author: FOTI, J

text:
    STATE OF CONNECTICUT v. LIAM MCKIERNAN
    (AC 22223)
    Foti, Dranginis and Bishop, Js.

      Argued May 8
    officially released July 22, 2003

      Richard W. Callahan, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, James R. Turco tie, supervisory assistant state’s attorney, and Prolog K. Das, former special deputy assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J

The defendant, Liam McKieman, appeals from the judgment of conviction, rendered after a jury trial, of disorderly conduct in violation of General Statutes § 53a-182 (a) (l). On appeal, the defendant claims that (1) the trial court improperly instructed the jury, (2) his conviction is not supported by sufficient evidence and (3) prosecutorial misconduct deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the evening hours of October 30,1999, the defendant and the victim, his wife, along with several of their friends, attended a Halloween party at a restaurant in New Haven. Alcoholic beverages were served at the gathering and, by the time that the restaurant closed in the early morning hours of October 31, 1999, the defendant was intoxicated. At around 1:45 a.m., the victim drove the defendant to a friend’s home in nearby East Haven, where they continued to socialize with friends.

Shortly thereafter, the defendant and the victim began to argue with one another. The defendant expressed his desire to leave the party, and the victim, believing that the defendant was too intoxicated to drive, refused to give him the keys to her automobile. The defendant struck the victim, causing her to fall to the floor. The victim thereafter left her friends’ home in East Haven and, assuming that the defendant would get a ride home from someone else, drove alone to her home in North Haven.

The victim was in her home when, at around 2:30 a.m., she heard the sound of breaking glass. The defendant had broken a small pane of glass in a side window to gain entry to the home. The victim started to run to her car in the garage, but the defendant, who had entered the home, stopped her. The defendant grabbed her by her hair and dragged her back into the house. In the ensuing struggle, the defendant struck the victim several times and, continually pulling her by her hair, pulled her to the second floor of the house.

The victim ultimately fled back downstairs where she called the police for assistance. Two North Haven police officers arrived at the home shortly thereafter. The officers found the victim, visibly upset, in the kitchen, where she gave the police a written statement concerning those events. The defendant was subsequently arrested, brought to trial and convicted of disorderly conduct. This appeal followed. Additional facts will be set forth as they become necessary in the context of the claims raised by the defendant on appeal.

I

The defendant first claims that the court improperly instructed the jury on the conduct proscribed by § 53a-182 (a) (1), the use of prior inconsistent oral statements and the standard of proof it should employ in evaluating the victim’s credibility. We disagree.

“Our analysis begins with a well established standard of review. When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).

A

In regard to the elements of disorderly conduct, the court instructed the jury in relevant part as follows: “In this case, in order to convict the defendant of disorderly conduct, the state must establish that he, with the ‘intent to cause inconvenience, annoyance or alarm or recklessly creating a risk thereof,’ engaged in ‘fighting or in violent, tumultuous or threatening behavior.’ The words inconvenience, annoyance or alarm refer to what a reasonable person operating under contemporary community standards would consider to be a disturbance to or impediment of a lawful activity. A deep feeling of vexation or provocation or a feeling of anxiety prompted by threatened danger or harm.”

The defendant in his principal brief argues that the court should have instructed the jury that to find him guilty under § 53a-182 (a) (1), “the defendant had to engage in a physical fight or in physically violent, threatening or tumultuous behavior . . . .” The defendant claims that by omitting from its instruction the phrase “of a physical nature,” a phrase that he, in his requested jury instructions, had asked the court to use in its definition of the conduct proscribed by the statute, the court misled the jury. The defendant claims that by “not limiting the jury to physical conduct or conduct that had a degree of physicality to it, [the court’s instruction allowed] the jury as a collective body and/or each individual juror ... to apply its own subjective definition of ‘tumultuous’ and ‘threatening’ to the case such that it is reasonably possible that the defendant was convicted of conduct not proscribed by § 53a-182 (a) (1).” The defendant bases his claim on State v. Indrisano, 228 Conn. 795, 812, 640 A.2d 986 (1994), in which our Supreme Court stated that “subdivision (1) of § 53a-182 (a) prohibits physical fighting, and physically violent, threatening or tumultuous behavior.”

The due process vagueness doctrine ordinarily applies to the substantive elements of the crime charged; State v. Cobb, 251 Conn. 285, 439, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); the statutory language, taken together with its judicial gloss, must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. State v. Indrisano, supra, 228 Conn. 802. The substantive elements must be defined with reasonable clarity not only so that a defendant may guide his conduct accordingly, but also for police, judges and juries “so that they may not apply the law arbitrarily.” State v. Cobb, supra, 439.

We do not agree that Indrisano stands for the proposition that the phrase “of a physical nature” must be included to modify the conduct proscribed by § 53a-182 (a) (1). The court’s instruction comported with the judicial gloss prescribed in Indrisano. Indrisano avoided first amendment difficulties that would criminalize mere verbal speech by clarifying that a conviction under § 53a-182 must be based on a defendant’s conduct rather than on a defendant’s statements.

Further, there is no danger, in the.present case, that the jury’s verdict was not based solely on evidence of the defendant’s physical conduct. The jury was not made aware of the content of the defendant’s speech, but rather was presented with evidence only of his conduct, making it more than unlikely that his first amendment rights were “criminalized” by the court’s instruction.

B

The defendant also alleges that the court improperly instructed the jury on the use of the victim’s prior inconsistent oral statements. He argues that the court erred in not charging as he requested, specifically, in not limiting the jury’s use of prior oral statements solely for purposes of judging credibility. Because of such claimed impropriety, the defendant posits that “the jury was misled by the trial court’s instruction and considered the wife’s prior inconsistent oral statements as substantive evidence of the essential elements of the crimes charged.”

It appears that the defendant does not claim that the court improperly admitted into evidence, for substantive purposes, any prior written inconsistent statements. See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 474 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Our review of the record discloses that references made by the defendant on appeal relate either to items that were never introduced as evidence and therefore never presented to the jury, or, to a document, the family violence victim advocate’s case report, which was admitted as a full exhibit for substantive pmposes, without an apparent objection, as a business record pursuant to the business records exception to the hearsay rule. The defendant’s brief cites no specific prior inconsistent oral statement by the victim for which the court should have given the requested limiting instruction.

C

The defendant last claims that the court improperly instructed the jury in regard to the standard of proof, insofar as it related to evaluating the victim’s credibility. The defendant argues that because the victim’s truthfulness was essential to a finding of guilt, the court should have instructed the jury that it had to find that she was truthful beyond a reasonable doubt to find that the state had proven the elements of the crime.

The defendant requested the court instruct as follows: “In some regards deciding when someone is being truthful and when someone is not is the greatest challenge for a jury. In this case it is no different. Indeed, in order to find the factual elements of the crimes charged beyond a reasonable doubt, because there is no evidence of the factual elements of the crimes apart from [the victim’s] written statement of October 31, 1999, individually, each juror must decide whether you can believe beyond a reasonable doubt [that the victim] was being truthful in her statement on the evening of October 31, 1999.”

The court delivered the following instructions to the jury: “The evidence from which you are to decide what the facts are consist of, first, the sworn testimony of witnesses, both on direct and cross-examination, regardless of who called a particular witness. And second, the exhibits that have been received into evidence. ... In deciding what the facts are, you must consider all the evidence. In doing this you must decide which testimony to believe and which testimony not to believe. You may believe all, none or part of any witness’ testimony. . . .

“You will recall that evidence of statements of [the victim] were admitted. You should consider the facts contained in those statements together with all of the evidence and you should give those facts the weight they appear to be entitled to in view of all of the circumstances under which they were made. The believability of the facts contained within her statements are subject to the same credibility test as any other testimony given on the [witness] stand. . . .

“The burden to prove the defendant guilty of the crimes with which he is charged is upon the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged. Whether the burden of proof resting on the state is sustained depends not on the number of witnesses, nor on the quantity of the testimony, but on the nature and quality of the testimony. Please bear in mind that one witness’ testimony is sufficient to convict if it establishes all of the elements of the crime beyond a reasonable doubt. . . .

“If you find that the state has proven, beyond a reasonable doubt, each of the elements of any of the crimes . . . then you shall find the defendant guilty of each crime as to which you have made such a finding. On the other hand, if you find that the state has failed to prove, beyond a reasonable doubt, any one of the elements of those crimes, then you shall find the defendant not guilty of each such crime.”

Our review of the charge as a whole leads us to conclude that the instructions were correct in law, adapted to the issues, and sufficient to guide the jury as to how it should assess the victim’s credibility and determine whether the state had proven its case beyond a reasonable doubt.

