author: Stoughton, J.

text:
    Colonial Bank and Trust Company, Conservator (Estate of William Cavanaugh) v. Helen Matoff et al.
    (6223)
    (6238)
    Borden, O’Connell and Stoughton, Js.

      Argued November 4, 1988
    decision released March 28, 1989

      David L. Gussak, with whom, on the brief, was Frank Harold Cathcart, for the appellant-appellee (defendant Jesse Monroe).

      William A. Conti, with whom was Albert Vasko, for the appellant-appellee (plaintiff Franklin G. Pilicy).

      Mark Matasavage, for the appellee (named defendant).
   Stoughton, J.

The defendant Jesse Monroe appeals from the judgment of the trial court awarding damages to the plaintiff in the total amount of $97,875.72. The plaintiff, Franklin G. Pilicy, administrator of the estate of William Cavanaugh, cross appeals from the judgment rendered against Monroe and also appeals from the judgment of the trial court in favor of the named defendant, Helen Matoff. We find no error in any of the appeals.

On November 24, 1981, Colonial Bank and Trust Company was appointed conservator of the estate of William Cavanaugh. In 1982, Colonial brought this action against Matoff and Monroe, alleging, inter alia, that Matoff had acquired a power of attorney from Cavanaugh through fraud and duress, that both defendants had converted Cavanaugh’s money to their own use as fiduciaries, that both defendants had been negligent, and that both defendants had acted recklessly and wantonly. In October, 1982, the plaintiff amended its complaint to allege additional financial details. In May, 1987, the plaintiff amended the complaint to allege that the defendants occupied a position of trust and confidence which they used to influence Cavanaugh unduly to transfer funds to them, and that the defendants had breached a trust in favor of Cavanaugh that was created when they took his assets and promised to use his money exclusively for his care. The trial court, Gill, J., ordered a default against Monroe on the issue of liability and ordered a hearing in damages when Monroe appeared on the trial date without counsel ready to proceed to trial. A trial to the court, McDonald, J., commenced on April 22,1987. The court found that Monroe was indebted to plaintiff in the amount of $77,875.72. It rendered judgment for the plaintiff to recover $77,875.72, plus punitive damages of $20,000 from Monroe. The court also rendered judgment in favor of the defendant Matoff.

Monroe claims the trial court erred in that (1) it allowed the plaintiff to amend his complaint at trial to allege that the defendants had breached a constructive trust and had exercised undue influence upon William Cavanaugh, (2) it concluded that the transfer of Cavanaugh’s money created a constructive trust and not an outright gift, (3) it refused to allow a setoff of Monroe’s expenses against the amount he owed the estate, and (4) it assessed punitive damages against him.

The plaintiff in his cross appeal claims that the trial court erred in that (1) it allowed Monroe to present evidence after a default had been rendered against him on the issue of liability, (2) it refused to allow the estate’s claim for treble damages, and (3) it concluded that Monroe had not exercised undue influence upon Cavanaugh.

The plaintiff appeals from the judgment in favor of Matoff and claims that the trial court erred in that (1) it concluded that Cavanaugh was competent when he gave power of attorney to Matoff and directed her to withdraw money from a savings account, (2) it concluded that Matoff did not exercise undue influence over Cavanaugh, (3) it refused to impose a constructive trust on funds withdrawn by Matoff, (4) it con-eluded that Matoff had not violated her fiduciary duty to Cavanaugh, (5) it concluded that Matoff had not fraudulently induced Cavanaugh to give her a power of attorney arid to withdraw funds from savings, and (6) it concluded that Matoff did not know that Monroe had violated a constructive trust in favor of Cavanaugh.

The trial court found the following facts. William Cavanaugh was eighty-five years old and lived in his own home. Monroe and Matoff were his neighbors. Cavanaugh desired to live in his own home under the care of his neighbors rather than in a convalescent home. To this end, Cavanaugh first executed a power of attorney in favor of Matoff and then transferred all of his monies to Monroe. All of the parties understood that the funds were to be held in trust for Cavanaugh’s care and support for life.

The actual transfer of the monies was accomplished in two transactions. On September 29, 1981, Matoff used the power of attorney to withdraw $15,000 from Cavanaugh’s bank account. Cavanaugh did not accompany her to the bank. This money was given by Cavanaugh to Monroe to hold for Cavanaugh.

On October 31,1981, Cavanaugh entered into a contract with Monroe and Matoff. According to the terms of the contract, Monroe and Matoff were to care for Cavanaugh for the remainder of his life, and in return Cavanaugh would leave his estate to be shared equally by Monroe and Matoff. In the second transaction, on November 13,1981, Cavanaugh, accompanied by Monroe and Matoff, went to Thomaston Savings Bank. Cavanaugh directed Matoff to withdraw $62,875.72 from his savings account and endorsed this check to Monroe. On the same date, Cavanaugh executed a will that left his entire estate to Monroe and Monroe’s wife. Cavanaugh did not know, however, that at that time Monroe, acting on the advice of his attorney, had decided not to treat their contract as valid.

In order to keep control of the money, and to avoid interference by Colonial, Monroe put the money in a joint account with Matoff in a bank in Great Barring-ton, Massachusetts. He then transferred the money and placed it in an account solely in his name in a bank in Amenia, New York. Thereafter, Monroe transferred the money back to Connecticut, where, by 1983, he had dissipated the entire amount. He spent the money on himself and on such speculative ventures as a planned water well field and a planned trash to energy plant. In January, 1985, Cavanaugh died.

The court noted that Cavanaugh’s physician, his dentist and other witnesses testified that Cavanaugh understood and could carry on intelligent conversations. The court also noted that on November 23,1981, Cavanaugh’s guardian ad litem, who had been appointed by the Watertown Probate Court, reported that Cavanaugh was not mentally incompetent.

The court concluded that the evidence clearly and convincingly established that Cavanaugh was competent when he executed the power of attorney in September, 1981, and when he turned over his money to Monroe in September and November, 1981. It also concluded that the defendants had not exercised undue influence over Cavanaugh in obtaining the money.

The court further concluded that the plaintiff had established by clear and convincing evidence that Cavanaugh did not make a gift of his money to Monroe but that all parties understood that it was to be placed in trust with Monroe for Cavanaugh’s lifetime care and support at home. It also found that Monroe wilfully, deliberately and intentionally violated the trust.

The trial court concluded that the evidence clearly and convincingly established that Matoff did not know that Monroe would violate his trust and dissipate Cavanaugh’s assets, and that there was no evidence that she received any of the money used by Monroe.

I

Monroe’s Appeal

Monroe first claims that the trial court abused its discretion in allowing the plaintiff to amend its complaint at trial. The amended complaint included allegations that a trust had been created in favor of Cavanaugh and that the defendants had exerted undue influence upon him. Monroe asserts that he was prejudiced by the amendment because it shifted the burden to him to disprove the absence of a trust and undue influence.

“The trial court may allow, in its discretion, an amendment to pleadings. Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979); Wesson v. F. M. Heritage Co., 174 Conn. 236, 239, 386 A.2d 217 (1978); see Practice Book § 176. Such a ruling can be reversed only upon a clear showing of an abuse of discretion. Saphir v. Neustadt, supra; Antonofsky v. Goldberg, 144 Conn. 594, 597,136 A.2d 338 (1957). Factors to be considered in determining whether there has been an abuse of discretion include unreasonable delay, fairness to opposing parties and the negligence of the party offering the amendment. DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971); Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959).” Jonap v. Silver, 1 Conn. App. 550, 555, 474 A.2d 800 (1984).

The allowance of the amendment by the court was not an abuse of discretion. First, the allegations of breach of trust and undue influence were not unlike the charges of fraud, conversion and duress that were already at issue. Thus, the amendment did not allege facts that unfairly surprised the defendants. Second, the burden of proof in cases involving undue influence does not shift until after a confidential or fiduciary relationship is established. Cooper v. Cavallaro, 2 Conn. App. 622, 627, 481 A.2d 101 (1984). Thus, the plaintiff initially was required to establish the relationship before the burden shifted to the defendant. The fact that Monroe never objected or asked for additional time in which to prepare a defense to these new allegations also detracts from his claims of prejudice. See Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 342, 438 A.2d 95 (1980).

The granting of a motion to amend the pleadings is a matter within the discretion of the trial court. To justify a refusal to allow an amendment, it must appear that there was some sound reason for the trial court’s exercise of discretion in that matter. Henry v. Klein, 15 Conn. App. 496, 501, 545 A.2d 575 (1988). We cannot say here that the trial court abused its discretion in allowing the amendment.

Monroe’s second claim is that the court erred in finding the creation of a constructive trust in favor of Cavanaugh and in finding that the money was not a gift to Monroe. Monroe rests the first part of this claim on two grounds. First, he claims that there was no fiduciary or confidential relationship between him and Cavanaugh, and that such a relationship is a necessary condition in the establishment of a constructive trust. Second, Monroe asserts that the court’s finding that Monroe did not exert undue influence precludes the imposition of a constructive trust.

