text:
    DANIEL SANTIAGO v. COMMISSIONER OF CORRECTION
    (AC 31001)
    DiPentima, C. J., and Alvord and Mihalakos, Js.
    Argued October 21
    officially released December 21, 2010

      Alan Jay Black, special public defender, for the appellant (petitioner).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Brenda Hans, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Daniel Santiago, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. More specifically, the petitioner claims that trial counsel failed to present an alternative intoxication defense and to object to several alleged prosecutorial improprieties. We dismiss the appeal.

The facts underlying the petitioner’s conviction were set out at length in State v. Santiago, 73 Conn. App. 205, 208-11, 807 A.2d 1048 (2002), rev’d in part, 269 Conn. 726,850 A.2d 199 (2004). “On November 26,1997, the victim’s brother, Craig Pitts, saw the victim, Barrett Applewhite, and the [petitioner] having ‘a few words’ outside of an apartment building at 39 Wadsworth Street, Hartford. About one week earlier, Applewhite had ‘fronted’ the [petitioner] cocaine to sell, and the [petitioner] had agreed to pay Applewhite $500 after he sold the drugs. Although Pitts did not know what was said, the situation did not appear to him to be very serious, and Applewhite and the [petitioner] soon went their separate ways. Afterward, Applewhite told Pitts that the [petitioner] was ‘crazy’ and that he did not know what was wrong with him, but he did not give any details.

“That evening, Applewhite, Michael Ibscher and Stephen Gomes drove to 39 Wadsworth Street to visit Jessica Gonzalez and Maureen Jackson. After a while, they decided to take Applewhite and a two year old child who was visiting Jackson to the child’s home on Franklin Avenue, to drop off Gonzalez’ friend, Rocio Castro, at her house and then to drive to Massachusetts to purchase liquor. They entered a Lincoln Navigator sport utility vehicle that was parked in front of the building. Ibscher drove, Applewhite sat in the front passenger seat and Gomes, Castro, Gonzalez and Gonzalez’ cousin, Jennifer Colon, sat in the backseat. As they drove away from the building and proceeded along Wadsworth Street, Applewhite received a call on his cellular telephone informing him that they had forgotten to bring the two year old child with them. Ibscher thereupon backed up the vehicle all the way to the front of 39 Wadsworth Street and parked. Jackson brought the child downstairs to the vehicle and put her on Gomes’ lap.

“At about that same time, the [petitioner], wearing dark pants and a black hooded sweatshirt with the hood up, crossed Wadsworth Street and walked to the parked vehicle. He looked in the front passenger window directly at Applewhite and started ‘talking junk,’ saying, ‘What? What?’ Applewhite responded, ‘What’s your problem?’ and asked why the [petitioner] had approached the vehicle. Applewhite then said to the others, ‘Let me see what’s wrong with that [expletive].’ Applewhite opened the door and stepped out of the vehicle to the sidewalk. He told the [petitioner] that he was acting as if they had backed up the vehicle because of him, but that was not the case. He also told the [petitioner] that they had no problem with him. The [petitioner], still facing Applewhite, moved toward the rear of the vehicle, saying, ‘What? What?’ Applewhite followed the [petitioner], reiterating that they had not backed up because of him and that he should leave.

“Ibscher, noticing that the [petitioner] was ‘agitated,’ decided to join Applewhite to help prevent any problems. Ibscher exited the vehicle, walked to Applewhite and told him to relax, that it was a holiday and that they did not need any trouble. Neither he nor Applewhite were armed, and there were no weapons in the vehicle. Sensing that Applewhite would not advance on the [petitioner], but merely would discuss the matter with him, Ibscher moved a few feet behind Applewhite. The [petitioner], however, kept saying, ‘What? What?’ and appeared to be agitated, upset and dazed.

“At that time, Applewhite and the [petitioner] were standing about eight to ten feet apart. Although neither Applewhite nor Ibscher moved toward the [petitioner], he suddenly pulled out a black automatic handgun from his sweatshirt pocket and began shooting at Applewhite because he [said he] saw Applewhite reach ‘into his waist.’ Applewhite immediately turned away from the [petitioner] and started to run toward the building at 39 Wadsworth Street, but he was shot in the back. Ibscher told the [petitioner] that he was ‘crazy,’ and the [petitioner] ‘swiveled’ toward Ibscher and shot him, hitting him in the leg as he was running through an alley to the parking lot next to the building. In total, the [petitioner] fired six or seven shots in rapid succession. After the [petitioner’s] automatic gun clicked twice, the [petitioner] turned and ran across the street and along a pathway between 54 and 60 Wadsworth Street toward a public housing project.

“In the meantime, Gomes, concerned about the safety of the women and the child, got into the driver’s seat of the vehicle and sped off. They dropped off Castro at her house, called the police and drove to Franklin Avenue to drop off the child. While on Franklin Avenue, the police stopped and searched the vehicle and questioned the remaining passengers.

“The police officers who had arrived at the crime scene tried to gather information from the victims and witnesses concerning the shooting. At the scene, Ibscher identified the shooter as ‘Danger.’ [Applewhite and Ibscher were taken to the hospital for treatment of their injuries. Applewhite died in the hospital from his injuries the next morning.] By running that alias through a computer and by the process of elimination, the police were able to identify the [petitioner] as a possible suspect. Thereafter, Ibscher, Gomes, Gonzalez and Castro all separately identified the [petitioner] from a photographic array. On November 29,1997, the police obtained a warrant for the [petitioner’s] arrest and sent ‘wanted’ flyers to the news media.

“On December 1,1997, the [petitioner] turned himself in to the Hartford police. He agreed to be interviewed and gave a statement to the police, admitting that he shot Applewhite and Ibscher but claiming that it was in self-defense. Thereafter, the [petitioner] was arrested.”