II

The defendant claims that the evidence presented at trial was insufficient to sustain his conviction of disorderly conduct. We disagree.

“[W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have con-eluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. . . . We must be mindful, however, that [although the jury may draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Each essential element of the crime must be proved beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Caprilozzi, 45 Conn. App. 455, 463-64, 696 A.2d 380, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997).

The record reflects that the court admitted into evidence the victim’s written statement to the police. The statement was signed by the victim and dated October 31, 1999, at 2:56 a.m. The victim represented in that statement that the defendant had struck and pushed her down several times while she and the defendant were at their friends’ East Haven home. She further represented that when he arrived at her home later that night, the defendant struck her several times, pulled her hair and dragged her up the stairs of her home by her hair. The record further reflects that the court admitted the statement into evidence under State v. Whelan, supra, 200 Conn. 753, which permits certain prior inconsistent statements, which are in writing, to be admitted into evidence for substantive purposes. At trial, the victim did not testify consistently with the version of events that she provided to police in her statement. The victim testified, contrary to that version of events, that she falsely had accused her husband of physical violence toward her as an act of revenge. The court instructed the jury that it could consider the written statement for substantive purposes. The defendant did not object to the statement’s admission into evidence and does not now claim that the statement does not satisfy Whelan’s criteria.

Under Whelan, a nonparty witness’ prior inconsistent statement may be used for substantive purposes only if the following conditions exist: (1) the statement is in writing; (2) the statement is signed by the declarant; (3) the declarant possesses personal knowledge of the facts contained therein; and (4) the declarant testifies at trial and is subject to cross-examination. Id.; Conn. Code Evid. § 8-5 (1). Despite those requirements, there are rare cases in which a statement, which otherwise satisfies Whelan’s criteria, should be excluded from evidence because it was made under circumstances that adversely affect its reliability. In such cases, it is proper for the court to act as a gatekeeper and to exclude from evidence such statements because their admission would “subvert the fairness of the fact-finding process.” (Internal quotation marks omitted.) State v. Watkins, 72 Conn. App. 804, 813, 806 A.2d 1072 (2002), cert. denied, 263 Conn. 923, 823 A.2d 1216 (2003).

The defendant posits that such a situation exists in the present case and that “this court should find that the [victim’s] Whelan statement by itself, when reviewed upon the totality of the evidence, was unreliable and thus insufficient to sustain a conviction.” The defendant curiously argues on appeal not that the court improperly admitted the statement under Whelan, but that the jury could not have credited the statement in reaching its verdict because it was not reliable. His claim is that the statement is not sufficient to sustain his conviction and, in that regard, is one sounding in sufficiency of the evidence.

A prior inconsistent statement identifying the defendant as the perpetrator and admitted as substantive evidence is sufficient to establish guilt beyond a reasonable doubt where the statement possesses ample indicia of reliability. See State v. Newsome, 238 Conn. 588, 617-20, 682 A.2d 972 (1996). Contrary to the defendant’s claim on appeal, there is nothing to indicate that the statement was not that of the victim. This was not the rare case in which, despite having satisfied Whelan’s requirements, circumstances warranted the exclusion of the prior statement from evidence. It was in writing, sworn to and given shortly after the event happened. The jury, as the finder of fact, was able to assess the factual issues, which were raised by the defendant at trial, that called into doubt the statement’s merit. In meeting the Whelan criteria, the statement necessarily met the required indicia of reliability. If the jury, having heard evidence concerning the victim’s prior written statement and having heard her trial testimony concerning the events underlying this appeal, chose to credit her written statement, such a finding alone would be sufficient to support the defendant’s conviction. See State v. Watkins, supra, 72 Conn. App. 815. The jury is the finder of facts, and credibility issues are strictly within its province.

Our review of the record before us indicates that the evidence supports the jury’s verdict and was sufficient to sustain the defendant’s conviction of disorderly conduct.

III

The defendant’s final claim is that he was denied a fair trial because the prosecutor “engaged in an egregious pattern of misconduct, recklessly disregarding the defendant’s constitutional due process rights and his right to confront witnesses against him.” In support of his claim, the defendant cites several instances of alleged misconduct.

The defendant concedes that he did not raise his claim at trial. He seeks review of his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the claim because the record is adequate to do so, and an allegation of prosecutorial misconduct in violation of the defendant’s fundamental right to a fair trial is of constitutional magnitude. State v. Whipper, 258 Conn. 229, 272, 780 A.2d 53 (2001). We conclude, however, that the defendant’s claim fails under Golding’s third prong because the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

Claims of prosecutorial misconduct trigger a two-pronged inquiry. First, we must examine the allegedly improper conduct to determine if it was, in fact, improper and rose to the level of prosecutorial misconduct. If it did, we will analyze the effect of the misconduct to determine if it deprived the defendant of a fair trial. See State v. L’Minggio, 71 Conn. App. 656, 677-78, 803 A.2d 408, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). Generally, “[i]n evaluating a prosecutorial misconduct claim, we review whether the record discloses a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” State v. Wickes, 72 Conn. App. 380, 385, 805 A.2d 142, cert. denied, 262 Conn. 914, 811 A.2d 1294 (2002).

Several of the defendant’s claims concern allegedly improper argument by the prosecutor. “In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. ... In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 267, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). Mindful of those principles, we now turn to each of the defendant’s specific claims of misconduct.

A

The defendant alleges that the prosecutor, knowing that it would cause the discharge of the public defender representing the defendant, represented to the court that the defendant was not exposed to jail time as a result of the charges. The prosecutor made the representation prior to the time of trial. Our review of the record reveals that at the time the prosecutor made that representation, it was correct. That being the case, the claim of misconduct is unfounded. Further, the record clearly discloses that it was the office of the public defender that discovered the defendant to be ineligible for its services and filed a motion to withdraw from its representation of him. The court granted the motion and thereafter denied the defendant’s reapplication. It was at that time that the court observed and the state represented that the defendant was not facing incarceration. If the defendant wants to claim that the prosecutor, knowing at the time of his representation that a part B information was going to be filed later, “misrepresented” or was unethical in the representation, there exists another forum for that complaint.

B

The defendant further claims that the state’s filing of the part B information constituted “capricious charging practices.” The defendant can cite no authority in support of his claim. The record reflects that the part B information was filed prior to the commencement of the trial, a practice permitted by Practice Book § 36-17. We conclude that the filing therefore was not improper.

C

The defendant also claims that the prosecutor should have furnished notice of the state’s application to grant immunity from prosecution to the victim sooner than it did, which was on March 8, 2001, after the trial had begun. He argues that had he known sooner of the application, he likely would have known that the part B information exposed him to incarceration and would have applied for the services of a public defender. Despite making that claim, the defendant does not dispute the fact that counsel represented him at all times during the trial and immediately prior to jury selection. The defendant also does not dispute that the state is under no obligation to furnish notice to him of its application in the first place. See General Statutes § 54-47a (requiring state to make application “with notice to the witness, after the witness has claimed his privilege against self-incrimination’ ’). It was only after the witness had invoked her privilege against self-incrimination that the state submitted its application and notified both the witness and the defendant of such fact. The state did so despite the fact that the defendant was not entitled to notice as a matter of right. Accordingly, the prosecutor’s conduct in that regard was not improper.

D

The defendant next claims that the state, during its remarks to panels of prospective jurors, improperly informed the jurors that the chiefs of police for different towns might either be called as witnesses or that the jury might hear their names as part of the evidence. The defendant claims that those witnesses “clearly had no evidence to present in the case” and that those remarks deprived him of a fair trial. The record reflects that two chiefs of police, from the towns of Norwich and Ansonia, were included in the state’s potential witness list. Despite the fact that the state did not later call those witnesses to testify at trial, the defendant can cite no authority in support of his obscure claim that it is improper to name potential witnesses who are not later called to testify. Furthermore, the defendant cannot demonstrate that the state’s conduct, which was not improper, caused him any degree of prejudice.

E

The defendant also points out that with regard to one item of evidence, the prosecutor failed to comply with the rules of discovery. The record reflects that the state did not present to the defendant a copy of a certain document, a data sheet concerning the incident generated by the family relations office, within forty-five days of the defendant’s written request for discoveiy. The state provided the document to the defendant after it should have done so, and the defendant sought an appropriate remedy from the court for what he characterized as an unintentional violation on the state’s part. The court determined that the late disclosure violated Practice Book § 40-5.

The court observed that it would remedy the discoveiy violation either by disallowing the document as evidence or by granting the defendant additional time to prepare for the introduction of the document. The court chose the latter alternative and allowed defense counsel additional time to conduct research and to interview the document’s author. The defendant’s counsel, however, later withdrew the motion that he had filed pursuant to Practice Book § 40-5. The defendant’s counsel represented that he had interviewed the document’s author and conceded that the defense was not prejudiced by the delay in receiving the report. The defendant is wholly unable to demonstrate that the state’s conduct caused him any prejudice.

