author: GRUENDEL, J.

text:
    109 NORTH, LLC v. PLANNING COMMISSION OF THE TOWN OF NEW MILFORD
    (AC 28682)
    Graendel, Robinson and Foti, Js.

      Argued September 10
    officially released November 18, 2008

      Robert H. Hall, for the appellant (plaintiff).

      D. Randall DiBella, with whom, on the brief, was Kent J. Mancini, for the appellee (defendant).
   Opinion

GRUENDEL, J.

This appeal concerns the application of the automatic approval doctrine. The plaintiff, 109 North, LLC, appeals from the summary judgment on its mandamus action rendered by the trial court in favor of the defendant, the planning commission of the town of New Milford. The plaintiffs principal claim is that the court improperly concluded that the defendant acted on the plaintiffs subdivision application within the time limits prescribed by General Statutes §§ 8-26 and 8-26d. We agree and, accordingly, reverse the judgment of the trial court.

The facts largely are undisputed. The plaintiff, at all relevant times, has owned a parcel of undeveloped land (property) consisting of 210.798 acres in New Milford. This appeal stems from the plaintiffs attempt to subdivide that property.

Chapter 107 of the New Milford zoning regulations permits cluster conservation subdivision districts (CCSD), which are defined as “the division of a parcel of land consisting of 30 or more acres located in an R-80, R-60 or R-40 zone (or any combination thereof) into three or more lots for the purpose of building development and sale of single-family detached residential dwellings and structures on a particular portion or portions of said parcel so that at least [50 percent] of the total gross area of the parcel(s) remains as conservation open space to be used exclusively for passive recreational and/or conservation purposes.” New Milford Zoning Regs., c. 107, § 107-020. In July, 2004, the plaintiff submitted an application to rezone the property from R-60 and R-80 zoning districts to a CCSD with zoning requirements akin to R-40 zones. Consistent with the requirements of § 107-020, the plaintiffs application proposed 114.694 acres of conservation open space, which constituted 54 percent of the property. On August 19, 2004, the defendant approved that application. On December 14,2004, the New Milford zoning commission rezoned the property and created “CCSD #2” in which the permitted minimum lot size was 40,000 square feet, the permitted minimum lot frontage was 150 feet and irregular lots with less than 150 feet of frontage also were permitted.

On December 1, 2005, the plaintiff applied to the defendant for approval of its subdivision plan for CCSD #2, known as Walker Brook Farm. The final subdivision plan included seventy-five lots, which it alleged fully conformed to both the zoning requirements of CCSD #2 and the subdivision regulations of New Milford. A public hearing was held on that application, commencing on February 16, 2006, and concluding on May 18, 2006.

At the defendant’s July 6, 2006 meeting, commissioner Thomas Mórey made a motion (Morey motion) to “modify and approve the [subdivision . . . known as ‘Walker Brook Farm’ . . . .” The motion included twenfy-three detailed “revisions and conditions.” The motion failed on a tie vote of two commissioners in favor and two opposed, with one commissioner abstaining. Significantly, the defendant never provided public notice of either Morey’s motion on the plaintiffs application or the vote thereon. The official minutes of the defendant’s July 6,2006 meeting state that, following the failure of Morey’s motion, the defendant’s chairwoman “stated [that] she would rework the motion for the [defendant’s] next . . . [m]eeting” without objection.

At the defendant’s July 20, 2006 meeting, the plaintiffs application for approval of its subdivision plan again was considered. The official minutes of that meeting state: “[Chairwoman Vivian] Harris recapped the sequence of events from the July 6, 2006 meeting and the legal ramifications of the failed motion to [modify and] approve [the plaintiffs application]. When asked, [chairwoman] Harris stated [that] the reason the failed motion wasn’t published in the newspaper was because there were ‘many, many questions.’ That at least one of the stipulations was illegal, that the [defendant] cannot dictate the size of the lots and stated [that] the members were handed a copy of the motion while they were voting and they did not have time to review the motion to ensure everything was in order and also, at the time, she believed that none of the members believed they were deciding on the subdivision, even though a vote was taken, they voted against the ‘motion’ not the ‘subdivision.’ She stated [that] there were also other reasons for not voting for the motion as well. She stated that, at that time, she had said she would prepare another motion for this meeting and that none of the members had objected. Very lengthy discussion ensued among the [defendant’s] members regarding the proper procedure [the defendant] should follow at this point regarding the previous meeting results and what the current status of [the plaintiffs application] was. An attempt by [chairwoman] Harris to present another motion to approve [the plaintiffs application] was strongly opposed and therefore did not move forward. Motion [made] by [commissioner] Morey to suspend, indefinitely, any further action or discussion regarding [the plaintiffs application]. The motion was seconded by [commissioner Marian] Schomp. [Chairwoman] Harris questioned [commissioner] Morey’s use of the word ‘indefinitely.’ The members discussed the ramifications of using the word ‘indefinitely.’ [Chairwoman Harris] also strongly questioned why the members were taking the advice of one member over the advice she had received from the [defendant’s] attorney, Tom Byrne.” The motion failed on a tie vote of two commissioners in favor and two opposed, with one commissioner abstaining. As a result, no action was taken on the matter that evening. The defendant thereafter took no further action on the plaintiffs application.

General Statutes § 8-26d required the defendant to act on the plaintiffs subdivision application within sixty-five days after the completion of the public hearing, which concluded on May 18, 2006. Consequently, the plaintiff on August 9,2006, demanded in writing that the defendant issue a certificate of approval pursuant to General Statutes § 8-26. When the defendant did not comply, the plaintiff , appealed to the Superior Court seeking a writ of mandamus. On March 15, 2007, the court granted the defendant’s motion for summary judgment while denying the plaintiffs motion for summary judgment. In its two page memorandum of decision, the court reasoned: “A thorough review of all of the materials submitted by the parties leads the court to the conclusion that the substance and nature of the defendant’s vote of July 6,2006, relative to the plaintiffs application constitutes action by the defendant as a matter of law under General Statutes § 8-26 and was within the time period mandated by the statutory framework for such decisions.” From that judgment, the plaintiff appeals.

Before considering the plaintiffs claims, we first note the applicable standard of 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 385-86, 752 A.2d 503 (2000). Our review of the trial court’s decision to grant a motion for summary judgment is plenary. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

I

Our analysis begins with the mandates of General Statutes § 8-26, which govern the approval of subdivision plans. It provides in relevant part: “The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith, including existing subdivisions or resubdivisions made in violation of this section, within the period of time permitted under section 8-26d. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person applying to the commission under this section, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. In any case in which such notice is not published within such fifteen-day period, the person who made such application may provide for the publication of such notice within ten days thereafter. Such notice shall be a simple statement that such application was approved, modified and approved or disapproved, together with the date of such action. The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. ...” General Statutes § 8-26.

Our Supreme Court has explained that “[t]he purpose of § 8-26 is to ensure expeditious action on the part of municipal planning commissions. It is the failure of the commission to act upon an application within the time provided that results in approval by operation of law under § 8-26. . . . [T]he obvious intention of the legislature in using this language was to ensure prompt and expeditious action on subdivision applications for the protection of the subdivider. . . . [T]his statutory purpose will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, setting in motion clear avenues of appeal.” (Citation omitted; internal quotation marks omitted.) Miles v. Foley, supra, 253 Conn. 389; see also Koskoff v. Planning & Zoning Commission, 27 Conn. App. 443, 457, 607 A.2d 1146 (1992) (Heiman, J., dissenting) (“[although there is no reported legislative history regarding the automatic approval provision of General Statutes § 8-26, the purpose of the provision is obvious: to deter . . . commissions from unduly delaying their consideration and resolution of applications for subdivision approval”), cert. granted on other grounds, 222 Conn. 912, 608 A.2d 695 (1992) (appeal dismissed November 10, 1992).

