author: DiPENTIMA, J.

text:
    RIVER SOUND DEVELOPMENT, LLC v. INLAND WETLANDS AND WATERCOURSES COMMISSION OF THE TOWN OF OLD SAYBROOK ET AL.
    (AC 30042)
    DiPentima, Robinson and Hennessy, Js

      Argued January 14
    officially released July 27, 2010

      Brian R. Smith, with whom were Michele L. Maresca and, on the brief, Peter S. Olson, for the appellant (plaintiff).

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

      Matthew Ranelli, for the appellee (defendant town of Essex).

      Charles J. Rothenberger, with whom, on the brief, was Roger Reynolds, for the appellee (defendant Connecticut Fund for the Environment).

      David H. Wrinn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Kimberly P. Massicotte and Matthew I. Levine, assistant attorneys general, for the appellee (defendant commissioner of environmental protection).

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

   Opinion

DiPENTIMA, J.

The plaintiff, River Sound Development, LLC, appeals from the judgment of the trial court dismissing its appeal from the denial by the defendant inland wetlands and watercourses commission of the town of Old Saybrook (commission) of its application to conduct regulated activities pursuant to the Inland Wetlands and Watercourses Act (act), General Statutes § 22a-36 et seq. The plaintiff claims that (1) the commission improperly exercised jurisdiction over activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse and over impacts to species, (2) the record does not reveal substantial evidence to support the commission’s finding that adverse impacts to the wetlands or watercourses will likely result from the proposed regulated activities and (3) the commission did not fulfill its statutory requirements because it engaged in a faulty feasible and prudent alternatives analysis. We affirm the judgment of the trial court.

The following facts and procedural history are undisputed. The plaintiff owns property, known as “the Preserve,” consisting of approximately 934 acres that is located primarily in the town of Old Saybrook. Portions of the Preserve are also located in Essex (sixty-five acres) and Westbrook (two acres). In total, the Preserve contains 114.5 acres of wetlands. On August 11, 2005, the plaintiff filed an application with the commission, seeking to develop the Preserve with 221 residential housing units, a golf course, a roadway network, associated structures and infrastructure improvements.

On August 18, 2005, the commission accepted the application. On October 20, 2005, the Connecticut Fund for the Environment, Inc., intervened, and on December 8, 2005, the town of Essex intervened, both pursuant to General Statutes § 22a-19. A public hearing took place over ten days beginning on October 20, 2005, and concluding on January 26, 2006. On March 18, 2006, the commission denied the plaintiffs application. The plaintiff appealed from the commission’s decision to the Superior Court pursuant to General Statutes § 22a-43 (a). On February 19, 2008, by memorandum of decision, the court dismissed the plaintiffs appeal. The plaintiff now appeals to this court.

I

The plaintiff first claims that the commission improperly exercised jurisdiction over activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse and over impacts to species. More specifically, the plaintiff claims that the court should not have dismissed its appeal because, while its regulations provide the commission with jurisdiction to regulate activities occurring within a 100 foot upland review area, the commission’s decision in this case was premised on evidence and testimony related to activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse, which is not consistent with the inland wetlands and watercourses regulations of the town of Old Saybrook (regulations). The plaintiff also claims that the commission’s decision is improperly premised on the potential effect of the proposed activities on the life cycle of wood frogs. We do not agree.

First, we set forth our standard of review. “Whether the trial court properly concluded that the commission had jurisdiction over the activities proposed . . . involves a legal question involving statutory interpretation, over which our review is plenary.” AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 158-59, 832 A.2d 1 (2003).

In our application of the act, we take note of its purpose. “[W]e are mindful that the [act] rests upon a specific legislative finding that [t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed, and that [t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state. General Statutes § 22a-36. Accordingly, the broad legislative objectives underlying the [act] are in part to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution . . . [and by] protecting the state’s potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state the safety of such natural resources for their benefit and enjoyment [and for the benefit and enjoyment] of generations yet unborn. General Statutes § 22a-36.

“In order to accomplish these objectives, it is the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts. General Statutes § 22a-42 (a).” (Internal quotation marks omitted.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 193-94, 779 A.2d 134 (2001).

A

The plaintiff first claims that the commission improperly considered proposed activity that was outside of the 100 foot upland review area in reaching its decision and that because the commission does not have proper jurisdiction to consider this evidence, the court should not have dismissed the plaintiffs appeal.

“Our courts consistently have recognized the authority of an inland wetlands commission to regulate activities in areas adjacent to wetlands and watercourses that would affect or impact such wetlands or watercourses.” Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710, 720, 831 A.2d 290 (2003), cert. denied, 269 Conn. 909, 852 A.2d 739 (2004); see also Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 178; Mario v. Fairfield, 217 Conn. 164, 585 A.2d 87 (1991); Lizotte v. Conservation Commission, 216 Conn. 320, 579 A.2d 1044 (1990); Aaron v. Conservation Commission, 183 Conn. 532, 441 A.2d 30 (1981). “The authority to regulate in upland review areas . . . [is] viewed as discretionary in nature.” Prestige Builders, LLC v. Inland Wetlands Commission, supra, 720. The local inland wetlands commission, pursuant to that discretion, should enact regulations over upland review areas. See id.

General Statutes § 22a-42a (f) provides: “If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses.” The commission has adopted inland wetlands regulations for the town. Among these regulations is § 2.1, which defines “regulated activity.” A portion of § 2.1 of the regulations mirrors the language of General Statutes § 22a-38 (13), which provides that “ l[r]egulated’ activity means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40.” Section 2.1 of the regulations additionally provides that “any clearing, grubbing, filling, grading, paving, excavating, constructing, depositing or removal of material and discharging of storm water on the land within 100 feet measured horizontally from the boundary of any wetland or watercourse is a regulated activity.”

In Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn. App. 710, this court considered extensively the issue of a commission’s jurisdiction to consider proposed activity outside the wetland or watercourse. In that case, this court stated that the act “requires only that a municipal commission regulate activity within or that makes use of inland wetlands or watercourses. The authority for a commission to regulate outside of those boundaries is governed by § 22a-42a (f) if the regulations are deemed ‘necessary to protect [its] wetlands and watercourses. . . .’ General Statutes § 22a-42 (c). What constitutes ‘necessary’ is interpreted ‘as that which is reasonably designed to effectuate the stated purposes of the wetlands statutes.’ . . . That legislative purpose is set forth in great detail in ... § 22a-36. Our Supreme Court . . . described that purpose as being ‘that [t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed, and that [t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.’ ” (Citation omitted.) Prestige Builders, LLC v. Inland Wetlands Commission, supra, 718, quoting Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 193. The court in Prestige Builders, LLC, concluded that “§ 22a-42a (f) grants a commission the authority to regulate upland review areas in its discretion if it finds such regulations necessary to protect wetlands or watercourses from activity that will likely affect those areas.” Prestige Builders, LLC v. Inland Wetlands Commission, supra, 720. The validity of municipal regulations extending the jurisdiction of the local inland wetlands commission to upland review areas that reach beyond the physical boundaries of wetlands or watercourses consistently have been upheld by our Supreme Court. See Lizotte v. Conservation Commission, supra, 216 Conn. 337 (regulations extending beyond scope of act valid if “ ‘reasonably designed to protect the town’s wetlands and watercourses’ ,r); Aaron v. Conservation Commission, supra, 183 Conn. 544 (“[w]here a municipal ordinance merely enlarges on the provisions of a statute by requiring more than a statute, there is no conflict unless the legislature has limited the requirements for all cases”).

“[0]ur Supreme Court [has] noted that § 22a-42a (f) was not designed to overrule case law that provides that a regulated activity may include an activity that occurs in nonwetland areas, but that will affect or impact wetland areas. . . . Rather, the Queach Corp. court stated that § 22a-42a (f) effectively codified the statement made in the seminal case of Aaron v. Conservation Commission, supra, 183 Conn. 542, that [a]n examination of the [act] reveals that one of its major considerations is the environmental impact of proposed activity on wetlands and water courses, which may, in some instances, come from outside the physical boundaries of a wetland or water course.” (Citation omitted; internal quotation marks omitted.) Prestige Builders, LLC v. Inland Wetlands Commission, supra, 79 Conn. App. 721.

Thus, an expansion of jurisdiction to include the 100 foot upland review area is valid under the act. “The municipal inland wetland agency is authorized to establish the boundaries of inland wetlands and watercourse areas within its jurisdiction. Once such boundaries are established pursuant to procedures set forth in § 22a-42a, no regulated activity shall be conducted within such boundaries without a permit issued by the local agency.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). In fact, our Supreme Court has stated that “[establishing an upland review of 100 feet . . . provides the commission with a trigger for reviewing whether activity is likely to affect the wetlands or watercourses.” Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 201.

The commission found regulated activities within the 100 foot upland review area that impacted wetlands and watercourses. This is sufficient for the commission to have jurisdiction over the application and activities occurring within the upland review area. Upon a review of the record, we find substantial evidence supporting the commission’s denial that falls within the jurisdictional reach of the commission. For example, REMA Ecological Services, LLC (REMA), prepared maps detailing where proposed regulated activities within wetlands and the upland review area would occur. The annotations on these maps describe potential impacts to the wetlands. While some of the annotations reference activities occurring outside the commission’s upland review area, the majority of the annotations identify specifically regulated activities that are within the upland review area. Accordingly, we conclude that the court properly found that, in denying the application, the commission did not exceed its jurisdiction to consider the impact of activities and improvements proposed to be developed in wetlands and watercourses and in the 100 foot upland review area.

B

The plaintiff also claims that the commission improperly exercised jurisdiction over impacts to species. More specifically, the plaintiff claims that the commission stepped outside of its jurisdiction when it directly considered, in two of the eleven specific reasons for its denial, the life cycles of the spotted salamander, marbled salamander and wood frog in relation to the vernal pools, located within the area of certain of the proposed activities. We are not persuaded.

In AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 163, our Supreme Court stated that “it is apparent that the commission may regulate activities outside of wetlands, watercourses and upland review areas only if those activities are likely to affect the land which comprises a wetland, the body of water that comprises a watercourse or the channel and bank of an intermittent watercourse.” See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 68, 848 A.2d 395 (2004). Our Supreme Court concluded in AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 163, that “the act protects the physical characteristics of wetlands and watercourses and not the wildlife . . . .’’The court, nevertheless, pointed out that “[t]here may be an extreme case where a loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse . . . .” Id., 163 n.19. Later, in 2004, the act was amended by Public Acts 2004, No. 04-209, to include subsection (c), now codified in General Statutes § 22a-41 (c), which provides that “[f]or purposes of this section, (1) ‘wetlands or watercourses’ includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) ‘habitats’ means areas or environments in which an organism or biological population normally lives or occurs.” Also included in the amended act was subsection (d), now codified in § 22a-41 (d), which provides that “[a] municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses.” (Emphasis added.) In the present case, substantial evidence was presented to show that the amphibian life contributed to the life cycle of the wetlands themselves.

The commission found that the development of the golf course would cause unacceptable fragmentation and isolation of the area, which would result in a substantial reduction in the capacity of the wetlands to maintain animal life, especially amphibians, and that it greatly would reduce the capacity for survivorship of amphibians and that the clearing of forests adversely would affect amphibian populations and nutrient and energy recycling within the wetlands. The plaintiffs expert, Michael Klemens, testified that “[t]he wood frogs remove a lot of the detritus in the pools. The leaves’ energy is transported through the wood tadpoles. They’re one of the few species which you can say there’s direct nexus biologically. And also, the actual quality of the water, physical parameters of the water, are affected by wood frog tadpoles, which is an important thing to take note of.” Klemens also testified regarding the effect of wood frogs on the physical quality of water within the vernal pools and concluded that he “would actually call [wood frogs] a keystone species in terms of the wetlands cycles.”

We conclude that there was substantial evidence in the record that the loss of wood frogs would have a negative consequential effect on the physical characteristics of the wetlands, which falls squarely within the commission’s jurisdiction.

II

Next, the plaintiff claims that the court improperly determined that the record contains substantial evidence to support the commission’s finding that adverse impacts to the wetlands or watercourses likely will result from the proposed regulated activities. We do not agree.

“We begin with a review of the well established parameters of the substantial evidence test. It is widely accepted that, [i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record , . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Citation omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 70; see also Finley v. Inland Wetlands Commission, 289 Conn. 12, 38, 959 A.2d 569 (2008). We further note that “[t]he party challenging the agency decision has the burden to show that substantial evidence does not exist in the record as a whole to support the agency’s decision.” (Internal quotation marks omitted.) Fanotto v. Inland Wetlands Commission, 108 Conn. App. 235, 239, 947 A.2d 422 (2008) , appeal dismissed, 293 Conn. 745, 980 A.2d 296 (2009) . The court’s findings survive under the purview of the standard of review set forth by our Supreme Court in River Bend Associates, Inc., and we therefore affirm those findings and conclude that the court properly upheld the commission’s denial, as it is supported by substantial evidence.