The court did not find that a constructive trust had been created, but rather it found that a trust had been created. The trial court did note, however, that even if it had not found a trust, “the relationship of confidence, trust and expected care which arose between William Cavanaugh and Monroe, and all of the circumstances of the transfer would clearly and convincingly require the court to find a constructive trust for such care and support.”

The trial court based its finding of a trust on the fact that “the intent of Mr. Cavanaugh when he transferred the monies to Monroe was that those monies be held in trust for his care and support for his lifetime. Those monies were not, as claimed by Monroe, a gift to Monroe to be used by him as his own.” The court also found that Matoff understood the nature of the transaction and that Monroe indicated by his actions that he understood the nature of the transfer “which required retention and control over the monies to guarantee Mr. William Cavanaugh’s continued support and care at his home,” and that all the parties understood that the money was placed in trust with Monroe for Cavanaugh’s lifetime care and support at home.

Whether a trust has been created depends upon the intent of the settlor and of the trustee. Hansen v. Norton, 172 Conn. 292, 296, 374 A.2d 230 (1977); see also 1 Scott, Trusts (3d Ed.) § 17.1. The trial court’s conclusion as to the intent of Cavanaugh and Monroe is amply supported by the evidence and therefore must stand.

Monoe’s argument against imposing a constructive trust would fail in any event because a trial court’s conclusion that the parties involved had a confidential relationship must stand unless it is unreasonably drawn or involved an erroneous application of law. Hieble v. Hie-ble, 164 Conn. 56, 60, 316 A.2d 777 (1972). Given the facts of this case, the trial court was clearly justified in finding that there was a relationship of confidence and trust between Cavanaugh and Monroe.

Monroe’s second argument against a constructive trust is equally unavailing even if the court had found a constructive trust. The imposition of a constructive trust is not limited to cases involving undue influence. For example, a constructive trust arises whenever another’s property has been wrongfully appropriated and converted into a different form, or when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Spatola v. Spatola, 4 Conn. App. 79, 81, 492 A.2d 518 (1985).

We also uphold the trial court’s determination that the money was not a gift. The intent of the parties at the time of the transfer is a question of fact; id., 82; and in this case depended in large part on the trial court’s assessment of the credibility of the witnesses. The trial court’s conclusions were eminently reasonable. There is no merit to this claim.

Monroe’s third claim of error is that the trial court erred in refusing to allow him a setoff for the value of services he rendered to Cavanaugh. Monroe argues only that equity and justice require a setoff to prevent the estate from being unjustly enriched. Initially, we note that Monroe failed to plead a right of setoff in his answer. It was Monroe’s burden to demonstrate his right of setoff by affirmatively and adequately alleging his claim in his pleadings. Practice Book § 168; Peters Production, Inc. v. Dawson, 182 Conn. 526, 528, 438 A.2d 747 (1980); Petti v. Balance Rock Associates, 12 Conn. App. 353, 362, 530 A.2d 1083 (1987). On this basis alone, Monroe was not entitled to a setoff.

Even beyond that, however, we find no error in the trial court’s ruling. The trial court found that Monroe had spent all of Cavanaugh’s money on himself. The court did find that Monroe had rendered services to Cavanaugh including supervising the repair of Cavanaugh’s home, acting as a companion, and providing him with transportation. The trial court found these services reasonably worth $21,000, but it refused to allow the setoff because Monroe had deliberately and wilfully taken the bulk of Cavanaugh’s assets for himself. The court also noted that Monroe had not made a claim for these services against Cavanaugh’s estate.

“ ‘An equitable award may be found to be error only if it is based on factual findings that are clearly erroneous; Kaplan v. Kaplan, 186 Conn. 387, 391-92, 441 A.2d 629 (1982) . . . .” Osborne v. Osborne, 2 Conn. App. 635, 643, 482 A.2d 77 (1984). A review of the record discloses that the trial court’s factual findings that Monroe had taken the bulk of Cavanaugh’s assets were fully warranted. There is no merit to this claim.

Monroe’s fourth claim of error is that the trial court erred in awarding the plaintiff punitive damages. He does not argue that the court erred in calculating the amount of punitive damages. Monroe contends that he should not have been assessed such damages because his conduct could not be found to have been reckless and indifferent.

We will not retry the facts or pass upon the credibility of witnesses. The facts found were not clearly erroneous and the trial court’s conclusions were legally and logically correct. Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., 15 Conn. App. 804, 543 A.2d 287 (1988). There is no merit to this claim.

II

The Plaintiff’s Cross Appeal

The plaintiff’s first claim on his cross appeal is that the trial court erred in allowing Monroe to present evidence at trial after a default had been entered against him. We will not review this claim because the trial court’s ultimate decision gave the plaintiff all the relief to which he was entitled. “This court may decide a case only when it presents a live controversy which can be resolved by relief that is within the court’s power to grant.” Schroeter v. Salvati, 6 Conn. App. 622, 623, 506 A.2d 1083 (1986). Because we cannot grant the plaintiff further relief, this issue is moot.

The plaintiffs second claim is that the trial court erred in denying his claim for treble damages under General Statutes § 52-564. The plaintiffs complaint did not clearly state that his claim for relief was based upon a statutory remedy. Therefore, the trial court did not err in denying such an award. See Loewenberg v. Tiger Lee Construction Co., 1 Conn. App. 303, 306-307, 471 A.2d 665 (1984). In any event, the plaintiff was awarded all the relief to which he was entitled. There is no merit to this claim.

The plaintiff’s third claim is that the trial court erred in determining that Monroe did not exercise undue influence upon Cavanaugh. Essentially, the plaintiff asks us to retry the case. This we will not do. Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., supra. There is no merit to this claim.

Ill

The Plaintiff’s Appeal

The plaintiff appeals the trial court’s judgment in favor of Matoff. Every single issue raised by the plaintiff asks us to retry the facts, or pass upon the weight to be accorded to the testimony, or to assess the credibility of the witnesses. This we will not do. Our task is only to determine whether the judgment of the trial court was clearly erroneous, or if the judgment was contrary to law. Id. After a thorough review of the record we conclude that the trial court did not err.

There is no error.

In this opinion the other judges concurred.

       On December 17,1985, the trial court, J. Healey, J., granted the plaintiff’s motion to substitute Franklin G. Pilicy, administrator of the estate of William Cavanaugh, as plaintiff in this case.

       Matoff was never aware of the true contents of the will and she continued to care for Cavanaugh until his death in January, 1985.

       Monroe did not seek an articulation from the trial court as to how it had arrived at this final figure.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Edward L. Reagan
    (4774)
    Dupont, C. J., Borden and Daly, Js.
    Argued November 15, 1988
    decision released March 28, 1989

      M. Hatcher Norris, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was Susan Marks, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was convicted, following his conditional pleas of nolo contendere, of the crimes of sale of a narcotic substance in violation of General Statutes § 21a-277 (a) and illegal possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-279a (a). He appealed, claiming the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal search and arrest. The trial court, in denying the defendant’s motion to suppress, found that the warrantless entry and subsequent arrest were justified by exigent circumstances.

On appeal, we affirmed the trial court’s denial of the defendant’s motion to suppress, not on the basis of exigent circumstances, but on the ground that the war-rantless entry of the defendant’s home was justified by consent. State v. Reagan, 11 Conn. App. 540, 528 A.2d 846 (1987), rev’d, 209 Conn. 1, 546 A.2d 839 (1988). Our Supreme Court reversed, concluding that the record was insufficient to warrant a finding of consent by this court. State v. Reagan, 209 Conn. 1, 546 A.2d 839 (1988). Accordingly, the case was remanded' to this court “for a determination of whether the trial court erred in finding the existence of exigent circumstances to justify the warrantless entry into the defendant’s home and his subsequent arrest.” Id., 15.

The facts relevant to the issue presented on remand are as follows: On May 24,1985, the Connecticut state police began a surveillance of the defendant’s home in Lakeville. This action was instituted on the basis of information provided by a neighbor of the defendant. On that date, two officers observed what appeared to them to be a drug deal occurring between the defendant and David Earl Jones. Before the officers left their position outside the defendant’s house, a woman arrived in a car, went into the defendant’s house and left after less than one minute.

The officers contacted their superior, Sergeant Brian Acker, who was in a car parked at the corner of Pet-tee Street and Route 44, and informed him of what they had observed. Subsequently, Jones drove past Acker, pulled into a gas station and began conversing with an individual. Apprehensive that Jones would transfer or destroy suspected narcotics, Acker and Detective James Caputo conducted a stop and search of Jones’ car at the gas station. After finding marihuana in his vehicle and one-half gram of cocaine in a cigarette pack, the officers arrested Jones.

During this search and arrest, the individual with whom Jones had been conversing was standing near Jones, and several others were watching from a distance of approximately ten feet. There also was testimony indicating that the officers at the scene noticed that the woman who had earlier been observed entering and leaving the defendant’s house was watching the proceedings from the corner.

After the arrest of Jones, application for a search warrant was made. Acker testified at the hearing on the motion to suppress that he believed it would take at least three hours to obtain the warrant and decided that a significant risk existed that the defendant would learn of Jones’ arrest and destroy any incriminating evidence. Acker concluded that it was necessary to enter and secure the defendant’s residence until a warrant could be issued.