Section 8-26 plainly required the defendant either to approve, disapprove or modify and approve the plaintiffs subdivision application. It is undisputed that the Morey motion of July 6, 2006, was neither a motion to approve nor a motion to disapprove the application. The plaintiff maintains that, despite its nomenclature, the Morey motion was not a motion for modification and approval and, thus, did not constitute action pursuant to § 8-26.

The 1100 word Morey motion contained twenty-three conditions. Critical to our inquiry is the first condition, which provides: “All [subdivision lots shall consist of a minimum of 60,000 square feet of buildable area and all lot lines shall be reconfigured such that the minimum lot width of each lot shall not be less than 180 linear feet for purposes of meeting the [p]ublic [h]eaith [c]ode requirement of minimum leaching spread systems (MLSS). Rear lot accessways may remain at [twenty] linear feet of frontage on the proposed roadways. The [applicant shall provide to the [defendant] for its review prior to the approval and signing of the subdivision Mylar, a revised A-2 record map delineating amended lot areas and lot lines.” (Emphasis added.) Thus, the Morey motion expressly reserved final approval of the plaintiffs application, providing for subsequent review by the defendant following the submission of a revised map reflecting compliance with the requirements contained in condition one.

On several occasions, our Supreme Court has considered the question of whether conditional approval of a subdivision application constitutes modification and approval under § 8-26. In the seminal case of Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979), the court stated: “Reviewing the court files and the minutes, the Court of Common Pleas concluded that a ‘conditional approval’ is not one of the possible courses of action, i.e., ‘approval, modification and approval, or disapproval,’ enumerated in General Statutes § 8-26, and thus, such conditional approval constituted a ‘failure to act’ within that statute. The trial court was correct in this interpretation of § 8-26. Nothing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission’s approval of a subdivision plan; the statute merely provides for the commission to ‘approve, modify and approve, or disapprove’ a subdivision application.” Accordingly, the court held that “where a commission makes the approval of a plan of subdivision subject to a condition, the fulfillment of which is within the control of neither the commission nor the applicant, such as approval by a coordinate municipal agency, the commission has ‘failed to act’ within the intendment of General Statutes §§ 8-26 and 8-28, unless the coordinate agency approval appears to be a reasonable probability.” Id., 592-93. Likewise, in River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 58, 856 A.2d 959 (2004), the court held that the defendant planning commission “had no authority to grant the plaintiffs’ subdivision application on the condition that [they] obtain approval of [their] sewer application” before the water pollution control authority. Examples of permissible conditional approval under § 8-26 include Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 368 A.2d 24 (1976), and Crescent Development Corp. v. Planning Commission, 148 Conn. 145, 168 A.2d 547 (1961), both of which required, as a condition of approval, the subdivision applicant to construct a road.

Condition one of the Morey motion does not contain conditional approval. It contains preliminary approval subject to compliance with certain requirements by the plaintiff followed by future review and final approval by the defendant. As distinguished from Nicoli and Crescent Development Corp., it is not approval subject to the construction of a road; it is preliminary approval subject to the construction of a road, followed by submission to the defendant of documentation regarding compliance therewith and further review and approval by the defendant thereon. The defendant has provided no authority to support the proposition that such action on the part of a planning commission constitutes modification and approval under § 8-26.

The parties devote substantial discussion to the fact that the ultimate vote on the Morey motion failed on a tie vote of two commissioners in favor and two opposed, with one commissioner abstaining. The defendant correctly observes that our decisional law has held that “the failure of an application to gamer enough votes for its approval amounts to a rejection of the application. . . . Here the motion to grant the application did not receive the majority vote necessary for approval, and the minutes, in accordance with our cases, correctly stated that it had been ‘disapproved.’ ”8 (Citations omitted.) 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); SmithGroh, Inc. v. Planning & Zoning Commission, 78 Conn. App. 216, 224, 826 A.2d 249 (2003). For purposes of our analysis, the vote is immaterial to the issue before us. The threshold question, which is dispositive in the present case, is whether the motion itself constituted a motion either to approve, disapprove or modify and approve under § 8-26. We conclude that it did not.

The Morey motion most resembles the action of the defendant planning and zoning commission in Finn v. Planning & Zoning Commission, 156 Conn. 540, 244 A.2d 391 (1968). In Finn, the court noted that “[t]here is no provision in either § 8-25 or § 8-26 of the General Statutes which gives specific authority to the commission to provide for the submission of a preliminary plan and for preliminary approval as a condition precedent to final approval.” Id., 545. The court continued: “Section 8-26 also provides: ‘All plans for subdivisions shall be submitted to the commission with an application in the form to be prescribed by it.’ We recognize that, since the commission is empowered to ‘modify and approve’ any application or maps and plans submitted therewith, it may be necessary within the sixty-day period for the applicant to submit more than one map or plan. The statute relates to the application rather than to the maps or plans which are incidental thereto. It provides for only one application and requires that it must be acted upon within sixty days. Failure of the commission to act within such time shall be considered as an approval. The regulations in question in the instant case provide in effect for two separate and distinct applications although the second, and so-called official submission, avoids the use of the word ‘application’ and refers instead to a ‘plan.’ In our opinion this is in reality a second application, for which there is no statutory authorization. ... In the instant case, there is no such grant of authority to planning commissions.” (Citation omitted.) Id., 546. Accordingly, the court declared the regulation in question invalid. Id.; see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 22:6, p. 663 (“[i]t is the nature of the underlying action taken by the planning commission that will determine its legality, not whether it is phrased in terms of a ‘modification’ or ‘conditional approval’ ”).

In the present case, the Morey motion to “modify and approve” the plaintiffs application expressly required the wholesale reconfiguration of all subdivision lots and the submission of a second “revised A-2 record map” to the defendant “for its review prior to the approval . . . .” (Emphasis added.) To paraphrase Finn, although the Morey motion avoids the use of the word application and refers instead to a revised map, it is, in reality, a second application for which there is no statutory authorization. We therefore conclude that the Morey motion does not constitute modification and approval under § 8-26.

Our conclusion is bolstered by the fact that, in analyzing action under § 8-26, the Supreme Court has considered how the land use agency itself interpreted its action in voting on an application before it. Merlo v. Planning & Zoning Commission, supra, 196 Conn. 676, involved a motion to approve a subdivision plan that included certain stipulations not included in the application as submitted by the plaintiff. Although the motion was disapproved by a vote of five to four, the court acknowledged that “[f]rom a parliamentary viewpoint, the defeat of this motion is not the equivalent of a disapproval of the application as submitted by the plaintiff. See Robert’s Rules of Order (1979 Rev.) § 33, pp. 144-45.” Merlo v. Planning & Zoning Commission, supra, 683. Nevertheless, the court observed that “[i]n any practical sense . . . the majority vote against the application as modified by the stipulations contained in the motion, which appear to have been added in order to overcome objections raised by some commission members, indicates that the original subdivision plan would also have failed to receive sufficient votes for approval. If any commission member favored approval of the subdivision without any stipulations and believed that a majority might be similarly inclined, we may presume that such a motion would have been made.” Id. The court thus held that “since the commission itself regarded its vote of June 22, 1978, as a disapproval of the application and the published notice so informed the plaintiff, the application was effectively disapproved on that date, well within the time allowed.” Id., 684; see also Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 535 (“because the agency itself regarded its vote of February 25,1980, as a denial of the application for the requested permit and the newspaper notice so informed the plaintiff and the public, the application was effectively denied on that date which was well within the time for it to act”).