On February 25, 2000, the juiy found the petitioner guilty of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). On April 25, 2000, the petitioner was sentenced to a total effective term of sixty years imprisonment. Thereafter, the petitioner appealed to this court, which reversed the judgment of conviction on the basis of the petitioner’s claim of prosecutorial misconduct. Our Supreme Court granted the state’s petition for certification to appeal, and subsequently reversed in part the judgment of this court and remanded the case to this court as to one remaining issue. State v. Santiago, 269 Conn. 726, 728-63, 850 A.2d 199 (2004). This court affirmed the judgment of the trial court. State v. Santiago, 87 Conn. App. 754, 766, 867 A.2d 138, cert. denied, 273 Conn. 938, 875 A.2d 45 (2005).

On July 18, 2005, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended by habeas counsel on June 6, 2008, alleging eleven instances of ineffective assistance of trial counsel and three instances of ineffective assistance as to appellate counsel. On March 23, 2009, a trial was held on the petitioner’s habeas petition, and his claims were denied by oral decision of the court. On April 1, 2009, the court denied the petitioner’s petition for certification to appeal. This appeal followed.

We initially set forth the well established standard of review and principles of law underlying the petitioner’s claims. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed. . . .

“According to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a petitioner alleging ineffective assistance of counsel must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Bewry v. Commissioner of Correction, 121 Conn. App. 259, 265-66, 994 A.2d 697, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010).

The petitioner claims that trial counsel rendered ineffective assistance by failing to raise a defense of intoxication. We disagree with the petitioner’s assertion that his trial counsel’s performance was deficient.

The petitioner’s counsel determined that, as a matter of trial strategy, presenting inconsistent, alternative defenses of intoxication and self-defense risked alienating the jury. For that reason, he chose to pursue a self-defense theory of the case and, in fact, convinced the jury to find the petitioner not guilty on the most serious charge of murder. The court concluded that “trial counsel made a knowing decision not to pursue the defense of intoxication . . . [and] his decision to not pursue such defense was within his professional judgment.” “[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn. App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002). On the basis of our review of the record, we conclude that the court properly determined that trial counsel’s strategy was reasonable under the circumstances. We further conclude that the court properly determined that that strategy was largely successful in that the petitioner was acquitted of murder, the most serious charge that he faced. The petitioner failed to satisfy the first prong of Strickland. The petitioner also claims that trial counsel failed to object to several alleged prosecutorial improprieties. We conclude that the court properly determined that there is nothing in the record to suggest that trial counsel failed to preserve the record. The petitioner received full review of his claims of prosecutorial impropriety. See State v. Santiago, supra, 269 Conn. 726-63.

The petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. The court, therefore, did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The juiy found the petitioner not guilty of murder in violation of General Statutes § 53a-54a (a).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NICOLE THOMPSON v. KEVIN RHODES
    (AC 31390)
    Robinson, Bear and Borden, Js.
    Argued October 28
    officially released December 21, 2010

      Nicole Thompson, pro se, the appellant (plaintiff).

      Kevin Rhodes, pro se, the appellee (defendant).

      David S. Carrón, guardian ad litem for the minor child.
   Opinion

PER CURIAM.

The plaintiff mother, Nicole Thompson, appeals from the judgment of the trial court rendered in favor of the defendant father, Kevin Rhodes, awarding him primary physical custody of their child. On appeal, the plaintiff raises various claims that focus on whether the court abused its discretion during the proceedings and in its decision to award the defendant primary physical custody of their child. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs appeal. On March 4, 2008, the plaintiff served the defendant with a complaint seeking temporary and permanent custody of their child and a specific visitation schedule for the defendant. On March 20, 2008, the matter was referred to the family relations division of the Superior Court for an evaluation. Kathleen Goncalves, a family relations counselor, interviewed all of the relevant parties and submitted a report recommending that the defendant have sole legal and residential custody of the child. The report also included a specific visitation schedule.

The case was tried on November 18, 2008, and May 12 and June 29,2009, during which testimony was heard and numerous exhibits were entered into evidence. The plaintiff and the defendant proceeded as self-represented parties. The court appointed attorney David S. Carrón as guardian ad litem. On July 8, 2009, the court issued its memorandum of decision, in which it ordered that the parties share joint legal custody of the child with primary residence to be with the defendant. Additionally, the court ordered the parties to adhere to the specific visitation schedule provided for in the memorandum of decision. On July 29, 2009, the plaintiff filed this appeal.

The plaintiff makes the following claims on appeal: (1) the trial court abused its discretion by imposing a court order when there was no evidence that she physically abused or neglected her child, thus depriving her of due process of law; (2) an assistant attorney general and the department of children and families abused their discretion by filing a petition based on hearsay statements to support the court’s order, depriving her of due process of law; (3) the trial court erred in denying her motion to dismiss the guardian ad ¡item’s testimony and the family court evaluator custody study; and (4) the trial court abused its discretion in failing to place sanctions on an entity she refers to in her brief as “A.B.C.D.” for failure to appear in court and to submit documents, as was required by a subpoena. The plaintiff, however, does not provide any legal analysis in support of her claims. The plaintiffs arguments consist of combinations of legal statements that for the most part are unrelated to her claims on appeal. Furthermore, the plaintiff fails to provide a standard of review for her arguments, as required by Practice Book § 67-4 (d).

“Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” (Internal quotation marks omitted.) State v. Klinger, 103 Conn. App. 163, 169, 927 A.2d 373 (2007). “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Watkins v. Thomas, 118 Conn. App. 452, 455, 984 A.2d 106 (2009). “The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Emphasis added; internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 635, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). Accordingly, we consider the plaintiffs claims to be inadequately briefed and thus decline to review them.

