text:
    KAZLON COMMUNICATIONS, LLC v. AMERICAN GOLFER, INC., ET AL.
    (AC 23918)
    Bishop, McLachlan and Peters, Js.
    Argued February 19 —
    officially released April 27, 2004

      Joseph A. Kubic, with whom, on the brief, was Eric R. Gaynor, for the appellants (defendants).

      William J. O’Sullivan, for the appellee (plaintiff).
   Opinion

BISHOP, J.

In this action on a promissory note, the defendants, American Golfer, Inc. (Golfer), and Ian M. Davis, an officer of Golfer, appeal from the rendering of summary judgment in favor of the plaintiff, Kazlon Communications, LLC, and the court’s award of prejudgment interest to the plaintiff. Specifically, the defendants claim that it was incorrect as a matter of law for the court to grant the plaintiffs motion for summary judgment when a special defense had been filed, and moreover that, in this instance, the special defense raised genuine issues of material fact. Additionally, the defendants claim that the court improperly found that the general release they had executed operated to bar them from asserting conversion by way of a counterclaim. Finally, the defendants claim that the court improperly awarded prejudgment interest because the plaintiffs offer of judgment had been conditional. We affirm the judgment of the trial court.

The following facts and procedural history set the context for our assessment of the claims on appeal. In its complaint, the plaintiff alleged that the defendants had executed a promissory note, for consideration, promising to pay the plaintiff the principal sum of $70,000 in accordance with a specific schedule and that the defendants had defaulted on the note by failing to pay the last installment of $30,000. The plaintiff sought payment of the principal with interest and attorney’s fees in accordance with the terms of the note.

In its response to the complaint, Golfer filed a special defense alleging that there was no consideration for the making of the note. Additionally, Golfer filed a two count counterclaim in which it alleged that the plaintiff was in possession of certain electronic data belonging to Golfer, which the plaintiff had failed to turn over to Golfer. The first count of the counterclaim characterized the plaintiffs alleged failure to turn the property over to the defendants as conversion. In the second count, the plaintiffs inaction is claimed to constitute theft. In reply to Golfer’s special defense and counterclaim, the plaintiff denied the allegations set forth in the special defense. In addition, the plaintiff asserted two special defenses to the counterclaim, namely, that the defendants had executed a general release in favor of the plaintiff and that the note on which the action was brought contained a waiver provision that barred the claims asserted in the counterclaim.

Thereafter, the plaintiff filed a motion for summary judgment on the complaint and on the counterclaim, asserting that the defendants had not raised any genuine issues of material fact, and that the defendants’ special defense and counterclaim were barred by the merger and integration language in the note, as well as by the general release executed by the defendants at the time the note was executed. Following the submission of affidavits by the parties, the court rendered summary judgment in favor of the plaintiff on the complaint and on the counterclaim. This appeal followed.

It is well established that summaiy judgment should be rendered “if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Practice Book § 17-49; Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Because the trial court’s ruling on a motion for summary judgment is a legal determination, our review is plenary. Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003).

I

The defendants first claim that it was incorrect as a matter of law for the court to render summary judgment when a special defense had been filed. We are unfamiliar with any rule that prevents the court from rendering summary judgment on a complaint, cross complaint or counterclaim simply because of the existence of one or more special defenses. To the contrary, it is appropriate for a court to render summary judgment in favor of a plaintiff when the special defenses asserted by a defendant are either not legally viable or do not present a genuine issue of a material fact. See, e.g., Webster Bank v. Oakley, 265 Conn. 539, 830 A.2d 139 (2003). Reciprocally, the filing of special defenses by a defendant does not prevent the court from granting summary judgment on a complaint in favor of the defendant. See, e.g., McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, 79 Conn. App. 800, 831 A.2d 310, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003).

II

The defendants next claim that the court incorrectly rendered summary judgment because the allegations contained in Golfer’s special defense raised a genuine issue of material fact. As noted, in response to the complaint, Golfer filed a special defense alleging that there was inadequate consideration for the note on which the action was brought.

The following additional facts are relevant to our discussion of the defendants’ claim. The defendants’ assertion regarding a failure of consideration relates to previous business dealings between Graphic Productions (Graphic), a predecessor of the plaintiff, and the defendants. In those dealings, Graphic had agreed to provide certain formatting services to Golfer in conjunction with its publication of two books on the subject of golf. As part of its services, Graphic prepared certain materials that it then turned over to Golfer for use in conjunction with its publishing. Additionally, Graphic retained a copy of the material in a computer file.

Later, a dispute over billing and services between Graphic and the defendants spawned three lawsuits, all of which were subsequently settled. As part of the settlement, the parties, including the plaintiff and the defendants in this action, executed general releases for any action that could have been asserted in the past or the future against each other “upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of this Release . . . .” The releases also made specific reference to the then pending litigation involving both of the parties herein as well as others. In conjunction with that global settlement, the defendants herein executed a promissory note in favor of the plaintiff in the amount of $70,000. After the parties reached that accord and the note had been signed, Golfer discovered that it had lost the data it had received from Graphic and then requested a copy from the plaintiff, to whom the material had been transferred by Graphic. In response, the plaintiff reported that the material either had been lost or discarded.

Golfer’s special defense of lack of consideration is premised on an allegation that the plaintiffs destruction of the material or its failure to turn it over to Golfer constitutes a failure of consideration for the note and release. In response, the plaintiff has argued that it was not until after the note and general releases had been signed that Golfer discovered it had lost the materials. Thus, the plaintiff argues that its retention of the data could not have been an element of consideration for the promissory note. Additionally, the plaintiff has correctly pointed out that the note, by its terms, sets forth that the consideration for the note was the parties’ mutual releases and settlement of claims. We find no mistake in the rendering of summary judgment on the complaint.

Ill

The defendants next claim that the court was nevertheless incorrect in rendering summary judgment on the counterclaim. That assertion is based on the defendants’ contention that the counterclaim raised, as a genuine issue of material fact, the question of whether the plaintiff wrongfully had retained and either negligently or wilfully failed to turn over the subject data to Golfer. Our review of the release signed by the parties in conjunction with the settlement of their then pending litigation leads us to the conclusion that the clarity and scope of the release language relieving the parties from liability “by reason of any matter, cause or thing whatsoever” arising in the past and in the future bars the defendants from seeking to litigate the issue raised by Golfer’s counterclaim. Indeed, we find the language of the subject release to be as “definite and unambiguous” as that found by our Supreme Court to be definite and unambiguous in a similarly worded global settlement document in Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 502, 746 A.2d 1277 (2000). Therefore, the court correctly rendered summary judgment on the counterclaim.

rv

Last, the defendants claim that the court improperly granted prejudgment interest. That argument is based on the defendants’ claim that the plaintiffs offer of judgment had been conditional. While the action was pending, the plaintiff filed an offer of judgment that provided that the plaintiff would take judgment against the defendants in the amount of $37,500 on the condition that Golfer withdraw its counterclaim. Here, the defendants appear to assert two legal claims. In the first instance, they claim that because the offer of judgment was conditioned on the withdrawal by Golfer of its counterclaim, it did not, by its terms, comply with the requirements of General Statutes § 52-192a and Practice Book § 17-14. Additionally, the defendants assert that because the plaintiff actually was a counterclaim defendant, it should have filed an offer of judgment regarding the counterclaim as a defendant pursuant to the terms of Practice Book § 17-11. Neither claim has merit.

Our Supreme Court’s recent discussion of the offer of judgment statute is germane to both claims made by the defendants. In Cardenas v. Mixcus, 264 Conn. 314, 823 A.2d 321 (2003), the court opined that the purpose of § 52-192a “is to encourage pretrial settlements and, consequently, to conserve judicial resources. . . . [T]he strong public policy favoring the pretrial resolution of disputes ... is substantially furthered by encouraging defendants to accept reasonable offers of judgment. . . . Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement. ... In other words, interest awarded under § 52-192a is solely related to a defendant’s rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources. . . . Of course, the partial settlement of a case does little for the conservation of our limited judicial resources. Accordingly, the ultimate goal in a multiparty lawsuit is the fair and reasonable settlement of the case on a global basis.” (Internal quotation marks omitted.) Id., 321.

Here, the plaintiffs offer of judgment encompassing both the complaint and counterclaim was global, and if it had been accepted, it would have resolved the entire case. In that regard, it contained the same broad feature as an offer of judgment relating to all claims and parties in a multiparty action. Additionally, the condition set forth in the offer of judgment that Golfer withdraw its counterclaim was clear, uncomplicated and related directly to an issue raised by Golfer in a special defense to the complaint. Therefore, the defendants’ assertion that the offer of judgment was conditional is incorrect.