At the commission hearing, the plaintiff and the defendants called several expert witnesses to testify and presented exhibits as to the effect of the proposed activities on the wetlands and watercourses. In a written report contained in the commission’s motion for denial of the application, the commission denied the application and found that “[b]ecause of the proposed layout and development of the project, and especially because the proposed 18-hole golf course is located in or in proximity to the dense wetland areas on the site, the [cjommission finds that the proposed construction of the golf course in those designated wetlands areas is incompatible with the application of the principles and purposes of the Old Saybrook [ijnland [w]etlands regulations.” The commission went on to list eleven specific reasons for the denial of the application. These reasons include (1) the adverse effect of “extensive blasting, grading, clearing and cutting on the steep slopes and shallow highly erosive and mobile soils in and around the outcroppings” on animal and plant life in and associated with the wetlands, (2) the inadequacy of the twenty-five foot buffer area around the wetlands, (3) the ineffectiveness of proposed silt fencing to prevent a significant amount of silt from flowing into wetland areas causing a major adverse impact, (4) the proposed construction activity likely will result in the flow of nitrates, silt and golf course chemicals and other pollutants into Pequot Swamp and likely will have a major and permanent impact on this wetland area, which is unique to this area of the state, (5) the proximity of the greens, fairways and tees to wetland areas likely will result in pesticides and herbicides leaching into adjacent wetland areas, and the proposed methods for controlling this leaching are unlikely to prevent it, (6) unacceptable fragmentation and isolation of the area, which would result in a substantial reduction of the capacity of the wetlands to maintain animal life, (7) possible adverse effects from the introduction of herbicides, pesticides and fungicides due to the leaching of these chemicals into the wetland areas, which provide headwaters for the Oyster River, Trout Brook and Mud River, (8) concerns about the reduced capacity for survivorship of amphibians and the synergistic effects on them from golf course chemicals, (9) the concentrated injurious effect of the activities on Pequot Swamp because of the small watershed surrounding it, (10) the proximity of the leaching area for the septic system to Pequot Swamp and (11) the plaintiff had not met its burden of proof that the use of three wells to irrigate the golf course would not have an adverse effect on stream flow, inland wetlands and water levels in the wetlands and vernal pools because the test performed was not rehable.

The record reflects that there was sufficient evidence to support the commission’s determinations that formed the basis for its denial of the plaintiffs application. The court noted in its memorandum of decision dismissing the appeal that there was “an abundance of expert testimony” to support the specific reasons for the denial of the application. Among the evidence cited by the court was the testimony of Peter Patton, a professor of earth and environmental science at Wesleyan University, George Logan, a certified professional wetlands scientist, and Sigrun Gadwa, an ecologist and registered soil scientist with REMA. Patton testified at the hearing and submitted a report that supported the findings set forth in the first specific reason for denial cited by the commission, regarding the siltation that would impact the wetland areas. In that report, he expressed concern about the “large-scale clearing and grading of steep slopes mantled with thin highly erodible soils on steep slopes adjacent to wetlands and watercourses across the entire area of the development.” Additionally, Logan and Gadwa provided evidence regarding the adverse water quality and sedimentation impacts to the wetlands and watercourses on the site, particularly in areas where the golf fairways and roads were in close proximity to the wetlands and watercourses. Upon reviewing this evidence, the court stated that “[although the [plaintiff] proposed to utilize sedimentation and erosion controls to mitigate the likely adverse impacts, several experts testified that, given the slope and soil characteristics of the site, the proposed measures were insufficient to avert the adverse impacts.”

An environmental review report prepared for the commission’s staff entitled “Environmental Review of Proposed Inland Wetland and Watercourse Activities: The Preserve,” stated that the golf course design included 19.8 acres of tree clearing, regrading, fairway and green construction, and cart path construction that would create a disturbance within the 100 foot regulated upland review area. This report concluded that “[t]he magnitude of this disturbance will alter wetland ecology.” Further, § 9 of that report details the specific wetland and upland review disturbances for each individual hole proposed for the golf course and potential concerns caused by those activities.

At the request of the Connecticut Fund for the Environment, scientists on behalf of REMA testified at the hearing and prepared a report that outlines many adverse impacts to the wetlands and watercourses located on the Preserve based on the proposed development plan, including (1) sedimentation, steep slopes and large areas, watershed impacts and narrow setbacks, (2) light and cutting impacts, (3) water quality impacts including road runoff, turf chemicals and nutrient loading, (4) biomass export and detritus processing and (5) wetland and vernal pool prioritization. REMA’s report states, on the basis of its review of available reports and data, that “areas of particular concern [regarding physical, sedimentation impacts expected during construction] include the following: Hole 17, adjacent to Vernal Pool 3; the proposed roadway west of Vernal Pool 19; Hole 8 to the southwest of Vernal Pool 23; Hole 16 west of Vernal Pool 7; and the west end ofHole 13, south of Wetland 19,” and that in Wetlands 18 and 19, as well as Vernal Pools 19 and 22, “sedimentation and erosion will occur because there is insufficient distance for vegetation and leaf litter to filter the sediment that unavoidably passes through silt fence barriers, even if well-maintained, because these barriers are designed for through-flow, with a mesh opening larger than the size of a silt particle.” (Emphasis added.) REMA introduced exhibits consisting of maps detailing where there are proposed regulated activities within wetlands and the upland review area. The annotations on these maps describe potential impacts to the wetlands. REMA concluded in its report that “ [t]he Preserve plan as proposed is reasonably likely to [have the] effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the [s]tate. Moreover, an alternative development plan with a 9-hole golf course rather than an eighteen-hole golf course may be a feasible and prudent alternative to the proposal.”

The commission provided citations to particular evidence within its written findings. For example, in deciding that the fragmentation and isolation of the area would result in a substantial reduction of the capacity of the wetlands to maintain animal life, the commission made a direct citation to § 4.0 of the report prepared for the staff, stating that “the concerns set forth in [the] report, and the failure of the applicant to adequately address said concerns in its applications, makes it unacceptable to grant a permit for this proposed activity.” The commission went on to discuss, relying on the testimony of the plaintiffs experts, that certain types of species that live in the wetlands, including wood frogs and spotted salamanders, need upland wooded areas extending 750 feet from the edge of the vernal pool. In this case, impacts to frogs result in impacts to wetlands. While the commission’s jurisdiction extends only 100 feet from the wetlands, per its regulations, it is allowed to consider all proposed activity that would affect that area. See part I A of this opinion.