The judgment is affirmed.

       The parties, never married, are the parents of the minor child who was bom on July 15, 2003.

       Practice Book § 67-4 (d) provides in relevant part: “The argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied.”


author: ALVORD, J.

text:
    DAUTI CONSTRUCTION, LLC v. WATER AND SEWER AUTHORITY OF THE TOWN OF NEWTOWN
    (AC 31496)
    DiPentima, C. J., and Alvord and Pellegrino, Js.
    Argued September 1
    officially released December 28, 2010

      David L. Grogins, with whom was Barbara M. Schellenberg, for the appellant (defendant).

      Timothy S. Hollister, with whom was Ryan K. McKain, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, the water and sewer authority of the town of Newtown, appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Dauti Construction, LLC, from the defendant’s decision denying the plaintiffs application for a permit to connect to the town’s public sewer system. On appeal, the defendant claims that the court improperly determined that its regulation that allocated sewer capacity pursuant to a priority matrix was facially invalid because it was not rationally related to public health, safety and welfare concerns. Because we conclude that the priority matrix as applied to the plaintiffs application was invalid, we affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff, a limited liability company, owns a parcel of land located at 95 Church Hill Road in New-town and is the contract purchaser of an adjacent parcel of land located at 99 Church Hill Road. The combined area of the two parcels (property) is approximately four and one-half acres. In February, 2006, the plaintiff submitted an application to the planning and zoning commission of the town of Newtown (commission) for a zone change to construct twenty-three residential units on the portion of the property located at 95 Church Hill Road.

The defendant is the agency designated by the town to carry out the duties of a municipal water pollution control authority as set forth in chapter 103 of the General Statutes. Pursuant to General Statutes § 7-246, the town maintains a public sewer system controlled by the defendant that services a portion of the town. The plaintiffs property is located entirely within the town’s central sewer district. In July, 2006, after having received a preliminary request for sewer service for the plaintiffs proposed development, the defendant sent a letter to the plaintiff and all town boards and departments recommending the denial of the plaintiffs application for a zone change. In that letter, the defendant indicated that it had not allocated any sewer capacity for potential development that did not meet current zoning classifications and that the proposed zone change would allow sewer discharge at an amount greater than the amount permitted in its priority matrix. In August, 2006, the commission denied the plaintiffs application.

Following the commission’s denial, the plaintiff then signed a contract to purchase the adjacent land at 99 Church Hill Road. With the combined area of its property now totaling approximately four and one-half acres, the plaintiff submitted a three part affordable housing application to the commission in October, 2006, for a zoning amendment, map change and site plan approval in connection with a proposed development of twenty-six residential units. The commission again requested review and comment from the defendant with respect to the plaintiffs proposal. By memorandum dated January 16, 2007, the defendant responded: “It is . . . clear that the proposed development does not meet current zoning as defined in the [water pollution control] [p]lan. The [p]lan makes clear that the term ‘current’ for zoning refers ‘to the adoption date of this [priority] matrix, April 28,1994.’ [The plaintiff] has filed applications with [the commission] seeking amendments to the zoning regulations and a zone change for the subject property that would increase the number of units allowed per acre for the subject property. As such, there can be no disagreement that the [plaintiffs] proposal does not meet zoning requirements as they existed on April 28, 1994.” The letter concluded with the statement that “there is insufficient sewer capacity for the development of the subject property as proposed by the [plaintiff].” On April 5, 2007, the commission denied the plaintiffs application for the primary reason that the plaintiff had failed to provide an adequate sewage disposal plan to meet the need of the future residents of the development. The plaintiff appealed from the commission’s decision.

On August 7, 2007, pursuant to General Statutes § 7-246a (a) (2), the plaintiff submitted a formal application to the defendant, requesting a permit to connect to the public sewer system for a twenty-six unit residential development on the property. A public hearing on the plaintiffs application was held on August 16 and September 20,2007. At the conclusion of the public hearing, the defendant denied the plaintiffs application for the following reason: “[I]t fails to meet [the defendant’s] regulations in that it does not qualify for any category of the priority matrix for allocation of remaining sewer capacity.” The plaintiff filed an appeal from the defendant’s decision in the trial court pursuant to § 7-246a (b)-

The plaintiff’s appeal from the commission’s decision denying its affordable housing application was scheduled for oral argument on the same date and before the same judge, Tanzer, J., as the present action. On June 1, 2009, the court issued its memorandum of decision in this case and sustained the plaintiffs appeal. It concluded that the defendant’s regulation, allocating sewer capacity on the basis of the zoning classification of the plaintiffs property in 1994, was invalid. The court found that the evidence in the record indicated that the denial was based on a mathematical or mechanical application of the priority matrix and that there had been no evidence demonstrating that the priority matrix was rationally related to public health, safety or welfare. The defendant filed the present appeal after this court granted its petition for certification.

The defendant claims that the court improperly determined that the defendant’s sewer use regulation, which allocated sewer capacity on the basis of a priority matrix, was facially invalid because it was not rationally related to public health, safety and welfare concerns. The following additional facts and procedural history are relevant to the resolution of this claim. The defendant adopted a water pollution control plan (plan) on March 9, 1995, which was amended on June 24, 1999. The stated purpose of the plan was “to designate and delineate the boundaries of areas to be served by [t]own sewers and areas where sewers are to be avoided and to describe the policies and programs to be carried out to control surface and groundwater pollution problems.” The plan further provides that the town did not intend to extend sewers to areas outside of the sewer service area, and it incorporates a priority matrix for the central sewer service area to “ensure that the limited treatment plant capacity of 332,000 [gallons per day would] be allocated in a logical manner.” The plan clarifies that the terms “current” and “existing” in the priority matrix refer to the adoption date of the matrix, April 28, 1994. Pursuant to its authority under General Statutes § 7-247 (a), the defendant also adopted sewer use regulations, which initially were issued on August 13,1997, and were revised on September 27,2001. Those regulations reference the plan and the 1994 priority matrix.