Finally, as to the defendants’ claim that the offer of judgment on the counterclaim should have been made pursuant to Practice Book § 17-11, which covers offers of judgment made by defendants, we agree with the plaintiff that if it had been required to file two offers of judgment, one as a plaintiff on the complaint and another as a counterclaim defendant, the possible consequence of the defendants accepting one offer while rejecting another would have thwarted, not advanced, the overarching purposes of the offer of judgment statute.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TAMMY HASTINGS v. COMMISSIONER OF CORRECTION
    (AC 23755)
    Schaller, Dranginis and Bishop, Js.
    Argued February 11 —
    officially released April 27, 2004

      Adele V. Patterson, assistant public defender, for the appellant (petitioner).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Kathleen A. Dwyer, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Tammy Hastings, appeals from the judgment of the habeas court dismissing her petition for a writ of habeas corpus for lack of subject matter jurisdiction. On appeal, the petitioner claims that the court improperly determined that it lacked jurisdiction. We affirm the judgment of the habeas court.

The court found the following facts. The petitioner was convicted under two different docket numbers and sentenced to a total effective term of eighteen months incarceration, which was to end on January 20, 2001. The respondent commissioner of correction actually released the petitioner on January 19, 2001, because January 20 was a Saturday. Prior to her release, on January 16, 2001, the petitioner drafted and had notarized the petition presently at issue. She mailed the petition on the same day, but mailed the petition to the wrong address, sending it to the former address of the Norwich clerk’s office. That address had not been used by the Norwich clerk’s office for at least four years.

The Norwich clerk’s office, despite the incorrect address, still received the petition. At that point, the New London judicial district contained more than one courthouse. The policy in effect at the time stated that all habeas corpus matters were to be handled in New London. Therefore, the Norwich clerk sent the petition by courier to the New London clerk. The petition was time stamped and date stamped as having arrived in New London on January 24, 2001. In keeping with that policy, there was no notation as to when the petition was received in Norwich because the case was not to be handled there. According to the Norwich clerk, the petition would have been sent to New London on either the day it was received or the following day, which would have been Monday, January 22, or Tuesday, January 23, 2001, respectively.

The court held that if the petition had been filed in Norwich before the sentence expired, the petitioner would have complied with General Statutes § 52-466, and the court would have had jurisdiction over the petition. The court found, however, that “the petition was received by the clerk’s office in Norwich on Monday January 22, 2001, or possibly January 23, 2001. It is not possible to speculate as to what may have caused the delay in the delivery of the petition to the clerk’s office at Norwich. The procedure for picking up mail at the prison may have been a factor. Most likely, the improper address was also a factor.” The court went on to hold that the petitioner was not in custody when the petition was filed and, thus, the court did not have subject matter jurisdiction.

Whether a court has subject matter jurisdiction over an action is a question of law, and our review of the court’s determination is plenary. Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998). To the extent that the court makes necessary factual findings, we review the factual findings only to determine if they are clearly erroneous. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992); see also Rich-Taub- man Associates v. Commissioner of Revenue Services, 236 Conn. 613, 618, 674 A.2d 805 (1996).

“[P]ursuant to General Statutes § 52-466, a Connecticut habeas court has subject matter jurisdiction only over those cases brought by a petitioner who is ‘illegally confined or deprived of his liberty’ under the challenged conviction.” Ford v. Commissioner of Correction, 59 Conn. App. 823, 826, 758 A.2d 853 (2000). A person is in custody when he is under a legal restraint. See Maleng v. Cook, 490 U.S. 488, 491-93, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989) (petitioner must be under some restraint when petition filed or petitioner not in custody and cannot bring challenge as to conviction or collateral consequences stemming therefrom); Carafas v. LaVallee, 391 U.S. 234, 239-40, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968) (custody requirement does not mean petitioner must be in custody during entire pendency of legal proceedings, only at time petition filed). The party bringing the action bears the burden of proving that the court has subject matter jurisdiction. See Fink v. Golenbock, 238 Conn. 183, 199, 680 A.2d 1243 (1996).

The petitioner argues that the court erroneously concluded that the petition was received in Norwich on January 22 or 23,2001. In support thereof, the petitioner cites the fact that according to a docket notation dated January 30, 2001, her motion to waive fees and costs was granted on January 23, 2001. That evidence fails to convince us that the court’s determination was incorrect. Rather, we find that evidence to be consistent with the conclusion of the court that the petition arrived in Norwich on January 22 or 23,2001, and was transmitted to New London on either the same day or the following day. Although that evidence does conflict with the time stamp and date stamp, it does not prove that the court’s determination was clearly erroneous.

The petitioner also argues that the court improperly dismissed the petition because the court should not have imposed on her the burden of overcoming the Norwich clerk’s failure to time stamp and date stamp the petition. Notwithstanding our jurisprudence, which requires the party bringing the action to prove that the court has subject matter jurisdiction, we do not see how the court forced the petitioner to overcome the mistake.

The petitioner further argues that this court should adopt the prison “mailbox rule”; see Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988) (notice of appeal deemed filed when prisoner delivers it to prison authorities for forwarding to court); but see Smith v. Conner, 250 F.3d 277, 279 (5th Cir. 2001) (declining to apply mailbox rule when applicable regulation defines “filing” clearly); which would make the filing date the date the prisoner delivered the petition to prison authorities for forwarding to the court, as opposed to the date the petition is received in court. We decline to adopt such a rule.

The judgment is affirmed.

       The record is devoid of any explanation of the circumstances, including location, regarding the waiver notation in the court file.


author: DUPONT, J.

text:
    JAMES WIESE v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 24347)
    Laveiy, C. J., and McLachlan and Dupont, Js.

      Argued February 9 —
    officially released April 27, 2004

      Ronald Cordilico, for the appellant (plaintiff).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Gabriel J. Jiran, for the appellee (defendant board of education of the town of Tolland).
   Opinion

DUPONT, J.

This is an appeal by the plaintiff, James Wiese, from the judgment of the trial court, upholding a decision of the defendant freedom of information commission (commission) that ordered the defendant superintendent of schools (superintendent) and the defendant board of education of the town of Tolland (board) to disclose certain material to the defendant Journal Inquirer newspaper and the defendant Chris Dehnel, a reporter with the newspaper. The principle issue is whether a “last chance agreement” (agreement) relating to the plaintiff should be disclosed under the Freedom of Information Act (act), General Statutes § 1-200 et seq., and General Statutes § 10-151c. We affirm the judgment of the trial court.

The following undisputed facts as related in the agreement and garnered from the procedural history are pertinent to the plaintiffs appeal. The plaintiff, a teacher employed by the board, showed a film entitled “Damned in the USA” to his American government class at Tolland high school as part of his course on minority views and dissent in American history. The plaintiff described the film and notified his students some days ahead of time that they could be excused from class if they did not want to watch the film. The agreement at issue concerns a single act of alleged misconduct, namely, the showing of the film, and does not concern any act of verbal or physical abuse toward any student by the plaintiff. In the days following the showing of the film, the plaintiff discussed with his students the possibility of his being disciplined by school authorities because of the showing.

The plaintiffs superiors learned that he had shown the film, investigated the matter and found the film to be age inappropriate. As a result of the investigation, the superintendent, the plaintiff and a teachers’ union representative, on January 6, 2000, signed the agreement related to the incident. It detailed the superintendent’s findings of fact, the punishment involved and penalties for future infractions.

On February 12, 2002, the defendant newspaper and the defendant reporter requested from the Tolland pub-lie school system the records surrounding the showing of the film. The only document related to the incident was the agreement. The superintendent notified the plaintiff of the request, and the plaintiff timely filed an objection to that request, citing an exception contained in § 10-151c to the mandatory disclosure requirements of General Statutes § 1-210 (a). The defendant newspaper and the defendant reporter then filed a notice of appeal with the commission, pursuant to General Statutes § 1-206 (b) (1).

At a hearing before the commission, the plaintiff appeared and was made a party to the proceedings. The hearing officer conducted an inspection of the agreement and held that it was not a record of teacher performance and evaluation. The hearing officer con-eluded that the agreement fell under the ambit of the act and recommended that it be disclosed. By written decision, the commission adopted the officer’s report in full, as its order, on August 28, 2002.