The plaintiff claims that there is expert testimony to support the opposite conclusion, which is that its proposed controls would be adequate to avert any adverse impacts. The court made comparison to the situation in Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987), in which our Supreme Court upheld the commission’s denial of an application, holding that the commission could rely on the expert opinions that predicted an adverse impact on the wetlands, notwithstanding the presence of opposing expert opinions. Upon a review of the record, we determine that the court properly found that there was sufficient expert testimony regarding the substances that were likely to enter the wetlands, the inadequacy of the plaintiffs proposed mitigation measures and the adverse impacts to the wetlands as a result of the activity.

The court, after considering the evidence, found that “[t]he record reveals that the commission did evaluate the likely adverse impacts to wetlands from the golf course in light of the language of § 22a-40. It found that the construction and operation of the golf course would disturb the natural and indigenous character of the wetlands and result in the deposition of material into the wetlands and watercourses. . . . The commission thoroughly and painstakingly evaluated the evidence presented to it. On the basis of substantial evidence in the record, the commission properly determined that the activities proposed by [the plaintiff] would have an adverse impact on the wetlands and watercourses of the town of Old Saybrook.” Upon a comprehensive review of the record, we determine that the various testimony and exhibits presented at the hearing provided substantial evidence for the commission’s denial of the application. Accordingly, we conclude that the court properly found that the commission’s denial was supported by substantial evidence and dismissed the plaintiffs appeal.

Ill

Last, the plaintiff claims that the commission did not fulfill its statutory requirements because it engaged in a faulty feasible and prudent alternatives analysis. More specifically, the plaintiff claims that the commission failed to meet its burden to set forth specific feasible and prudent alternatives in its written denial. We do not agree.

The act forbids an inland wetlands agency from issuing a permit for a regulated activity unless it finds on the basis of the record that a “feasible and prudent alternative does not exist. ...” General Statutes § 22a-41 (b) (I). In making the finding, the inland wetlands agency “shall consider the facts and circumstances set forth in subsection (a) of this section. . . .” General Statutes § 22a-41 (b) (1). Included among the factors for consideration set out in subsection (a) is 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 the wetlands or watercourses . . . .’’General Statutes § 22a-41 (a) (2).

The act defines “feasible” as that which is “able to be constructed or implemented consistent with sound engineering principles . . . .” General Statutes § 22a-38 (17). Prudent is defined as “economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity provided cost may be considered in deciding what is prudent and further provided a mere showing of expense will not necessarily mean an alternative is imprudent.” General Statutes § 22a-38 (18). “[A]n applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit. . . . The applicant, accordingly, must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent.” (Citations omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 593, 628 A.2d 1286 (1993).

“The act was designed to protect and preserve the indispensable and irreplaceable but fragile natural resource of inland wetlands by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology .... Instead of banning all economic activities on wetlands, the legislature realized that a balance had to be struck between economic activities and preservation of the wetlands.” (Citation omitted; internal quotation marks omitted.) Id., 591. Nevertheless, an inland wetlands agency cannot grant a permit unless it finds that there are no feasible and prudent alternatives to the proposed regulated activity.

In its written decision, the commission stated that it considered “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. Such alternatives should include, but [are] not necessarily limited to, requiring actions of [a] different nature which would provide similar benefits with [a] different location for the activity . . . .” The [commission then found that “the applicant has not shown to the satisfaction of the commission that there are no prudent and feasible alternatives to the proposed activities.” Finally, the commission found that it was unnecessary to make a specific determination as to the proposed regulated activities for the construction of the roadway layout in the present application because the proposed roadway layout was based directly on the proposed golf course and residential development, which the commission had already denied.

The environmental review report stated that “[i]n our opinion, while the current application is much improved, it does not explore or discuss the feasibility of what would appear to be some basic alternatives, such as reducing the length of the golf course, or conversion of some of the proposed single family residential estate lots to clustered residential units. The latter alternative could have the potential to free up an area of sufficient size that would allow for the relocation of at least a portion of the golf course to non-regulated areas, thus retaining more natural buffers adjacent to the wetlands.” The record contains references to alternative uses of the land that would have a lesser impact on the wetlands and watercourses, including eliminating or shortening the golf course. Therefore, we conclude that the court properly found that the commission had ample evidence to support its finding that the plaintiff had not sufficiently established the absence of prudent and feasible alternative uses for the property.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the commission, the Connecticut Fund for the Environment, Inc., the commissioner of the department of environmental protection (department) and the town of Essex are defendants. The commissioner of the department was made a defendant in the trial court pursuant to General Statutes § 22a-43 (a). Each of the four defendants filed a brief with this court and participated in oral argument. They all essentially argue that the commission acted within its jurisdiction and that there is sufficient evidence to affirm the judgment.

       General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       In addition to the section defining regulated activity, the commission’s regulations include a section entitled “Considerations for Decision.” Section 10.2 (F) of the regulations provides that the commission may consider “[ijmpacts 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.”


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY DAVIS
    (AC 31003)
    Harper, Robinson and Dupont, Js.

      Argued March 11
    officially released July 27, 2010

      Victoria Pells, assistant public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Jayne F. Kennedy, deputy assistant state’s attorney, and James Dever, certified legal intern, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Jeffrey Davis, appeals from the trial court’s order, following a pretrial hearing, that he be involuntarily medicated to render him competent to stand trial. On appeal, the defendant claims that the court improperly found that his alleged violation of General Statutes § 54-252 was serious enough to give the government an important interest in requiring that he be medicated so that he would be competent to stand trial. We disagree and, accordingly, affirm the order of the trial court.

The following facts and procedural history are relevant to our resolution of the issue this case presents. On April 30, 2008, the defendant appeared in court on a violation of § 54-252 charge for failure to register as a sex offender. On that date, the court ordered a competency examination pursuant to General Statutes § 54-56d. On May 29,2008, after the competency hearing was completed, the court, Norko, J., found the defendant incompetent but capable of being restored to competency within sixty days. On July 24, 2008, the court, Markle, J., found the defendant incompetent but restorable. On September 24, 2008, the court, Fasano, J., heard the testimony of Mark S. Cotterell, a psychiatrist at Connecticut Valley Hospital, that the defendant was cooperating with his medication regimen, had shown improvement and was capable of understanding the proceedings and assisting his legal counsel. The court subsequently found that the defendant had been restored to competency.