Accordingly, as of April 28, 1994, all developed and undeveloped properties in the town were allocated a specific gallonage per day of the wastewater treatment plant’s capacity based on the zoning classifications of the properties on April 28,1994. The plaintiffs property, which was located in a one acre zone and was more than four acres but less than five acres in size, was assigned 850 gallons per day and 212.5 gallons of capacity per equivalent dwelling unit. The plaintiffs August 7, 2007 application sought a sewer connection permit for twenty-six dwelling units to discharge domestic sewage at a rate of 5525 gallons per day based on the defendant’s stated discharge rate of 212.5 gallons per day per dwelling unit. The defendant concluded that the proposed amount of discharge exceeded the amount allowed by the 1994 priority matrix and denied the application. The court concluded that the defendant’s stated reason for its denial was invalid.

Although the defendant claims that the court improperly determined that its regulation incorporating the 1994 priority matrix was facially invalid, we conclude that the issue to be determined by this court is whether the plaintiffs appeal was properly sustained because the 1994 priority matrix was invalid as applied to the plaintiffs proposal. We reach this conclusion for two reasons. First, in the plaintiffs prayer for relief, it specifically requests, inter alia, that the court render judgment declaring “invalid the portions of the . . . [regulations that regulate individual connections to the sewer system based on zoning categories or land use designations adopted by the [commission], as applied to the application of [the plaintiff] for approval to hook up to the Newtown sewer system . . . .” (Emphasis added.) Second, at the hearing before the trial court, counsel for the plaintiff stated: “We have no problem with the regulations, we’re not trying to overturn the regulations, we’re not — we’re not asking the court to declare . . . null and void any of the [defendant’s] plans or ordinances or enabling regulations. What we’re asking the court to look at is the way the [defendant] interprets its own regulations, how they apply them to the [plaintiffs] case, and to determine that they did in fact make a . . . zoning based decision on that application.” (Emphasis added.)

Because the plaintiffs complaint and representations to the trial court clearly indicate that it was seeking a determination that the 1994 priority matrix as applied to its application was invalid, we review the claim on appeal as the claim was presented to the trial court. “Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried .... For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.” (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511,528,955 A.2d 667 (2008). It is fundamental in our law that “the right of a plaintiff to recover is limited by the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief” (Emphasis added; internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). “The [trial] court is not permitted to decide issues outside of those raised in the pleadings.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 804 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005).

Having concluded that we will review the defendant’s claim in the context of whether the court improperly determined that the 1994 priority matrix was invalid as applied to the plaintiffs proposed development, we next consider the merits of that claim. The plaintiff had argued, and the trial court agreed, that a sewer agency has only those powers granted to it by the legislature, and those powers do not include the authority to regulate the use of land on the basis of zoning considerations. The court stated: “[Although the allocation of sewer capacity was consistent with the zoning of the plaintiffs property at the time the priority matrix was adopted, the water pollution control plan and the priority matrix therein do not allow for changes in zoning to affect the allocation of sewer capacity, essentially restricting the density of development to that for which it was zoned in 1994 . . . .” Accordingly, the court concluded that the defendant’s denial of the plaintiffs application for the reason that it failed to meet the limits set forth in the 1994 priority matrix was improper.

We begin our analysis by setting forth the standard of review. “In considering an application for sewer service, a water pollution control authority performs an administrative function related to the exercise of its powers. . . . When a water pollution control authority performs its administrative functions, a reviewing court’s standard of review of the [authority’s] action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion .... Moreover, there is a strong presumption of regularity in the proceedings of a public agency, and we give such agencies broad discretion in the performance of their administrative duties, provided that no statute or regulation is violated.” (Citations omitted; internal quotation marks omitted.) Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 285-86, 968 A.2d 345 (2009).

Our Supreme Court has recognized that water pollution control authorities are quasi-municipal corporations created pursuant to statute that may exercise “the power to acquire, construct, maintain, supervise, manage and operate a sewer system and perform any act pertinent to the collection, transportation and disposal of sewage.” (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 425, 853 A.2d 497 (2004). In defining the powers and duties of such authorities, § 7-247 (a) provides, inter alia, that they “may establish and revise rules and regulations for the supervision, management, control, operation and use of a sewerage system, including rules and regulations prohibiting or regulating the discharge into a sewerage system of any sewage or any stormwater runoff which in the opinion of the water pollution control authority will adversely affect any part or any process of the sewerage system . . . .” General Statutes § 7-247 (a). Nevertheless, “[a]n administrative agency, in making rules and regulations, must act within its statutory authority, within constitutional limitations, and in a lawful and reasonable manner.” (Internal quotation marks omitted.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 193 n.22, 779 A.2d 134 (2001).

The 1994 priority matrix at issue in the present case clearly is zoning based in its language and as applied to the plaintiffs application. Because the property is located in a sewer service area and the application proposes new development, the defendant determined that the proposal failed to fall within any of the five categories affording priority for a requested hookup to the sewer system. The second category of priority in the matrix is the only category that addresses “potential” as opposed to “existing” development. In order to fall within the second category, the plaintiff’s proposal would be entitled to priority only if its “potential development [meets] current zoning within the sewer service area.” As previously noted, current zoning refers to the zoning classification of the plaintiffs property in April, 1994. At that point in time, the plaintiff would have been permitted the equivalent of one residential unit per acre, for a total of four units. Even if, sometime after 1994, the town’s zoning authority had decided to change the plaintiffs property to a zoning classification that permitted greater density, the plaintiff still would not have been able to meet the parameters of the defendant’s priority matrix. As conceded by the defendant, the priority matrix was tied to zoning classifications as they existed in 1994, and any subsequent zoning changes by the commission after the adoption of that matrix would be of no consequence and totally ignored by the defendant when considering sewer connection permit applications for new developments.