That consideration undermines the defendant’s contention that the July 6, 2006 vote constituted a denial of the plaintiffs subdivision application. First, the record reflects uncertainty among the members of the defendant as to precisely what the Morey motion constituted and on what they had voted. The official minutes of the July 6, 2006 meeting state that following the failure of Morey’s motion, the defendant’s chairwoman “stated [that] she would rework the motion for the [defendant’s] next . . . [m]eeting” without objection. Had the defendant or any of its members understood the failure of that motion to constitute disapproval of the plaintiffs subdivision application, it is improbable that they would acquiesce to further consideration of the application at their next meeting. Second, unlike Merlo and Huck, the defendant never published notice of its July 6, 2006 decision on the Morey motion, as required by § 8-26. Third, at its very next meeting of July 20, 2006, the defendant again discussed the plaintiffs application. The official minutes of that meeting contain explicit disagreement among members as to the effect of the failed Morey motion. The chairwoman of the defendant stated, inter alia, that (1) at the time of the vote “she believed that none of the members believed they were deciding on the subdivision [and] even though a vote was taken, they voted against the ‘motion’ not the ‘subdivision’ (2) following the vote on the Morey motion, “she had said she would prepare another motion for this meeting and that none of the members had objected”; and (3) she had received advice on the matter from the defendant’s attorney. The minutes also indicate that the chairwoman attempted to present another motion to approve the plaintiffs application that did not move forward due to strong opposition and that “[v]ery lengthy discussion ensued among the [defendant] members regarding the proper procedure [the defendant] should follow at this point regarding the previous meeting results and what the current status of [the plaintiffs application] was.” After a motion to “suspend, indefinitely, any further action or discussion” regarding the plaintiffs application made by commissioner Morey also failed on a tie vote, no further action was taken on the matter that evening. It thus is evident that, unlike in Merlo and Huck, the defendant collectively did not regard its vote of July 6, 2006, as a disapproval of the plaintiffs subdivision application.

In addition, the underlying purpose of § 8-26 was not met. As we previously noted, “[t]he purpose of § 8-26 is to ensure expeditious action on the part of municipal planning commissions. It is the failure of the commission to act upon an application within the time provided that results in approval by operation of law under § 8-26. . . . [T]he obvious intention of the legislature in using this language was to ensure prompt and expeditious action on subdivision applications for the protection of the subdivider. . . . [T]his statutory purpose will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, setting in motion clear avenues of appeal.” (Citation omitted; internal quotation marks omitted.) Miles v. Foley, supra, 253 Conn. 389. If the members of the defendant themselves were unsure of the effect of their vote on the Morey motion on July 6, 2006, it seems implausible to suggest that the plaintiff knew with certainty that a definite course of statutory action had been taken by the defendant on its application, particularly when the defendant never provided any public notice of the July 6, 2006 determination.

Following the July 20, 2006 meeting, at which it is undisputed that the defendant did not act on the plaintiffs application pursuant to § 8-26, the defendant took no further action on the plaintiffs application. In light of our conclusion that the Morey motion was an invalid action under § 8-26, we further conclude that the defendant failed to act on the plaintiffs application within sixty-five days of the completion of the public hearing, as required by §§ 8-26 and 8-26d. “For more than a century, our Supreme Court has recognized that when action by a municipal entity is subsequently found to be invalid, it is as if that entity never met or voted.” Koskoff v. Planning & Zoning Commission, supra, 27 Conn. App. 449; see also Carpenter v. Planning & Zoning Commission, supra, 176 Conn. 592 (conditional approval constituted failure to act). Under § 8-26, the defendant’s failure to act in a timely manner on the plaintiffs application mandates automatic approval thereof. General Statutes § 8-26; see also Merlo v. Planning & Zoning Commission, supra, 196 Conn. 682; Koskoff v. Planning & Zoning Commission, supra, 450. Accordingly, the plaintiff was entitled to a certificate to that effect issued by the defendant on demand.

II

Alternatively, the defendant claims that mandamus is not a proper remedy in the present case. It insists that the administrative appeal process “furnishes the plaintiff a more than adequate vehicle and forum for judicial review of the [defendant’s] work and actions.” We disagree.

Our Supreme Court rejected a similar claim in Merlo v. Planning & Zoning Commission, supra, 196 Conn. 676. It stated: “[T]his court in several cases has implicitly approved mandamus as an appropriate remedy where it is claimed that a subdivision plan has been automatically approved pursuant to § 8-26 because of the failure of a planning commission to perform its statutory duty within the prescribed time. . . . [W]e [have] held that the pendency of a zoning appeal, which could do no more than secure approval of the coastal site plan, which already had been approved by operation of law, did not preclude resort to the more expeditious and effective remedy of mandamus in order to vindicate the plaintiffs’ right to the immediate issuance of a building permit. The situation is similar in this case, where the plaintiff claims that her subdivision plan has been approved pursuant to § 8-26 by virtue of the inaction of the commission. If the plan has been approved by operation of law, as she contends, her right to certification of its approval by the commission can most directly, completely and expeditiously be effectuated by mandamus.” (Citations omitted; internal quotation marks omitted.) Id., 680-81; see also Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 413, 898 A.2d 157 (2006). Because the plaintiffs subdivision application was automatically approved by operation of law under § 8-26, mandamus is a proper remedy in the present case.

We conclude that the court improperly rendered summary judgment in favor of the defendant. In light of the foregoing, summary judgment should have been rendered in favor of the plaintiff.

The judgment is reversed and the case is remanded with direction to render judgment granting a writ of mandamus to compel the defendant to approve the plaintiffs subdivision application.

In this opinion the other judges concurred.

       The New Milford zoning regulations define R-80, R-60 and R-40 zones as parcels with minimum lot areas of 80,000 square feet, 60,000 square feet and 40,000 square feet, respectively. New Milford Zoning Regs., c. 20, § 20-010.

       The official minutes of the defendant’s August 19, 2004 meeting state that the plaintiff sought “to amend the R60 and R80 zones to a [CCSD] . . . basically changing it to what a 40,000-zone and what their district requirements are.” The defendant approved the plaintiffs application by a vote of four to one.

       A legal notice published on July 28, 2006, stated that the defendant, at its special meeting of July 20, 2006, “denied Walker Brook Farms, Chestnut Land Road—78 lots.”