F

The defendant finally claims that the prosecutor committed misconduct by way of certain statements that he made to the jury during trial.

First, the defendant points out that during direct examination of the victim, the prosecutor inquired as to whether she had asked the state to “drop” the charges against the defendant. After the victim replied that the state had in fact declined her request, the prosecutor asked her: “And we told you that’s because we believed [that the incident] occurred, isn’t that correct?” The victim replied affirmatively. The defendant claims on appeal that this inquiry improperly conveyed to the jury “that the state believed the defendant assaulted his wife . . . .”

Second, the defendant claims that during the state’s closing argument, the prosecutor misrepresented the evidence. The record discloses that the prosecutor commented that the victim had told a family relations social worker that during the incident, “she ran to get into her car,” “was grabbed by the hair” and “was dragged upstairs” by the defendant. Further, the defendant claims that during closing argument, the prosecutor stated that the victim had told the social worker, concerning the defendant: “You know, he beat me before, he beat me this time . . . .” The defendant argues that the social worker testified at trial that she had no recollection of her conversation with the victim and that her handwritten notes of her interview of the victim did not support the prosecutor’s summary of what the victim had told the social worker.

Our review of the record reveals that the first challenged comment came in the form of a question to the victim, which included an explanation of why the state chose not to comply with the victim’s request to drop the charges against the defendant. We do not view it as improper. As to the comments made by the prosecutor during closing argument concerning what the victim had recounted to the social worker, we conclude that although they are arguably a loose interpretation of the version of events, the facts alluded to therein were not outside of the evidence presented.

It is well settled that a prosecutor must not comment on evidence that is not part of the record, nor is he to comment unfairly on the evidence adduced at trial so as to mislead the jury. Here, the facts alluded to by the prosecutor were set forth in the victim’s statement to the police, which was before the jury. We certainly do not condone paraphrasing or embellishing on a witness’ testimony, but we also recognize that the parties are allowed a certain degree of latitude to express their views of what evidence was presented at trial. To the extent that those isolated misstatements, which were not severe, may have misled the jury, we nonetheless conclude that they certainly did not deprive the defendant of. a fair trial. The jury was well aware that the prosecutor’s comments were not themselves evidence. The court properly instructed the jury that its recollection and interpretation of the evidence was controlling, and the prosecutor properly referred to that fact, as well, in his argument to the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior . . . .”
      The jury acquitted the defendant of two additional charges: reckless endangerment in the second degree in violation of General Statutes § 53a-64 (a) and unlawful restraint in the second degree in violation of General Statutes § 53a-96. Following his conviction, the defendant pleaded guilty to a part B information charging him with having committed an offense while on release in violation of General Statutes § 53a-40b.

       The defendant’s requested charge, which preserved the issue for our review, stated in relevant part: “For you to find the defendant guilty of [disorderly conduct], the state must first prove beyond a reasonable doubt each of the following facts: (1) That the defendant acted with intent to cause inconvenience, annoyance or alarm; or (2) That the defendant recklessly created the risk of causing inconvenience, or annoyance or alarm; and, (3) That the defendant engaged in fighting or in violent, tumultuous or threatening behavior of a physical nature.
      “The words ‘inconvenience, annoyance or alarm’ refer to what a reasonable person operating under contemporary community standards would consider to be a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.
      “If the state has proved to you beyond a reasonable doubt that the defendant acted with the necessary intent or recklessly, then the state must prove beyond a reasonable doubt the next element of the crime charged, that the defendant engaged in fighting or in violent, tumultuous or threatening behavior of a physical nature.”

       We find no merit in the defendant’s claim that because the jury acquitted him of the charge of reckless endangerment in the second degree, it could not rationally have convicted him of disorderly conduct on the basis of his physical conduct, that is, one or more of the four physical acts of violence described by the victim in her statement to the police.

       In any event, we note that having failed to object to the statement’s admissibility at trial, the defendant failed to preserve such an evidentiary claim.

       The defendant argues in his principal brief that the statement was unreliable because (1) no evidence corroborated the victim’s statement, (2) the statement “itself further supports” the victim’s trial testimony that the statement was fabricated, (3) the victim testified that she was intoxicated when she gave the statement to police and (4) the victim’s explanation of why she falsely accused the defendant is credible. All of those factors are fodder for the jury’s consideration as to whether it should rely on the statement, but they certainly do not raise issues that call into doubt whether the statement, having met Whelan’s criteria, was admissible for substantive purposes.

       The defendant also argues that the jury, having acquitted him of the crime of reckless endangerment in the second degree, must have disbelieved the victim’s original statement. It follows, the defendant argues, that having so found, the jury could not also have found that he acted in the manner described in the statement for purposes of the disorderly conduct count. We find no merit in that argument. It suffices to observe that those two crimes are proved by different elements; the jury’s verdict is not legally inconsistent. The fact that the jury acquitted the defendant of reckless endangerment in the second degree has no bearing on the issue of whether sufficient evidence supported his conviction of disorderly conduct.

       The defendant was not exposed to incarceration until the state filed the part B information, charging him with having committed an offense while on release.

       Although we do not find the state’s conduct to have been in any way improper, we note that the court nevertheless instructed the jury that the state had named the listed potential witnesses merely to determine whether any prospective jurors were familiar with such witnesses. The court also instructed the jury: “You are not to draw any unfavorable inference for or against either party from the fact that any potential witness did not actually testify.”

       Practice Book § 40-5 provides: “If a party fails to comply with the disclosure as required under these rules, the opposing party may move the judicial authority for an appropriate order. The judicial authority hearing such a motion may enter such orders and time limitations as it deems appropriate, including, without limitation, one or more of the following:
      “(1) Requiring the noncomplying party to comply;
      “(2) Granting the moving party additional time or a continuance;
      “(3) Relieving the moving party from making a disclosure required by these rules;
      “(4) Prohibiting the noncomplying parly from introducing specified evidence;
      “(5) Declaring a mistrial;
      “(6) Dismissing the charges;
      “(7) Imposing appropriate sanctions on the counsel or party, or both, responsible for the noncompliance; or
      “(8) Entering such other order as it deems proper.”

       Further, the defendant does not claim on appeal that the court in any way abused its discretion concerning the violation of Practice Book § 40-5. “Practice Book § 40-5 gives broad discretion to the trial judge to fashion an appropriate remedy for noncompliance with discovery. . . . Generally, [tjhe primary purpose of a sanction for violation of a discovery order is to ensure that the defendant’s rights are protected, not to exact punishment on the state for its allegedly improper conduct. As we have indicated, the formulation of an appropriate sanction is a matter within the sound discretion of the trial court. ... In determining what sanction is appropriate for failure to comply with court ordered discovery, the trial court should consider the reason why disclosure was not made, the extent of prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances. . . . Suppression of relevant, material and otherwise admissible evidence is a severe sanction which should not be invoked lightly.” (Citations omitted; internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    JOHN AHERN ET AL. v. FUSS AND O’NEILL, INC., ET AL.
    (AC 22850)
    Laveiy, C. J., and Flynn and Peters, Js.

      Argued May 8
    officially released July 22, 2003

      Steven J. Errante, with whom, on the brief, was Hugh F. Keefe, for the appellant (plaintiff Somers Mill Associates, Inc.).

      Deborah Monteith Neubert, with whom, on the brief, was Gretchen L. Grosick, for the appellee (named defendant).

      David M. Sheridan, with whom, on the brief, were Denise Martino Phelan and Joseph M. Busher, for the appellee (defendant town of Somers).

      Michael J. Byrne, for the appellee (defendant Lenard Engineering, Inc.).
   Opinion

PETERS, J.

Seven years after the purchase of a building on the Scantic River, in Somers, for possible conversion into a residential development, the Federal Emergency Management Administration revised a flood insurance map so that the property became unsuitable for the proposed development. The map revision resulted from the belated discovery of a discrepancy in previously existing documents describing the flood plain. The owner sought to recoup its losses from two engineering firms that, while hired to evaluate the technical feasibility of the proposed development, did not question the reliability of the flood map that existed when they performed their services for the owner. The principal issue in this case is whether, in its pursuit of a claim of professional malpractice, the owner adequately disclosed the proposed testimony of an expert witness about the standard of care applicable to the professional services of the engineering firms. The trial court rendered judgments in favor of the engineering firms and, in part, in favor of an additional defendant, the town of Somers (town), against which the owner had brought other claims of misconduct. The owner has appealed. We affirm the judgments rendered by the trial court.