The 1994 priority matrix, as applied to the plaintiffs property, foreclosed any possibility of development that exceeded the equivalent of four dwelling units. As did the zoning regulations in 1994, the priority matrix regulated the density of population and the use of the plaintiffs property. “[T]he power to determine what are the needs of a town with reference to the use of the real property located in it and to legislate in such a manner that those needs will be satisfied is, by statute, vested exclusively in the zoning commission.” (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 425, 788 A.2d 1239 (2002). General Statutes § 8-2 (a) authorizes a zoning commission to “regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes . . . .” (Emphasis added.) The legislature has not authorized water pollution control authorities to exercise those zoning powers. The defendant, in its application of the 1994 priority matrix to the plaintiffs proposal, usurped the authority of the commission and restricted the density and use of the plaintiffs property.

In determining the plaintiffs remedy for the defendant’s improper denial of its application, the court found that “adequate capacity for twenty-six units must exist. More importantly, the defendant has not referred to any evidence in the record in support of a finding that the town’s sewer system lacks sufficient capacity for the plaintiffs proposed development or that other property owners would be deprived of sewer connections to which they are entitled.” Because the only reason given by the defendant for its denial of the sewer connection permit was the failure to comply with the regulation allocating sewer capacity based on the 1994 zoning of the plaintiffs property, the court sustained the plaintiffs appeal.

For the reasons previously discussed, we agree that the defendant’s stated reason for its denial is invalid. Further, the defendant concedes in its brief on appeal before this court that “there currently is enough capacity for [the] plaintiffs proposed development and there was no evidence of current, identified property owners who absolutely will be deprived of sewer connections if the application is granted.” Additionally, it is not disputed that the plaintiff is seeking a permit to connect to an existing sewer system; it is not requesting an extension of that system. Our case law has made a distinction between the mere connection to an existing system as opposed to construction of an extension to a sewer system. See AvalonBay Communities, Inc. v. Sewer Commission, supra, 270 Conn. 421-29. Moreover, the plaintiff has asserted — and there is nothing in the record that contradicts or challenges that assertion — that the proposal complied with all of the defendant’s engineering and administrative requirements as set forth in the sewer use regulations. See Schuchmann v. Milford, 44 Conn. App. 351, 358, 689 A.2d 513, cert. denied, 240 Conn. 924, 692 A.2d 818 (1997). Thus, this is one of those relatively rare situations in which it is appropriate to order the defendant to issue the permit. When it appears that a public agency reasonably could reach only one conclusion, the court may direct that agency to do that which the conclusion requires. Jersey v. Zoning Board of Appeals, 101 Conn. App. 350, 361, 921 A.2d 683 (2007).

Although the trial court indicated, in its concurrent decision in the planning and zoning appeal, that it remanded this matter to the defendant to approve the plaintiffs application; see footnote 8 of this opinion; its memorandum of decision in this case simply indicated that the appeal was sustained. There was but one conclusion, however, that the defendant could reach, and we conclude that the trial court did order the approval of the sewer permit.

The judgment is affirmed and the case is remanded to the trial court with direction to render judgment directing the defendant to approve the plaintiffs application under terms and conditions as the defendant might reasonably prescribe in accordance with its regulations.

In this opinion the other judges concurred.

       General Statutes § 7-246 provides in relevant part: “(a) Any municipality may, by ordinance, designate its legislative body ... or any existing board or commission, or create a new board or commission to be designated, as the water pollution control authority for such municipality. . . .
      “(b) Each municipal water pollution control authority designated in accordance with this section may prepare and periodically update a water pollution control plan for the municipality. Such plan shall designate and delineate the boundary of: (1) Areas served by any municipal sewerage system; (2) areas where municipal sewerage facilities are planned and the schedule of design and construction anticipated or proposed; (3) areas where sewers are to be avoided; (4) areas served by any community sewerage system not owned by a municipality; (5) areas to be served by any proposed community sewerage system not owned by a municipality; and (6) areas to be designated as decentralized wastewater management districts. . . .”

       The 99 Church Hill Road property included an existing multifamily dwelling with an existing sewer connection.

       The plaintiff filed an administrative appeal from the commission’s decision in the trial court. The court sustained the appeal and remanded the matter to the commission with direction to effect certain modifications to the proposed regulations and plans. This court granted the commission’s petition for certification to appeal, and our decision in that appeal was released on the same date as this opinion. See Dauti Construction, LLC v. Planning & Zoning Commission, 125 Conn. App. 665, 10 A.3d 92 (2010).

       General Statutes § 7-246a (a) provides: “Whenever an application or request is made to a water pollution control authority or sewer district for (1) a determination of the adequacy of sewer capacity related to a proposed use of land, (2) approval to hook up to a sewer system at the expense of the applicant, or (3) approval of any other proposal for wastewater treatment or disposal at the expense of the applicant, the water pollution control authority or sewer district shall make a decision on such application or request within sixty-five days from the date of receipt, as defined in subsection (c) of section 8-7d, of such application or request. The applicant may consent to one or more extensions of such period, provided the total of such extensions shall not exceed sixty-five days.”

       General Statutes § 7-246a (b) provides: “Notwithstanding any otherprovision of the general statutes, an appeal may be taken from an action of a water pollution control agency or sewer district pursuant to subsection (a) of this section in accordance with section 8-8.”