The details of the manner in which the officers entered the defendant’s home, which are set forth in our prior opinion, relate to the issue of consent and are not relevant to the question on remand. After Acker and Trooper John Merullo entered the defendant’s home, they saw the defendant in a bedroom and observed a bowl containing a white powdery substance on a nearby table. Acker told the defendant not to move and informed him that he was under arrest. The other occupants of the house were ordered to the first floor, while the officers waited for the search warrant. When the warrant arrived, a search was conducted, and cash, the white substance and drug paraphernalia were seized.

The defendant moved to suppress all evidence obtained during the search as the fruit of an illegal search and arrest. During the hearing on the motion to suppress, the trial court heard the testimony of the surveilling officers who described their specialized training and experience in narcotics investigation. They testified that a drug dealer, after learning that a customer has been arrested, commonly destroys any contraband by scattering it, dissolving it, or flushing it down the toilet. Acker then testified and corroborated the testimony of the surveilling officers concerning the practice of destroying contraband. He further testified that the presence of several people observing the arrest of Jones at the gas station, including the woman seen shortly before at the defendant’s home, led him to conclude, based on his knowledge of the community and the time of day, that the defendant would be informed of the arrest and destroy any contraband before a warrant could be obtained.

The trial court denied the motion to suppress, finding that the warrantless entry was justified by exigent circumstances. The trial court noted the small size of the town, the fact that the arrest of Jones occurred in close proximity to the defendant’s house and the fact that the arrest was observed by several people.

The sole issue presented on remand is whether the trial court erred in concluding that the warrantless entry into the defendant’s home and his subsequent arrest were justified by the existence of exigent circumstances. “It is the function of this court to determine whether the trial court’s decision was clearly erroneous in light of the evidence in the whole record.” State v. Enright, 17 Conn. App. 142, 146, 550 A.2d 1095 (1988). We conclude that the trial court did not err.

“Both the state and federal constitutions ‘ “equally and co-jointly prohibit unreasonable warrantless searches of private property . . . . ” ’ State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984), quoting Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978).” State v. Enright, supra, 147. “ ‘It is a “basic principle of Fourth Amendment law” that searches and seizures inside a home without a warrant are presumptively unreasonable.’ Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).” State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). The two recognized exceptions to the warrant requirement are searches undertaken pursuant to exigent circumstances or consent. State v. Harris, 10 Conn. App. 217, 223, 522 A.2d 323 (1987). The burden of showing that an exception to the warrant requirement exists is on the state. Id., 224.

“ ‘The phrase “exigent circumstances” refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.’ United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978).” State v. Guertin, supra, 447. The three general categories of circumstances identified as exigent are those involving (1) danger to human life, (2) destruction of evidence and (3) flight of a suspect. Id., 448.

In State v. Guertin, supra, 453, our Supreme Court adopted the following rule, as articulated in State v. Canby, 252 S.E.2d 164, 167 (W. Va. 1979): “ ‘The test of exigent circumstances for the making of an arrest for a felony without a warrant ... is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe.’ (Footnote omitted, emphasis in original.)”

The defendant contends that on the date of his arrest, the police were not faced with exigent circumstances sufficient to justify the warrantless entry into his home. We disagree.

It has been recognized that the possiblity that a suspect knows or may learn that he is under surveillance or at risk of immediate apprehension may constitute exigent circumstances, on the theory that the suspect is more likely to destroy evidence, to attempt to escape or to engage in armed resistance. United States v. Edwards, 602 F.2d 458 (1st Cir. 1979); United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S. Ct. 1933, 40 L. Ed. 2d 559 (1974); United States v. Rubin, 474 F.2d 262 (3rd Cir.), cert. denied sub nom. Agran v. United States, 414 U.S. 833, 94 S. Ct. 173, 38 L. Ed. 2d 68 (1973).

Federal courts have held that exigent circumstances may exist where police reasonably believe that a defendant may be alerted to the imminence of arrest by the detention or arrest of a confederate and destroy incriminating evidence. See, e.g., United States v. Hicks, 752 F.2d 379 (9th Cir. 1985); United States v. Chase, 692 F.2d 69 (9th Cir. 1982); United States v. Rubin, supra.

In United States v. Chase, supra, police stopped and detained a woman seen leaving the home of the defendant, a suspected narcotics dealer. During the detention, an individual, who identified himself as the woman’s attorney, stopped at the detention site, inquired whether everything was “OK,” and left. After the man left the detention site, the officers concluded that the defendant would be notified of the detention before they could obtain a search warrant for the defendant’s home. The court concluded that, given the detention of the woman seen leaving the defendant’s home, and the observation of that detention by the individual claiming to be her attorney, the belief of the police that the defendant would learn of the detention before a search warrant was issued was reasonable.

Similarly, in the present case, police detained and arrested an individual seen leaving the defendant’s home. The arrest site was located on the corner of the defendant’s street, approximately one quarter of a mile from the defendant’s home. Several people observed this arrest, one of whom was seen by police conversing with Jones. In addition, there was testimony indicating that the arrest was observed by a woman seen by police at the defendant’s home. Given the small size of the town, the proximity of the arrest to the defendant’s home and the observation of that arrest by several people, we conclude that police had reasonable grounds to believe that if an immediate entry into the defendant’s home were not made, the defendant would be alerted to the arrest of Jones and destroy any incriminating evidence.

We note that the arrest of Jones at the gas station was not a “police created exigency,” as condemned by State v. Canby, supra. Testimony indicated that the police did not plan on arresting Jones in such close proximity to the defendant’s home, but instead planned on following him to a more remote location. Jones’ unexpected stop at the gas station and his conversation with an individual there, caused the police to be apprehensive that Jones would transfer the suspected narcotics and forced them to alter their original plan.

Because exigent circumstances were present, the police were legally inside the residence when they arrested the defendant. Therefore, the defendant’s contention that the invalidity of the original entry required the trial court to suppress evidence obtained as a result of the entry and subsequent arrest is without merit. See State v. Enright, supra, 149-50.

There is no error.

In this opinion the other judges concurred.

       The defendant entered his plea pursuant to General Statutes § 54-94a which provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of non-jurisdictional defects in the criminal prosecution.” See also Practice Book § 4003 (a).

       In our prior opinion in this case, we stated that Sergeant Acker testified that ‘ ‘he also noticed the woman whose car he had seen at the defendant’s home, stopped at the corner, watching the proceedings.” The testimony, however, is not quite that clear. The testimony concerning the woman seen at the defendant’s home is essentially as follows: A surveilling officer testified that after observing Jones at the defendant’s home, and contacting Acker by radio, another car pulled up and a young woman entered the defendant’s house and left after one minute. Acker testified that while at the gas station conducting the arrest of Jones he received a radio communication. He then stated that, following the radio communication, he observed a woman in a small red car stopped at the stop sign at the corner of the defendant’s one-way street, observing the proceedings.


author: Borden, J.

text:
    Felix Danziger et al. v. Demolition Board of the City of Stamford
    (6766)
    Borden, O’Connell and Stoughton, Js.
    Argued January 3
    decision released April 4, 1989

      L. Morris Glucksman, with whom, on the brief, was Mark R. Feller, for the appellants (plaintiffs).

      Barry J. Boodman, assistant corporation counsel, with whom, on the brief, were Mary E. Sommer, corporation counsel, and Eric L. Reinken, assistant corporation counsel, for the appellee (defendant).
   Borden, J.

The plaintiffs appeal from the judgment of the trial court dismissing their administrative appeal from an order of the defendant, the demolition board of the city of Stamford. We conclude sua sponte that the trial court lacked subject matter jurisdiction over the plaintiffs’ administrative appeal, and we therefore find error in the form of the judgment dismissing the appeal because that judgment was rendered on the merits of the plaintiffs’ claims, rather than on the ground of lack of subject matter jurisdiction.

Sections 90-1 through 90-19 of the Stamford Code of Ordinances provide for a scheme pursuant to which hazardous buildings within the city may be ordered demolished. We summarize the pertinent provisions as follows. A “hazardous building” is defined as “[a]ny building, vacant or occupied . . . which is unsafe, unsanitary or lacks adequate exit facilities, or which constitutes a fire hazard or is otherwise dangerous to human life or public welfare, or which by reason of illegal use, occupancy or maintenance has become hazardous and dangerous.” Stamford Code of Ordinances § 90-1. The defendant board is composed of six members, consisting of two private citizens, the city building official, the fire marshal, the director of health and the municipal engineer, who inspect and determine whether hazardous buildings should be demolished. Stamford Code of Ordinances §§ 90-2, 90-3 and 90-4. Upon such a determination, the board may order a property owner to demolish his building. Stamford Code of Ordinances § 90-6. The property owner may appeal that order to the board and request a hearing. Stamford Code of Ordinances § 90-7. At the hearing, the board must consider all evidence presented to it regarding whether the building is hazardous and should be demolished, and the property owner may submit a plan for restoration or rehabilitation of the building to a safe condition, stating the time within which the work is to be completed. Stamford Code of Ordinances § 90-8. If the board accepts the plan, the work must begin within thirty days and be completed within 120 days, unless the board extends those time periods. Id. The board must issue its final decision within fourteen days of the hearing, and may placard the building. Stamford Code of Ordinances §§ 90-9 and 90-10. Section 90-11 provides: “Any property owner aggrieved by a decision of the Demolition Board, upon conclusion of a hearing or hearings, may take an appeal to the Superior Court within fifteen (15) days after receipt of notification of such decision.”

