisdiction over the plaintiffs declaratory judgment action, I turn now to the dispositive issue of the plaintiffs appeal. The plaintiff claims that the burial of her husband’s remains on her residential property can be considered an accessory use incidental to her principal residential use of the property and requests that we remand the case in order to give her an opportunity to prove such an accessory use, an opportunity that she claims the trial court improperly denied her. I reject this claim. I conclude that, as a matter of law, based on public policy, burying one’s dead loved one in one’s backyard (or front yard, for that matter) cannot ever be an accessory use of residential property in this state.

Section 20A of the Chester zoning regulations defines an accessory use as “[a]ny use which is attendant, subordinate and customarily incidental to the principal use of the same lot.” Our case law defines it in similar fashion. See, e.g., Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82, 89, 616 A.2d 786 (1992); Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511-13, 264 A.2d 552 (1969).

It may be so that in the seventeenth, eighteenth, nineteenth or even early twentieth centuries of this state’s history, people incidentally and customarily buried their deceased loved ones on their private residential properties. I do not know if that be so. It cannot be so, however, in the twenty-first century, as a matter of public policy.

Our statutes are replete with regulation of funeral parlors, morticians and burial grounds. See, e.g., General Statutes § 19a-295 (ownership and management of burial grounds); General Statutes § 19a-310 (approval of vault or mausoleum by department of public health); General Statutes § 19a-313 (burials); General Statutes § 19a-320 (maintenance of crematories); General Statutes § 20-212 (care and disposal of bodies by embalmers); General Statutes § 20-220 (requirements for engaging in funeral directing); General Statutes § 20-222 (inspection of funeral parlors by department of public health); General Statutes § 20-230d (disposition of unclaimed cremated remains). The basis of this extensive statutory scheme is public health. It would be wholly contrary to this important public policy to permit private burials on private, residential property.

Furthermore, consider what would happen when the survivor, who has buried her deceased loved one on her residential property, either dies and the property must be sold, or she wants to sell or can no longer live there and must sell the property. Although she may have considered having her deceased husband, say, buried on the property as incidental to her use of the property, the buyer—if one can be found—would hardly harbor the same sentiment. Unlike some other incidental use— such as, for example, a tool shed, which a new owner could simply take down if he did not want it—a buried dead body does not easily lend itself to such a solution.

“It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 266, 765 A.2d 505 (2001). The assertion of the plaintiff that she should have been given the opportunity to establish that burying her deceased husband on her private, residential property was an accessory use of the property violates that principle.

I would, therefore, affirm the summary judgment of the trial court in favor of the defendants.

       “The enforcement officer acts as the agent of the [planning and zoning] commission. . . . [T]he commission is authorized by statute to provide how its regulations are to be enforced .... The Supreme Court has referred to the statutory scheme as one that delegates authority from the commission to the enforcement officer.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 513. In the present case, the zoning compliance officer was acting on behalf of the defendant planning and zoning commission of the town of Chester.

       “[CJoncems regarding subject matter jurisdiction implicate the court’s fundamental authority and may properly be raised and decided by the court sua sponte.” Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91, 971 A.2d 1 (2009). In the present case, this court, sua sponte, ordered the parties to submit supplemental briefs on the issue of whether the plaintiff properly exhausted her administrative remedies, thus giving the trial court subject matter jurisdiction over her action for a declaratory judgment.

       On May 25, 2010, this court ordered the parties to file supplemental briefs on the issues of whether the plaintiff exhausted her administrative remedies and whether the trial court properly had subject matter jurisdiction to issue a declaratory judgment. In their brief, the defendants argued that the plaintiff did not exhaust her administrative remedies by appealing to the zoning board of appeals and, therefore, the trial court lacked subject matter jurisdiction.

         We note that although the plaintiff argues the doctrine of futility in her supplemental brief, reasoning that “[t]he defendants have stated quite clearly that private burial grounds are not allowed anywhere [within] Chester . . . as a matter of law.” The zoning board of appeals was not a named defendant in the action. There is nothing in the record that indicates what the board’s interpretation of the subject zoning issue would be or that an appeal to the board of appeals would be futile.

       In his memorandum of decision, Judge Coceo referenced the commission testimony of Judith Nelson, the director of the Westport/Weston health district, who had stated: “Although this [application for a private cemetery] may not be a common occurrence in Westport, Connecticut, this is a common occurrence in the [s]tate of Connecticut. When I was approached by the family over a year ago about the possibility of a private cemetery on this site, I contacted the [s]tate [hjealth [department. There really is a very straight forward series of conditions that [the health department] overlay onto anyone requesting a private cemetery . . . [a]nd from all aspects of public health, I would certainly support this application.”

       The record discloses that the plaintiff is the life tenant of the property involved and that the town of Chester Land Trust, Inc., is the remainderman. The land trust did not challenge the zoning compliance officer’s cease and desist order in any way and is not involved in this appeal.


author: PER CURIAM.

text:
    IN RE PROBATE APPEAL OF DOREEN L. MIKOSHI, EXECUTRIX (ESTATE OF VINCENT JAMES CAPPIELLO)

    (AC 31184)
    DiPentima, C. J., and Lavine and Bear, Js.

      Submitted on briefs September 10
    officially released October 19, 2010

      Geoffrey S. Brandner and John Lino Ponzini filed a brief for the appellant (defendant Richard Cappiello).