On November 4, 2008, the defendant, through counsel, requested another competency examination pursuant to § 54-56d. On December 10, 2008, the court, Crawford, J., once again found the defendant to be incompetent but restorable. The treatment plan that the court ordered included the administration of antipsy-chotic drugs. The court also appointed a health care guardian because the defendant expressed his unwillingness to take antipsychotic drugs. After the defendant was transferred back to the department of correction, he refused to take antipsychotic medication and his mental condition deteriorated.

The defendant has a history of five inpatient psychiatric hospitalizations. He has been diagnosed with delusional disorder, persecutory type; polysubstance dependence; antisocial personality disorder; and narcissistic personality disorder. Presently, the defendant is diagnosed with delusional disorder, which can be treated with antipsychotic medication. The defendant previously has been treated successfully with the anti-psychotic drug Risperdal, with minimum side effects. His treatment plan for restoration to competency includes treatment with Risperdal. If, however, the defendant continues to refuse to take the medication orally, the plan includes administering the antipsychotic drug Haldol intramuscularly.

On March 19, 2009, the court, Crawford, J., found that involuntary medication of the defendant would render him competent to stand trial. The court ordered that the defendant be involuntarily medicated over a period of sixty days and set a hearing date for May 21, 2009, to reconsider his competency. This interlocutory appeal followed.

The defendant claims that the court, Crawford, J., improperly found that he should be involuntarily administered antipsychotic medication to render him competent to stand trial. Specifically, the defendant challenges the court’s application of the first factor set forth in Sell v. United States, 539 U.S. 166, 180, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003), to the facts of his case, and argues that his failure to register as a sex offender in violation of § 54-252 is not a serious enough crime to give the government an important interest that outweighed his liberty interest. We disagree.

To evaluate the defendant’s claim, we first set forth the applicable standard of review. “Whether the Government’s asserted interest is important is a legal question that is subject to de novo review.” (Emphasis in original.) United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004), cert. denied, 543 U.S. 1128, 125 S. Ct. 1094, 160 L. Ed. 2d 1081 (2005).

“[T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” Sell v. United States, supra, 539 U.S. 179. The defendant challenges only the state’s failure to meet the standard that he committed a serious crime that gives the government an important interest in bringing him to trial.

“[A]n individual has a constitutionally protected liberty interest in avoiding involuntary administration of antipsychotic drugs—an interest that only an essential or overriding state interest might overcome. . . . This is because [t]he forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” (Citations omitted; internal quotation marks omitted.) United States v. Bush, 585 F.3d 806, 813 (4th Cir. 2009). “[A] court must find that important governmental interests are at stake. The Government’s interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property. In both instances the Government seeks to protect through application of the criminal law the basic human need for security.” (Emphasis in original.) Sell v. United States, supra, 539 U.S. 180.

This is the standard adopted through Connecticut jurisprudence. See State v. Jacobs, 265 Conn. 396, 399-400, 828 A.2d 587 (2003) (concluding that standard articulated in Sell governs issue of involuntarily medicating defendant so that defendant may be competent to stand trial in Connecticut). Although our precedent reflects an adaptation of the standard set forth by the United States Supreme Court, the issue has not been explored through Connecticut law since Sell v. United States, supra, 539 U.S. 166, and so we turn to federal interpretations for guidance.

With respect to the seriousness of the crime, the United States Court of Appeals for the Sixth Circuit concluded that although Sell qualifies serious crimes as being against “the person or . . . property”; id., 180; a crime does not have to be violent to be considered serious. United States v. Green, 532 F.3d 538, 548 (6th Cir. 2008), cert. denied, 556 U.S. 1270, 129 S. Ct. 2735, 174 L. Ed. 2d 250 (2009). Further, the court determined that the lack of an identifiable victim does not mean that a crime is victimless because, with such crimes as drug trafficking, society as a whole is the victim. Id., 549. The court reasoned that when “a criminal defendant possesses an illegal substance with the intent to distribute that substance to others, unquestionably there are victims.” Id. We find this reasoning persuasive and applicable to the present case.

The defendant is accused of violating the requirement set forth in § 54-252 that he register as a sex offender. Citing Sell, the defendant argues that while the failure to register as a sex offender is a serious crime, it is not a serious crime against the person or a serious crime against property. We refuse to take such a narrow view of the Sell criteria. First, we note that the defendant’s reliance on Sell is misplaced. What the United States Supreme Court actually said is that “[t]he Government’s interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property. In both instances the Government seeks to protect through application of the criminal law the basic human need for security.” Sell v. United States, supra, 539 U.S. 180.

The fact that the crime of not registering as a sex offender is not a crime of violence does not negate the seriousness of undetected sex offenders existing within communities. “The current law, [General Statutes] § 54-250 et seq. of chapter 969 of the General Statutes, is commonly referred to as Megan’s Law. . . . The intent behind this legislation was to alert the public by identifying potential sexual offender recidivists when necessary for public safety. . . . The law was broadened in 1997 to include all convicted sex offenders.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Boysaw, 99 Conn. App. 358, 363, 913 A.2d 1112 (2007). “The legislature enacted the law to protect the public from sex offenders.” (Internal quotation marks omitted.) State v. Arthur H., 288 Conn. 582, 590, 953 A.2d 630 (2008).

Section 54-252 was enacted to protect the general public in the same way that statutes prohibiting the sale of illegal narcotics are created to protect the general public. Taking the legislative intent of this specific statute into consideration, we conclude that, irrespective of whether the potential victim of an unidentified sex offender is known, the threat to the public in general satisfies the requirement that the state have an important interest at stake. See Sell v. United States, supra, 539 U.S. 179.

In United States v. Gomes, supra, 387 F.3d 160-61, the United States Court of Appeals for the Second Circuit concluded that the crime of illegal possession of a handgun was serious enough to satisfy the first factor of the Sell test. The court reasoned that the fact that Congress enacted a statute penalizing the possession of a handgun by someone with prior convictions more seriously than someone without prior offenses was evidence in itself of how serious Congress thought possession of a firearm by a “ ‘career criminal’ ” to be. Id., 161. As in Gomes, the offense criminalized by § 54-252 is one that is based on the defendant’s prior convictions and his need to identify himself on the basis of those convictions. This adds further support to our conclusion that the defendant’s crime is serious and gives the government an important interest in bringing him to trial.