The plaintiff appealed to the trial court from the commission’s decision. He claimed that the commission erred when it determined that the agreement was not a record of “teacher performance and evaluation” within the meaning of § 10-151c. The court rendered judgment for the commission and dismissed the plaintiffs appeal. The court noted the deference afforded the commission’s decision and the intentional ambiguity of the term “teacher performance and evaluation” in § 10-151c; see Carpenter v. Freedom of Information Commission, 59 Conn. App. 20, 22-25, 755 A.2d 364, cert. denied, 254 Conn. 933, 761 A.2d 752 (2000); that allows the commission to make case-by-case determinations of what information about a teacher can be disclosed.

The plaintiff claims on appeal that the agreement is an evaluation of teacher performance and not a disciplinary document and, therefore, is exempt from the disclosure requirements of § 1-210. We disagree.

Our standard of review is critical to our analysis in an administrative appeals context. We first note that judicial review of an administrative agency’s action is limited by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. The scope of review is very restricted. Neither this court nor the trial court may retry the case or substitute its judgment for that of the commission. Even as to questions of law, the court’s ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and reasonably and logically could follow from those facts. Carpenter v. Freedom of Information Commission, supra, 59 Conn. App. 23; see also General Statutes § 4-183 (j).

We also note other principles surrounding the deferential standard of review afforded administrative appeals. When the legislature intentionally uses broad terms without definition, it evinces a judgment that the agency should define the parameters of the broad terms of relevant statutes on a case-by-case basis. Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 106, 561 A.2d 429 (1989). “The practical construction placed on the statute by the agency, if reasonable, is highly persuasive.” Ottochian v. Freedom of Information Commission, 221 Conn. 393, 399, 604 A.2d 351 (1992).

The commission’s decision was based on its interpretation of critical portions of the act, specifically § 1-210. It also based its decision on its reading of the exception to the act’s disclosure requirements that are contained in § 10-151c. Section 1-210 provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to (1) inspect such records promptly . . . .”

Section 10-151c contains an exception to the general rule that all records of public agencies are to be disclosed. The statute is designed to prevent parents from “teacher shopping” in public schools by looking at evaluations and then demanding that their children be placed with one specific teacher. See 45 H.R. Proc., Pt. 13, 2002 Sess., pp. 3981-82, remarks of Representative Lawrence F. Cafero, Jr. “[R]ecords of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-210, provided that any teacher may consent in writing to the release of such teacher’s records by a board of education. . . .” General Statutes § 10-151c.

We must determine the validity of the commission’s ruling that the agreement constituted a disciplinary record, and not a record of teacher performance and evaluation within the meaning of § 10-151c.

The act was enacted in 1975 amid a tremendous increase in the number of state agencies and their effects on individuals. The act requires openness in the activities of public agencies. Rose v. Freedom of Information Commission, 221 Conn. 217, 233, 602 A.2d 1019 (1992). It is well established that the general rule under the act is disclosure, and any exception will be viewed narrowly in light of the public policy behind the act favoring openness in all public agencies. Pane v. Danbury, 267 Conn. 669, 679-80, 841 A.2d 684 (2004); Board of Education v. Freedom of Information Commission, 208 Conn. 442, 450, 545 A.2d 1064 (1988); Wilson v. Freedom of Information Commission, 181 Conn. 324, 328-29, 435 A.2d 353 (1980). Save a statutory or other exemption, the only step that the commission needs to take before ordering disclosure is to “protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” (Internal quotation marks omitted.) Chairman v. Freedom of Information Commission, 217 Conn. 193, 197, 585 A.2d 96 (1991).

The plaintiff claims that the agreement he signed fits the exception to the disclosure requirements that are contained in § 10-151c. He claims that although the film shown was deemed unsuitable for viewing by students in his classroom as age inappropriate, the showing was related to teaching and, therefore, a record of any action in response to its showing is an evaluation of his performance as a teacher. The commission argues that the language of the agreement clearly evinces a tone of discipline and that the document, therefore, should be disclosed.

The rather amorphous distinction between what is related to teaching as opposed to personal misconduct was refined by this court in Carpenter v. Freedom of Information Commission, supra, 59 Conn. App. 20. Simply because a document relates to an activity that takes place on school grounds, during school hours or during classroom instruction time does not always make that document a performance evaluation that is exempt from freedom of information disclosure requirements. Id., 26.

The commission argues that Carpenter is dispositive. Although we are guided by Carpenter's analysis, this case does not fit squarely into the four comers of Carpenter. In Carpenter, the plaintiff teacher allowed students to gain access to pornographic material that had no relation to the curriculum. Id., 22. It involved an incident of personal misconduct unrelated to teaching or the curriculum, completely noninstmctional, that happened to take place during school hours on school grounds.

In this appeal, it is not our role to determine whether the film shown was age inappropriate for the class or whether the plaintiff exercised appropriate judgment in showing it and then discussing the possible discipline he would receive for showing it. Our role instead is to determine whether the information in the agreement relates to the discipline to be imposed on the plaintiff because of his showing the film and the discipline that may be imposed in the future if such behavior recurs.

This case highlights the uncharted waters between what information constitutes a record of teacher misconduct, meriting discipline, and what information constitutes a record of teacher performance in the classroom setting, meriting an evaluation of that performance. Some curriculum related activities may involve personal misconduct and others may not. An activity may be related collaterally to teaching but nevertheless merit discipline, thereby extending the tenets of Carpenter v. Freedom of Information Commission, supra, 59 Conn. App. 26. This is such a case. In the judgment of the superintendent in this case, the plaintiffs conduct, showing an age inappropriate film, merited discipline. The agreement describes that judgment and the need for discipline.

In light of all the relevant facts specific to this case, coupled with the general rule and overriding purpose of the act to encourage disclosure; see Wilson v. Freedom of Information Commission, supra, 181 Conn. 328-29; we cannot conclude that the commission acted illegally, arbitrarily, capriciously or in abuse of its discretion in determining that the agreement was not a record of teacher performance and evaluation, but rather a record related to discipline.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Tolland board of education and the defendant superintendent of schools of the town of Tolland did not take a position on the issue of disclosure at trial, but stated that they had the material and had not disclosed it because of the plaintiffs objection to disclosure.

       General Statutes § 10-151c provides in relevant part: “Any records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-210, provided that any teacher may consent in writing to the release of such teacher’s records by a board of education. Such consent shall be required for each request for a release of such records. . . .”

       General Statutes § 1-210 (a) provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right (1) to inspect such records promptly during regular office or business hours ... or (3) receive a copy of such records in accordance with section 1-212. . . .”

       The legislature amended General Statutes § 10-151c in Public Acts 2002, No. 02-138, § 20, effective October 1, 2002, to add in relevant part that “records maintained or kept on file by any local or regional board of education which are records of the personal misconduct of a teacher shall be deemed to be public records and shall be subject to disclosure pursuant to the provisions of subsection (a) of section 1-210. . . .”
      The plaintiff claims on appeal that this language is meant to be construed prospectively only. We agree with the trial court, however, that the amendment only codified the meaning of § 10-151c to make it clear that records of teacher misconduct are not included in the term “teacher performance and evaluation” so as to preclude disclosure. See Board of Education v. Freedom of Information Commission, 210 Conn. 590, 593, 556 A.2d 592 (1989).

       “Public agency” is defined in General Statutes § 1-200 (1) (A) in relevant part as “[a]ny executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district . . . The commission found that the Tolland public school district fell under that definition, and there is no doubt as to the validity of that decision.

       The legislative history cited is to Public Acts 2002, No. 02-138, which amended General Statutes § 10-151c after the present dispute took place. The remarks concerning the intent of the statute are relevant to the present discussion, as Representative Cafero was speaking about the intent of § 10-151c as drafted before the amendment.


author: FOTI, J.

text:
    AEL REALTY HOLDINGS, INC., ET AL. v. BOARD OF REPRESENTATIVES OF THE CITY OF STAMFORD ET AL.
    (AC 22565)
    Foti, West and DiPentima, Js.
    Argued February 18 —
    officially released April 27, 2004

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

      Charles T. Lee, with whom, on the brief, was Matthew R. Paul, for the appellee (named defendant).

      John W. Mullin, assistant coiporation counsel, for the appellee (defendant planning board of the city of Stamford).
   Opinion

FOTI, J.

The plaintiffs, owners of real property in the city of Stamford, appeal from the judgment of the trial court dismissing their appeal from a decision of the defendant board of representatives of the city of Stamford. On appeal, the plaintiffs claim that the court improperly concluded that (1) in an appeal from a decision of the defendant planning board of the city of Stamford to amend the city’s master plan, the board of representatives lacked the authority to modify an amendment approved by the planning board and (2) the change in the master plan approved by the defendants did not constitute an inverse condemnation of the plaintiffs’ property. We affirm the judgment of the trial court.