      Daniel A. Benjamin and Derek Mello filed a brief for the appellees (plaintiffs).

       The appeal in this case was originally filed with the caption Doreen L. Mikoshi, Executrix (Estate of Vincent James Cappiello) v. Probate Appeal. The caption has been changed to reflect that the Probate Appeal is not a party. It should be noted that the microfiche version of the Appellate Court Record and Briefs in this case will be found under the original title.

   Opinion

PER CURIAM.

The defendant, Richard Cappiello, appeals from the judgment of the Superior Court sustaining the appeal of the plaintiff, Doreen L. Mikoshi, individually and as executrix of the estate of Vincent James Cappiello (decedent), from the order and decree of the Probate Court for the district of Stamford. On appeal, the defendant claims that the Superior Court improperly concluded that (1) the decedent had made an inter vivos monetary gift to the plaintiff and (2) there was sufficient evidence establishing that the plaintiff was a joint owner of the funds at issue. We disagree and, accordingly, affirm the judgment of the Superior Court.

The following facts and procedural history are necessary for our decision. The parties are the adult children of the decedent, who died on June 21, 2001. On March 27, 2007, the Probate Court issued the following order and decree: “[T]he Final Account of [the plaintiff] is hereby allowed, except that the sum of $67,718.42 shall be added to the assets of said Estate by a Supplementary Inventory and shall be distributed one half to the [plaintiff] and one half to [the defendant] in accordance with the will of the decedent.”

The plaintiff filed an appeal to the Superior Court from the order and decree of the Probate Court. The plaintiff alleged that the bank account that had contained the $67,718.42 was a joint account held in the names of the decedent and the plaintiff. The plaintiff further claimed that those funds were not part of the estate of the decedent because (1) she was a co-owner of the money and, therefore, had the legal right to withdraw it from the joint account or (2) the decedent made a valid gift of the money from that account to her.

On May 20,2009, the Superior Court, Mintz, J., issued a memorandum of decision sustaining the plaintiffs appeal from the order and decree of the Probate Court. The court concluded that the plaintiff, as a co-owner of the joint account, was permitted to withdraw all moneys from the account pursuant to General Statutes § 36a-290. The court also found, by clear and satisfactory proof, that the decedent had made a valid gift of the money to the plaintiff prior to his death. This appeal followed.

The defendant first claims that the Superior Court improperly concluded that the money contained in the joint account was given to the plaintiff as a gift from the decedent. Specifically, he argues that no other witnesses corroborated the plaintiffs testimony regarding this gift, and, therefore, the court’s finding was clearly erroneous. We disagree with this claim.

“When an estate is a party, the burden is on the person claiming the gift to prove the claim by clear and satisfactory proof. . . . The question of whether a gift inter vivos or causa mortis has been made is within the exclusive province of the court. . . . The determination of whether a gift has been made is not reviewable unless the conclusion of the court is one which cannot reasonably be made. . . . The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact. . . . This court does not try issues of fact or pass upon the credibility of witnesses.” (Citations omitted.) Long v. Schull, 184 Conn. 252, 255, 439 A.2d 975 (1981).

In the present case, the court found that the decedent had been appreciative of the plaintiffs caring for him since 1995. The plaintiff visited the decedent daily at Stamford Hospital after he became ill. On June 18,2001, the date of the gift, the plaintiff visited the decedent for one or two hours. The decedent, sitting upright and making eye contact with the plaintiff, was able to speak and hear clearly while he discussed his finances. The decedent expressly instructed the plaintiff to withdraw the money from the joint account and to place it into a separate account in her name. Additionally, he told her that the contents of that account were hers. The plaintiff complied with the decedent’s instruction and, the next day, informed him of the transfer. The decedent acknowledged that she had done what he had requested.

“A gift is the transfer of property without consideration. ... To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee. ... In other words, a valid inter vivos gift of personal property requires both delivery of possession of the property to the donee and an intent on the part of the donor that title shall pass immediately to the donee.” (Citations omitted; internal quotation marks omitted.) Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 103-104, 971 A.2d 8 (2009). On the basis of the foregoing, we cannot conclude that the court’s finding that the decedent made a gift of the money from the joint account to the plaintiff was clearly erroneous. Accordingly, we need not address the defendant’s claim that the Superior Court improperly concluded that the plaintiff was a co-owner of the bank account in question.

The judgment is affirmed.

       We refer in this opinion to Mikoshi in both capacities as the plaintiff.

       “An appeal from a Probate Court to the Superior Court is not an ordinary civil action. . . . When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. ... In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court.” (Internal quotation marks omitted.) Silverstein v. Laschever, 113 Conn. App. 404, 409, 970 A.2d 123 (2009).

       “Pursuant to that statute, any of two or more joint owners of a bank account may withdraw any part or all of the balance of such account during the lifetime of the other owner. It is clear that, under Connecticut law, coholders of a joint account are considered owners of the entire account . . . with access to the entire amount therein.” (Internal quotation marks omitted.) Ardito v. Olinger, 65 Conn. App. 295, 297-98, 782 A.2d 698, cert. denied, 258 Conn. 942, 786 A.2d 429 (2001).

       The decedent was diagnosed with cancer in February, 2001.