Finally, courts have looked to the maximum statutory penalty associated with the crime as a significant, objective guidepost in determining the seriousness of a crime. E. g., United States v. Green, supra, 532 F.3d 549; United States v. Hernandez-Vasquez, 513 F.3d 908, 919 (9th Cir. 2008); United States v. Valenzuela-Puentes, 479 F. 3d 1220, 1226 (10th Cir. 2007). “By utilizing the potential statutory penalty to assess the seriousness of a crime, we employ an objective standard for application and thereby avoid any arbitrary determinations, and further, respect the judgment of the legislative branch as reflective of societal attitudes.” United States v. Green, supra, 549. The maximum statutory penalty for a violation of § 54-252 is five years imprisonment, which, while not as grave as twenty years imprisonment, for example, still makes the offense a felony with the potential for a significant penalty attached. Further, using the maximum statutory penalty in the analysis of the seriousness of a crime gives the courts an objective way to let the legislative intent factor enter into the analysis. Here, as discussed above, the legislature’s view of the severity of sex crimes is reflected in the fact that it created a separate felony offense for the failure to register as a sex offender. This adds more weight to what would otherwise be a moderate maximum penalty.

The defendant argues that there are mitigating circumstances surrounding his case that negate the crime’s seriousness. “Courts, however, must consider the facts of the individual case in evaluating the Government’s interest in prosecution. Special circumstances may lessen the importance of that interest. The defendant’s failure to take drugs voluntarily, for example, may mean lengthy confinement in an institution for the mentally ill—and that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime. We do not mean to suggest that civil commitment is a substitute for a criminal trial. The Government has a substantial interest in timely prosecution. And it may be difficult or impossible to try a defendant who regains competence after years of commitment during which memories may fade and evidence may be lost. The potential for future confinement affects, but does not totally undermine, the strength of the need for prosecution. The same is true of the possibility that the defendant has already been confined for a significant amount of time (for which he would receive credit toward any sentence ultimately imposed, see 18 U.S.C. § 3585 [b]). Moreover, the Government has a concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one.” Sell v. United States, supra, 539 U.S. 180.

In the present case, the possibility exists that the defendant will be civilly confined for a significant length of time. He has been diagnosed with numerous mental disabilities and has a history of inpatient psychiatric hospitalizations. This decreases the likelihood that, if the defendant is not brought to trial, he will be released without any restrictions on his liberty. Civil commitment, however, is not a substitute for imprisonment, which is likely to be suspended and replaced with or followed by a probationary period. Given the seriousness of the offense of failure to register as a sex offender as one that protects the general welfare, the possibility of civil commitment does not serve as a strong enough mitigating factor to render the crime not serious.

Further, the defendant argues that he has been incarcerated for approximately two and one-half years, which is one half of his potential five year sentence. The defendant maintains that this is a significant amount of time and, therefore, serves as a mitigating factor when determining the seriousness of his offense, pursuant to Sell v. United States, supra, 539 U.S. 180. As the United States Court of Appeals for the Fourth Circuit reasoned, “[e]ven though [the defendant] can make aserious argument that the time she has already served in prison is sufficiently long to cover, or almost cover, any sentence that reasonably could be anticipated, this fact alone does not defeat [the government’s interest].” (Internal quotation marks omitted.) United States v. Bush, supra, 585 F.3d 815. Because § 54-252, the statute that the defendant is charged with violating, affords the general public safety by being able to identify sex offenders, criminals known to have high recidivism rates, we conclude that the time that the defendant has already served does not negate the state’s interest in ensuring that he is either imprisoned or released with appropriate monitoring. Without such restrictions on the defendant’s liberty and ability to violate the statute again by not registering, the registry system would not be able to function as intended.

The order of the trial court allowing for the involuntary medication of the defendant is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-252 (a) provides in relevant part: “Any person who has been convicted or found not guilty by reason of mental disease or defect of a sexually violent offense . . . shall . . . register such person’s name, identifying factors and criminal history record, documentation of any treatment received by such person for mental abnormality or personality disorder, and such person’s residence address and electronic mail address, instant message address or other similar Internet communication identifier, if any, with the Commissioner of Public Safety on such forms and in such locations as said commissioner shall direct, and shall maintain such registration for life. . . .”

       The defendant was required to register as a sex offender due to a 1996 conviction of first degree sexual assault.

       Cotterell also testified that he could not predict the defendant’s condition if he stopped taking his medications.

       Pursuant to Practice Book § 61-6 (c), the defendant may appeal from an interlocutory ruling deemed to be a final judgment. Here, “[tjhis court has jurisdiction, although the appeal is interlocutory, because the defendant’s claimed constitutional right to be free from being involuntarily medicated, once infringed, can never be restored. United States v. Brandon, 168 F.3d 947, 951 (6th Cir. 1998); State v. Garcia, 233 Conn. 44, 65-66, 658 A.2d 947 (1995). The claim is reviewable because the order so concludes the defendant’s rights that further proceedings cannot affect those rights. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). In fact, the failure to appeal immediately from an order of involuntary medication to restore competency will foreclose review after the trial has concluded. State v. Lisevick, 65 Conn. App. 493, 497-98, 783 A.2d 73, cert. denied, 258 Conn. 933, 785 A.2d 230 (2001).” State v. Jacobs, 70 Conn. App. 488, 490 n.1, 802 A.2d 857 (2002), vacated on other grounds and remanded, 265 Conn. 396, 828 A.2d 587 (2003).


author: SCHALLER, J.

text:
    MARY BERZINS v. DAVID BERZINS
    (AC 30946)
    Beach, Flynn and Schaller, Js.

      Argued April 5
    officially released July 27, 2010

      Linda C. Lehmann, for the appellant (substitute defendant).

      Susan Boyan, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

In this postjudgment marital dissolution action, the substitute defendant, Daniel King, administrator of the estate of David Berzins (administrator), appeals from the judgment of the trial court granting the motion filed by the plaintiff, Mary Berzins, for sanctions and attorney’s fees. On appeal, the administrator claims that the court (1) lacked subject matter jurisdiction and (2) improperly granted the plaintiffs motion for sanctions and attorney’s fees. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On January 26, 2006, the court rendered judgment dissolving the marriage of the plaintiff and David Berzins. David Berzins failed to appear and was defaulted. He thereafter filed a motion to open the judgment of dissolution, and the court denied the motion. He then appealed to this court. On January 25, 2008, David Berzins died. On February 5,2008, this court affirmed the judgment of the trial court. See Berzins v. Berzins, 105 Conn. App. 648, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008). By order dated February 7,2008, this court stayed the appeal until there was compliance with General Statutes § 52-599. On July 23, 2008, this court granted the administrator’s motion to intervene and the plaintiffs motion to substitute the administrator as the defendant. It also treated the administrator’s motion to dismiss as a motion to withdraw, which it then granted. The administrator then petitioned the Supreme Court for certification to appeal with regard to several issues, including the issue of whether he was a proper party to the dissolution action. The Supreme Court denied certification. See Berzins v. Berzins, 289 Conn. 932, 958 A.2d 156 (2008). Thereafter, the administrator filed a motion to enforce a post-judgment agreement. Various motions were filed in the trial court, which culminated in the plaintiffs filing a motion for sanctions and attorney’s fees. The court granted the plaintiffs motion for sanctions and attorney’s fees, and this appeal followed. Additional facts will be set forth as necessary.