The underlying facts are not in dispute. The plaintiffs’ undeveloped real property is situated on West Park Place in the downtown area of the city. In 1988, the plaintiffs obtained approval from the zoning board of the city of Stamford to construct a fifteen story structure consisting of 118 residential units on the property. The property is situated, for zoning purposes, in a zoning district suitable for residential, multifamily or high density use.

In January, 2000, the planning board, over the plaintiffs’ objections and acting pursuant to powers delegated to it by the charter of the city of Stamford (charter), approved an amendment to the city’s master plan. That amendment was integral to the “Mill River Corridor Project,” a comprehensive land use plan. One of that plan’s underlying purposes was to reclaim and to enhance open space and parks in the heart of the city, primarily along the Mill River, as well as to create affordable housing in the area. The plaintiffs’ property is located within the area encompassed by the plan, and the proposed amendment changed the property’s designation under the city’s master plan from land use category five (residential, multifamily, high density) to land use category thirteen (public parks).

Acting in accordance with § C6-30-7 of the Stamford Code of Ordinances (code), more than 20 percent of the owners of the privately owned land in the area directly affected by the amendment filed a petition with the planning board, objecting to the approval of the amendment. The planning board referred the matter to the board of representatives, which, after conducting a hearing on the amendment, approved it over the plaintiffs’ objections.

The plaintiffs appealed from the decision of the board of representatives to the Superior Court. The court, in a thorough and well reasoned decision, dismissed the appeal. The present appeal followed. We will set forth additional facts in the context of the plaintiffs’ claims.

I

The plaintiffs first claim that the court improperly concluded that in an appeal from a decision of the planning board to amend the city’s master plan, the board of representatives lacked the authority to modify an amendment approved by the planning board. We disagree.

The plaintiffs raised their objections to the amendment before the board of representatives. The plaintiffs also asked the board of representatives to consider excluding their property from the amendment. At the hearing, board of representatives cochairman Donald B. Sherer and city attorney Andrew J. McDonald indicated that they believed that the board of representatives lacked the authority to exclude the plaintiffs’ property from the amendment. They indicated that the board of representatives could either approve or reject the planning board’s amendment; it could not modify it so as to exempt the plaintiffs’ property from its effects. The board of representatives thereafter approved the amendment. The court determined that the Stamford charter did not grant the board of representatives the power to modify an amendment before it for review. Accordingly, the court held that the board of representatives properly declined to modify the amendment.

The resolution of the issue before us requires us to interpret provisions of the Stamford charter. That is a question of law, and our review of the trial court’s conclusion is plenary. See Witty v. Planning & Zoning Commission, 66 Conn. App. 387, 390-91, 784 A.2d 1011, cert. denied, 258 Conn. 950, 788 A.2d 100 (2001). “It is well established that a city’s charter is the fountainhead of municipal powers. . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised. ... It follows that agents of a city, including its commissions, have no source of authority beyond the charter. [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language.” (Internal quotation marks omitted.) Alexander v. Retirement Board, 57 Conn. App. 751, 758-59, 750 A.2d 1139, cert. denied, 254 Conn. 902, 755 A.2d 217 (2000). The interpretation of a charter is a question of law, and the rules of statutory interpretation generally apply. Testa v. Waterbury, 55 Conn. App. 264, 270, 738 A.2d 740 (1999).

Section C6-30-7 of the code provides in relevant part: “If twenty (20) percent or more of the owners of the privately-owned land in the area included in any proposed amendment to the Master Plan . . . file a signed petition with the Planning Board within ten days after the official publication of the decision thereon, objecting to the proposed amendment, then said decision shall have no force or effect but the matter shall be referred by the Planning Board to the Board of Representatives within twenty days after such official publication, together with written findings, recommendations and reasons. The Board of Representatives shall approve or reject such proposed amendment at or before its second regularly-scheduled meeting following such referral. When acting upon such matters the Board of Representatives shall be guided by the same standards as are prescribed for the Planning Board in Section C6-30-3 of this Charter. The failure of the Board of Representatives either to approve or reject said amendment within the above time limit shall be deemed as approval of the Planning Board’s decision. . . .” (Emphasis added.)

We are mindful that in interpreting the provisions of a charter, explicit words govern. “The language employed must be given its plain and obvious meaning, and, if the language is not ambiguous a court cannot arbitrarily add to or subtract from the words employed.” (Internal quotation marks omitted.) Arminio v. Butler, 183 Conn. 211, 218, 440 A.2d 757 (1981). Here, the charter expressly limits the authority of the board of representatives when reviewing an amendment approved by the planning board to either accepting or rejecting the proposed amendment. The plain meaning of those provisions leaves room for no other interpretation. The charter confers on the board of representatives the authority to modify amendments in other situations, but does not do so here.

The plaintiffs argue that “common sense” dictates that we interpret the charter so as to afford the board of representatives the authority to modify amendments to the master plan approved by the planning board. The plaintiffs correctly point out that the charter instructs the board of representatives to act in a legislative capacity when reviewing amendments referred for its review by the planning board. The plaintiffs argue, therefore, that the charter conferred on the board of representatives the ability to exercise its legislative discretion so as to make “even minor” modifications to a proposed amendment. We disagree. We interpret the charter in light of its clear and unambiguous terms. The charter instructs the board of representatives to exercise its legislative discretion in reviewing a proposed amendment to the master plan, but it likewise provides that the board of representatives shall reflect its approval or disapproval of the amendment under consideration by either accepting or rejecting it. The plaintiffs’ arguments do not outweigh the plain language of the charter.

The plaintiffs, before both this court and the trial court, relied on Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 572 A.2d 951 (1990), as authority for their proposition that the charter conferred on the board of representatives the authority to modify an amendment by approving only some parts of an amendment. The relevant issue in Stamford Ridgeway Associates was whether the Stamford charter conferred on the board of representatives, sitting in review of an application that had been approved by the zoning board and that consisted of several zoning changes, the authority to vote separately on each of the several zoning changes that were encompassed in the application. Id., 422.

The Stamford Ridgeway Associates court held that the charter afforded the board of representatives the authority to vote on each separate zone change encompassed in a single application for which a protest petition had been filed. Id., 436. In other words, the court held that the board of representatives need not vote on the application in the same manner that the zoning board had voted on it, that is, approving as a whole several amendments to the zoning map. The board of representatives could exercise its discretion to accept or reject each separate zone change encompassed in a single application. Id., 432-33.

Here, the issue is whether the charter confers on the board of representatives the authority to exempt selectively certain properties from an amendment to the masterplan. Stamford Ridgeway Associates is distinguishable from the present case and does not lend support to the plaintiffs’ suggested interpretation of the Stamford charter.

II

The plaintiffs next claim that the court improperly concluded that the defendants’ designation of their property on the master plan did not constitute an inverse condemnation of their property under the state and federal constitutions. We disagree.

The facts underlying the plaintiffs’ claim are undisputed. The issue is whether, as the plaintiffs suggest, the change in the classification of their property on the master plan amounted to a taking of their property by inverse condemnation. Our review of the court’s legal conclusions is plenary; we must decide whether such conclusions are legally and logically correct and find support in the facts that appear in the record. See Montville v. Antonino, 77 Conn. App. 862, 864-65, 825 A.2d 230 (2003).

“Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the government defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. . . . An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding .... Accordingly, an inverse condemnation action has been aptly described as an eminent domain proceeding initiated by the property owner rather than the condemnor.” (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 73, 808 A.2d 1107 (2002).

“For inverse condemnation to occur, property does not have to be appropriated by governmental action to the extent that no value remains. It is sufficient if use of property is severely restricted and its profitability greatly reduced as a result of the action of the government.” Citino v. Redevelopment Agency, 51 Conn. App. 262, 278-79, 721 A.2d 1197 (1998). The relevant inquiry here is whether the governmental regulation of the property has so financially burdened the landowner as to constitute a practical confiscation. “The financial burden imposed on a landowner by a regulation is measured by the extent to which the regulation interferes with the property owner’s reasonable investment-backed expectations of use of the property. ... A regulation does not constitute a compensable taking if it does not infringe on such reasonable investment-backed expectations.” (Citation omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 257, 662 A.2d 1179 (1995).

As we have stated, the action complained of here is the approval of an amendment to the master plan. The Stamford zoning board has taken no action with regard to any of the zoning regulations pertaining to the plaintiffs’ property and, for that reason, the plaintiffs’ claim of inverse condemnation fails.