On June 11,1996, the plaintiff Somers Mill Associates, Inc., filed a complaint against the defendants Fuss & O’Neill, Inc. (Fuss & O’Neill), and Lenard Engineering, Inc. (Lenard), for engineering malpractice. In the same complaint it charged the town with having created a nuisance and with having violated the plaintiffs constitutiona! rights under 42 U.S.C. § 1983. Each of the defendants, after denying liability and filing special defenses, moved for summary judgment. The trial court granted each motion.

The plaintiffs appeal challenges the validity of the judgments rendered by the trial court. The appeal is governed by a well established standard of appellate review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Tarnowsky v. Socci, 75 Conn. App. 560, 564, 816 A.2d 728, cert. granted on other grounds, 263 Conn. 921, 822 A.2d 245 (2003); see also W & D Acquisition, LLC v. First Union National Bank, 262 Conn. 704, 709, 817 A.2d 91 (2003).

I

CLAIMS AGAINST THE ENGINEERING FIRMS

The plaintiff claims that Fuss & O’Neill and Lenard (the engineering defendants) each engaged in professional malpractice in their feasibility studies to determine whether the plaintiffs property, known as the Somers Mill, could be converted into a residential development. Specifically, the plaintiff alleges that each of the defendant engineering firms negligently represented that no floor of the building above the basement was within the 100 year flood plain. According to the plaintiff, these representations were negligent because they failed to disclose a possible error in the federal flood map that was then the official document describing the flood plain.

The engineering firms denied having made the representations. They also challenged the assertion that they had a duty to investigate the reliability of the flood map.

Many of the relevant facts are undisputed. In 1988, the plaintiff purchased the Somers Mill, a commercial building on Maple Street in Somers. Because the Somers Mill straddles the Scantic River, the plaintiff knew that the property was at risk of flooding.

In the spring of 1989, the plaintiff hired Fuss & O’Neill to perform engineering services to determine the feasibility of renovating the Somers Mill for residential purposes. Fuss & O’Neill performed some preliminary survey work for the plaintiff, investigated wetlands-related issues and gathered materials for later design work. Some six months later, the plaintiff terminated its relationship with Fuss & O’Neill because of dissatisfaction with the performance of Fuss & O’Neill on an unrelated project. At that time, Fflss & O’Neill had not yet completed a boundary or topographic survey, had not issued any documents to the plaintiff and had not generated any plans for the plaintiffs review. Fuss & O’Neill was never paid for the work it had done.

The plaintiff alleges, however, that, in June, 1989, one of Fuss & O’Neill’s employees represented to the plaintiff that the first floor of the Somers Mill building was located at an elevation of approximately 182 feet, that the 100 year flood level at the face of Somers Mill was approximately 180 feet, and that the first floor was therefore above the 100 year flood elevation and usable for residential purposes. The plaintiff alleges that Fuss & O’Neill’s representation was actionable as a negligent misrepresentation.

In early January, 1990, the plaintiff hired Lenard to prepare a complete site analysis, and to review and to do a feasibility study of the floodway to determine the 100 year flood level as it would affect the Somers Mill’s floors. Lenard’s analysis showed that the first floor of the Somers Mill was outside or above the 100 year flood level. In light of Lenard’s positive report, the plaintiff decided to pursue residential development of the Somers Mill. The plaintiff alleges that Lenard’s analysis was also actionable as a negligent misrepresentation.

The plaintiff then hired Doane Engineering (Doane), which prepared a site plan for the development of 102 residential units in the Somers Mill. On March 20,1991, Doane submitted this site plan to the town planning commission with an application for a special use permit. As did its predecessors, Doane relied on the then existing flood map to support its representation that the Somers Mill could be used for residential purposes.

On July 11,1991, a Doane engineer alerted the Boston office of the Federal Emergency Management Administration to a discrepancy between the base flood elevation of 180 feet shown on the flood map and the base flood elevation of 188.7 feet shown on a flood insurance study. Doane did not, however, alter its application for a special use permit.

On October 7, 1991, the planning commission denied the plaintiffs application for a special use permit on grounds unrelated to the flood plain problem. After lengthy unsuccessful settlement efforts, the plaintiffs appeal from the commission’s denial resulted, on March 23, 1995, in a remand of the application to the town for reconsideration.

On June 16, 1995, the Federal Emergency Management Administration issued a formal “Letter of Map Revision” for the area that includes the Somers Mill. The revision raised the original 100 year flood elevation from 180 feet to 189 feet. The Letter of Map Revision acknowledged that the revision was issued to correct the Administration’s mistake in transferring data from its flood study to its flood map. Under the revised flood map, the first floor of the Somers Mill was below the base flood elevation.

Although the planning commission nevertheless approved the plaintiffs conversion plan on October 2, 1995, the approval was contingent on a revision of the site plan so that no residential floor of the building would be below the 100 year flood elevation. The plaintiff decided that the required revision made it unfeasible to pursue residential development of the Somers Mill. It then brought the present action seeking recovery of its losses, which allegedly were caused by the negligent misrepresentations of the defendant engineering firms.

The plaintiff recognized that its claims against these defendants involved issues of professional malpractice on which it could not prevail without presenting expert evidence. “The requirement of expert testimony . . . serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990). Expert testimony is required “when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.” Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961); accord Santopietro v. New Haven, 239 Conn. 207, 226-27, 682 A.2d 106 (1996); Matyas v. Minck, 37 Conn. App. 321, 326-27, 655 A.2d 1155 (1995).

To satisfy this requirement, the plaintiff filed a disclosure of the expert witnesses it intended to call to testify at trial. See Practice Book § 13-4 (4). The only expert whom the plaintiff planned to present on the subject of engineering malpractice was Edward Chiang, a professional engineer. The plaintiff disclosed that Chiang was expected to testify about “the standard of care of engineers in performing professional services and about hydraulic engineering as it relates to the subject property and the Scantic River.” The disclosure stated that he would testify that a reasonably competent engineer engaged to plan the development of the Somers Mill would have determined that the flood levels of the river severely impacted and limited the development of the property and would have informed the plaintiff of that risk.

In a subsequent written report, Chiang expressed his opinion that a competent engineer would have discovered the discrepancy in the base flood level as shown in the floodway map and the flood insurance study. Chiang further opined that, even without this discrepancy, a competent engineer would have performed a detailed analysis to confirm the flood level at the Somers Mill.

At his deposition, Chiang described himself as an expert in the area of hydraulics and storage reservoirs. He had been hired, he testified, to evaluate the flood level and to ascertain the potential impact of a flood on the Somers Mill. He also had undertaken to determine what measures could possibly lower the flood level.

Chiang stated that he never had inquired into the applicable standards of professional practice for the engineering firms that rendered engineering services for the development of the Somers Mill project. He had no opinion about whether either of the defendant engineering firms had violated the applicable standard of care for a professional engineering firm. With respect to Fuss & O’Neill, he testified: “I’m not quite sure what exactly they did, so it really [is] difficult for me to give you my opinion about what they did. I only can give you what I think should be done.” He took the same position with respect to Lenard. He did not know “who did what” at the Somers Mill.

The defendants objected to the lack of specificity in the disclosure of Chiang’s proposed testimony. They stressed that Chiang had no knowledge of their engineering operations or of the scope of the work that they had agreed to undertake and had performed. They emphasized Chiang’s lack of knowledge about the standard of care for engineers engaged in determining the feasibility of a proposed development project.

On February 2, 2001, the trial court issued an order to the plaintiff to provide detailed signed statements of the specific opinion or opinions of the expert and of the bases for those opinions. The court warned that “[a]n opinion not in the statement will not be admitted at the trial.” The plaintiff has not challenged the validity of this court order.

In their motions for summary judgment, the defendant engineering firms argued that the plaintiff had not presented a sufficient basis for the presentation of Chiang’s expert testimony at trial. The plaintiff virtually concedes that the disclosures of Chiang’s proposed testimony lack precision. It maintains, however, that it should be afforded the opportunity to flesh out these disclosures at trial by posing hypothetical questions to Chiang that would describe the underlying facts. Under the circumstances of this case, we disagree.

It is true that, at trial, an expert ordinarily may express his opinion in response to a hypothetical question that is based on the essential facts in the case. Conn. Code Evid. § 7-4 (c); see, e.g., Keeney v. L & S Construction, 226 Conn. 205, 213, 626 A.2d 1299 (1993). The issue in this case is whether this rule applies in the face of a challenge to the adequacy of the pretrial disclosure of an expert witness. To put it differently, can a plaintiff cure defects in pretrial disclosure by hypothetical questions at trial? Keeney did not resolve this issue because, in that case, no one challenged the qualifications of the expert witnesses. Id.