       The following is the priority matrix as it appears in the town’s water pollution control plan: “1st priority: 260,000 [gallons per day] — Existing development within the sewer service area.
      “2nd priority: 30,000 [gallons per day] — Potential development meeting current zoning within the sewer service area.
      “3rd priority: 4,000 [gallons per day] — Existing development along sewer transmission [routes],
      “4th priority: 21,000 [gallons per day] — Existing development outside the sewer service area identified as areas of concern in the Facilities Plan and reasonably close to the sewer service area.
      “6th priority: 17,000 [gallons per day] — Other existing development outside the sewer service area but in close proximity.”

       The court further noted in its memorandum of decision that “[t]he defendant’s allocaüon of sewer capacity in accordance with its priority matrix is not supported by any engineering or health data, nor has it offered any other evidence demonstrating that it is rationally related to the public health, safety and welfare.”

       We note that in the court’s memorandum of decision in Dauti Construction, LLC v. Planning & Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-07-4014556S (June 1, 2009), which was issued the same date as the court’s decision in the present case, the court stated: “[T]he lack of adequate sewerage no longer serves as an adequate basis for the [commission’s] denial in light of this court’s concurrent decision in the related appeal, Dauti Construction, LLC v. Water & Sewer Authority, Superior Court, judicial district of New Britain, Docket No. CV-07-4015968S, sustaining that appeal and remanding to the [water and. sewer authority] for its approval of the plaintiffs sewer application.” (Emphasis added.)


text:
    DAUTI CONSTRUCTION, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF NEWTOWN
    (AC 31495)
    DiPentima, C. J., and Alvord and Pellegrino, Js.

      Argued September 1
    officially released December 28, 2010

      Robert A. Fuller, for the appellant (defendant).

      Timothy S. Hollister, with whom was Ryan K. McKain, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, the planning and zoning commission of the town of Newtown (commission), appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Dauti Construction, LLC, from the commission’s denial of the plaintiffs affordable housing application for a twenty-six unit residential development. The commission denied the application for the primary reason that the plaintiff was unable to obtain a sewer connection permit for that development from the town’s water and sewer authority. On appeal, the commission claims that the court improperly (1) sustained the plaintiffs appeal in this case because the trial court’s concurrent decision in the plaintiffs appeal from the denial of the sewer connection permit did not entitle the plaintiff to a sewer connection for twenty-six units, (2) sustained the plaintiffs appeal in this case before there was a final judgment in the plaintiffs appeal from the denial of the sewer connection permit and (3) remanded the matter to the commission for certain modifications to the plaintiffs proposed site plan instead of dismissing the appeal. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff, a limited liability company, owns a parcel of land located at 95 Church Hill Road in New-town and is the contract purchaser of an adjacent parcel of land located at 99 Church Hill Road. The combined area of the two parcels (property) is approximately four and one-half acres. In February, 2006, the plaintiff submitted an application to the commission for a zone change to construct twenty-three residential units on the portion of the property located at 95 Church Hill Road.

In July, 2006, after having received a preliminary request for sewer service for the plaintiffs proposed development, the water and sewer authority sent a letter to the plaintiff and all town boards and departments recommending the denial of the plaintiffs application for a zone change. In August, 2006, the commission denied the plaintiffs application for several reasons, including the lack of approval to connect to the public sewer system.

Following the commission’s denial, the plaintiff then signed a contract to purchase the adjacent land at 99 Church Hill Road. With the combined area of its property now totaling approximately four and one-half acres, the plaintiff submitted a three part affordable housing application to the commission in October, 2006, under General Statutes § 8-30g. The plaintiff sought (1) a text amendment to the zoning regulations to create a new mixed income housing district, (2) the rezoning of its property to the new mixed income housing district classification and (3)’site development plan approval to construct a residential community comprised of twenty-six single-family dwelling units, with 30 percent of the units being designated as low and moderate income housing. The application also proposed the removal of the existing multifamily dwelling located at 99 Church Hill Road, which has an existing connection to the town’s public sewer system.

After its receipt of the plaintiffs application, the commission held a public hearing that commenced on December 7, 2006, and was continued to January 18, 2007. In the meantime, the commission again requested review and comment from the water and sewer authority with respect to the plaintiffs new proposal. By memorandum dated January 16, 2007, the water and sewer authority responded: “It is . . . clear that the proposed development does not meet current zoning as defined in the [water pollution control] [p]lan. The [p]lan makes clear that the term ‘current’ for zoning refers ‘to the adoption date of this [priority] matrix, April 28, 1994.’ [The plaintiff] has filed applications with [the commission] seeking amendments to the zoning regulations and a zone change for the subject property that would increase the number of units allowed per acre for the subject property. As such, there can be no disagreement that the [plaintiffs] proposal does not meet zoning requirements as they existed on April 28, 1994.” The letter concluded with the statement that “there is insufficient sewer capacity for the development of the subject property as proposed by the [plaintiff].”

The commission closed the public hearing on January 18, 2007. On April 5, 2007, the commission denied the plaintiffs application for the primary reason that the plaintiff had failed to provide an adequate sewage disposal plan to meet the needs of the future residents of the development. The plaintiff appealed from the commission’s decision to the trial court.

The plaintiffs appeal from the commission’s decision denying its affordable housing application was scheduled for oral argument on the same date and before the same judge, Tanzer, J., as the plaintiffs appeal from the water and sewer authority’s denial of its application for a sewer connection permit. On June 1, 2009, the court issued its memoranda of decision in both cases sustaining the plaintiffs appeals. In the appeal from the decision of the water and sewer authority, the court concluded that the regulation that allocated sewer capacity on the basis of the zoning classification of the plaintiffs property in 1994 was invalid. Having reached that conclusion, the court sustained the appeal in this case because “the [water and sewer authority’s] denial no longer provides an adequate basis for upholding the [commission’s] denial even though the [commission’s] reliance on that denial was a proper basis for its denial of the plaintiffs affordable housing application when it made its decision.”