Our Supreme Court has repeatedly recognized the purpose underlying the creation of a town (or master) plan. “[A] town plan is merely advisory. . . . The purpose of the [town] plan is to set forth the most desirable use of land and an overall plan for the town. . . . The development plan is the planning commission’s recommendation on the most desirable uses of all land within the community, including all public and private uses from street layouts to industrial sites. . . . Because the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an interpretive tool.” (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 574-76, 775 A.2d 284 (2001).

Generally, a master plan is “merely advisory in its effects . . . .” (Internal quotation marks omitted.) Cristofaro v. Burlington, 217 Conn. 103, 107 n.2, 584 A.2d 1168 (1991). Section C6-40-3 of the Stamford charter provides in relevant part: “After the effective date of the Master Plan the Zoning Map may, from time to time, be amended by the Zoning Board .... The Zoning Map shall not be amended by said Board to permit a use in any area which is contrary to the general land use established for such area by the Master Plan. . . .” “Even under Stamford’s charter, where the recommendation [of the planning board] is more than advisory because the zoning board cannot amend the zoning map in a manner inconsistent with the master plan, the planning board does not legislate. It has no power to make, amend or repeal existing zoning regulations or zone boundaries. . . . The Stamford zoning board may, if it so chooses, ignore the recommendations of the master plan and refuse to amend the zoning map.” (Citation omitted; internal quotation marks omitted.) Sheridan v. Planning Board, 159 Conn. 1, 9, 266 A.2d 396 (1969).

The plaintiffs argue that because of the amendment to the master plan, their investment backed expectations in the property have been significantly diminished. The plaintiffs argue in their brief that the amendment to the master plan “is strong evidence that condemnation [of their property] would occur when requested by the mayor [of the city of Stamford].” They argue that this is “a situation where the municipal government has taken all steps short of formal condemnation to obtain the subject property for public open space.” They also posit that “[u]nder the circumstances here, a prospective buyer would not buy the land and a lender would not finance it with the knowledge that the city is implementing plans and is about to acquire the land for open space.” Those claims are founded in speculation. The court properly concluded, as a matter of law, that the plaintiffs are free to continue to use their property as it is currently zoned and that, for that reason, the defendants’ action did not amount to an inverse condemnation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are AEL Realty Holdings, Inc., Mill River Tower Associates, LLC, and Snowfield Associates, LLC.

       The plaintiffs also named the planning board of the city of Stamford as a defendant.

       See footnote 4.

       Section C6-30-3 of the Stamford charter, entitled “The Master Plan,” provides in relevant part: “The Master Plan shall be the general land use Plan for the physical development of the City. The Plan shall show the division of Stamford into land use categories ....
      “The land use categories indicated on the Master Plan shall be defined by the Planning Board and made a part of such Plan. The Plan shall also show the Board’s recommendation for the following: streets, sewers, bridges, parkways, and other public ways; airports, parks, playgrounds and other public grounds; the general location, relocation and improvement of schools and other public buildings; the general location and extent oí public utilities and terminals, whether publicly or privately-owned, for water, light, power, transit, and other purposes; the extent and location of public housing and neighborhood development projects. Such other recommendations may be made by said Board and included in the Plan as will, in its judgment, be beneficial to the City. Such Plan shall be based on studies of physical, social, economic, and governmental conditions and trends and shall be designed to promote with the greatest efficiency and economy, the coordinated development of the City and the general welfare, health and safety of its people.”

       Rights in that regard are afforded by the fifth amendment to the United States constitution and article first, § 11, of the constitution of Connecticut.


author: DiPENTIMA, J.

text:
    FRANK A. PAVONE v. WAYNE R. WEST
    (AC 23639)
    Lavery, C. J., and Sehal ler and DiPentima, Js.

      Argued December 8, 2003 —
    officially released May 4, 2004

      Andrew B. Goodwin, with whom, on the brief, was Larry R. Levine, for the appellant (defendant).

      Pamela S. Bacharach, with whom, on the brief, was Kelly S. Therrien, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant, Wayne R. West, appeals from the judgment of the trial court denying his motion to open the judgment that was rendered against him after he was defaulted for failure to appear. The defendant claims that the court’s denial of his motion to open reflects an abuse of discretion in that (1) the court interpreted the Rules of Professional Conduct to allow dilatory tactics and guile to work surprise or injustice, and (2) the only notice he received of the default judgment was when his insurance company was notified approximately seven months after the court rendered judgment.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On November 16,1998, the parties were involved in a motor vehicle accident in which the vehicle driven by the defendant struck the vehicle driven by the plaintiff, Frank A. Pavone. Thereafter, the plaintiff filed a writ of summons and complaint alleging negligence on the part of the defendant and seeking damages. Service was made on the defendant by service of process on the office of the commissioner of motor vehicles. On March 12, 2001, the court granted the defendant’s motion to dismiss for failure to return the writ of summons and complaint within the statutory time frame.

Pursuant to General Statutes § 52-592, the accidental failure of suit statute, the plaintiff filed a second writ of summons and complaint on April 2,2001. The second complaint alleged the same cause of action as did the initial action. Service was again made by state marshal, pursuant to General Statutes § 52-63 (c), by leaving a true and attested copy of the original writ of summons and complaint at the office of the commissioner of motor vehicles. The state marshal was unable to locate the defendant. A letter sent to the defendant by the marshal was returned, marked, “moved left no address.” On May 9, 2001, the plaintiff filed a motion for default for failure to appear. Although the plaintiffs counsel was aware of the existence of counsel who represented the defendant in the previous matter, she did not notify opposing counsel of the second action. The defendant failed to appear, and the court granted the plaintiffs motion for default for failure to appear on July 17, 2001. On November 9, 2001, the court rendered judgment against the defendant in the amount of $20,000.

On June 3, 2002, nearly seven months after judgment was rendered, the plaintiffs counsel sent a letter to the defendant’s insurance company, requesting payment in accordance with the judgment. Counsel for the defendant filed a motion to open the judgment on September 5, 2002, claiming lack of notice of the second action. At the hearing on that motion, the defendant’s counsel argued that the failure of the plaintiffs counsel to notify him of the initiation of the second action and then her seven months’ delay in notifying the defendant’s insurer of the judgment warranted an opening of Ihe judgment. The defendant did not appear at the hearing, and there was no affidavit or verified testimony from him before the court. The court denied the defendant’s motion to open the judgment on October 21, 2002. This appeal followed.

Our standard of review is well settled. “[I]n granting or denying a motion to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” (Citation omitted; internal quotation marks omitted.) Carr v. Fleet Bank, 73 Conn. App. 593, 594, 812 A.2d 14 (2002).

The design of our rules of practice is for the Superior Court to facilitate business and to advance justice. Practice Book § 1-8. The rules are to be interpreted liberally when a strict adherence to them would work surprise or injustice. Practice Book § 1-8; see also Carter v. D’Urso, 5 Conn. App. 230, 234, 497 A.2d 1012, cert. denied, 197 Conn. 814, 499 A.2d 63 (1985).

I

The court first addresses the claim that the plaintiff did not give the defendant notice of the judgment until seven months after it was rendered by the court, so as to extend the time in which the defendant could challenge the default judgment by filing a motion to open.

The opening of judgments on default is governed by the provisions of General Statutes § 52-212 and Practice Book § 17-43, which provide for a four month period to file a motion to open a default judgment. The court has applied the law to provide for occasions when notice of the judgment is deficient. “Where the defendants have not received notice of the default judgment . . . the time within which they may move to set aside the judgment is extended by the delay in notification.” (Emphasis in original; internal quotation marks omitted.) Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 746, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001). “[I]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open. We have indicated that for the purpose of opening a default judgment pursuant to General Statutes § 52-212, a delay in notifying the defendant of the judgment would merely extend the time in which the defendant could move to set aside the judgment.” (Internal quotation marks omitted.) Handy v. Minwax Co., 46 Conn. App. 54, 57, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997).

We note that although the defendant’s attorney raised the issue of inadequate notice in his motion and at the hearing to open the judgment, the defendant himself was not present. Not only was he not in attendance, but his whereabouts were unknown to his attorney. Therefore, the issue of notice of the judgment to the defendant himself could not be decided. Further, even if the defendant’s motion to open were timely, he also must satisfy that provision of General Statutes § 52-212 (a), which requires that “the plaintiff or defendant [be] prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.” (Emphasis added.) General Statutes § 52-212 (a). Because the defendant was not present, he could not meet that burden. The defendant’s disappearance without giving notice to his attorneys or leaving a forwarding address precluded him from making his defense.