       The Morey motion provided: “I (Tom Morey) move that the [defendant] modify and approve the [s]ubdivision consisting of approximately 210.798 acres known as ‘Walker Brook Farm,’ located on Route 109 and North Walker Brook Road. The owner of record is [the plaintiff], Newtown, Connecticut. The [subdivision [m]ap is entitled, ‘Walker Brook Farm’ dated September 1, 2005, subject to the following revisions and conditions which shall be set forth on the [subdivision Mylar.
      “1. All [subdivision lots shall consist of a minimum of 60,000 square feet of buildable area and all lot lines shall be reconfigured such that the minimum lot width of each lot shall not be less than 180 linear feet for puiposes of meeting the [p]ublic [h]ealth [c] ode requirement of minimum leaching spread systems (MLSS). Rear lot accessways may remain at [twenty] linear feet of frontage on the proposed roadways. The [applicant shall provide to the [ defendant] for its review prior to the approval and signing of the subdivision Mylar, a revised A-2 record map delineating amended lot areas and lot lines.
      “2. All proposed building lots shall be served by individual wells and septic systems that shall comply with all applicable codes, rules and regulations of the [s]tate of Connecticut and the [t]own of New Milford and shall further comply with any and all requirements of the New Milford [djirector of [h]ealth.
      “3. The applicant shall comply with any and all requirements of the [ijnland [wjetlands [c]ommission.
      “4. The [subdivision Mylar shall not be signed unless and until a bond in the amount of $2,000,000.00 is posted. The bond shall be in the form of a [certificate of [d]eposit, assigned to the [t]own of New Milford, and shall be for the puiposes of assuring that the approved [subdivision improvements have been built in compliance with the [r]oad [ordinance and have been completed to the satisfaction of the [t]own [e]ngineer or his designee. No work in furtherance of the subdivision shall commence until the bond has been posted with the [defendant].
      “5. Any application for the release or reduction of the bond for the [subdivision improvements will not be considered by the [defendant] unless it is accompanied by a statement from the [t]own [e]ngineer or his designee, in a form acceptable to the [defendant], setting forth that the improvements are in full compliance with the [t]own’s [r]oad [o]rdinance and any other applicable [l]own ordinances, rules or regulations.
      “6. No subdivision improvements shall be accepted into the New Milford road system unless and until the [t]own engineer or his designee has certified to the [defendant] that the improvements comply with the [r]oad [ojrdinance; any such certification shall be accompanied by a ‘road as-built’ submitted by the applicant and prepared by a surveyor or engineer licensed by the [sjtate of Connecticut.
      “7. No subdivision improvements shall be accepted into the New Milford road system unless and until maintenance bond has been posted in a form and amount that is acceptable to the [defendant],
      “8. The [s Jubdivision Mylar shall not be signed unless and until all proposed common driveways are named and numbered in compliance with section 2.2.1b of the [pjlanning [Regulations.
      “9. All proposed common driveways shall be constructed in compliance with [sjection 2.2.1b of the [pjlanning [Regulations and the New Milford [djriveway [ojrdinance. The applicant shall submit to the [defendant] and the [tjown [ejngineer or his designee a ‘common driveway as-built’ prepared by a surveyor or engineer licensed by the [sjtate of Connecticut. No certificate of occupancy shall be issued for any dwellings served by the proposed common driveways unless and until the [tjown [ejngineer or his designee has certified that the [cjommon [djriveway has been completed and is in compliance with said [sjection and [ojrdinance.
      “10. The applicant shall submit a [cjommon [djriveway [mjaintenance [ajgreement for all lots served by common driveways that is binding on all future lot owners and shall be in a form that is acceptable to the [defendant]; said [ajgreement shall be recorded in the [tjown [cjlerk’s [ojffice.
      “11. Any and all drainage easements, if any, shallbe conveyed to the [tjown of New Milford within [ninety] days of the filing of the subdivision Mylar.
      “12. No certificate of occupancy shall be issued for any dwellings constructed on any lot unless and until all proposed roadways serving said dwellings have been completed with binder course and curbs and approved by the [tjown [ejngineer or his designee.
      “13. In accordance with [sjection 107-050 of the [zjoning [Regulations, prior to the signing of the subdivision Mylar, title to and maintenance of the [cjonservation area consisting of 118.888 acres shall be vested in a legally formed [hjomeowners [ajssociation in a form that is acceptable to the [defendant].
      “14. On July 1,2007 and every anniversary date thereafter, the [hjomeowners [ajssociation shall submit a report on the conditions of all [cjonservation areas to the New Milford [pjlanning, [zjoning, [cjonservation [cjommissions and the New Milford [hjealth [djepartment.
      “15. No [cjertificate of occupancy shall be issued for any dwelling unless and until all 911 numbers have been installed in accordance with the applicable [ojrdinances of [the] [tjown of New Milford.
      “16. A soil erosion bond in the amount of $3,500 per lot shall be paid to the [defendant] prior to the issuance of any building permits. The bond shall be in a form acceptable to and made payable to the [defendant].
      “17. All soil erosion devices shall be installed prior to any roadway and lot excavations.
      “18. A report in writing, signed by the developer, shall be provided to the [defendant] every fourteen days, giving the status and condition of the soil erosion control from the first day of soil disturbance.

        “19. The project shall comply with the 2004 [s]tate of Connecticut sedimentation and soil erosion control guidelines.
      “20. Homestead Drive between stations 36 + 00 and 44 + 50 shall be constructed so that they conform to the New Milford [r]oad [ordinance.
      “21. The applicant shall comply with any and all requirements of the [s]tate [t]raffic [c]ommission and shall provide to the [t]own [e]ngineer or his designee a copy of the [state traffic commission] [p]ermit after it has been granted by the [s]tate.
      “22. The proposed breakaway gate at the intersection of Homestead Drive and North Walker Brook Road shall be eliminated.
      “23. The ‘Walker Brook Farm’ [subdivision approval shall expire on July 6,2011 unless and until any and all bonded infrastructure improvements have been completed to the satisfaction of the [defendant]. Upon the applicant’s request, an extension or extensions may be granted by the [defendant] up to an additional [five] years but the total including the initial [five] year period and all extensions shall not exceed [ten] years. All such requests for extensions shall be submitted to the planning commission no less than [six] months prior to any expiration date.”

       In light of our resolution of the plaintiffs principal claim, we do not address its ancillary claim that the defendant lacked statutory authority to impose a larger minimum lot size requirement than that established by the New Milford zoning regulations under Cristofaro v. Burlington, 217 Conn. 103, 107, 584 A.2d 1168 (1991).

       The Carpenter holding recognizes the reality that applicants before a planning or zoning commission regularly must seek approval from coordinate agencies, hence its requirement that the approval of such a coordinate agency “be a reasonable probability.” Carpenter v. Planning & Zoning Commission, supra, 176 Conn. 593. In contrast to the present case, Carpenter did not involve commission approval subject to future final approval by that same commission.

       We note that the court in River Bend Associates, Inc., in considering the defendant planning commission’s action, stated that “[t]he scope of the planning commission’s authority to grant a conditional approval of a subdivision application under [General Statutes] §§ 8-26 and 8-30g is a question of statutory interpretation over which our review is plenary.” River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 55.

       Similarly, the court in Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 389, 610 A.2d 620 (1992), concluded that the defendant planning and zoning commission “took valid action on [a] subdivision application when it modified the lot configuration of the corporation’s subdivision application by reducing the number of lots thereon [from twenty-two] to sixteen and approved it, as modified” because the applicable subdivision regulations “expressly granted authority to the commission” to make such a modification. Unlike the Morey motion, the defendant in Timber Trails Corp. did not require the applicant to submit a revised plan for the defendant’s review and final approval following its initial approval of the application.

       Although we note the plaintiffs disagreement with the aforementioned precedent, it is axiomatic that this court, as an intermediate body, is bound by the decisions of our Supreme Court. See Fennelly v. Norton, 103 Conn. App. 125, 133 n.5, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).

       The defendant has not alleged before the trial court or this court that the July 20, 2006 motion to “suspend, indefinitely, any further action or discussion” constituted either approval, disapproval or modification and approval under § 8-26. In its memorandum of law in support of its motion for summary judgment, the defendant stated that “[i]t is the [defendant’s] position that the [July 20, 2006] motion had no effect in that the matter was completed on July 6, 2006.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ZBIGNIEW S. ROZBICKI v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 29290)
    Gruendel, Beach and Hennessy, Js.
    Argued September 24
    officially released November 18, 2008

      Zbigniew S. Rozbicki, pro se, the appellant (plaintiff).