The court further found that the commission’s denial of the application for the additional reason that the proposed mixed income housing district regulations did not contain provisions for aquifer protection review was not necessary to protect substantial interests in health, safety or other matters that the commission legally could consider. The court concluded that the commission could have conditioned its approval on the inclusion of such provisions in the proposed regulations. With respect to the commission’s denial of the plaintiffs site plan application for the stated reason that the affordable housing units had one less bathroom and a smaller floor area than the market rate units, the court concluded that this defect in the application could be corrected by reasonable modifications to the plan. Accordingly, the court sustained the appeal and remanded the matter to the commission “to modify the proposed regulations to provide for aquifer protection and to modify the plans as necessary to change the affordable unit and market value unit designations such that the affordable units are comparable to the market value units.” The commission filed the present appeal after this court granted its petition for certification to appeal.

We first set forth the applicable legal principles and standard of review that guide our analysis. “[I]n conducting its review in an affordable housing appeal, the trial court must first determine whether the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. General Statutes § 8-30g (g). Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission’s decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development.” (Internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004).

I

The commission’s first claim is that the trial court improperly sustained the plaintiffs appeal in this case because its concurrent decision in the plaintiffs appeal from the denial of the sewer connection permit did not entitle the plaintiff to a sewer connection for twenty-six residential units in the proposed development. The parties agreed at oral argument that our decision in Dauti Construction, LLC v. Water & Sewer Authority, 125 Conn. App. 652, 10 A.3d 84 (2010), which was released on the same date as this opinion, would be dispositive of this issue. In that decision, we concluded that the court properly sustained the plaintiffs appeal from the water and sewer authority’s denial of the sewer connection permit because the 1994 priority matrix in the sewer use regulations, as applied to the plaintiffs application, was invalid. We remanded the matter to the trial court with direction to render judgment directing the water and sewer authority to approve the plaintiffs sewer permit application under terms and conditions as the water and sewer authority might reasonably prescribe in accordance with that application. Accordingly, in this case, we conclude that the commission’s denial of the plaintiffs affordable housing application for lack of an adequate sewage disposal plan is no longer a valid reason for denial.

II

The commission’s next claim is that the trial court improperly sustained the plaintiffs appeal in this case before there was a final judgment in the plaintiffs appeal from the denial of the sewer connection permit. Specifically, the commission argues that “the trial court should have deferred judgment in this case until the dispute between the plaintiff and the [water and sewer authority] was resolved.” We decline to review this claim.

The plaintiffs appeals from the decisions of the water and sewer authority and the commission were argued before the trial court on November 18, 2008. At that time, the commission did not move to stay this case or request that the court defer its ruling in the affordable housing appeal until all appeals from the denial of the sewer connection permit had been finally resolved. Furthermore, the commission’s trial brief and reply brief make no such request. The parties agreed and represented to the trial court that the outcome of the appeal from the commission’s decision depended on whether the water and sewer authority properly denied the application for the sewer permit. The trial court, therefore, reasonably could have assumed that the parties desired and expected simultaneous decisions.

“[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one.” (Internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 730, 930 A.2d 774 (2007). “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn, of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

Ill

The commission’s final claim is that the trial court improperly remanded the matter to the commission for certain modifications to the plaintiffs proposed site plan instead of dismissing the appeal. The commission argues that the court’s finding that the proposed affordable housing units were not comparable to the market rate units with respect to size and design required a dismissal because the defects were violations of § 8-30g and General Statutes § 8-2g. According to the commission, modifications are permissible only when a plan fails to comply with the commission’s regulations, but modifications are not permissible when the plan fails to meet statutory requirements. We disagree.

One of the commission’s stated reasons for denial was that the application was not in conformance with the requirements of the affordable housing statute. Specifically, the commission stated that the affordable units were not comparable to the market value units because they had one fewer bathroom and a smaller floor area. The trial court agreed with the commission that there were discrepancies between the affordable units and the market value units but concluded that those discrepancies could be addressed by reasonable changes to the application. Accordingly, the court remanded the matter to the commission with direction to modify the plans “designating an equal percentage of units with one fewer bathroom as market priced units and affordable units, and designating an equal percentage of units with one additional bathroom as market priced units and affordable units.”

The commission has cited no case law in support of its argument. Significantly, the language of the statute, which permits a court to make modifications to a commission’s decision, does not provide that modifications are allowed only if the application’s noncompliance pertains to municipal regulations as opposed to statutory provisions. Section 8-30g (g) provides in relevant part: “Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1) (A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development .... If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.” (Emphasis added.)

“Issues of statutory construction raise questions of law, over which we exercise plenary review.” (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393,401-402,920 A.2d 1000 (2007). The language of § 8-30g (g) does not provide that the court’s power to modify a commission’s decision depends on whether the defect in the application is one involving noncompliance with a municipal regulation or noncompliance with a statutory provision. The authority to modify, as provided by the legislature, is not qualified in the manner argued by the commission. Accordingly, we will not construe the unambiguous language of § 8-30g (g) to restrict the authority of the court to defects in applications arising from noncompliance with municipal regulations only.

We conclude that the trial court properly sustained the plaintiffs appeal on the ground that the commission’s stated reason for its denial, i.e., lack of adequate sewerage, no longer served as a valid reason for the denial of the plaintiffs affordable housing application. We further conclude that the court properly remanded the matter to the commission to effect the reasonable modifications imposed by the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed an appeal from the water and sewer authority’s decision in the trial court pursuant to General Statutes § 7-246a (b). The trial court sustained the appeal. This court granted the water and sewer authority’s petition for certification to appeal, and our decision in that appeal was released on the same date as this opinion. See Dauti Construction, LLC v. Water & Sewer Authority, 125 Conn. App. 652, 10 A.3d 84 (2010).