The defendant had issued a preliminary order to the plaintiffs to demolish two tenement buildings owned by them because the buildings, which had been unused since 1976 and had been damaged by fire, were a threat to public health and safety. At a hearing held pursuant to §§ 90-7 and 90-8 of the code and during several weeks of extensions granted by the defendant, the plaintiffs indicated that they were selling the properties to another individual who planned to renovate them, but that the sales contract was conditioned on a variance being obtained from the zoning board of appeals. Although the plaintiffs presented a proposal for better security of the building against access by intruders, they offered no plan for restoration or rehabilitation that did not depend on the zoning variance; nor did the plaintiffs establish that the proposed purchaser had any specific plan for restoration or any specific timetable therefor, or that a variance had been applied for. The defendant then rendered a final decision ordering the plaintiffs to demolish the buildings.

The plaintiffs filed this administrative appeal in the Superior Court, claiming that the defendant’s decision was “arbitrary, capricious, unreasonable, discriminatory and without right,” that they had not received proper notice, and that the defendant’s decision would remove much needed residential rental property from Stamford’s rental market. The plaintiffs did not specify the jurisdictional basis of their appeal, and neither the defendant nor the trial court questioned whether the court had subject matter jurisdiction over the plaintiffs’ appeal. The court dismissed the plaintiffs’ appeal on its merits.

The plaintiffs appealed to this court, claiming that the trial court erred (1) by failing to conclude that the defendant denied them due process of law, and (2) by not considering certain facts outside the administrative record. In their brief in this court, the plaintiffs claim that their appeal to the Superior Court was an administrative appeal brought pursuant to General Statutes § 4-183, which is part of the Uniform Administrative Procedure Act (UAPA). When we suggested at oral argument that the UAPA did not apply to the action of the defendant because it is not a state agency, the plaintiffs relied, for the trial court’s subject matter jurisdiction, on § 90-11 of the Stamford Code which, as noted above, provides for an appeal to the court by any person aggrieved by an order of the defendant. We conclude, however, that neither the UAPA nor § 90-11 of the Stamford Code of Ordinances conferred subject matter jurisdiction over the plaintiffs’ administrative appeal. We are not aware of any other statutory basis for the appeal, and therefore the appeal should have been dismissed, not on its merits, but for lack of subject matter jurisdiction.

“Appeals to the courts from administrative officers or boards exist only under statutory authority, and, unless a statute provides for them, courts are without jurisdiction to entertain them.” Long v. Zoning Commission, 133 Conn. 248, 252, 50 A.2d 172 (1946); see also Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988); Capozziello v. Board of Firearms Permit Examiners, 14 Conn. App. 376, 380, 540 A.2d 1075 (1988). The trial court did not have subject matter jurisdiction over the plaintiffs’ appeal pursuant to the UAPA because the defendant is not a state agency. Edwards v. Code Enforcement Committee, 13 Conn. App. 1, 534 A.2d 617 (1987). Nor did it have jurisdiction over the appeal pursuant to § 90-11 of the Stamford Code of Ordinances because those ordinances are not statutes. We know of no authority by which a municipal ordinance may confer such jurisdiction on the courts of the state, and we can conceive of no reason or policy why an ordinance should be considered a statute for that purpose.

We turn, therefore, to the question of whether there are any other statutory bases, albeit not suggested by the plaintiffs, for this appeal. We find none.

We have located three statutes that, it might be argued, could serve as such a basis. Analysis of each, however, discloses that it does not pass muster.

General Statutes §§ 29-401 through 29-415 constitute the State Demolition Code. This code regulates, in general, the business of demolishing buildings and the issuing of permits for that purpose. Unlike the Stamford ordinance involved in this case, however, it does not provide for the mandatory demolition of hazardous buildings. General Statutes (Rev. to 1985)§ 29-405, in effect at the time of the administrative proceedings in this case, provided in pertinent part that “[a]ny person aggrieved by any order or decision of an adminis trative officer may . . . appeal therefrom to the superior court . . . .” (Emphasis added.) The “administrative officer” referred to is the officer appointed by the town pursuant to General Statutes § 29-404 “to administer sections 29-406 to 29-413 inclusive.” Those sections, in general, regulate the issuance of permits for demolishing particular buildings; General Statutes § 29-406; notice to adjoining property owners; General Statutes § 29-407; and safety measures to be employed. General Statutes §§ 29-408 through 29-413. The defendant’s order is not covered by General Statutes (Rev. to 1985) § 29-405.

General Statutes § 29-393 provides, inter alia, that a local building inspector may order the “removal” of any building that “is in such condition as to be a hazard to any person or persons” if such removal “is necessary in the interests of public safety.’’Even if we were to equate the defendant in this case with the Stamford building inspector — an equation of doubtful validity— this section does not apply to this case because General Statutes § 29-393 does not provide for an administrative appeal to the courts from such an order. Rather, General Statutes § 29-394 provides for criminal penalties for any person who fails to comply with such an order.

Finally, General Statutes §§ 29-251 through 29-282 constitute the State Building Code. General Statutes § 29-266 (d) provides that “[a]ny person aggrieved by any ruling of the codes and standards committee may appeal to the superior court for the judicial district where such building or structure has been or is being erected.” (Emphasis added.) This section does not apply because the defendant is not the codes and standards committee, which is a committee “within the [state] department of public safety”; General Statutes § 29-251; and because the building code concerns, in general, construction or alteration of buildings; see, e.g., General Statutes § 29-263; not their demolition.

The conclusion that the plaintiffs were not entitled to challenge the defendant’s demolition order by way of an administrative appeal to the court does not mean, however, that they were or are without a judicial remedy. It is not constitutionally necessary that a statute authorizing a local administrative board to make orders “contain a provision for an appeal, in the technical sense, from the board’s action. If any person claims to be harmed by such an order, his constitutional right to due process is protected by his privilege to apply to a court.” State v. Vachon, 140 Conn. 478, 486, 101 A.2d 509 (1953). This means that in such a case the aggrieved person may bring a plenary action, rather than an administrative appeal, against the appropriate officials or municipality in order to obtain judicial review of their actions. Diaz v. Board of Directors, 2 Conn. App. 43, 47-48, 476 A.2d 146 (1984). Thus, in Diaz, we held that the trial court had subject matter jurisdiction over the plaintiff's plenary action for an injunction and other relief; id., 43; challenging the order of the board of directors of the municipal pension fund, in the absence of a statutory right to an administrative appeal from that order. Id., 45. The plaintiffs in this case have similar avenues of recourse.

There is error in the form of the judgment, the judgment is set aside and the case is remanded with direction to render judgment dismissing the plaintiffs’ appeal for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       This opinion replaces our earlier opinion in the same case, Danziger v. Demolition Board, 17 Conn. App. 429 (1989).

       Subsequent sections of the Stamford Code of Ordinances provide for a lien in favor of the city for the costs of demolition; § 90-12; for relocation of tenants; § 90.-13; for a declaration that the building is a nuisance and for a civil action to abate such nuisance; § 90-14; for a revolving fund to be used for tenant relocation and for demolition costs; § 90-15; and for a public list of all parties contracting with the city to perform such demolition work. § 90-16.

       The plaintiffs’ prayer for relief did request that the trial court enjoin the defendant from demolishing the building and order the defendant to permit them to proceed with their plan for its rehabilitation. This request, however, was simply incidental to their principal claim, which was in essence an appeal from the order of the defendant and a petition to the court to vacate and set aside the order. It is clear, moreover, from the plaintiffs’ complaint in the trial court, from the way the case was tried, and from the way it was briefed and argued in this court, that the plaintiffs’ action was not a plenary action for an injunction but was an administrative appeal. We therefore consider it as such.


text:
    John A. Contegni et al. v. C. Meyrick Payne et al.
    (6493)
    Borden, Daly and O’Connell, Js.
    Argued October 13, 1988
    decision released April 4, 1989

      Charles A. Deluca, for the appellants (plaintiffs).

      Leo Gold, for the appellees (defendants).
   Borden, J.

The plaintiffs appeal from the judgment rendered in favor of the defendants on the plaintiffs’ complaint seeking an injunction to enforce a restrictive covenant. The dispositive issues are whether the trial court erred (1) in concluding that the plaintiffs had failed to prove the existence of a uniform plan of development, and (2) in concluding that the covenant in the defendants’ deed did not limit the number of dwelling houses that could be built upon the defendants’ lot. We find error in part.

Certain facts are not in dispute. The plaintiffs and the defendants are residents of the Shippan Point area of Stamford. All the parties own property that fronts on either Rogers Road or Saddle-Rock Road. The parcels of land presently owned by the parties were at one time owned by the Shippan Point Land Company (SPLC). The present litigation resulted from the defendants’ attempt to convey a subdivided portion of their lot to a purchaser who intended to build a house thereon.