Several decisions of this court have affirmed trial court decisions that limited expert testimony to the subject matter that had been expressly disclosed in pretrial reports and depositions. See e.g., Ciarlelli v. Romeo, 46 Conn. App. 277, 280-81, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997); Kemp v. Ellington Purchasing Corp., 9 Conn. App. 400, 404-405, 519 A.2d 95 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106-108, 476 A.2d 1074 (1984). These holdings are particularly persuasive in this case in light of the unchallenged order of the trial court that any expert opinion not disclosed pretrial would not be admitted at trial.

We conclude that the trial court properly granted the motions for summary judgment filed by Fuss & O’Neill and Lenard. To prevail against these defendants, the plaintiff had to present expert evidence at trial. To present such evidence at trial, the plaintiff had to make a pretrial disclosure identifying its proposed expert. This disclosure had to describe the substance of the expert’s opinion about the manner in which these defendants’ professional conduct deviated from the standard of care of engineers hired to make a feasibility study of the plaintiffs plan for converting the Somers Mill into a residential facility. Once the court required the plaintiff to produce a more specific expert opinion, the plaintiff had to disclose an expert’s statement that these defendants acted negligently in failing to discover a discrepancy between a governmental flood plain study and a governmental flood plain map. In the absence of the required disclosures, the trial court properly rendered judgment for these defendants.

II

CLAIMS AGAINST THE TOWN

The plaintiff has asserted two claims against the town that are presently reviewable. In count four of its complaint, the plaintiff alleged that the town had created an absolute private nuisance by its erection and maintenance of the Maple Street bridge. The bridge is immediately upstream from the Somers Mill. In count six of its complaint, the plaintiff alleged that the town had violated 42 U.S.C. § 1983 by changing its position about the flood level of the Scantic River.

The trial court granted the town’s motion for summary judgment on the nuisance claim because the plaintiffs expert, Edward Chiang, testified at his deposition that removal of the Maple Street bridge would not reduce the flood level at the Somers Mill. Although the plaintiffs complaint alleged, in count four, paragraph eleven, that “[i]n the absence of the Maple Street Bridge, the 100 year flood elevation at the upstream face of the Somers Mill would be at a level which would permit its use and development for residential purposes,” Chiang stated at his deposition that he did not agree with that allegation.

The plaintiff argues that Chiang’s statement at his deposition was not definitive because, in a written report, Chiang had stated that “[t]he flow velocity of a 100-year return frequency passing through the Maple Street Culverts is too high. The Maple Street Bridge and the Somers Mill Building are located too close to one another. Moreover, the crowns (i.e., ceilings) of the arch culverts and the culverts beneath the Somers Mill Building are at different elevations. As a result, the high velocity associated with the flood flow would generate excessive turbulence in the area between the Maple Street Bridge and the Somers Mill Building which may cause serious damage to the building under flood conditions.” Chiang opined that the flood level at the Somers Mill could be reduced by “increasing the cross-sectional flow area of the Maple Street Culverts to 945 square feet and the culvert beneath the Somers Mill Building to 360 square 1'eet.” According to the plaintiff, Chiang’s report should be construed to state that the removal of the Maple Street bridge is necessary but not sufficient to lower the flood elevation to the point at which development of the Somers Mill would be legally permissible.

The plaintiff argues, therefore, that even if the Maple Street bridge is not the sole proximate cause of the plaintiffs problem, a jury reasonably could find that it is a substantial factor in the flood level at the Somers Mill. For this reason, the plaintiff claims that the trial court improperly granted the town’s motion for summary judgment with respect to count four.

The town maintains, to the contrary, that the court properly granted its motion for summary judgment. It argues that the plaintiff is bound by the allegations of causation that were stated in its complaint. The plaintiff did not amend, or seek permission to amend, its complaint to incorporate a claim that the Maple Street bridge was a substantial factor in the losses that the plaintiff has suffered. Its “substantial factor” argument therefore lacks a procedural base.

We agree with the town that a party cannot present a case to the trial court on one theory and then seek appellate relief on a different one. Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 770, 717 A.2d 150 (1998); see Treglia v. Zanesky, 67 Conn. App. 447, 457-58, 788 A.2d 1263 (2001), cert. denied, 259 Conn. 926, 793 A.2d 252 (2002). The difference between “sole proximate cause” and “substantial factor” analysis is not an immaterial variance as that phrase is used in Practice Book § 10-62.

We conclude, therefore, that the trial court properly granted the town’s motion for summary judgment on the plaintiffs claim of nuisance. The plaintiff has cited no case that permits an end run around a summary judgment on the basis of a claim that was not advanced in the pleadings that underlay the judgment rendered by the court.

The plaintiffs alternate claim against the town alleges, in count six of the complaint, that the town deprived the plaintiff of its constitutional right to due process of law in violation of 42 U.S.C. § 1983. The § 1983 claim has two parts. According to the plaintiff, the town is liable for the misconduct of the town sanitarian, who intentionally or recklessly misrepresented the flood level at the Somers Mill to be 180 feet even though he knew that the flood level was substantially higher. In addition, the town is liable for its policy decision to change its position with respect to the flood level to 189 feet so as to conform with the federal flood map as revised in 1995.

The trial court concluded that the town was entitled to summary judgment on this count because the plaintiff had not alleged that the town deliberately had chosen, as a matter of policy, to revise the flood plain map. The town’s adoption of the revised map did not reflect its own policy decision to change the flood map. It was not the town’s prerogative to set, adopt, promulgate or otherwise establish the 100 year flood elevation. It was, instead, the Federal Emergency Management Administration that established the revised 100 year flood elevation.

The trial court properly relied on Tedesco v. Stamford, 215 Conn. 450, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992), in which our Supreme Court held that “[m]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by city policymakers.” (Internal quotation marks omitted.) Id., 456-57. The trial court noted that the plaintiff had failed to identify the alternatives the town should have considered before it acquiesced in the decision of the Federal Emergency Management Administration.

The plaintiff concedes that it was the Federal Emergency Management Administration and not the town that had the responsibility to publish a correct flood map to establish the 100 year flood elevation. It argues, however, that the town had the option whether to participate in the National Flood Insurance Program. That choice, according to the plaintiff, is sufficient underpinning for its § 1983 claim. Even if this were a meaningful choice, the plaintiff has not alleged that the town’s election to participate in the National Flood Insurance Program was a new decision or a change of policy that occurred in 1995. The plaintiff was on notice of the town’s policy when it bought the Somers Mill in 1988.

In the absence of any allegations that the town had adopted a policy or continued a custom that resulted in a deprivation of the plaintiffs constitutionally protected property interest, there is no basis for the plaintiffs § 1983 claim. We conclude, therefore, that the trial court properly granted summary judgment in favor of the town on count six.

The judgments are affirmed.

In this opinion the other judges concurred.

       In its brief on appeal, the plaintiff Somers Mill Associates, Inc., states that although four additional individual plaintiffs were named in the complaint, the trial court, on November 8, 2001, granted a motion to dismiss the claims of these individuals. The corporate plaintiff is, therefore, the only remaining plaintiff, and we refer to it as the plaintiff in this opinion.

       These claims are contained in counts one and two of the complaint.

       These claims are contained in counts four and six of the complaint. Although other counts against the town have not yet been resolved, the plaintiff successfully moved for permission to file an immediate appeal pursuant to Practice Book § 61-4. The remaining counts against the town contain claims of negligent misrepresentation (count three), intentional misrepresentation (count five), and intentional interference with federal rights (count seven).

       Doane Engineering is not a defendant in this case.

       The disclosure further indicated the substance of facts and opinions that Chiang would present. “Dr. Chiang is expected to testify that an investigation of the river flow and flood levels of the Scantic River was a paramount matter in planning the development of the subject property. He is also expected to testify that a reasonably competent engineer engaged to plan the development of the subject property would have determined that the flood levels of the Scantic River severely impacted and limited the development of the property and would have informed the client promptly of that problem. Dr. Chiang is also expected to testify that the bridge upstream of the project substantially restricts the flow of the river during major floods which creates a serious flooding problem for the subject property.”

       See footnote 3.

       Indeed, Practice Book § 10-62 pertains only to a request to amend a complaint. The plaintiff never pursued that route at trial.

       In its primary appellate brief, the plaintiff also argued that, because it had made its § 1983 claim in the form of alleged intentional or reckless misrepresentation, the town had a choice whether to tell the truth or to lie. That argument is frivolous.


author: DUPONT, J.

text:
    SMITH-GROH, INC., ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH
    (AC 22817)
    Foti, West and Dupont, Js

      Argued March 26
    officially released July 22, 2003

      Robert A. Fuller, for the appellant (named plaintiff).