I

The administrator first claims that the trial court lacked subject matter jurisdiction. Specifically, the administrator argues that he improperly was substituted as a defendant, and, therefore, the plaintiff lacks standing to continue this action against him. We determine that the administrator’s claim is barred by collateral estoppel because he previously litigated this issue before us unsuccessfully in connection with the plaintiffs motion for substitution, his application for leave to intervene and his motion to dismiss.

“We begin by setting out the doctrines of res judicata and collateral estoppel. Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. . . . [W]e have observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim. . . . The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . .

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made. . . . Res judicata bars not only subsequent relit-igation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action . . . which might have been made. . . .

“Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment.” (Citations omitted; internal quotation marks omitted.) Massey v. Branford, 119 Conn. App. 453, 464-65, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).

The administrator previously challenged the issue of whether he properly was substituted as a defendant. After the death of David Berzins, the following motions were pending before this court: the plaintiffs motion for substitution, the administrator’s application for leave to intervene and the administrator’s motion to dismiss. The administrator did not file an opposition to the plaintiffs motion for substitution. The administrator, in his motion to dismiss, argued that the underlying motion to open the dissolution action and the appeal from that judgment abated with the death of David Berzins and sought dismissal of the appeal retroactively to the time of David Berzin’s death. In deciding those motions, this court determined that the administrator was the proper party to be substituted in this action and that the plaintiffs action did not abate upon the death of David Ber-zins. See General Statutes § 52-599. The administrator did not file a motion for reconsideration or reconsideration en banc of this court’s orders. The administrator thereafter unsuccessfully petitioned the Supreme Court for certification to appeal.

The administrator is now attempting to litigate the same issue of lack of subject matter jurisdiction again in this appeal. Whether the administrator properly was substituted as a party and whether subject matter jurisdiction exists in a court of this state already have been litigated and decided by this court. The subject matter jurisdiction of the trial court was resolved by this court’s prior rulings. The administrator, in challenging the subject matter jurisdiction of the trial court in this appeal, in effect is challenging the prior ruling of this court as to subject matter jurisdiction. Accordingly, the administrator is barred from raising this claim on appeal based on the principles of collateral estoppel.

II

The administrator next claims that the trial court improperly granted the plaintiffs motion for sanctions and attorney’s fees. Specifically, the administrator argues that the court abused its discretion in its award of attorney’s fees because it was against the weight of the evidence. We disagree.

To resolve the administrator’s claim, we begin by setting forth the relevant legal principles and the standard of review. The court found that the administrator engaged in egregious litigation misconduct and awarded the plaintiff attorney’s fees pursuant to Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007). “A decision to award counsel fees in a marital dissolution dispute ordinarily is based on an appraisal of the respective financial ability of each party to pay his or her own fees. See General Statutes § 46b-62 .... Where, however, ‘a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts of money for attorney’s fees, and where the court determines, in its discretion, that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorney’s fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of such an award would undermine the court’s other financial orders.’ ” (Citation omitted.) LaBossiere v. Jones, 117 Conn. App. 211, 213, 979 A.2d 522 (2009). The decision of whether a party has engaged in egregious litigation misconduct is within the discretion of the court. “Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121 Conn. App. 31, 61, 994 A.2d 262 (2010).

The following additional facts are relevant for our resolution of the administrator’s claim. On November 10, 2008, the administrator filed a motion to enforce a postjudgment agreement of the parties. On November 12, 2008, the plaintiff filed a motion to transfer the real property awarded to her in the dissolution judgment. The administrator objected to the transfer, claiming that the plaintiff had not given him a note and mortgage as required by the judgment. The administrator then served various discovery requests on the plaintiff and her bank. The plaintiff filed a motion to quash the discovery and for a protective order and attorney’s fees. The administrator filed a motion to transfer pursuant to General Statutes § 46b-2. On December 15, 2008, the court, Abery-Wetstone, J., granted the plaintiffs motions and ordered that $500 in attorney’s fees be awarded to the plaintiff. The administrator filed a motion for reconsideration, which the court denied on December 23,2008. On January 12,2009, the administrator filed a motion to correct and to vacate the order of attorney’s fees. The administrator then filed a motion for a declaratory judgment and a motion to compel postjudgment. On February 27, 2009, the plaintiff filed a motion for sanctions and attorney’s fees. On March 17, 2009, the administrator filed motion for sanctions. On March 20, 2009, the court, Shluger, J., issued its memorandum of decision, denying the administrator’s motion for sanctions, motion to enforce the postjudgment agreement of the parties, and motion to correct and to vacate the order of attorney’s fees, and granted the plaintiffs motion for sanctions and attorney’s fees. The court found that the administrator “has filed numerous and often duplicative motions aimed at recovering personal property awarded to and in the possession of the plaintiff.” Specifically, the court found that the “plaintiff argued convincingly that she has spent enormous amounts of money in attorney’s fees defending the [administrator’s] motions, which the court [found] to be frivolous.” The court also found that “each of the [administrator’s] motions were either withdrawn or resolved in the plaintiffs favor. For example, the [administrator’s] motion for a declaratory judgment, motion to vacate the order of attorney’s fees, motion to enforce the postjudgment agreement and motion to transfer to the civil docket have no basis in the law.” The administrator then filed a motion for reconsideration, which was denied by the court on April 9, 2009.