      Mark A. Dubois, chief disciplinary counsel, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Zbigniew S. Rozbicki, appeals from the judgment of the trial court dismissing his appeal from the reprimand issued to him by the defendant, the statewide grievance committee (committee). The committee affirmed the decision of its reviewing committee, reprimanding the plaintiff for a violation of rule 3.1 of the Rules of Professional Conduct (2005). On appeal to this court, the plaintiff claims that the court improperly concluded that there was clear and convincing evidence that he violated rule 3.1. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The plaintiff was retained to represent a man whose former wife had filed several motions alleging violations of the court’s orders stemming from the dissolution of their marriage. The wife was represented in the dissolution action by an attorney to whom she is presently married and whose firm continued to represent her.

The plaintiff, on his client’s behalf, filed postdissolution motions to disqualify the firm representing the wife and for a continuance. Both motions contain allegations that the wife’s attorney in the dissolution action, who was married to another woman, and the wife were having an “illicit and extramarital relationship.” The plaintiff further alleged that a child had been illegitimately conceived from this relationship, which later led to marriage. The wife’s attorney served a request for a retraction on the plaintiff to alert him of inaccuracies in the motion, including the date he married his new wife, along with the birth date of the alleged illegitimate child. Additionally, the wife’s attorney filed two grievances against the plaintiff. After a hearing, a reviewing committee of the statewide grievance committee found the plaintiff to have violated rule 3.1 of the Rules of Professional Conduct and imposed a reprimand. The reviewing committee wrote in its decision that even though there was a basis for filing the motions, the inclusion of the allegations of a sexual affair and describing the couple’s child as illegitimate were unnecessary to the merits of the motions, and, due to the nature of the allegations, the committee inferred that the allegations were made only to embarrass, harass or maliciously injure those involved and were therefore frivolous. The plaintiff appealed to the Superior Court, which dismissed the appeal. The plaintiff then appealed to this court.

“Our court recently has clarified the appropriate appellate standard of review for cases involving attorney grievance appeals. In Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007), this court, after thorough analysis, determined that the clearly erroneous standard ... is the preferable standard of review in attorney grievance appeals.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Johnson, 108 Conn. App. 74, 79, 946 A.2d 1256, cert. denied, 288 Conn. 915, 954 A.2d 187 (2008).

Rule 3.1 of the Rules of Professional Conduct (2005) requires in relevant part that attorneys “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous . . . .” “In Texaco, Inc. v. Golart, 206 Conn. 454, 538 A.2d 1017 (1988), our Supreme Court adopted the test for frivolousness set forth in the comment to rule 3.1. Accordingly, a claim or defense is frivolous (a) if maintained primarily for the purpose of harassing or maliciously injuring a person .... In Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 255, 828 A.2d 64 (2003), the court indicated that the test is an objective one.” (Internal quotation marks omitted.) Brunswick v. Statewide Grievance Committee, supra, 103 Conn. App. 614-15.

Our examination of the record and briefs in light of the case law persuades us that the court’s judgment should be affirmed. Because the court’s memorandum of decision fully addresses the arguments raised in the present appeal and because the court considered this case under the clarified standard set forth in Brunswick v. Statewide Grievance Committee, supra, 103 Conn. App. 601, we hold that the findings of the court were proper.

The judgment is affirmed.

       Rule 3.1 of the Rules of Professional Conduct (2005) states: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”

       The plaintiff also claims that the court improperly failed in its duty to apply relevant family relations statutes and law that deprived him of due process of law. We decline to review this claim, however, because it is briefed inadequately. “ [W] e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Citation omitted; internal quotation marks omitted.) Turner v. American Car Rental, Inc., 92 Conn. App. 123, 130-31, 884 A.2d 7 (2005). The plaintiff has cited no family relations statutes or cases that he alleges the court had a duty to apply in this case. Further, the plaintiff has provided only a cursory analysis in support of this contention. We therefore decline to review this claim.

       The basis stated in the motion to disqualify was that the plaintiff intended to call the wife’s attorney and his law partner as witnesses in the hearings on the posQudgment motions.


author: ROBINSON, J.

text:
    JOHN ALAN SAKON v. TOWN OF GLASTONBURY
    (AC 28933)
    Gruendel, Robinson and Foti, Js.

      Argued September 10
    officially released November 18, 2008

      John Alan Sakon, pro se, the appellant (plaintiff).

      Beth Bryan Critton, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, John Alan Sakon, appeals from the judgments of the trial court denying two tax appeals brought pursuant to General Statutes §§ 12-117a and 12-119. The defendant in this matter is the town of Glastonbury. On appeal, the plaintiff claims that the court improperly (1) concluded that he was not aggrieved, (2) applied the doctrine of assemblage to determine the value of properties appearing separately on the grand list, (3) determined that the highest and best use of his property was commercial development, (4) concluded that the assessment on the property was proper even though there was no possible use of the property to generate income and (5) found that evidence of the predatory nature of the defendant’s commercial property assessments was not admissible. We affirm the judgments of the trial court.

This case concerns consolidated tax appeals involving three separate but contiguous parcels of undeveloped land owned or leased by the plaintiff in Glastonbury. None of the parcels has direct frontage, but each has access by way of easements. Together, the three parcels cover approximately 9.36 acres and are located within a commercial zone designated as the planned travel zone. The first parcel, Main Street Rear, is comprised of 4.922 acres and was purchased by the plaintiff in 1985 for $210,000. The second parcel, Gris-wold Street Rear, consists of 1.82 acres and was purchased by the plaintiff in 1988 for $89,000. The third lot, known as 2980 Main Street, consists of 2.56 acres and was acquired by the plaintiff under a long-term lease commencing on February 11,1999, for a fifty year period with four twelve year options to renew. Pursuant to the lease agreement, the plaintiff pays rent in the amount of $12,500 per year for use of this parcel.

On the grand list of October 1, 2002, the date of the last townwide revaluation, the town’s assessor valued the three parcels at $122,425 per acre. The plaintiff appealed from this assessment to the board of assessment appeals (board), and the valuation was reduced to approximately $40,000 per acre. The plaintiff did not appeal from this decision to the Superior Court, and the reduced value appeared on the 2003, 2004, 2005 and 2006 grand lists.

In 2005, the plaintiff once again appealed from the valuation to the board. The appeal was denied, and, pursuant to § 12-117a, the plaintiff appealed to the Superior Court. The plaintiff also brought a direct claim pursuant to § 12-119, alleging that the defendant had imposed an illegal tax on his property. The two claims were consolidated on January 23, 2006.

At trial, both parties submitted testimony as to the proper valuation of the property. The plaintiff, testifying as to the value of his property, calculated the total value of the three parcels at $18,604 or approximately $2000 per acre. The defendant’s expert, the town appraiser, Sean T. Hagearty, calculated the total value of the three parcels as $650,000, or approximately $70,000 per acre. By memorandum of decision, the court found the value of the three parcels to be reflected accurately in the reduced value previously determined by the board—a value of approximately $40,000 per acre. Following the close of evidence, the court found that the plaintiff had not sustained his burden of establishing overvaluation and, thus, denied the claims. The plaintiff subsequently filed a motion for reargument, which was denied, and this appeal ensued. Additional facts will be set forth as necessary.

Before addressing the merits of the plaintiffs claims, we first set forth the well settled legal principles underlying a § 12-117a tax appeal, as well as our applicable standard of review. “Section 12-117a, which allows taxpayers to appeal the decisions of municipal boards of [assessment appeals] to the Superior Court, provide [s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property .... [Initially], [t]he burden ... is upon the plaintiff to show that he has, in fact, been aggrieved by the action of the board in that his property has been overassessed. ... In this regard, [m]ere overvaluation is sufficient to justify redress under [§ 12-117a], and the court is not limited to a review of whether an assessment has been unreasonable or discriminatory or has resulted in substantial overvaluation. . . . Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier. . . . The trier arrives at his own conclusions as to the value of land by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value including his own view of the property. ” (Internal quotation marks omitted.) Breezy Knoll Assn., Inc. v. Morris, 286 Conn. 766, 775-76, 946 A.2d 215 (2008).