      Haden P. Gerrisk, assistant town attorney, for the appellee (named defendant).

      Jane D. Hogeman, for the appellee (defendant Gateway Park Associates, LLC).
   Opinion

DUPONT, J.

The plaintiff Smith-Groh, Inc., appeals from the judgment of the trial court dismissing its appeal from the decision of the planning and zoning commission of the town of Greenwich, which denied its application for final site plan approval and a special permit to construct an apartment building in a residential-planned housing design-small unit zone (R-PHD-SU). The defendants are the planning and zoning commission (commission) and Gateway Park Associates, LLC (Gateway), an owner of property that abuts the property of the plaintiff.

The plaintiff claims that (1) the commission’s tie vote was tantamount to an approval of its application, (2) the court improperly considered the town planner’s letter of reasons given for the denial and (3) the R-PHD-SU zone regulations applicable to the plaintiffs proposed apartment building do not require designated “affordable” units. The primary issue in this appeal is whether the plaintiffs application for site plan approval and a special permit met “all” of the purposes of the R-PHD-SU zone.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In 1989, the prior owner and prospective lessees of the property applied for a zone change, from a R-6 zone to a R-PHD-SU zone, as well as special permit and site plan approval. The commission approved the zone change and the site plan, and granted a special permit. The apartment complex was not constructed within three years, and the site plan approval and special permit became null and void. See Greenwich Building Zone Regs., §§ 6-14.1 (e) (site plan) and 6-17 (f) (special permit).

In August, 1998, Pemberwick Apartments, LLC (Pemberwick), the contract purchaser of the property, submitted an application for a special permit and “final” site plan application. The commission considered the application at public hearings held on November 17 and December 8,1998, and at its regular meeting on January 7,1999. The commission reviewed the site plan application as preliminary and advised the plaintiff to proceed to a final site plan subject to twenty modifications. The relevant modifications required for final site plan approval included a reduction in the height and bulk of the building and the identification of, and the deed restrictions on, the five “affordable” units.

In August, 1999, Pemberwick revised its preliminary application, and submitted a final site plan and special permit application for the commission’s approval. On September 3, 1999, the plaintiff became the record owner of the property. The commission considered the application at a public hearing on October 26,1999, and regular meeting on December 8,1999. At the December meeting, the commission denied the application. In its December 22,1999 revised letter, the commission stated as reasons for the denial that the reduction in height and bulk of the proposed building was not substantial enough to satisfy the requests of the commission in its previous letter, the average size of the individual apartments did not meet the requirements of the zone, and there was “reasonable doubt” that the units would meet the requirements of § 6-62 (4) and (5) of the building zone regulations.

The plaintiff submitted a second final site plan and special permit application in January, 2000, which application is the subject of this appeal. This application was considered at a public hearing on February 15,2000, and a special meeting on March 13, 2000. Following discussion at the special meeting, a motion to approve the application did not carry. Two commission members voted to approve the motion, two voted to deny the motion and one abstained. The concerns raised at the meeting related to the regulation requirements of the R-PHD-SU zone as to “reasonable cost” housing and the size of the building.

The commission’s decision was published in a newspaper on March 22, 2000. On March 24, 2000, the town planner sent a denial letter to the plaintiff and copies to the commission members. The written letter outlined several reasons for the denial. Both the plaintiff and Gateway appealed from the commission’s decision to the Superior Court. The court dismissed the plaintiffs appeal because the plaintiffs application failed to provide housing at a “reasonable cost” pursuant to § 6-62 (c) (4) of the building zone regulations. We now consider the plaintiffs appeal.

I

THE TIE VOTE

The plaintiff first claims that its site plan was approved automatically by virtue of General Statutes § 8-3 (g). It argues that § 8-3 (g) requires an affirmative denial of the application and that because of the tie vote on the motion to approve, there was not such a denial. Relying on SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 211 Conn. 331, 559 A.2d 196 (1989), the plaintiff further argues that although § 8-3 (g) applies only to site plans, its special permit was approved because it was inseparable from the site plan. The defendants argue that according to parliamentary procedure, a tie vote on a motion to approve amounts to a denial and, therefore, the application was denied within the specified period in accordance with § 8-3 (g). Additionally, they argue that even if the site plan is deemed approved by virtue of the statute, the special permit was not subject to the automatic approval provisions of § 8-3 (g) and was denied by virtue of the tie vote. We agree with the defendants’ latter contention.

Section 8-3 (g) specifically relates only to applications for site plan approval. In this case, the plaintiff was required to, and did, submit a special permit application, which is not inseparable from the site plan application. The plaintiff relies on SSM Associates Ltd. Partnership, which held that the special permit application was so inseparable from the site plan application that it, along with the site plan application, was deemed approved under the automatic approval provision of § 8-3 (g). Id., 337; see also Center Shops of East Granby, Inc. v. Planning & Zoning Commission, 253 Conn. 183, 189-90, 757 A.2d 1052 (2000).

In Center Shops of East Granby, Inc., however, our Supreme Court strictly limited SSM Associates Ltd. Partnership to its facts because the use sought was a permitted use, and the parties stipulated that the site plan and special permit applications were inseparable. Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 253 Conn. 190-92. The court went on to hold that “when a site plan is separable from its accompanying documents and the special permit application is for a use not permitted as of right, the provisions of § 8-3 (g) are not applicable and the time constraints specified in [General Statutes] § 8-7d do not control.” Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 193. We, therefore, conclude that regardless of the status of the site plan, the special permit could not be approved automatically.

When voting on the motion to approve the application, two members voted in favor of the motion, two members voted against the motion and one member abstained. This tie vote on the motion to approve is tantamount to a rejection of the application. Merlo v. Planning & Zoning Commission, 196 Conn. 676, 683, 495 A.2d 268 (1985); see also Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 533-34, 525 A.2d 940 (1987); Lupinacci v. Planning & Zoning Commission, 153 Conn. 694, 696, 220 A.2d 274 (1966); Hall v. Planning & Zoning Board, 153 Conn. 574, 576, 219 A.2d 445 (1966); In re Reynolds, 170 Vt. 352, 355-57, 749 A.2d 1133 (2000) (in determining whether majority has voted for approval, abstention is not counted as vote for approval). Therefore, we conclude that the application for the special permit was denied.

II

COLLECTIVE STATEMENT

The plaintiff claims that the reasons stated in the March 24, 1999 letter of the town planner cannot be considered in reviewing whether the application for site plan approval and a special permit was denied properly. It argues that the letter contained reasons not discussed, or voted on, by the commission. The plaintiff further claims that because individual commission members stated their reasons for voting against the application on the record, a reviewing court is not required to search the record for alternate reasons to uphold the commission’s decision. The defendants agree that the letter was not a collective statement of the commission’s decision. They argue, however, that a reviewing court must go beyond the record to determine whether there were any grounds to uphold the commission’s decision. We agree that the letter cannot be considered as the commission’s collective reasons for the denial, but we conclude that we would be required to search the record for reasons for the denial if those stated by either of the two commission members were insufficient for a denial.

The following additional facts are relevant to the plaintiff’s claim. Margus T. Laan, the senior planner for the town of Greenwich, who was present at the public hearing and special meeting, wrote the March 24, 2000 letter to the plaintiffs counsel, purporting to state the reasons for the commission’s denial of the plaintiffs application. The senior planner was the only individual to sign the letter, and there is no indication in the record that the letter was written at the direction of, or adopted by, the commission. In fact, the commission received the letter only as a result of the “cc” notation at the end of the letter. Although the reasons outlined in the letter were discussed by the commission during either the public hearing or the special meeting, the planner could not speak for the commission. Not even the chairman of a zoning entity can speak for a zoning commission. Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 237-38, 794 A.2d 1016 (2002). The commission had a mandatory statutory duty to determine, as a commission, what the disposition of the plaintiffs application should be. Id., 248.

Section 8-3 (g) provides in relevant part that “[a] decision to deny ... a site plan shall set forth the reasons for such denial . . . .” General Statutes § 22a-109 (f) provides in relevant part that “[t]he zoning commission shall set forth the reasons for any decision to deny ... a coastal site plan submitted under this section. . . .” An agency cannot deny a site plan for subjective reasons that have no relationship to zoning regulations. R&R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 469, 778 A.2d 61 (2001). Case law generally has required that the “reasons” be a formal, collective, official statement. See West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513-14, 636 A.2d 1342 (1994).