In 1904, SPLC purchased from Henry Harris, a trustee for the estate of Moses Rogers, a large parcel of land (Harris purchase) in the southwesterly tip of Shippan Point. The large majority of this property fronted on Long Island Sound or Stamford Harbor, but a sizeable portion was completely inland, bordered on three sides by Ocean Drive West and Verplanck Avenue and separated from, the larger waterfront property by Ocean Drive West. SPLC conveyed the northernmost portion of the Harris purchase to Bartholomew Jacob, by four separate deeds executed between 1908 and 1910. In 1908, SPLC also conveyed a large parcel situated on the southeast extremity of the Harris purchase to Elbert Barlow.

Beginning in 1909, SPLC augmented its remaining waterfront property between the Jacob and Barlow lots by roughly doubling its size through a dredging and landfill operation. (This area, consisting of SPLC’s waterfront property, including the landfill, and bounded by Jacob’s and Barlow’s property, is hereinafter referred to as the “developed area.”) SPLC built two private roads on the property, which were later named Rogers and Saddle-Rock Roads. A map, entitled “South-Westerly Tract of the Shippan Point Land Co. and Private Roads thereon at Shippan Point, Stamford, Conn.,” was filed in the Stamford town clerk’s office, and was designated “Map 312.” This map shows the developed area, bounded by the Jacob and Barlow lots. See Appendix, p. 68.

In 1911, SPLC began transferring title by separate deeds to various lots within the developed area. Twenty-five building lots were eventually conveyed out of the developed area by SPLC; thirteen bordered on Long Island Sound or Stamford Harbor and twelve were inland. The deeds for these lots were substantially uniform; all of these deeds, along with those for the Barlow and Jacob lots, contained first cost provisions for the various buildings that could be built pursuant to the covenants and all restricted the property conveyed to residential uses.

In 1929, SPLC conveyed one of the inland lots in the developed area to Marguerite Daly, the defendants’ predecessor in title. The language of the restrictive covenants of Daly’s deed was unique in that her deed provided in part that “there shall not be erected or maintained thereon any building other than (1) one family dwelling . . . .” (Emphasis added.) The majority of the deeds from SPLC had employed a slightly different phrase: “there shall not be erected or maintained thereon any buildings other than (1) a dwelling house arranged for and occupied by a single family . . . .” (Emphasis added.) Three months later, SPLC conveyed the lot adjacent to Daly’s to George Brown, predecessor in title to the plaintiffs Madeline D. and John A. Contegni. Brown’s deed was typical of three others in the developed area in that it contained yet another permutation of the restriction: “there shall not be erected or maintained thereon any buildings other than (1) one dwelling house arranged for and occupied by a single family . . . .” (Emphasis added.) The lot conveyed to Brown was SPLC’s last buildable lot in the developed area.

A 1922 map of Shippan Point shows that, in addition to certain still unsold lots on the land it had acquired in the Harris purchase, SPLC had title to numerous other lots on the Shippan Point peninsula. In March, 1982, the defendants purchased the property once owned by Daly and received a deed which stated that the premises were “conveyed subject to any and all . . . restrictive covenants and agreements of record.....” On December 31,1986, the defendants conveyed a subdivided portion of their property, and the plaintiffs brought the present action to enjoin the building of a second dwelling house on the property. The construction of a second dwelling house on the property, the plaintiffs claimed, would violate the deed restrictions mentioned above that the plaintiffs argued allowed only a single house to be built on the defendants’ lot. After a court trial, the court rendered judgment for the defendants. This appeal followed.

I

As a preliminary matter, we ascertain the appropriate scope of review for the issues on appeal, all of which ultimately concern the intent of the grantor, SPLC. “Although in most contexts the issue of intent is a factual question on which our scope of review is limited; see, e.g., Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 408, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987); the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984).” Grady v. Schmitz, 16 Conn. App. 292, 295-96, 547 A.2d 563 (1988). Thus, when faced with a question regarding the construction of language in deeds, “the reviewing court does not give the customary deference to the trial court’s factual inferences.” Marion Road Assn. v. Harlow, supra.

II

The plaintiffs first claim that the trial court erred in determining that a uniform or general plan of development did not exist with respect to the developed area, the tract of land in question. We disagree. “In general, restrictive covenants fall into three classes: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee ‘presumptively or actually for the benefit and protection of his adjoining land which he retains.’ Stamford v. Vuono, 108 Conn. 359, 364, 143 A. 245 (1928).” Grady v. Schmitz, supra, 296. With respect to the second class of covenants, any grantee under such a general or uniform development scheme “ ‘may enforce the restrictions against any other granted.’ Pulver v. Mascolo, 155 Conn. 644, 650, 237 A.2d 97 (1967).” Marion Road Assn. v. Harlow, supra, 333.

The doctrine of the enforceability of uniform restrictive covenants is of equitable origin. The equity springs from the presumption that each purchaser has paid a premium for the property in reliance upon the uniform development plan being carried out. While that purchaser is bound by and observes the covenant, it would be inequitable to allow any other landowner, who is also subject to the same restriction, to violate it. Whitton v. Clark, 112 Conn. 28, 35, 151 A. 305 (1930).

This simple explanation is most persuasive where a challenged restriction is contained in a deed to an entire tract through which title to all lots can be traced, or where the restriction is stated on a map of the tract referred to in the conveyances. Id. Where, as in this case, the uniform plan of development must be divined from the language of the covenants inserted in the deeds of various owners of lots, the situation is more complicated and it is necessary to determine “the intent of the owner in creating the restrictions upon any lot to make the benefit of them available . . . to the owners of the other lots in the tract.” Id. The intent of the grantor must be determined by reading the deeds in light of the surrounding circumstances attending the transactions. Marion Road Assn. v. Harlow, supra. “ ‘The meaning and effect of the [restrictions] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . .’ Kelly v. Ivler, [supra].” Marion Road Assn. v. Harlow, supra, 332; Grady v. Schmitz, supra, 296.

There are several factors that help to establish the existence of a common grantor’s intent to develop the land according to a uniform plan. These factors include (1) the common grantor’s selling or stating an intention to sell an entire tract of land, (2) the common grantor’s exhibiting a map or plot of the entire tract at the time of the sale of one of the parcels, (3) the actual development of the tract in accordance with the restrictions, and (4) a substantial uniformity in the restrictions imposed in the deeds executed by the common grantor. 5 R. Powell, Real Property § 672, p. 60-26.

Our review of the record does not persuade us that SPLC, the original grantor, intended to impose a uniform plan of development on the tract in question. Moreover, because we agree with the trial court that “this is a rather close case in many ways,” it is appropriate to set forth completely our analysis of the factual issues presented. We begin by examining the factors set out in 5 R. Powell, supra.

Regarding the first factor, namely, the common grantor’s intent to sell the entire tract, we note that by 1931 SPLC had conveyed its entire interest in the developed area. Newspaper accounts dating from 1910 and 1911 and introduced into evidence traced the evolution of the tract and repeatedly noted SPLC’s intention to develop the tract for subdivision and sale by lot. This factor, therefore, strongly supports the plaintiffs’ claim. Whitton v. Clark, supra, 36.

Regarding the second factor, namely, the common grantor’s exhibiting a map or plat of the entire tract at the time of the sale of one of the parcels, the plaintiffs relied upon the aforementioned map 312, which was drawn and filed in the land records of the Stamford town clerk’s office in 1910. Entitled “Map Showing South-Western Tract of The Shippan Point Land Co. and Private Roads Thereon Shippan Point, Stamford, Conn.,” it displays the developed area, bounded by Long Island Sound, Stamford Harbor, the property of B. Jacob, Ocean Drive Road West, and the property of E. S. Barlow. As its name implies, the map shows the private roads in the developed area but does not indicate the subdivision of the area into lots, nor does it indicate the location of the marble monuments the plaintiff claims SPLC placed on the area to establish lot lines.

The map was referred to in several early deeds of lots in the developed area, but the plaintiff presented no evidence that this map, or any other, was “exhibited] . . . at the time of sale of one of the parcels”; 5 R. Powell, supra, § 672; or that SPLC relied upon the map to depict an area to be subjected to a uniform plan of development. The record reveals that SPLC’s sole purpose in creating this map was to describe the position of the private roads in the developed area. Once those roads were named, the deeds refer to the roads by name and do not thereafter mention the map. Thus, at best this factor is neutral.

The third factor, whether the actual development of the claimed tract has occurred in accordance with the uniform plan, was the subject of much contention by the parties. The trial court pointed to a number of facts to support its conclusion that the tract’s development had not followed a uniform plan, namely, (1) that several lots in the tract originally conveyed out by SPLC have been subdivided, and (2) that on many lots a portion of the garage or carriage house has been rendered habitable and rented to third parties, in apparent violation of the restriction to one “dwelling home” per lot. We are not persuaded by either of these findings.