On appeal, “[w]e review a court’s determination in a tax appeal pursuant to the clearly erroneous standard of review. Under this deferential standard, [w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Narumanchi v. DeStefano, 89 Conn. App. 807, 811-12, 875 A.2d 71 (2005).

Cognizant of these principles, we now turn to our resolution of the claims raised in the present appeal.

I

The plaintiffs principal claim contests the court’s finding that he was not aggrieved pursuant to § 12-117a; however, this claim is based on two specific yet intertwined findings made by the court in support of its conclusion that the plaintiff failed to establish aggrievement. In reaching its determination that the property was not overassessed by the defendant, the court found applicable the doctrine of assemblage to combine the three parcels for purposes of valuation and then determined that the highest and best use of the assembled property was for commercial purposes. On appeal, the plaintiff claims that both of these findings, as well as the resulting conclusion that he was not aggrieved, is improper.

Before discussing the merits of the underlying claims assailing the aggrievement conclusion, we briefly set forth the legal framework governing aggrievement in tax appeals taken pursuant to § 12-117a. “The issue of aggrievement involves a two part analysis, which entails both factual determinations and a question of law. Whether a specific action that the assessor takes in his valuation has aggrieved a taxpayer is a question of law. . . . Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier.” (Citations omitted; internal quotation marks omitted.) Davis v. Westport, 61 Conn. App. 834, 842, 767 A.2d 1237 (2001).

With the foregoing in mind, we turn first to the claims underlying the plaintiffs broader claim that the court improperly determined that he did not establish aggrievement.

A

Doctrine of Assemblage

The plaintiff claims that the court improperly relied on the doctrine of assemblage in its determination of what constituted the highest and best use for his three parcels, a determination that ultimately affected the court’s valuation of his three parcels. Specifically, the plaintiff argues that it is not appropriate to value parcels as an assemblage when the parcels appear separately on the grand list. We are not persuaded.

As a preliminary matter, it should be noted that “ Valuation is a matter of fact to be determined by the trier’s independent judgment. ... In actions requiring such a valuation of property, the trial court is charged with the duty of making an independent valuation of the property involved. . . . [N]o one method of valuation is controlling and . . . the [court] may select the one most appropriate in the case before [it]. . . . Moreover, a variety of factors may be considered by the trial court in assessing the value of such property. . . . [T]he trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. . . . The trial court has broad discretion in reaching such conclusion, and [its] determination is reviewable only if [it] misapplies or gives an improper effect to any test or consideration which it was [its] duty to regard.” (Internal quotation marks omitted.) Abington, LLC v. Avon, 101 Conn. App. 709, 715, 922 A.2d 1148 (2007). Indeed, courts have adopted a wide range of valuation methods. See, e.g., id., 715-17 (upholding court’s piecemeal approach that determined valuation of parcel by finding sum of values of individual structures and forest land).

In the present matter, the court found that the plaintiffs property was not overvalued at the grand list value of $40,000 per acre because the highest and best use of the parcels was for commercial development. In reaching this conclusion, the court noted that the plaintiffs proposed valuation overlooked the doctrine of assemblage and the effect that this doctrine has on the property’s potential use. Although the proper method of valuation lies within the broad discretion of the trial court, this court’s review of the facts found in support of the court’s choice of valuation method is subject to the clearly erroneous standard.

“The doctrine of assemblage applies when the highest and best use of separate parcels involves their integrated use with lands of another. Pursuant to this doctrine, such prospective use may be properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable.” (Internal quotation marks omitted.) Route 188, LLC v. Middlebury, 93 Conn. App. 120, 126, 887 A.2d 958 (2006). “According to the Supreme Court, [t]he fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. . . . There must be a reasonable [probability] that the owner could use this tract together with the other [parcels for such] proposes or that another could acquire all lands or easements necessary for that use.” (Internal quotation marks omitted.) Id., 127.

“[I]f a prospective, integrated use is the highest and best use of the land, can be achieved only through combination with other parcels of land, and combination of the parcels is reasonably probable, then evidence concerning assemblage, and, ultimately, a finding that the land is specially adaptable for that highest and best use, may be appropriate.” (Internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn. App. 114, 121, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003); Ferrigno v. Cromwell Development Associates, 93 Conn. App. 799, 806, 892 A.2d 291, cert. denied, 278 Conn. 903, 896 A.2d 104 (2006). “[A] court, in deciding whether it is appropriate to employ an assemblage analysis in a particular case, should consider all the circumstances surrounding the proposed combination, including the ownership status of the parcels. If the combination of parcels is reasonably probable and the prospective, integrated use is not speculative or remote, assemblage analysis is a proper valuation approach.” Franc v. Bethel Holding Co., supra, 123.

A review of the record reveals that the court’s application of the doctrine of assemblage as a method of valuation was legally correct and factually supported. In arriving at an overall conclusion that the value of the property was based properly on an assemblage, the court carefully weighed the opinion of the defendant’s appraiser against the opinion of the plaintiff. Regarding assemblage, the pro se plaintiff, testifying on his behalf, stated that the only plausible use of his land was as a park and that any valuation of the parcels in aggregate was highly speculative in the absence of a special permit needed to develop the land. On the contrary, the defendant’s appraiser testified that the physical characteristics of the site could support a wide variety of commercial uses, ranging in complexity from an office to a recreational-athletic facility. The appraiser also testified about the multitude of feasible commercial alternatives that could be implemented on the property. These alternatives included options with a smaller degree of impact on the town, a factor that weighed heavily in the board’s decision to deny previous applications to develop the parcels.

The court also recognized that the plaintiff had made several applications to develop the three parcels commercially as an assemblage, including an application that was pending during this appeal. The court gave ample consideration to the circumstances surrounding the plaintiffs prior applications to develop his property commercially as an assemblage. It noted that the plaintiff received the necessary wetlands permit to develop the subject property and that the permit remains valid. Moreover, although the plaintiff claims that the use of his property as an assemblage is speculative because prior applications to develop the land had been denied, the court heard testimony regarding the considerable size of the plaintiffs proposed development and the fact that his application was denied on the basis of extensive traffic problems.

Weighing all of these factors, the court ultimately concluded that the plaintiffs claim that his properties must be considered separately, rather than as an assemblage, lacked credibility. Furthermore, the court’s analysis of the testimony provided by the defendant’s appraiser provided adequate support for its implicit finding that the future use of the assembled land was reasonably probable given the location and physical characteristics of the site. “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible. ... On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 99, 626 A.2d 1292 (1993).

On the basis of the foregoing, we conclude that the court’s determination to view the parcels as an assemblage for valuation purposes was supported adequately by the record and, therefore, was not clearly erroneous.

B

Highest and Best Use

In conjunction with his claim that his property should not be viewed as an assemblage, the plaintiff also claims that the court improperly determined that the highest and best use of his property was for commercial development. Specifically, he argues that commercial development was not a legally permissible use at the time the grand list became effective, and, therefore, the court should not have accepted testimony from the defendant that determined the value based on speculative future use.

“A property’s highest and best use is commonly defined as ‘the use that will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate.'' . . . The highest and best use determination is inextricably intertwined with the marketplace because ‘fair market value’ is defined as ‘the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use.’ . . . The highest and best use conclusion necessarily affects the rest of the valuation process because, as the major factor in determining the scope of the market for the property, it dictates which methods of valuation are applicable. Finally, a trier’s determination of a property’s highest and best use is a question of fact that we will not disturb unless it is clearly erroneous.” (Citations omitted; emphasis in original.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 25-26, 807 A.2d 955 (2002).