Thus, the first question is whether the letter constituted a formal, collective, official statement of the commission. None of the commission members signed the letter. The letter was dated more than ten days following the special meeting denying the application and two days after the publication of the denial. It also contained many reasons not stated by the two commission members for their denial of the application. On the basis of those facts, we conclude that the letter was not a collective statement of the commission.

We next consider the individual statements of the commissioners made during the course of the special meeting on March 15, 2000. “[I]individual reasons given by certain members of the commission [do] not amount to a formal, collective, official statement of the commission . . . and are not available to show the reason[s] for, or the ground[s] of, the [commission’s] decision.” (Citation omitted; internal quotation marks omitted.) Id., 514; see also Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 546 n.15, 600 A.2d 757 (1991) (not appropriate for reviewing court to attempt to glean such formal, collective statement from minutes of discussion by commission members prior to commission vote). We conclude that the individual reasons given by commission members were not a formal, collective, official statement.

Therefore, we must consider this case under the “well settled principle of judicial review of zoning decisions that where the commission has failed to state its reasons, the court is obligated to search the record for a basis for its action. ” Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 546 n.15. The search is conducted against the backdrop of the particular regulation under which the plaintiff sought approval of its application.

The court concluded that the record supported the commission’s denial of the plaintiffs application because it did not meet the R-PHD-SU zone purpose of providing “housing at a reasonable cost . . . .” Building Zone Regs., § 6-62 (c) (4). Before we engage in a search of the record to discern whether there was a valid reason to support the conunission’s denial, we set forth general principles governing site plan and special permit review procedures.

Sections 6-101 (d) and 6-13 of the building zone regulations required the plaintiff to obtain special permit and site plan approval for its proposed multiunit apartment building within the R-PHD-SU zone. As part of the special permit approval procedure, “it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.” (Internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn. 222, 228, 820 A.2d 75, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003); see also Building Zone Regs., § 6-17 (a); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 175.

“The basic rationale for the special permit ... is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated . . . .” T. Tondro, supra, p. 175; see also Barberino Realty & Development Corp. v. Planning & Zoning, 222 Conn. 607, 612-13, 610 A.2d 1205 (1992). The requirements for a special permit are outlined in the zoning regulations of the Greenwich municipal code [§ 6-17], and the commission may not impose additional conditions that are not within the regulations. See T. Tondro, supra, pp. 178-79; see also A. Aiudi & Sons, LLC v. Planning & Zoning Commission, 72 Conn. App. 502, 506, 806 A.2d 77 (although commission does not have discretion to deny special permit when proposal meets standards, it does have discretion to determine whether proposal meets standards in regulations), cert. granted on other grounds, 262 Conn. 919, 812 A.2d 861 (2002). “As a matter of law, general considerations enumerated in the zoning regulations are an adequate basis for denying an application for a special permit . . . .” A. Aiudi & Sons, LLC v. Planning & Zoning Commission, supra, 507.

The use in this case is small residential units in a building no more than forty feet in height. According to the minutes of the commission in March, 1970, estabhshing the R-PHD-SU zone, the nature of the use and mode of operation must conform to certain purposes. The residential development was designed to meet the needs of town residents at differing stages of their life cycles, namely, housing other than single-family detached homes. The purpose was to provide small residential units so that those who live or work in Greenwich could obtain “small residential units at reasonable cost.”

“[A] site plan is an administrative review procedure that assists in determining compliance of an underlying development proposal with zoning regulations.” T. Tondro, supra, p. 184; see also SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 15 Conn. App. 561, 566, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989). “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations. ...” General Statutes § 8-3 (g). A site plan and special permit application aid zoning agencies in determining the conformity of a proposed building or use with specific provisions of the regulations. Grasso v. Zoning Board of Appeals, supra, 69 Conn. App. 244.

The defendants’ chief argument is that the plaintiff, in its latest application, did not provide for five “affordable” units. The defendants claim that this omission caused a significant change from earlier proposals that had included a permanent rent restriction for five units and that such designation was integral to the proposed project. The commission’s argument appears to rest on the necessity for the plaintiff to continue to provide for the “affordable” units in the latest application or risk denial. The question is whether the manner in which the plaintiff proposes to use its property satisfies the conditions imposed by the regulations, not whether a subsequent application has varied from a prior application. It may be that a new plan, with changes, will succeed although a former failed. A commission is not precluded from granting a subsequent application because a prior application was denied. See id., 246. We conclude that the plaintiff is not bound by the prior applications, which included five “affordable” units. The remaining issue is whether the application that is the subject of this appeal has demonstrated compliance with the regulation as to reasonable cost units.

Because the plaintiff must comply with all of the conditions of § 6-62 (c), and the trial court determined that it had not provided, as required in subdivision (4), “attractive, decent and suitable housing at reasonable cost for those who live or work in Town,” we first consider that condition. If the plaintiff did not comply with it, the plaintiff cannot comply with all the conditions, and we must dismiss its appeal. Sufficient support for one reason to deny the application would result in upholding the commission’s action. See Barberino Realty & Development Corp. v. Planning & Zoning Commission, supra, 222 Conn. 618. If the plaintiff did comply with subdivision (4), we would then need to continue to search the record to see if the plaintiff had complied with the rest of the conditions.

The plaintiff argues that the small size of the apartment units satisfies the reasonable cost requirement of § 6-62 (c) (4). The defendants argue that the plaintiff, if approval is given, will have received a density bonus to build a twenty-seven unit dwelling without providing an enforceable agreement to provide a permanent reduced rental cost of a few of those apartments. On the contrary, the defendants claim that smaller sized units cannot always be equated to reasonable cost. The defendants argue that rental cost is based on a unit’s proximity to places of employment, shopping, banking, public transportation and aesthetic considerations, and, therefore, not necessarily size alone. The plaintiff argues that the market rental rates for all of the apartments would be reasonable compared to similar- sized housing available elsewhere in Greenwich. The arguments of the parties assume that “reasonable cost” is an enforceable and ascertainable standard, but disagree as to whether there was compliance with that standard.

We, however, must first examine whether the regulation is so broad or ill-defined as to make it impossible for any applicant to comply with it. A commission’s regulations must be precise enough to give adequate and sufficient notice to the commission, in order that it can enforce the regulations, and to applicants, in order that they can comply with the regulations. Ghent v. Planning Commission, 219 Conn. 511, 518, 594 A.2d 5 (1991). A zoning commission must decide, consistent with its discretion, whether a particular section of a zoning regulation applies and the manner in which it does apply. The commission can decide whether the application meets the standard of the regulation; Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998); but the standard must be capable of comprehension. We conclude that “reasonable cost” within its context in the regulations is an ascertainable standard.

The interpretation of a regulation is a question of law for which our review is plenary. Raymond v. Zoning Board of Appeals, supra, 76 Conn. App. 229. A zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation. Id., 234. 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. See Bhinder v. Sun Co., 263 Conn. 358, 367, 819 A.2d 822 (2003).

“Reasonable” is a relative adjective that varies with the context in which it is used, and its meaning is affected by the facts of the particular controversy. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Reasonableness depends on a variety of conditions and circumstances. “Reasonable” should be read to exclude capricious or confiscatory interpretation by a commission of its regulations. See Public Service Commission v. Havemeyer, 296 U.S. 506, 518, 56 S. Ct. 360, 80 L. Ed. 357 (1936). We must consider the purpose of the particular regulation, the means adopted to achieve it, and the relationship between the purpose and the means. 16A Am. Jur. 2d, Constitutional Law § 278 et seq. (1998).

A regulation should be as precise as the subject matter requires, and adequate and sufficient enough to allow the commission to perform its obligations. Sonn v. Planning Commission, 172 Conn. 156, 159, 374 A.2d 159 (1976). As long as the regulations provide a standard that can be applied to all cases of a like nature so as to reduce the likelihood of allowing a zoning agency to act in a capricious manner, the regulations will not be deemed to contain meaningless standards that can lead to unpredictable results. Id., 161-62. A regulation, for example, that requires consideration of the “intensity” of a proposed apartment building is capable of providing a standard to which an applicant can comply. Felsman v. Zoning Commission, 31 Conn. App. 674, 676-80, 626 A.2d 825 (1993).

On the basis of the scheme of the zoning regulations in this case and the avowed purpose of providing reasonable cost housing that is affordable or moderately priced to those who live or work in the town, the plaintiff needed to show at the public hearing some indication that it would do so. The statement of the plaintiff at the public hearing that some of the units might rent for $1172 per month and that the market rental rates for the units would be reasonable when compared to the more expensive housing ordinarily desired by the more affluent citizens of Greenwich was insufficient for compliance with § 6-62 (c) (4) of the building zone regulations. The plaintiff had to show more. For example, there was no evidence that some type of permanent rent restriction formula would be used to govern rental rates in the future or evidence of the rental cost of comparably sized housing in other zones in Greenwich.