       The resolution adopted by the commission read as follows: “AFTER CONSIDERING ALL THE INFORMATION ON THE RECORD BEFORE THE COMMISSION, THE PLAN OF CONSERVATION AND DEVELOPMENT (2004) AND AFTER BALANCING THE NEED FOR AFFORDABLE HOUSING IN NEWTOWN AGAINST THE NECESSITY TO PROTECT SUBSTANTIAL PUBLIC INTEREST IN HEALTH AND SAFETY, AND AFTER FULL CONSIDERATION OF AND BASED ON THE FINDINGS SET FORTH ABOVE, THE COMMISSION HEREBY RESOLVES TO DISAPPROVE THE APPLICATION FOR THE FOLLOWING REASONS:
      “1. Proposed Amendment to create the [mixed income housing district] MIHD Zone:
      “[a] There is a substantial public interest in assuring that adequate sanitary sewer disposal is available to the properties affected by the MIHD zone:
      “(i) Pursuant to the provisions of the MIHD zone all affected properties will require sewer service. There are 29 sites which would be eligible for future development of affordable housing under the provisions of the proposed new zone. At least four of the 29 affected Properties are in addition to those which would already be permitted under the existing [affordable housing development] AHD zone.

        “(ii) The [water and sewer authority] WSA Water Pollution Control Plan does not allow any of the 29 affected parcels to be connected to the Newtown Waste Treatment Plant if developed under the provisions of the proposed new zone.
      “(in) Because an adequate sewage disposal plan has not been provided to meet the needs of future residents for the affected parcels the substantial public health interest in providing adequate sewage disposal needs for development outweighs the need for affordable housing.
      “[b] There is a substantial public health interest in assuring that some form of sewage disposal or sewer service treatment would be provided for the newly created zone for moderate income housing development (MIHD): “(i) The findings herein clearly support the conclusion that public sewers will not be available to development where the density would be greater than what previously existed based upon the communications from the WSA that the new zone is not entitled to a sewer allocation sufficient to support the new zone.
      “(ii) Because the applicant has failed to provide an adequate sewage disposal plan to meet the needs of future residents of the MIHD zone, the evidence supports the conclusion that the substantial public health interest in providing sewers outweighs the need for affordable housing.
      “[c] There is a substantial public health and safety interest in protecting against degradation of the public water supply.
      “(i) Section 4.27.348 of the MIHD exempts applicants from complying with the provisions of 4.04 and 4.04.100 through 4.04.700 of the Zoning Regulations (which are the Newtown Aquifer Protection Regulations).
      “(ii) Because the applicant has failed to provide a regulation that would ensure that adequate measures are taken to protect the sole source of the Public Water Supply, the substantial public health interest in providing protection of the public water supply outweighs the need for affordable housing.
      “2. Proposed Change of Zone for the Property to MIHD classification.
      “ [a] There is a substantial public interest in assuring that adequate sanitary sewer disposal is available for development under the proposed Zone Change.
      “(i) The findings herein clearly support the conclusion that public sewers will not be available to the Project based upon the communications from the WSA that the Property is not entitled to a sewer allocation sufficient to support the Project.
      “(ii) Because the applicant has failed to provide an adequate sewage disposal plan to meet the needs of future residents of the Property (assume it is changed to a MIHD zone), the evidence supports the conclusion that the substantial public health interest in assuring that adequate sanitary sewer disposal is provided, outweighs the need for affordable housing.
      “[b] The Commission disapproves the application to change the zoning classification of the Property because of its disapproval as set forth above of the creation of the MIHD zone.

        “3. The proposed application to approve a site development plan for the Project:
      “[a] There is a substantial public health interest in assuring that adequate sanitary sewer disposal is provided for the proposed Project:
      “(i) The findings herein clearly support the conclusion that sewers will not be available to the Project based upon the communications from the WSA that the Property is not entitled to a sewer allocation sufficient to support the Project.
      “(ii) Because the applicant has failed to provide an adequate sewage disposal plan to meet the needs of future residents of the Project, the evidence supports the conclusion that the substantial public health interest in providing sewers outweighs the need for affordable housing.
      “ [b] The proposed application is not in conformance with the requirements of Section 8-30g and the regulations promulgated by the Department of Economic and Community Development to implement such statute, for the reason that the affordable units are not comparable to the market value unit in one or more of the following respects:
      “The affordable units have one fewer bathroom than the market rate units; “The affordable units are smaller in size (floor area) than the market rate units.”

       At oral argument before this court, counsel for the commission confirmed that the commission is not challenging the court’s decision with respect to modification of the proposed regulations to include aquifer protection provisions.

       “Because the plaintiff[s’] appeal to the trial court is based solely on the record, the scope of the trial court’s review of the [commission’s] decision and the scope of our review of that decision are the same.” (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 726 n.29, 780 A.2d 1 (2001).

       Moreover, at oral argument before this court, counsel for the commission conceded that the resolution of the affordable housing appeal would not be “premature” once this court decided the appeal from the denial of the sewer connection permit.

       As noted by the trial court, “[t]he [commission] concedes that this defect could be corrected by reasonable changes to the application, but argues that such a modification would require a new application with new development and architectural plans and not merely a remand to the [c]ommission because the [plaintiff] did not follow the affordable housing statute.” (Internal quotation marks omitted.) In other words, the commission is not challenging the reasonableness of the modifications imposed by the trial court.