The defendant asserts that he was prevented from making a valid defense. At least in part because of his conduct, however, he was absent from the hearing and therefore was unable to prove inadequate notice. Consequently, the court’s denial of the defendant’s motion to open the judgment was not an abuse of discretion on that ground.

II

The defendant’s primary claim addresses the professional obligations and conduct of attorneys. He claims that both surprise and injustice resulted from the failure of the plaintiffs counsel to give timely notice of the action and the default judgment.

The defendant relies on Dante v. Dante, 93 Conn. 160, 162-63, 105 A. 353 (1919), and Schoonmaker v. Albertson & Douglass Machine Co., 51 Conn. 387, 395-96 (1884), for the general proposition that when a party without fault and without opportunity to defend, has a judgment rendered against him, this court has jurisdiction to grant relief. The defendant’s reliance on those cases is misplaced. In both cases, the complaining parties acted reasonably and did not fail to apprise the involved parties of their whereabouts. In Dante, the plaintiff claimed that she did not receive notice of the pendency of the original action that was brought by her husband and, therefore, had no opportunity to appear and defend herself. Dante v. Dante, supra, 161-62. The court granted her a new trial where it was shown that she did not have actual notice of the judgment against her and the statutory time for granting new trials had not yet elapsed. Id., 164. In the present case, bécause of the defendant’s absence, the court could not make a finding on the issue of inadequate notice.

In Schoonmaker, our Supreme Court found that the trial court improperly had failed to reinstate a case where the defendant was not “guilty of gross negligence, or any such degree of negligence as will justify the court in holding that he forfeited his right to have his day in court. ” Schoonmaker v. Albertson & Douglass Machine Co., supra, 51 Conn. 395. Here, our review of the record makes clear that the defendant cannot claim that he is without fault. The court found that the defendant had moved away and failed to leave a forwarding address with either his attorney or the United States Postal Service. In fact, the defendant was not present at the hearing, and his counsel indicated that he was unable to locate him. The court noted that although sending a courtesy copy of the complaint to the defendant’s original counsel would have been “a nice thing to do,” there was no legal obligation to do so. Moreover, the court opined: “It just seems to me as if he just stole away, hoping the case would go away.” Thus, the defendant’s conduct defeats his claim. Cf. Woodruff v. Riley, 78 Conn. App. 466, 471-72, 827 A.2d 743 (denial of motion to open default judgment not abuse of discretion where failure to assert defense was result of negligence), cert. denied, 266 Conn. 922, 835 A.2d 474 (2003).

This court does question the conduct of the plaintiffs counsel in prosecuting this case. One month after the first action was dismissed on the motion of the defendant’s counsel, counsel for the plaintiff brought this second action under § 52-592. Despite knowing the identities of the defendant’s counsel and his insurer from the first action, counsel for the plaintiff notified neither of the initiation of the second action until seven months after judgment. That lack of civility and forthrightness is most troubling.

The Rules of Professional Conduct “do not . . . exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The rules simply provide a framework for the ethical practice of law. . . .” Rules of Professional Conduct, Scope. The Rules of Professional Conduct bind attorneys to uphold the law and to act in accordance with high standards in both their personal and professional lives. See Rules of Professional Conduct, preamble. The mies demand that a lawyer “make reasonable efforts to expedite litigation consistent with the interests of the client.” Rules of Professional Conduct 3.2. The commentary further explains the mle, stating that “[dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest in the client.” Id., commentary. In this case, it appears that the attorney’s actions were in violation of rule 3.2. At the least, the delaying tactics in notifying the defendant through his insurer only after the four month period for opening judgments had expired violated the spirit of the rules and the spirit of Practice Book § 17-22. Such actions diminish the vitality of our bar and erode the confidence of the public by allowing justice and civility to take a backseat to gamesmanship and guile.

The delay in providing actual notice effectively prevented the defendant from prevailing on the motion to open the judgment before the merits of such a motion would be addressed. Such behavior lacks any substantial purpose other than to cause hardship to the defendant and presumably to preclude a trial on the merits. In light of the defendant’s own careless conduct, however, we cannot find an abuse of discretion in the court’s denial of the motion to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is no claim that service on the commissioner of the department of motor vehicles was improper.

       That request was made well after the four month period within which to open the judgment in accordance with General Statutes § 52-212 (a). See footnote 3.

       General Statutes § 52-212 (a)provides: “Anyjudgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from proseculing the action or making the defense.”

       Practice Book § 17-43 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”

       There is no Connecticut statute, rule or case law imposing an obligation on the plaintiffs counsel to inform defense counsel of the second action.

       Restatement (Third), The Law Governing Lawyers § 106 (2000), provides: “In representing a client in a matter before a tribunal, a lawyer may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or use methods of obtaining evidence that are prohibited by law.” Comment (d) to that section is instructive as to the application of § 106. Comment (d), regarding opposing counsel and other participants, provides in relevant part: “The professional ideal for the relationship between opposing advocates is that they bear toward each other a respectful and cooperative attitude marked by civility, consistent with their primary responsibilities to their clients. Similar respect and cooperativeness should characterize a lawyer’s interactions with all participants in a proceeding. . . .” Id., § 106, comment (d).

       Practice Book § 17-22 provides: “A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed within ten days of the entry of judgment by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk’s office. Proof of service shall be in accordance with Section 10-14.”

       Counsel for the plaintiff argued that her obligation as a zealous advocate justified that tactic.


author: LAVERY, C. J.

text:
    CATHERINE BLAKEMAN ET AL. v. PLANNING AND ZONING COMMISSION OF THE CITY OF SHELTON
    (AC 23825)
    Lavery, C. J., and Schaller and DiPentima, Js.

      Argued December 8, 2003 —
    officially released May 4, 2004

      Ian A. Cole, with whom was Dominick J. Thomas, Jr., for the appellants (plaintiffs).

      Thomas J. Welch, with whom, on the brief, was John H. Welch, Jr., for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiffs, Catherine Blakeman and Huntington Homes, Inc., appeal from the judgment of the trial court rendered in favor of the defendant, the planning and zoning commission of the city of Shelton. On appeal, the plaintiffs claim that the court improperly dismissed their zoning appeal because (1) their right to build twenty-four condominium units did not expire automatically at the conclusion of the five year time period set forth in the Shelton planned development district regulations and (2) the defendant improperly relied on the report of the fire chief of the city of Shelton, which was received more than three months after the close of the public hearing. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the plaintiffs’ appeal. At some point in 1988, the plaintiffs submitted a petition for the creation of a planned development district (district). Accompanying the petition was an application for certain development plans (plans). On December 6, 1988, the defendant approved the basic plans. The plans included the construction of twenty-four condominium units. The defendant approved the detailed plans on August 13, 1993, and the tract of land was rezoned as a district.

Section 34.11 of the Shelton zoning regulations requires that the development plans authorized by the defendant be completed within five years of the effective date of the creation of the district. The regulations also permit the defendant to authorize, on a request made by the applicant, a one year extension for good cause. More than five years had passed from the effective date of the district and, as a result, on August 1, 2000, the plaintiffs submitted a second application, entitled “a modification of detailed development plans of [the district].” The second application contained a revised plan that was similar to the 1993 plans, with only minor building design and architectural changes.

The defendant held public hearings for the second application on September 26 and October 10, 2000. On January 16, 2001, the defendant voted to approve the second application, subject to several conditions, including the reduction of the number of condominium units from twenty-four to eighteen.

The plaintiffs appealed to the Superior Court from the defendant’s decision. The plaintiffs first argued that the regulations illegally had created a zone that terminated at the conclusion of the five year period. The defendant responded by claiming that the regulations simply provided authorization to rezone the district. The court agreed with the defendant and stated that the regulations authorized the defendant, “in its discretion, to delete the [district] and establish some other zone in its place. Although the [defendant] . . . did not elect to proceed in such fashion, it would have been well within its authority to do so . . . .”

The plaintiffs next argued that the defendant had no discretion to modify the second application. The court, relying on three prior Superior Court cases, analogized the application to that of a special permit or a site plan and concluded that the defendant was acting in its administrative capacity. The court stated that the defendant had discretion to determine if the second application met all of the standards set forth in the regulations and that it would determine if the reasons set forth by the defendant were pertinent and reasonably supported by the record. The court agreed that the defendant had acted within its discretion in modifying the plaintiffs’ application, and dismissed the appeal and rendered judgment accordingly. The plaintiffs appealed to this court. Additional facts will be set forth as necessary.