In the present case, we conclude that the court’s highest and best use determination is not clearly erroneous. As discussed previously, the court carefully considered the testimony and written reports of both the plaintiff and the defendant’s appraiser and ultimately determined that the plaintiff lacked credibility when he testified that the highest and best use for his parcels was as a park. Specifically, the court heard extensive testimony detailing the wide variety of commercial uses that could be supported by the physical characteristics of the assemblage. This testimony then was weighed against that of the plaintiff, in which he submitted comparable sales of vacant lands located in a flood plain to establish that the best use of his parcels was as a park.

In his brief, the plaintiff essentially asks this court to reweigh the evidence in his favor. As previously stated, however, “[t]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible. . . . [I]t is the proper function of the court to give credence to one expert over the other.” (Internal quotation marks omitted.) Abington, LLC v. Avon, supra, 101 Conn. App. 719. Here, the court heard conflicting testimony as to the highest and best use of the property and concluded that the highest and best use was for commercial development. In reaching this conclusion, the court properly gave credence to one expert over the other. The findings reached by the trial court must stand “unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law.” (Internal quotation marks omitted.) Newbury Commons Ltd. Partnership v. Stamford, supra, 226 Conn. 100. As the facts contained in the record adequately support the court’s finding, we will not disturb this finding on appeal.

Furthermore, the plaintiffs reliance on Sheldon House Club, Inc. v. Branford, 149 Conn. 28, 175 A.2d 186 (1961), is misplaced. In Sheldon House Club, Inc., our Supreme Court reviewed the assessment of property where the only evidence offered by the plaintiff to prove overvaluation was the sale of corporate stock several days after the coiporate property was assessed. Id. The factual background of that case is unique in that the plaintiff corporation attempted to establish overvaluation of its real estate by submitting evidence of the sale of its coiporate stock and the price received at auction for the furnishings. As the only corporate assets prior to the sale consisted of real estate and furnishings, the plaintiff corporation posited that the value of the real estate adequately was determined by the value of the furnishings when sold at auction subtracted from the sale price of the corporate stock. Id. Our Supreme Court upheld the trial court’s determination that this evidence was insufficient to establish overvaluation. In the present case, the plaintiff cites to the portion of the court’s discussion stating that “[t]he property to be valued was that which stood in the plaintiffs name on October 1, regardless of its intended future use.” (Emphasis added.) Id., 33. The context of this statement, however, was focused on whether it was a proper valuation method to bundle personalty and realty into one value pursuant to the value of the coiporate stock and then determine the value of one piece of the bundle by the auction value of the other. The court recognized that the auction price is not reflective of the fair market value of the furnishing, and, therefore, “[i]t necessarily follows that the auction sale price is an unsafe guide in the determination of the true and actual value of the realty.” Id., 32. This case does not stand for the proposition posited by the plaintiff, specifically, that property cannot be assessed for a use that requires a special permit that has yet to be issued.

Accordingly, we conclude that because the court gave careful consideration to the expert testimony and appraisals, and its findings are clearly supported by the record, its highest and best use determination is not clearly erroneous and will therefore not be disturbed on appeal.

C

Aggrievement

Having determined that the court did not improperly conclude that the doctrine of assemblage was the appropriate valuation method to ascertain that the highest and best use of the plaintiffs property was for commercial development, we next consider the plaintiffs broader claim that the court improperly found that he was not aggrieved.

“The issue of aggrievement involves a two part analysis, which entails both factual determinations and a question of law. Whether a specific action that the assessor takes in his valuation has aggrieved a taxpayer is a question of law. . . . Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier.” (Citations omitted; internal quotation marks omitted.) Davis v. Westport, supra, 61 Conn. App. 842. As we have previously discussed, a court’s decision as to the value of the property is ordinarily reviewed pursuant to the clearly erroneous standard. See Grolier, Inc. v. Danbury, 82 Conn. App. 77, 78, 842 A.2d 621 (2004).

In the present case, the court found that the highest and best possible use of the plaintiffs property was for commercial development. The basis of this determination was the application of the doctrine of assemblage. The court heard expert testimony and determined that the plaintiffs land, when viewed as an assemblage, was not overvalued as a commercial property, and, therefore, the plaintiff was not aggrieved. We have already determined that the court properly applied the doctrine of assemblage to determine that the highest and best possible use of the plaintiffs three parcels was for commercial development. On the basis of the facts of this case and the foregoing analysis, we conclude that the court properly determined that the plaintiff had failed to show aggrievement due to overvaluation of his properties.

II

The plaintiff also claims that the court improperly refused to consider evidence and argument as to the alleged predatory nature of the defendant’s system of assessment. We disagree.

“[0]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [plaintiff] of substantial prejudice or injustice. ... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) Narumanchi v. DeStefano, supra, 89 Conn. App. 811. Furthermore, “[f]or evidentiary rulings claimed to be improper to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice.” (Internal quotation marks omitted.) Cichocki v. Quesnel, 74 Conn. App. 299, 301, 812 A.2d 100 (2002). Practice Book § 67-4 (d) (3) requires a party challenging a purported evidentiary error to submit a “brief or appendix [that] include [s] a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.” See also W. Horton & S. Cormier, Rules of Appellate Procedure (2003 Ed.) § 67-4 (5), authors’ comments, p. 202 (“[e]videntiary rulings and the charge must be presented essentially verbatim as discussed in § 67-4 [d]”).

A review of the plaintiffs brief indicates that we need not determine whether the court abused its discretion because the plaintiff has failed to brief his evidentiary claim adequately in accordance with Practice Book § 67-4 (d) (3). In his brief, the plaintiff contends that an exhibit of a “sales comparable” was offered as proof of the defendant’s predatory practices, but the court “ruled to exclude the exhibit.” He also claims that he sought to raise the same issue through the testimony of Kenneth E. Leslie, the director of community development for the defendant, but this testimony was also excluded by the court as “irrelevant and not admissible.” Although the plaintiff does provide a detailed description of what the evidence purportedly represents, his brief contains no citation to authority or to the record and, therefore, is procedurally not in compliance with Practice Book § 67-4. Accordingly, we will not review his claim. See Barry v. Quality Steel Products, Inc., 263 Conn. 424, 447 n.20, 820 A.2d 258 (2003) (refusing to review evidentiary claim in case in which “the defendants do not furnish any citation to the record, or to anywhere in the transcript, the trial court’s ruling, or the defendants’ claimjed] grounds for admission of the evidence”).

The judgments are affirmed.

In this opinion the other judges concurred.

       As described in the court’s memorandum of decision, a planned travel zone is “a type of commercial zone that requires a minimum lot area of ten acres for uses permitted in the zone.”

       The plaintiff also argues that the court improperly found that he was not aggrieved in his claim brought pursuant to General Statutes § 12-119. The partial basis for this claim mirrors the grounds asserted to support his claim pursuant to General Statutes § 12-117a, namely, that the court improperly applied the doctrine of assemblage to determine that the highest and best use of the property was for commercial development. In its memorandum of decision, however, the court did not make these findings in its discussion of the plaintiffs § 12-119 claim. Rather, it concluded that the issues involved in the § 12-119 appeals were “in reality, a challenge to the valuation of the plaintiffs properties pursuant to § 12-117a, not whether the assessor acted illegally.” In reaching this conclusion, the court found that the plaintiff “fail [ed] to show that the assessor did something illegal pursuant to § 12-119.” Accordingly, absent a showing of illegality, the court found that the plaintiffs § 12-119 claim failed.
      As stated by our Supreme Court: “[Section] 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes § 12-119 from its more frequently evoked companion, [§ 12-117a], . . . Under § 12-119, there are two possible grounds for recovery: the absolute nontaxability of the property in the municipality where situated, and a manifest and flagrant disregard of statutory provisions. ... A claim that an assessor used an inappropriate method of appraisal, resulting in overvaluation, is not a claim of illegal or wrongful assessment and, therefore, is properly raised under § 12-117a.” (Citations omitted; internal quotation marks omitted.) Breezy Knoll Assn., Inc. v. Morris, supra, 286 Conn. 778 n.20. In the present appeal, the issues pertaining to aggrievement, the application of the doctrine of assemblage and the highest and best use determination relate to valuation, not illegality. Therefore, these issues do not relate to the § 12-119 claim and are properly discussed in the context of the § 12-117a appeal.