Section 6-62 (b) of the building zone regulations provides in relevant part that the intent of the zone is to “serve the housing needs of those Town residents and employees who seek small residential units at reasonable cost.’’ Section 6-62 (c) permits residential development that conforms to that standard if the development provides “(4) . . . attractive, decent and suitable housing at reasonable cost for those who live or work in Town” and “(5) . . . that may be subsidized by public and/or private funds.”

The legislative history of the R-PHD-SU zone indicates that the regulation’s purpose was to provide housing for residents and employees of the town at various cycles of their lives, namely, the young employed or retirees, at a cost commensurate with their financial abilities. The regulation itself speaks to the same purpose; other regulations that govern housing units other than single-family dwellings, such as townhouses, do not include the requirement of reasonable cost.

We have examined the history of the propose of the regulation as stated in 1970, at the time the regulations were adopted, the words of the regulation itself, the public policy it was designed to implement and other regulations governing the some general subject matter. We conclude that reasonable cost housing for those who live or work in town means more than providing small residential units, and that the plaintiff had to provide evidence of reasonable rental cost and some guarantee of effectuating the regulation to obtain special permit and site plan approval.

The judgment is affirmed.

In this opinion the other judges concurred.

       An additional plaintiff, Pemberwick Apartments, LLC, was found by the trial court to lack aggrievement and is not involved in the appeal to this court. We therefore refer in this opinion to Smith-Groh, Inc., as the plaintiff.

       The Appellate Court granted the plaintiffs petition for certification to review the court’s judgment on February 20, 2002. See General Statutes §§ 8-8 and 8-9.

       The planning and zoning commission of the town of Greenwich on appeal to this court adopted the brief of Gateway.

       Throughout the history of this case the parties, the commission and the trial court have referred to the units in question interchangeably as “affordable,” “moderate income housing,” “moderate income dwelling” or “reasonable cost” units. We note, however, that the term “affordable” units in no way implicates Connecticut’s affordable housing program, General Statutes § 8-30g et seq., which was not in effect when Greenwich adopted the R-PHD-SU zone. The “affordable” units refer to five proposed units in the plaintiff’s prior site plan applications, which were proposed to be regulated in accordance with § 6-110 (g) of the Greenwich building zone regulations. Section 6-110 (g) units are termed “moderate income dwelling units.”

       Section 6-62 (c) of the Greenwich building zone regulations, entitled “Residential-Planned Housing Design-Small Unit Zone (R-PHD-SU); Purpose,” provides in relevant part that the commission “may permit residential development . . . when all of the following purposes are to be accomplished:
      “(1) To implement the letter and intent of the Town Plan of Development;
      “(2) To maintain and reinforce the Town’s predominantly residential character;
      “(3) To conserve and preserve land to assure that its development will best maintain and enhance the appearance, character and natural beauty of an area;
      “(4) To provide attractive, decent and suitable housing at reasonable cost for those who live or work in Town;
      “(5) To permit the construction of residential units that may be subsidized by public and/or private funds.”

       The site plan and special permit called for the construction of a twenty-seven unit apartment complex with five units designated as “affordable” units and regulated by § 6-110 (g) of the Greenwich building zone regulations.

       Section 6-14.1 (e) of the building zone regulations provides: “Any Site plan approval granted by the Commission on which construction has not started within a period of three years shall become null and void.”
      Section 6-17 (f) of the building zone regulations provides: “Any special permit granted by the Commission and not exercised within a period of three (3) years from date of decision shall become null and void.”

       The application proposed a building similar to the building previously proposed and approved in 1989. Again, it contained the proposal of five “affordable” units regulated by § 6-110 (g) of the building zone regulations.

       Gateway appealed from the preliminary approval to the Superior Court. The appeal was dismissed. Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 170332 (October, 1, 2001) (Gateway I).

       Both the plaintiff and Gateway appealed from that decision to the Superior Court. See Smith-Groh, Inc. v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 176008 (October 1, 2001) (Smith-Groh I); Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of StamfordNorwalk, Docket No. 176155 (October, 1, 2001) (Gateway II).

      These cases were consolidated with Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 170332 (October, 1, 2001) (Gateway I). See footnote 9. The court dismissed all three appeals. In Gateway II, Gateway claimed that the R-PHD-SU zone designation had expired with the expiration of the site plan and special permit. In dismissing the appeal, the court concluded that the R-PHD-SU zone designation was still in effect. In Smith-Groh I, the court concluded that the record supported the commission’s decision. Having decided as it did in Gateway II and Smith-Groh I, the court dismissed Gateway I as moot.

       See General Statutes § 8-3 (g).

       The defendant claimed, as it had done previously, in Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 170332 (October, 1, 2001) (Gateway I), and Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 176155 (October, 1,2001) (Gateway IT), that the R-PHD-SU zone had expired with the special permit and site plan applications. Although the court noted that it had decided the issue in Gateway II, the court addressed the merits and dismissed the appeal because the court, concluded that the R-PHD-SU zone had not expired. Gateway did not petition this court for certification to appeal for review of that conclusion.

        We note, however, that if the zone expired with the site plan and special permit, the R-PHD-SU zone regulations would not apply, and this appeal would be rendered moot. Because mootness implicates the court’s subject matter jurisdiction and is, therefore, a threshold matter to resolve, we briefly address the issue. See State v. Arpi, 75 Conn. App. 749, 751, 818 A.2d 48 (2003). We affirm the weE reasoned opinion of the trial court and conclude that the R-PHD-SU zone continues to apply to the property at issue.

       Section 6-62 (c) of the buEding zone regulations provides in relevant part: “The Planning and Zoning Commission . . . may permit residential development . . . when aE of the foEowing purposes are to be accomplished . . .
      “(4) To provide attractive, decent and suitable housing at reasonable cost for those who Eve or work in Town ....’’

       The basic aEegations of the complaint, stiE pressed in the plaintiffs brief filed in this court, are that the commission acted ElegaEy, arbitrarily and in abuse of its discretion in denying the special permit and final site plan apphcation. The claims raised on appeal are included within the aEegations.

       General Statutes § 8-3 (g) provides in relevant part that “[a]pproval of a site plan shaE be presumed unless a decision to deny or modify it is rendered within [sixty-five days]. . . .”

       Because of our conclusion with respect to that issue, it is unnecessary to consider statutory interpretation of General Statutes § 8-3 (g).

       One commission member voted to deny the application because the plaintiff had not sufficiently complied with the condition to reduce the bulk of the building. A second commission member voted to deny the application because she did not believe that the plaintiff had met the “reasonable cost” requirement of the regulation.

       A coastal site plan was required for the subject property. See General Statutes § 22a-94.

       Even if the letter or individual statements were sufficient as reasons under the statutes, we still would have authority to search the record. “Notwithstanding . . . statutory language, our case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities.” Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 607-608, 569 A.2d 1094 (1990); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 473-74 (under statute, no enforcement sanction against commission, and therefore, Connecticut courts have consistently not required formal collective statement of reasons from commission for its decision).

       Section 6-62 of the building zone regulations, entitled “Residential-Planned Housing Design-Small Unit Zone (R-PHD-SU); Purpose,” provides:
      “(a) The intent of this Article concerning residential development is to encourage attractive, safe, decent and sanitary housing for all Town residents or employees, present and future, without regard to race, color, creed, national origin or economic status.
      “(b) The intent of this Article, in addition to the above, is to permit under specific conditions indicated herein, a type of residential development that will serve the housing needs of those Town residents and employees who seek small residential units at reasonable cost.
      “(c) The Planning and Zoning Commission, upon application in the manner prescribed herein, after a public hearing, may permit residential development that conforms to the standards and requirements described herein when all of the following purposes are to be accomplished:
      “(1) To implement the letter and intent of the Town Plan of Development;
      “(2) To maintain and reinforce the Town’s predominantly residential character;
      “(3) To conserve and preserve land to assure that its development will best maintain and enhance the appearance, character and natural beauty of an area;
      “(4) To provide attractive, decent and suitable housing at reasonable cost for those who live or work in Town;
      “(5) To permit the construction of residential units that may be subsidized by public and/or private funds.”

       We are aware of the 1989 decision letter sent to a predecessor of the plaintiff requiring rent regulated units in accordance with § 6-110 (g) of the building zone regulations and that the commission stated that “no building permit shall be issued ... if the plans did not identify the location of the five deed restricted [‘affordable’] units.” We do not conclude, however, that subsequent applications for a special permit and site plan had to comply with the 1989 letter for the reasons cited previously.

       Subdivision (5) is not discussed because there was no evidence as to it.