I

The plaintiffs first claim that their right to build twenty-four condominium units did not expire automatically at the conclusion of the five year time period set forth in the regulations. Specifically, they argue that absent any affirmative action taken by the defendant after the five year period lapsed, the defendant had no option but to approve the application without any modification. We disagree and conclude that the plaintiffs’ plans became null and void at the expiration of the time frame contained in the regulations and that the defendant did not abuse its discretion or act in an illegal manner when it approved eighteen condominium units rather than twenty-four.

A

At the outset, it will be helpful to identify what the plaintiffs are not challenging on appeal. The plaintiffs do not contest the validity of the district regulations or the statutory authority authorizing the creation of a district. Additionally, the plaintiffs do not argue that the time frame for completion of the development is invalid on its face. Those questions are not before us, and we do not address them. “We do not give advisory opinions, nor do we sit as roving commissions assigned to pass judgment on the validity of legislative enactments. Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.” (Internal quotation marks omitted.) Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 490, 754 A.2d 128 (2000).

In their reply brief, the plaintiffs clearly and succinctly identified the essence of their claim: “[T]he plaintiffs’ argument assumes the validity of the regulation and is merely challenging the [defendant’s] erroneous interpretation of the provision, i.e., that if the project is not completed, the right to build it automatically lapses and the [defendant] has broad discretion to change the standards of the zone whenever the applicant seeks re-authorization to build the project.”

Having set out the parameters of the plaintiffs’ claim, we now establish the legal principles and standard of review that guide our resolution of the issue. “A zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation. . . . We seek to determine the meaning of the regulations by looking to the words of the regulation, to the history of its enactment, including the circumstances surrounding its enactment, to the public policy it was designed to implement and to its relationship to other regulations governing the same general subject matter.” (Emphasis added; internal quotation marks omitted.) Barbieri v. Planning & Zoning Commission, 80 Conn. App. 169, 174, 833 A.2d 939 (2003).

We must interpret the Shelton zoning regulations and, therefore, our review is plenary. See id. “We interpret and construe local ordinances according to the principles of statutory construction. . . . We are aware of the principles of statutory construction as set forth in State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc). The extratextual sources referenced in Courchesne to guide us in our reasoned search for the intent of a legislative body in enacting an ordinance are not present here. We therefore must focus on the language of the regulation.” (Citation omitted; emphasis added; internal quotation marks omitted.) Azzarito v. Planning & Zoning Commission, 79 Conn. App. 614, 622-23, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).

The language of § 34.11 provides in relevant part that the “development authorized by the [defendant] shall be completed within 5 (five) years from the effective date of the District, except that the [defendant] may extend the time for completion for one (1) year periods after public hearing for good cause demonstrated to the satisfaction of the [defendant]; otherwise the [defendant] shall be deemed authorized by the owner or owners of land within the District to amend these Regulations and the Zoning Map, deleting the [district] and establishing for such land the provisions of another zoning district.” (Emphasis added.)

“A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” (Internal quotation marks omitted.) Balf Co. v. Plan ning & Zoning Commission, 79 Conn. App. 626, 636, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003). Our interpretation of § 34.11 leads us to the conclusion that on the expiration of the applicable time frame, two events occur: first, the development plan becomes void, and, second, the defendant is authorized to rezone the district if it so chooses.

We note that such an interpretation is in accord with the model regulations drafted by one commentator. Those model regulations state: “The development schedule included in the approved plan shall be binding on the developer or on any subsequent owner. In case the owner . . . shall fail to begin construction of any non-residential buildings within one year of the time specified in the schedule, plan approval shall become null and void, and no development shall be permitted without an approved plan currently in effect.” (Emphasis added.) 8 P. Rohan, Zoning and Land Use Controls (1999 Ed.) § 53.13 [4] [f]. The commentary to that section provides in relevant part that “[a] fallback position is simply to provide that the approval lapses at some particular time, forcing a prospective developer either to seek a rezoning ... or to seek renewed approval of the plan or for some alternative plan.” Id.

We find further support for that interpretation in the regulation that authorizes the defendant to grant an extension for good cause. That grants the defendant the authority to extend the time allotted for completion of the approved plan on a showing of good cause. As a corollary, if such an extension is not granted, then the plan becomes null and void.

We are persuaded that at the expiration of the five year time period, or any extension approved by the defendant in accordance with the regulation, the plan submitted by the plaintiffs and approved in 1993 by the defendant became null and void. The district remained in place in name only, and nothing could be done on the land absent action from the defendant. The plaintiffs, by failing to complete the development within the applicable time frame, forfeited their rights. It was incumbent on the plaintiffs to petition the defendant again for permission to grant a new district, even if it was the same as the one that previously had been approved. As a result, we must consider whether the defendant properly acted within its discretion in reducing the number of condominium emits from twenty-four to eighteen when it approved the new district.

B

The plaintiffs argue that the defendant lacked the discretion to modify the second application that was filed in 2000. We have concluded in part I A that the first application was null and void and, therefore, that the plaintiffs were required to submit the second application. It is left for us to determine whether the defendant properly acted within its discretion in modifying the plaintiffs’ second application and approving only eighteen condominium units.

At the outset, we must address the scope of our review of the defendant’s actions. As we have noted, the court treated the second application as a special permit or site plan and concluded that the defendant was acting in its administrative capacity. We believe that this conclusion was improper and agree with the reasoning that in acting on the application filed by the plaintiffs, the defendant was acting as a legislative body.

We are aware that a split of authority exists in the Superior Court concerning the capacity in which a planning and zoning commission acts with respect to planned development districts. Some decisions have concluded that a planning and zoning commission acts in its administrative capacity. See Apple East, Inc. v. Planning & Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 63497 (August 13, 1999); People’s Bank v. Planning & Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. 050148 (February 7, 1996) (16 Conn. L. Rptr. 155); Mileski v. Planning & Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 030284 (July 24, 1990). Other decisions have determined that in such situations, a planning and zoning commission acts in its legislative capacity. See Campion v. Board of Aldermen, Superior Court, judicial district of New Haven, Docket No. 462505 (March 21, 2003) (34 Conn. L. Rptr. 353); Radulski v. Anchor Reef Club of Branford, Inc., Superior Court, judicial district of New Haven, Docket No. 459688 (November 1, 2002); Espla nade v. Planning & Zoning Commission, Superior Court, judicial district of New Haven, Docket No. 431123 (April 4, 2001); see also Amcon Corp. v. Eagan, 348 N.W.2d 66, 72 (Minn. 1984). The common thread in those decisions is that the approval of a district is a zone change, which is a legislative act by nature. See First Hartford Realty Corp. v. Plan & Zoning Commission, 165 Conn. 533, 540, 338 A.2d 490 (1973). Our Supreme Court has explained the importance of such a determination, as it implicates the scope of judicial review.

“In voting to deny the plaintiffs requested zone change of the subject property, the defendant exercised a legislative function ... as distinguished from an administrative one. . . . Acting in such a legislative capacity, the defendant has wide and liberal discretion . . . and is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. ... In contrast, when acting in an administrative capacity, a zoning commission’s more limited function is to determine whether the applicant’s proposed use is one which satisfies the standards set forth in the regulations and the statutes.” (Citations omitted; internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505-506 n.10, 636 A.2d 1342 (1994).

We are persuaded by the reasoning of the courts that have concluded that in acting on an application for the creation of a district, a planning and zoning commission acts in its legislative capacity. When the defendant approves a district, a new zone is created and a change to the zoning map is needed to accommodate the approval. Accordingly, we disagree with the court’s conclusion that the defendant was acting in its administrative capacity. Instead, approval of the plans submitted by the plaintiffs is inextricably intertwined with the process of petitioning for the creation of a district, which is, of course, a zone change. For example, attaining approval of the plans is merely one step in the overall process of obtaining a district. Thus, when the defendant acted on the plans that accompanied the petition, whether those that were approved in 1993 or those that were submitted in 2000, it was acting in its legislative capacity.

“We have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission .... [T]he commission, acting in a legislative capacity, [has] broad authority to adopt the amendments. ... In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached. . . . Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 542-44, 600 A.2d 757 (1991).

In the present case, the regulations provide that the defendant, in deciding whether to approve a district, shall consider, inter alia, the effects on traffic, an open space requirement, the character of the town and long-range improvements to the neighborhood. During the public hearings for the second application, several residents spoke in opposition to the district and raised concerns regarding the number of people, the density and the traffic that would result if twenty-four condominium units were built. At the hearing, Joseph Miga-lello, the plaintiffs’ consultant for the project, testified that there was no land dedicated to open space. Various residents questioned that lack of open space at the public hearing and the effect it would have on the view of the coastline. The defendant also relied on input from the fire chief as a basis for reducing the number of condominium emits.