On the basis of our review of the record, we conclude that the court reasonably could have concluded that the administrator engaged in egregious litigation misconduct. The administrator’s motion for a declaratory judgment and motion to vacate the order of attorney’s fees essentially were duplicative motions. The motion for a declaratory judgment concerned the issue of the plaintiffs standing to continue this action based on the death of David Berzins, which as discussed in part I of this opinion, previously had been litigated and decided by this court. As the memorandum of decision notes, the administrator admitted that his motion to correct and to vacate the order of attorney’s fees was his second motion for reconsideration filed challenging the court’s order requiring him to pay the plaintiff $500 for having filed postjudgment discovery and subpoenas without good cause. The record supports the court’s finding that the administrator’s motion to transfer the case to the civil docket pursuant to § 46b-2 was frivolous and the administrator’s motion to enforce the postjudgment agreement was resolved in the plaintiffs favor. On the basis of the foregoing, we conclude that the court did not abuse its discretion in awarding the plaintiff attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       The administrator also initially claimed that the court improperly denied his motion for sanctions and attorney’s fees. At oral argument, however, the administrator’s appellate counsel withdrew this claim.

       General Statutes § 52-599 provides: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.
      “(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff’s death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.
      “(c) The provisions of this section shall not apply: (1) To any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) to any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3) to any civil action upon a penal statute.”

       Specifically, the administrator’s petition for certification to the Supreme Court stated the following questions for review: “(1) Did the appellate court act properly by treating the estate Administrator’s Motion to Dismiss Appeal for lack of standing as a motion to withdraw appeal in this post judgment family matter ... (2) Was the appellate court without authority when it determined to treat the estate Administrator’s Motion to Dismiss Appeal as a motion to withdraw appeal without addressing the Administrator’s jurisdictional issue of standing in this posijudgment family matter ... (3) Did the appellate court correctly determine that a deceased party’s representative, who has intervened in a postjudgment family matter, has standing to withdraw . . . the deceased party’s family relations appeal without addressing the Administrator’s Motion to Dismiss Appeal based on lack of standing [and] (4) Was the appellate court correct in granting the plaintiffs motion to substitute the Administrator, c.t.a. in place of the deceased defendant while granting the Administrator’s Motion to Intervene on behalf of the deceased defendant for the limited purpose of filing a Motion to Dismiss Appeal in this postjudgment family appeal.”

       The administrator also argued that the trial court failed to address his claim of lack of subject matter jurisdiction. The administrator argued before the trial court “[t]he propriety of including the estate administrator as a party.” This court and not the trial court, substituted him as the defendant. Therefore, it was proper for the trial court not to address “the propriety” of our orders and the administrator’s claim that the court lacked subject matter jurisdiction is barred by collateral estoppel, as more fully discussed in part I of this opinion.

       We note that “[t]his court has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. ... In certain circumstances, we have, however, recognized that this principle of validity must be tempered by the countervailing force of the principle of finality. The modem law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal.” (Citations omitted; internal quotation marks omitted.) Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990).

       The administrator also claimed that the court improperly excluded evidence during the hearing on the plaintiffs motion for sanctions and attorney’s fees. It is unclear from the administrator’s appellate brief what evidence he claimed was excluded improperly. Specifically, the administrator states: “Prior to the March 18 hearing, the [administrator] timely supplied the trial court with a ‘Defendant’s Hearing Management Memorandum Per Standing Order of the Court’ containing, essentially, an offer of proof. However, most of the evidentiary documents contained therein were ruled ‘not relevant’ and inadmissible by the trial court.” The administrator does not detail the evidence that was excluded by the court and merely asserts that the “excluded evidence” prejudiced his motion for sanctions and his defense of the plaintiffs motion for sanctions and attorney’s fees. We, therefore, decline to address this claim. See Cooke v. Cooke, 99 Conn. App. 347, 353, 913 A.2d 480 (2007) (“[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief’ [internal quotation marks omitted]).

       We note that the administrator has argued in his brief that the “review of sanctions against a party are governed by the standards set forth in . . . Maris v. McGrath, 269 Conn. 834, 850 A.2d 133 (2004),” and that the “record contains no clear and convincing evidence amounting to bad faith on the part of [the administrator].” In Maris, the court recognized both the American rule and the bad faith exception to the rule. Specifically, the court stated: “As a substantive matter, [t]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attomeyf’s] fee from the loser. . . . That rule does not apply, however, where the opposing party has acted in bad faith. ... It is generally accepted that the court has the inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. . . . This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation. ... It applies both to the party and his counsel. . . . Moreover, the trial court must make a specific finding as to whether counsel’s [or a party’s] conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers to impose attorney’s fees for engaging in bad faith litigation practices.” (Citations omitted; internal quotation marks omitted.) Id., 844.-45. In the present case, the court specifically granted the plaintiffs motion for attorney’s fees pursuant to Ramin, and the award was not based on the bad faith exception. Therefore, we will address whether the court abused its discretion pursuant to Ramin.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. ...”

       We note that the court in Ramin emphasized that the purpose of the award of attorney’s fees was to compensate an innocent party for having had to bear the burden of expenses incurred as a result of the other party’s misconduct. Specifically, the court stated: “The aim of the expansion [of Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992)] is to prevent the innocent party from being unfairly burdened. The fact that the result may also deter the wrongdoer from benefiting from his egregious litigation misconduct does not convert an award under the expansion to a sanction. It simply reallocates the burden for the increased fees to the party responsible for causing them.” Ramin v. Ramin, supra, 281 Conn. 358.

       Specifically, on June 25, 2007, a postjudgment agreement was entered into between the plaintiff and David Berzins. The plaintiff and David Berzins had a dispute concerning certain personal property in possession of the plaintiff at the marital home, and the plaintiff applied for a temporary restraining order against David Berzins. The parties then agreed that the plaintiff would not pursue the restraining order and that the plaintiff would not destroy or otherwise dispose of any of the disputed property located at her residence.

       General Statutes § 46b-2 provides: “All proceedings involving a family relations matter shall be first placed on the family relations docket of the Superior Court; and except for juvenile matters which are provided for in section 46b-133, the judge before whom such proceeding is brought, may transfer such matter to the criminal or civil docket of said court if he deems that such docket is more suitable for the disposition of the case. Any case so entered or transferred to either docket shall be proceeded upon as are other cases of a like nature standing on such docket.”

       We note that the administrator’s motion to disqualify Judge Abery-Wetstone was granted by her. Even though the court’s statement that “each of the [administrator’s] motions were either withdrawn or resolved in the plaintiffs favor” is technically incorrect, this factual error was harmless, and we find that there are sufficient facts to support the court’s ultimate conclusion that the administrator engaged in egregious litigation misconduct. See Lambert v. Donahue, 78 Conn. App. 493, 507, 827 A.2d 729 (2003) (“Where . . . some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. ... If, when taken as a whole, they undermine appellate confidence in the court’s fact finding process, a new hearing is required.” [Internal quotation marks omitted.]).