It is worth emphasizing that at this juncture in our analysis we examine the development of the area in question to determine whether SPLC intended the area’s development to follow a uniform plan. 5 R. Powell, supra, § 672. Events too distantly removed in time from the original SPLC conveyances to reflect SPLC’s intent one way or the other are not relevant to this issue, although they would bear on the equitable issue of the enforceability of the covenants due to changed circumstances. See, e.g., Grady v. Schmitz, supra. Many of the deviations from the claimed uniform plan cited by the defendants and the trial court occurred after SPLC conveyed out its last lot in the developed area in 1931. We therefore give these deviations less weight than they were given by the trial court. It is unrealistic to require that this factor be fulfilled only by proof that a neighborhood has been frozen in amber for seventy-five years.

With regard to the partial conversion of several garages and carriage houses in the developed area to habitable quarters, we note first that the concept of providing living quarters for servants or others above the garage was not unheard of in the first decades of the century. See White & Hess, Inc. v. Schwartzbacker, 110 N.J. Eq. 115, 116, 159 A. 311 (1932). (“Partitioning the rear [of a building that is structurally a garage] into rooms and separating them from the automobile stall does not alter the character of the structure; many modern garages are thus subdivided and occupied by the help without loss of distinction.”) The covenant authorizing the construction of garages does not expressly or by implication forbid the maintenance of living quarters in the garage. We can find no support in the record for the defendants’ position that the parties to the original conveyances would have viewed as somehow oxymoronic the notion of a “habitable garage.”

Furthermore, the original deeds from SPLC without exception contain first cost restrictions for all the structures permitted on the lots; from these provisions it is evident that the difference in size and appointment between the dwelling house and the carriage house or garage was to be significant. This pattern has been followed; none of the carriage houses or garages with habitable space approaches the size of the dwelling house on the same lot. In character, they remain essentially buildings accessory to the dwelling house. To view these structures as dwelling houses in their own right overlooks the scheme suggested by the first cost provisions and thus strains credulity.

The court also noted several subdivisions of SPLCdeeded lots as a divergence from the deed restrictions. It is true that the lot boundaries within the tract have not remained static. In two separate instances, four lots originally conveyed by SPLC were combined by a subsequent owner who resubdivided them along different interior lot lines. The original deeds to these lots, however, did not contain restrictions as to their size and shape. In the instance where the four combined lots were resubdivided into four lots, the mere shifting of lot lines cannot be considered a violation of the deed restrictions. Hickson v. Noroton Manor, Inc., 118 Conn. 180, 188-90, 171 A. 31 (1934). The other instance of the subdivision of combined lots, which yielded one more buildable lot than had been originally incorporated into the combined lot, occurred years later in 1978. By this time, the entire Shippan area was developed and SPLC had been out of business for twenty-seven years. It is difficult to contend that this 1978 subdivision somehow reflects SPLC’s intent. For our present purpose, it is therefore entitled to little weight. We conclude that this third factor supports a finding of a uniform plan.

We turn to the fourth factor, the uniformity of the restrictions imposed in deeds. Such uniformity is especially important to a finding that a common plan of development exists. 5 R. Powell, supra, § 672, p. 60-27. To satisfy this factor, it is not necessary that the restrictions in every deed be found to be identical, as long as the scheme of creating a uniform subdivision is still apparent. Id.; see also Thodos v. Shirk, 248 Iowa 172, 79 N.W.2d 733 (1956). Nor is it necessary, at this step in our inquiry, to ascertain the precise meaning of the restrictions, because we seek at this step to determine whether the common grantor intended to create a uniform plan of development, not whether the skill of the grantor’s scrivener still renders such a plan enforceable today.

SPLC conveyed the lots in the developed area through the execution of twenty-five deeds. The restrictions in these deeds are not identical. Nonetheless, no buildable lot was conveyed without a deed restriction on the first cost of the dwelling house, carriage house or stable, and garage that could be built on the property. Every deed explicitly restricts the burdened property to residential use. Even under the defendants’ reading of the covenants it is impossible to avoid the conclusion that no building that was not a dwelling house, a stable or carriage house, or a garage could be erected on any lot.

The most significant variation in the deed restrictions is in the description of the house that could be erected on a given lot. In some deeds this phrase reads “(1) a dwelling house”; in others, “(1) one dwelling house.” (Emphasis added.) The defendants’ deed employs “(1) one family house,” while one deed specifically prescribes “(1) one (1) dwelling house.” Significantly, of the last eight deeds conveying buildable lots, six employ some permutation of the “(1) one dwelling house” language; only two refer to “(1) a dwelling house.” In earlier deeds the “(1) a dwelling house” language predominates. Were the changes in the house description accompanied by like changes in other relevant passages in the deeds, we would be more inclined to agree with the defendants that these changes were significant. The other passages contained in the deeds that would be relevant to a judicial construction of the restriction at issue, however, remain uniform and constant from the earliest SPLC deed in the tract to the latest. We find the inference to be overwhelming that the grantor intended these restrictions to be uniform and, for the purposes of this analysis, we find them to be uniform.

Our application of the four factors cited in Powell’s treatise to the facts of the case leads us to conclude that it is more likely than not that SPLC intended to establish a uniform plan of development for an area that included the developed area. This conclusion does not end our analysis, however. We must still determine, if we can, the precise boundaries of the area that SPLC intended to include in the uniform plan.

The area covered by a uniform plan must be so defined as to be clearly ascertainable; 5 R. Powell, supra, § 672, p. 60-25; so that a judgment affecting rights arising under such a scheme will be susceptible of enforcement. A judgment must so dispose of the matters in issue that the parties and other persons affected will be able to determine with reasonable certainty the extent to which their rights and obligations have been determined. Where a judgment lacks such certainty and is unintelligible, it is a nullity. See Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 295-96, 231 A.2d 276 (1967); see also, In re Rockett’s Estate, 348 Pa. 445, 35 A.2d 303 (1944). Furthermore, “[a] judgment must be rendered according to the facts proved. Pitkin v. New York & N.E.R. Co., 64 Conn. 482, 490, 30 A. 772 (1894)”; Boland v. Catalano, 1 Conn. App. 90, 92, 468 A.2d 1238 (1983). Although we have concluded that the balance of the four factors previously discussed favors the plaintiffs, unless the boundaries of the area of uniform development can be ascertained from the evidence admitted at trial, the plaintiffs’ case must nonetheless fail.

The area claimed by the plaintiffs to be covered by a uniform plan of development is bounded on the west by Stamford Harbor, on the south by Long Island Sound, on the east by Ocean Drive and by property once owned by Elbert Barlow, and on the north by property once owned by Bartholomew Jacob. The plaintiffs rely upon a number of facts, including map 312, to prove that SPLC intended to impose a distinct and uniform plan of development on this particular area.

We find that the evidence offered by the plaintiffs does not establish that the claimed area alone was to be the subject of a uniform plan. Map 312 does not support their claim. Entitled “Map Showing Southwesterly Tract of the Shippan Point Land Co. and Private Roads thereon at Shippan Point, Stamford, Conn.,” the map was drawn and recorded in 1910, and shows the area of the alleged uniform plan, bounded by properties marked “B. Jacob” and “E. S. Barlow.” The map does not indicate the proposed lot lines for the new development. It makes no reference to a uniform plan. The only conceivable reason the B. Jacob and E. S. Barlow properties were separately designated is that SPLC had already sold them but had not yet in 1910 sold any of the land between Barlow’s parcel and Jacob’s parcel. A number of early deeds of lots within the claimed area made reference to the map, but only for the purpose of identifying Rogers and Saddle-Rock Roads, which at the time of these conveyances had not yet been named. Conveyances of lots within the area made after the roads were named make no reference to map 312 at all. Thus its only purpose appears to have been to identify and locate the new roads running through the developed area. “[I]n the interpretion of maps and plats intention will not be inferred from symbols of uncertain meaning . . . .” Hamilton v. CCM, Inc., 274 S.C. 152, 157, 263 S.E.2d 378 (1980). As we will not extend the reach of a restrictive covenant by implication; Marion Road Assn., supra; it would be inconsistent with that principle to extend the reading of an ambiguous map by implication to find that a uniform plan of development is recited thereon.

The other factors cited by the plaintiffs are similarly of little assistance. A thorough search of the record, transcripts and exhibits fails to reveal a single characteristic that was both unique to the lots within the claimed area of uniform development and applicable to all or substantially all the lots within the area. The deed under which SPLC acquired the area now in question conveyed several large parcels in addition to the claimed area of uniform development. Thus, the restrictive covenants in that deed applied to an area larger than the claimed area. The deed restrictions discussed at length above, although present in all the deeds of buildable lots within the claimed area, were also present in Barlow’s deed and in Jacob’s deed. A 1922 map shows that SPLC owned numerous individual lots scattered throughout the Shippan Point area, outside of the claimed area. In short, the plaintiffs have failed to refer this court to any reason, defensible in logic and law, for finding that SPLC intended to delimit this area of uniform development in the way the plaintiffs have contended. Therefore the plaintiffs may not enforce the covenants in the defendants’ deed under the theory of a uniform plan of development.