The defendant was required to consider those factors to determine if the plaintiffs’ proposal would have an adverse impact on the neighborhood. Furthermore, it acted within its broad authority and discretion when it determined that the reduction of the number of condominium units would ameliorate the adverse impact of the development on the surrounding neighborhood. In sum, we conclude that it was not an arbitrary abuse of discretion or an act contrary to law for the defendant to reduce the number of condominium units from twenty-four to eighteen.

II

The plaintiffs also claim that the defendant improperly relied on the report from the fire chief that was received more than three months after the close of the public hearing. Specifically, the plaintiffs rely on § 34.6 of the zoning regulations, which provides in relevant part that the defendant “may request the following information for presentation prior to or at the public hearing ... [a] statement from the [fire chief] that the proposal meets fire safety standards and concerning the fire fighting feasibility of the proposed plan . . . .” The plaintiffs argue that the regulation prevented the defendant from using the fire chiefs report, which was not submitted at the public hearing. On the basis of the fire chiefs report, the defendant, in conditioning its approval on the reduction of the number of units, stated in relevant part: “Drawings to date fail to resolve the concerns of the Fire Chief concerning the proximity of the face of the rock cut to the rear wall of . . . both the upper and lower level buildings, obstructing circulation for proper fire safety. . . . The geometric design of the entry drive poses difficulty for the access/egress of large emergency vehicles. Also, the lack of a suitable turnaround at the end of the [driveway] will make it difficult if not impossible to accommodate the turning of large vehicles, including moving vans and emergency apparatus.”

At the outset, we note that “[w]hen a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. . . . The zoning board’s action must be sustained if even one of the stated reasons is sufficient to support it.” (Internal quotation marks omitted.) Dodson Boatyard, LLC v. Planning & Zoning Commission, 77 Conn. App. 334, 338, 823 A.2d 371, cert. denied, 265 Conn. 908, 831 A.2d 248 (2003). In the present case, the reduction of the number of condominium units was based on more than the fire chiefs report; there was ample evidence of traffic and density concerns, as well as the lack of open space. Thus, even if we were to find that the use of the report was improper, we would still affirm the dismissal of the appeal. Nevertheless, we conclude that the use of the fire chiefs report was proper under the facts and circumstances of this case.

We agree with the court that our decision in Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 602 A.2d 613 (1992), is dispositive of the issue before us. In Norooz, we stated that “[t]he proper inquiry for a reviewing court, when confronted with an administrative agency’s reliance on nonrecord information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented, at the public hearing in the matter.” (Emphasis added.) Id., 573-74; see also R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 47.4, pp. 444-49.

In the present case, the fire chiefs report was completed on the basis of the materials presented at the public hearings. As the court stated in relevant part: “The fire chiefs [report] states that his comments are based on a review of the site plans for the proposed development. ... A review of the record indicates that the site plans were not only part of the record, but were discussed at length at the September 26, 2000 hearing.” Furthermore, sufficient evidence existed in the record to support the defendant’s conclusion that a reduction in the number of condominium units, thereby reducing the density, would yield sufficient space to address the fire chiefs concerns. As a result, we conclude that it was proper for the court to conclude that the fire chiefs report was not used in an illegal manner by the defendant and that the report supported the defendant’s findings and subsequent reduction of the number of condominium units.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found that Blakeman was the owner of the subject property and that Huntington Homes, Inc., was the applicant and developer of the planned development district at issue. Additionally, the court found that both plaintiffs had produced evidence of aggrievement and timely service on the defendant. See General Statutes § 8-8.

       Section 34.1 of the Shelton zoning regulations provides that such districts may be established by the defendant within a special development area delineated on the zoning map. The defendant may establish districts when it finds it necessary and appropriate for the following purposes:
      “To permit tracts of land to be developed, redeveloped and improved as [a] harmonious design unit of stable character, consistent with the character of the Town and the long range improvement of the neighborhood and consistent with any comprehensive plan of development adopted by the [defendant] for the Special Development Area, when such tracts are of sufficient size to accommodate such design units and when another zoning district could not be appropriately established to accomplish such purposes. . . .
      “To permit the use of land, buildings and other structures for purposes that would be beneficial to and consistent with the character of the Town and the long range improvement of the neighborhood and consistent with any comprehensive plan of development adopted by the [defendant] for the Special Development Area, when such uses are located on tracts of sufficient size to accommodate harmonious design of buildings, structures and facilities in connection with the use and when another zoning district could not be appropriately established to accomplish such purposes.”

       Obtaining approval for a district consists of a three step process. “The first step [is] location of the property within a [special development area]. The second step [is] an informal application with a Basic Development Plan. The third and final step is a formal or final application for a [district] with Detailed Development Plans Mileski v. Planning & Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 030284 (July 24, 1990).

       On the basis of the record, it does not appear that an extension for good cause was granted, despite the suggestion at oral argument that the plaintiffs had sought and obtained such an extension. Whether such an extension was ever sought or obtained is not a factually significant issue; it is undisputed that the development was not completed within the applicable five year time frame set forth in the regulations or within the time allotted by any extension for good cause granted by the defendant.

       See part I B of this opinion.

       The court granted the plaintiffs’ motion to reargue, then affirmed the memorandum of decision.

       We agree with the description of such a district as “a creature not normally spotted in Connecticut’s jurisprudential forests.” (Internal quotation marks omitted.) Mileski v. Planning & Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 030284 (July 24, 1990).
      The Supreme Court of Minnesota, acknowledging that there were few cases nationwide that addressed planned development districts, has stated: “Planned development zoning is a modem non-Eudidean concept which seeks to meet current needs and also permit adjustment to changing demands by allowing a use which does not correspond to those permitted in any single type of district. . . . Planned development usually involves a single use on a relatively small tract. The biggest problem is the possibility of ‘spot-zoning.’ ” (Citations omitted.) Amcon Corp. v. Eagan, 348 N.W.2d 66, 72-73 (Minn. 1984); see also 2 K. Young, Anderson’s American Law of Zoning (4th Ed. 1996) §§ 11.09 and 11.10, pp. 456-60.

       Even if we were to conclude that the approval of the first application was not void, we would be left with a waiver of rights by the plaintiffs. By filing their second application, the plaintiffs waived any benefits obtained from the approval of the first application and submitted themselves to the process of obtaining either approval, approval with conditions or a denial of the second application by the defendant. See Gagnon v. Planning Commission, 222 Conn. 294, 298-99, 608 A.2d 1181 (1992).
      Additionally, in their brief and again at oral argument, the plaintiffs claimed that members of the defendant commission had instructed them to submit another application. Upon further questioning, however, the plaintiffs’ counsel conceded that there was nothing in the record showing that the plaintiffs were directed to submit the second application by a member of the defendant commission. We have searched the record extensively and have found no evidence of any possible instruction. In the defendant’s trial brief, the following statement appears: “The procedure suggested by the staff of the [defendant commission] and the procedure adopted by the [plaintiffs] was to file an application to modify the initial Detailed Development Plans.” That isolated statement, indicating that such a procedure was “suggested,” is not the equivalent of being directed to follow a certain course of conduct.
      This court is limited in its review to matters contained within the record. “In deciding a case, this court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings, or to documents or exhibits which are not part of the record.” State v. Evans, 9 Conn. App. 349, 354, 519 A.2d 73 (1986); see also State v. Gilnite, 202 Conn. 369, 378, 521 A.2d 547 (1987). Thus, the plaintiffs’ claim is unavailing, and we are left with the fact that the plaintiffs submitted the second application to the defendant.

       See footnote 3.

       “It is axiomatic that [w]e may affirm a proper result of the trial court for a different reason.” (Internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., 79 Conn. App. 444, 456, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).

       See Shelton Zoning Regs., §§ 34.1 and 34.8.

       See part II of this opinion.

       In his report, John Milo, the Shelton fire chief, stated: “I have reviewed the site plan for the proposed [district] and offer the following comments: (1) Entrance island to be modified to accommodate fire apparatus. (2) Provide turnarounds for emergency apparatus at ends of access driveways. (3) Upper turnaround island to be modified to accommodate emergency apparatus. (4) Developer shall provide documentation to confirm driveways can support aerial apparatus while operating. (5) Building locations to be modified to provide access to rear of structures for ground laddering.”