Ill

The plaintiffs John A. and Madeline D. Contegni also claim that the trial court erred by refusing to enforce the restrictive covenant in the defendants’ deed under a “retained land” theory. We agree.

“Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor’s successor in title can enforce, or release, the covenant depends on ‘whether [the covenant] was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant.’ Bauby v. Krasow, 107 Conn. 109, 112-13, 139 A. 508 (1927). If the covenant is for the benefit of the retained land it runs with the land and may be enforced by the successor in title to the retained land against the successor in title to the conveyed land, on the principle which prevents one with notice of the just rights of others from defeating those rights. Stamford v. Vuono, 108 Conn. 359, 365, 143 A. 245 (1928).” Marion Road Assn. v. Harlow, 1 Conn. App. 329, 335, 472 A.2d 785 (1984).

By September, 1929, SPLC held title to only two parcels of land within the developed area. The parcels were adjacent to each other. On September 21,1929, SPLC conveyed one of these parcels to the defendants’ predecessor in title, Margaret Daly, by a deed that contained the following restrictive covenant: “That the land hereby conveyed shall be used for private residence purposes only, and that there shall not be erected or maintained thereon any buildings other than (1) one family dwelling, the first cost of which shall not be less than $10,000 (2) a stable or carriage house for the horses and vehicles of the occupants of said land only . . . (3) a garage or automobile house for the motor vehicles of the occupants of the said land only . . . .” Another provision of the deed states: “This deed is delivered and accepted upon the express agreements and covenants . . . which shall run with the land and be binding upon the grantee and all persons claiming or to claim said land or any part or parcel thereof under the grantee, and shall inure to the benefit of the grantor and all its grantees of land upon said Shippan Point and each of them . . . .” SPLC still held title to the adjacent parcel. The following year SPLC conveyed this last buildable parcel to George Brown, the predecessor in title of the Contegnis.

As we have seen, the covenant in Daly’s deed was exacted by SPLC from its grantee, presumptively or actually for the benefit of the remaining adjoining land retained by SPLC. As such, it is enforceable by the Con-tegnis, who are the successors in title to the assigns of SPLC to this particular parcel of land, against the defendants, who are the subsequent purchasers of the property burdened. Because SPLC conveyed the parcels that ultimately came into the possession of the other plaintiffs prior to the Daly conveyance, the other plaintiffs do not have a valid claim under this theory. Baker v. Lunde, 96 Conn. 530, 536-37, 114 A. 673 (1921). We conclude, moreover, from the language in the deed from SPLC to the defendants’ predecessor, and from the surrounding circumstances, that it was the intent of SPLC in exacting the covenant to benefit the adjoining land that it retained. Grady v. Schmitz, 16 Conn. App. 292, 296, 547 A.2d 563 (1988).

A further examination of the facts bolsters this reading of the deed from SPLC to Daly. Because SPLC exacted such a covenant from its grantee, the covenant must be viewed as “ 'presumptively ... for the benefit and protection of [SPLC’s] adjoining land which [SPLC] retained].’ [Stamford v. Vuono, supra], 364”; Grady v. Schmitz, supra, 297. The language of the deed explicitly states that the covenants are to run with the land and be binding on the grantee’s successor and her assigns and will be enforceable by the grantor and its assigns. The deed further explicitly states that the conveyed parcel may be used only for residential purposes. This “indicated an intent to preserve the residential character and value of the land retained by [SPLC]. Certainly such a restriction inured to [SPLC’s] benefit as the eventual seller of [its] retained land, since it would affect the value of . . . the land . . . .’’Id.

The defendants, citing Stamford v. Vuono, supra, maintain that the retained land theory requires that the grantor expressly covenant to restrict the use of its remaining land, and that the Contegnis cannot prevail under this theory because SPLC made no such covenant in its deed to Daly. Our case law does not support this argument. The retained land theory requires that the grantor exact “covenants from his grantee . . . for the benefit and protection of his adjoining land which he retains.” Stamford v. Vuono, supra. “[T]here is no mutuality between the grantees, if there are more than one, and therefore no right in one grantee to enforce the restrictions against another grantee on that theory. But the original grantor (the owner of the property benefited) and his assigns may enforce them against subsequent purchasers of the property burdened.” Id., 365. Neither Stamford v. Vuono, supra, nor any other more modern case construing a covenant under this theory; see Grady v. Schmitz, supra; Marion Road Assn. v. Harlow, supra; requires the parties to the original transaction to have burdened their adjoining lands with mutually restrictive covenants.

Although we have concluded that the Contegnis are entitled to enforce the restrictive covenant in the defendants’ deed, the precise scope and meaning of that restriction remains to be ascertained. The defendants argued, and the trial court found, that “the plaintiffs cannot prevail on [the retained land theory] because of the lack of a clear covenant restricting development to one house per lot.” We disagree.

Language in a deed that purports to create a restrictive covenant must be construed in light of the circumstances attending and surrounding the transaction. Baker v. Lunde, supra, 539. “ ‘The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . .’ ” Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982). “The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” B. T. Harris Corporation v. Bulova, 135 Conn. 356, 361, 64 A.2d 542 (1949).

We begin with the language itself. The deed conveying the property to the defendants’ predecessor forbade the erection of any building on the premises except: “(1) one family house . . . (2) a stable or carriage house ... (3) a garage or automobile house . . . .” The defendants maintain that the phrase “one family house” limits the type, but not the number, of dwelling houses that might be built on the property. Thus, they argue that single-family houses, as opposed to duplexes or multi-family structures, may be built on the property. The plaintiffs, on the other hand, see the word “one” as restricting both the number and type of houses on the lot, namely, one single-family house. We agree with the plaintiffs.

The plaintiffs’ reading makes more sense gramati-cally; the first word after each parenthesized numeral would then be an article. On the other hand, reading the word “one” to mean “single,” as the defendants suggest, produces, “except (1) single family house . . . (2) a stable ... (3) a garage . . . .” (Emphasis added.) The more sensible reading of the restriction, in isolation, is that of the plaintiffs.

Our examination of the entire deed, and the circumstances surrounding its drafting, does little to sway our belief that the plaintiffs’ reading is correct. The defendants draw our attention to several instances in the deed where the scrivener seemed to imply the possibility that more than one dwelling house could permissibly stand on the lot. The deed requires that “no dwelling house” may encroach within forty feet of the highway; “a physician or surgeon who may own or occupy a dwelling house upon said land” may display a sign. (Emphasis added.) The covenants in the deed bind the grantee “and all persons claiming or to claim said land or any part or parcel thereof under the grantee. ...” (Emphasis added.) We are not persuaded.

First, we agree with the plaintiffs’ characterization of the “part or parcel” clause as mere “belt and suspenders” language, the intent of which was to insure the continued enforceability of the covenants in the event of a judicial partition of the property. Second, the other quoted clauses may be read to countenance the same possibility; just as the article “a” may or may not impose a numerical limitation; see, e.g., Deutsch v. Mortgage Securities Co., 96 W. Va. 676, 679, 123 S.E. 793 (1924); the phrase “no dwelling house” may stand within forty feet of the highway, may refer to one dwelling house or ten. Thus, the examples relied upon by the defendants fail to negate the natural inference we draw, that “one family house” imposes both a numerical and type limitation.

Viewing the issue in yet a larger context, we note that both the deeds to Daly and Brown were among the last by which SPLC conveyed property out of the developed area. As we discussed above, six of the last eight deeds restrict building on the conveyed property to “one dwelling house arranged for and occupied by a single family” and certain outbuildings. The deeds employing this language provide a useful counterpoint to the defendants’ position. Clearly, the phrase “one dwelling house arranged for and occupied by a single family” admits of only one reasonable construction. Yet, the deeds containing that unambiguous version of the restriction employ the same, ambiguous version as that found in the Daly deed of the other restrictions, such as those governing the front and rear setbacks and the physician’s sign. This further undercuts the defendants’ position by indicating to us that the ambiguous provisions, such as the setback limits and the allowance of a physician’s sign, were to be read to harmonize with the clause describing the dwelling house and were not to control that clause’s meaning.

The restriction in the Daly deed inured to the benefit of the adjacent, retained land of the grantor, SPLC. Thus the Contegnis, as SPLC’s successors in title to the retained land, may enforce the restriction to enjoin the construction of more than one dwelling house on the defendants’ property.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiffs Madeline D. and John A. Contegni only, and to render judgment for the defendants with respect to the other plaintiffs.

In this opinion the other judges concurred.

       The complaint names Madeline D. Contegni, John A. Contegni, Judith Egbert, Frank Dean, Delores Dean, Verna Green, Robert Green, Diane Berol Saxton, and “The Fidelity Trust Company and Kenyan Gillespie, co-trustees u/a Doris K. Gillespie” as plaintiffs. Diane Berol Saxton subsequently withdrew as a plaintiff. The complaint names C. Meyrick and Margaret C. Payne as defendants. The Paynes jointly own the lot adjacent to that of the plaintiffs Contegni.

       A first cost provision is a covenant placed in a deed to specify the minimum construction cost of a structure to be erected on the conveyed land.

       This map is reproduced in the appendix, infra, p. 68.

       The relevant restriction in all the deeds to property in the developed area permitted the construction of “a garage or automobile house for the motor vehicles of the occupants of said land only.” We read this restriction to limit the class of persons entitled to garage their vehicles on the premises. It does not, in our view, limit the use of the garage strictly to the shelter of motor vehicles.

       The deeds reveal that the ratio between the first cost of the dwelling house (average $8000 to $10,000) and the first cost of the carriage house or stable ($2000) was 4 or 5 to 1. Given that SPLC no doubt reflected in these first cost restrictions its expectation that the affluent purchasers of these lots would erect large, well-appointed homes, it follows that the carriage houses that could be built for one quarter the cost of these homes would be impressive structures in their own right, which for the money could easily contain servant’s quarters.

       This figure excludes several deeds of small strips of property conveyed to augment previously sold parcels.

       Because we hold that the Contegnis may enforce the restrictions in the defendants’ deed under this theory, we must briefly address the defendants’ alternate ground for affirming the trial court’s judgment, namely, that the present action is barred by the principles of res judicata or collateral estoppel. “ ‘[R]es judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.’ Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284, cert. granted, 209 Conn. 809, 548 A.2d 437 (1988).” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).
      The defendants base this claim on the following facts. In 1981, the Superior Court decided the case, Saxton v. Fahey, Superior Court for the judicial district of Stamford-Norwalk, docket number CV-0040996 (June 22, 1981), in which the plaintiffs attempted to enforce the restrictions in the deed of the successor in interest to Bartholomew Jacob by arguing that an area of Shippan Point including the developed area and the land once owned by Jacob was covered by a uniform plan of development by virtue of uniform restrictions inserted in the relevant deeds of SPLC. The plaintiffs could also have asserted the retained land theory but did not. One of the plaintiffs in Saxton v. Fahey, Judith Egbert, is also a plaintiff in the present case.
      We find no merit to either the res judicata or the collateral estoppel claim for two reasons. First, the Contegnis were neither a party to, nor in privity with a party to, the earlier litigation. They therefore had no opportunity to litigate in a prior proceeding the issue or claim sought to be precluded in the subsequent proceeding. See East Lyme v. Waddington, 4 Conn. App. 252, 255, 493 A.2d 903, cert. denied, 197 Conn. 813, 499 A.2d 61 (1985). Second, the fact that Judith Egbert could have asserted the retained land theory in the earlier case and thus might well be barred from asserting it in the present case; see Lehto v. Sprout, 9 Conn. App. 441, 444, 519 A.2d 1214 (1987); is of no moment because only the Contegnis can assert that claim here. Grady v. Schmitz, 16 Conn. App. 292, 296, 547 A.2d 563 (1988).


author: Daly, J.

text:
    Roger S. Manchester et al. v. Zoning Board of Appeals of the Town of Weston et al.
    (6861)
    Spallone, Daly and O’Connell, Js,
    Argued January 19
    decision released April 4, 1989

      Harry H. Hefferan, with whom, on the brief, was Benjamin Gershberg, for the appellants (plaintiffs).

      Walter A. Flynn, Jr., for the appellee (named defendant).

      Melvin J. Silverman, for the appellee (defendant Gerald Lieberman).
   Daly, J.

This is an appeal from the judgment of the trial court dismissing the plaintiffs’ appeal to it from the decision of the named defendant that revoked a building permit issued to them by the zoning enforcement officer for the town of Weston. Upon our granting of certification, the plaintiffs appealed to this court. The essential claim of the plaintiffs on appeal is that the trial court erred by exceeding the proper scope of judicial review. We find no error.

Certain facts are not in dispute. The plaintiffs are the owners of a triangular parcel of land comprising .6 of an acre located on the east side of Good Hill Road in Weston. The plaintiffs also own a four acre tract of land on the west side of Good Hill Road, opposite from the triangular parcel.

In 1950, Weston adopted one acre residential zoning and, in 1953, adopted two acre residential zoning. The triangular parcel is located in a residential district. The plaintiffs applied for a building permit for the triangular parcel in May, 1985. That permit was issued by the town zoning enforcement officer in July, 1986, on the basis of his finding that the parcel had been separately owned since the time zoning was adopted in Weston and thus was a nonconforming lot pursuant to the regulations. In making his ruling, the zoning enforcement officer relied on § 311.5 of the Weston zoning regulations, as amended in 1970, which provides: “New Buildings on Existing Lots: A permit shall be issued for a permitted use on a lot which does not meet the minimum area or dimension requirements of these Regulations, provided such lot existed in separate ownership as of the effective date of these Regulations, or of any pertinent amendment thereof, and was so recorded on the Assessor’s Records or the Land Records of the Town; provided that the lot met the zoning requirements at the time the deed to the lot was recorded; provided that the owner of such lot did not and does not own other land contiguous thereto or directly across a road therefrom at the time of the adoption of these Regulations or subsequent thereto (if this is the case, such other land or so much thereof as may be necessary, shall be combined with the first named lot in such manner as to produce one or more conforming lots); and, further provided that all setback and other requirements are complied with, insofar as possible, at the time of obtaining the zoning permit.” The ruling of the zoning enforcement officer was appealed by the plaintiffs’ neighbors and the board held a hearing in September, 1986. The board reversed the zoning enforcement officer’s ruling without explanation. The plaintiffs then appealed that decision to the Superior Court, pursuant to General Statutes § 8-8.

The issue before the trial court was whether the triangular parcel was recorded as a separately owned lot either in 1950 or at the time of the 1970 amendments to the zoning regulations. Because the defendant board failed to state the reasons for its finding, the trial court was required to search the record in order to discover a sufficient reason to support the board’s decision. See Zieky v. Town Planning & Zoning Commission, 151 Conn. 265, 268, 196 A.2d 758 (1963). After a review of the record, the trial court found the following reasons to support the board’s decision: (1) the parcel did not appear on the town land records as a separate lot until 1972; (2) the board heard the expert opinion of an attorney, who had searched the town land records, that the lot did not exist in separate ownership in 1950; and (3) the triangular parcel was part of the four acre tract on the westerly side of Good Hill Road until 1968. The court dismissed the plaintiffs’ appeal and this appeal ensued.

The procedural course of a zoning appeal bears repetition at this juncture. “When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied. A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974). It has no discretion to deny the special exception if the regulations and statutes are satisfied. Westport v. Norwalk, 167 Conn. 151, 155, 355 A.2d 25 (1974).” Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56, 549 A.2d 1076 (1988).

The trial court, upon appeal, “ ‘ “reviews the record before the board to determine whether it acted fairly or with proper motives or upon valid reasons . . . .” ’ ” A.P. & W. Holding Corporation v. Planning & Zoning Board, supra, 186-87. “As long as an honest judgment has been reasonably and fairly exercised by a zoning commission after full hearing, courts should be cautious about disturbing the commission’s decision. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984).” Anastasiou v. Zoning Commission, 6 Conn. App. 278, 283, 505 A.2d 8 (1986).

The question to be resolved by this court is whether the trial court correctly decided that the action of the board was not arbitrary, illegal or in abuse of discretion. Id. Generally, “[a] reviewing court may only consider the reasons given by the zoning authority to determine whether the record and the application of the zoning regulations support those reasons.” Id. Absent any stated findings by the zoning commission, however, this court may consult the trial court’s memorandum of decision to ascertain the conclusions upon which the court based its judgment. Smith v. Zoning Board of Appeals, 174 Conn. 323, 325, 387 A.2d 542 (1978). Finally, the burden is on the appellants to establish that the board has not acted fairly, with proper motives and for valid reasons. Bora v. Zoning Board of Appeals, 161 Conn. 297, 299, 288 A.2d 89 (1971); Thorne v. Zoning Board of Appeals, 156 Conn. 619, 621, 238 A.2d 400 (1968).

The record in this case supports the trial court’s upholding the decision of the defendant. Our review of the record indicates that the triangular parcel was not recorded on the Weston land records as a separate lot until 1972, which means it did not meet the express requirements of § 311.5 of the Weston zoning regulations for exceptions to the minimum lot size. It is therefore unnecessary to consider the other reasons given by the trial court in support of the board’s decision, as the action of the zoning body must be sustained if even one of the stated reasons is sufficient to support that action. See Anastasiou v. Zoning Commission, supra, 284. We conclude that the trial court correctly decided that the defendant board did not act arbitrarily, illegally or in abuse of its discretion.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs also claim that the decision of the defendant board effects an unconstitutional taking of their property without just compensation. Although the plaintiffs raised that issue before the trial court, the court did not address it in its memorandum. Because the plaintiffs failed to seek, under Practice Book § 4051, to have the court further articulate its decision, the record furnishes no basis to conclude that the trial court erred. Dixon v. Trubisz, 17 Conn. App. 216, 218, 551 A.2d 1259 (1988). It is the appellant’s responsibility to furnish this court with an adequate record for review. Practice Book § 4061; Arrieu v. Litchfield, 17 Conn. App. 320, 325, 552 A.2d 445 (1989).

       In 1968, an action to quiet title to the four acre tract was commenced.