       It should be noted that the plaintiff failed to provide any legal authority to support his contention that the fair market value of his three parcels is not appropriately determined by an assemblage analysis. Instead, the plaintiff contests the court’s reliance on Ferrigno v. Cromwell Development Associates, supra, 93 Conn. App. 799, to support its conclusion that the doctrine of assemblage is appropriate for tax assessment valuation.

        The plaintiff is correct in stating that Femgno did not involve a tax appeal; however, in Franc v. Bethel Holding Co., supra, 73 Conn. App. 114, we engaged in a thorough discussion of the doctrine of assemblage, as applied in a variety of jurisdictions and contexts. It is relevant to note that in Franc, we stated that “[i]n both eminent domain proceedings and in actions for damages to real property, a trial court enjoys a large degree of discretion in valuing the subject property. ... We can discern no reason why a factor affecting the fair market value of real property in the former context should be inapplicable in the latter.” (Citations omitted.) Id., 126.
      The same logic would apply in the present case. Given the broad discretion afforded the court to determine the appropriate method of valuation, given the facts and circumstances of a given case, it stands to reason that a method of valuation that is reasonable to determine fair market value for condemnation or property damages would likewise be reasonable in determining fair market value for tax assessment purposes.

       In a related claim, the plaintiff contests the court’s determination that the highest and best use of property may be a use that requires the issuance of a special permit that has not been granted. The plaintiff argues that in the absence of a special permit, commercial use is not legally permissible and, therefore, cannot be the highest and best use. The plaintiff cites no legal authority and provides no legal analysis in support of this claim, however, and we therefore decline to afford it review. See Knapp v. Knapp, 270 Conn. 815, 823 n.8, 856 A.2d 358 (2004) (“We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” [Internal quotation marks omitted.]).

       In reaching this conclusion, we are mindful of the plaintiffs pro se status. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Nonetheless, [although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Ervin v. Avallone, 108 Conn. App. 55, 56 n.1, 947 A.2d 380, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008).


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. CLETUS AZIEGBEMI
    (AC 28231)
    Bishop, McLachlan and Borden, Js.

      Argued September 9
    officially released November 18, 2008

      Lisa J. Steele, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Cletus Aziegbemi, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit risk of injury to a child in violation of General Statutes §§ 53a-49 (a) (2) and 53-21 (a) (1). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction of attempt to commit risk of injury to a child under the “situation” prong of § 53-21 (a) (1), and (2) § 53-21 (a) (1) is unconstitutionally vague as applied in this case. We affirm the judgment of the trial court.

On the basis of evidence presented at trial, the jury reasonably could have found the following facts. On May 18, 2005, as the fourteen year old female victim, P, was walking home from school at approximately 3 p.m., the defendant drove alongside her in a dark red Jeep. P noticed that the defendant was wearing a “black” baseball cap, a red shirt and a gold chain. She also noticed that the defendant’s face was severely pockmarked. The defendant was wearing his seat belt. Speaking though his open passenger side window, he asked P, “why do you look so mad?” She replied, “because I am mad.” At the time, the defendant’s Jeep was approximately three feet away from P. The defendant told P that she “was pretty” and asked if he could be “a friend” to her. P replied, “of course not.” The defendant asked P if she knew where he lived. P replied, “I don’t even know you.” The defendant then pointed in the direction of his neighborhood and told P on what street he lived. As P approached the comer, where she intended to cross the street, her path was blocked by a large bush. At this point, the defendant drove less than one foot away from P, cornering her between the bush and his vehicle. The defendant reached out of the passenger side window and grabbed P by the wrist and neck, and pulled her off of her feet and partially into the Jeep. P resisted, striking the defendant in the head with an empty tin Altoids container. The defendant then released P, and she ran home.

On May 19, 2005, P and her mother went to police headquarters and worked with Detective Paul Lombardo to assemble a composite representation of the defendant. P also viewed an automotive Internet site and selected a Jeep that closely resembled the defendant’s vehicle. After departing from police headquarters, P and her mother drove around the area where the incident occurred, looking for the defendant. Eventually, P observed the defendant’s vehicle parked on the side of the road. P told her mother that she “was 100 percent certain” that the driver was the man who accosted her. P’s mother began following the defendant’s vehicle and called the police, who dispatched several units to assist her. P’s mother followed the defendant into the parking lot of an apartment complex, where he parked and began unloading groceries. Several patrol units arrived and detained the defendant. When Lombardo arrived at the scene, P identified the defendant as the man who accosted her, reiterating that she was “100 percent certain” it was him.

As described by the victim, the defendant’s face was heavily pockmarked, and he was wearing a gold neck chain. After the defendant consented to a search of his vehicle, the police recovered a navy blue Red Sox baseball cap.

The defendant was subsequently charged, in count one, with attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-94 (a); in count two with unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a); in count three with attempt to commit risk of injury to a child in violation of §§ 53a-49 (a) (2) and 53-21 (a) (1); and in count four with assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The defendant was found guilty on count three and acquitted of all other charges. The court sentenced the defendant to a total effective term of imprisonment of eight years, suspended after fifty-one months, followed by five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to sustain his conviction of attempt to commit risk of injury to a child in violation of §§ 53a-49 (a) (2) and 53-21 (a) (l). We disagree.

We begin by setting forth the applicable standard of review. “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the juiy’s verdict.” (Internal quotation marks omitted.) State v. Owens, 100 Conn. App. 619, 635, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007).

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proved and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Outlaw, 108 Conn. App. 772, 777, 949 A.2d 544, cert. denied, 289 Conn. 915, 957 A.2d 880 (2008).

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Na’im B., 288 Conn. 290, 296-97, 952 A.2d 755 (2008).

Section 53-21 (a) (1) prohibits, inter aha, a person from wilfully placing a child younger than age sixteen in such a situation that may injure the child’s health or impair the child’s morals. We are mindful that “§ 53-21 (a) (1) is broadly drafted and was intended to apply to any conduct, illegal or not, that foreseeably could result in injury to the health of a child.” (Emphasis added.) State v. Scruggs, 279 Conn. 698, 724-25, 905 A.2d 24 (2006). Injuries to a child’s “health” include injuries to her psychological or mental health. See State v. Payne, 240 Conn. 766, 770-76, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004). As our Supreme Court has observed, this offense is a general intent crime. See, e.g., State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988); State v. Reid, 85 Conn. App. 802, 809-10, 858 A.2d 892, cert. denied, 272 Conn. 908, 863 A.2d 702 (2004).

Thus, “[i]t is not necessary, to support a conviction under § 53-21, that the [accused] be aware that his conduct is likely to impact a child younger than the age of sixteen years. Specific intent is not a necessary requirement of the statute. Rather, the intent to do some act coupled with a reckless disregard of the consequences ... of that act is sufficient to [establish] a violation of the statute.” (Internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 173, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).

In this instance, the defendant was charged with and convicted of attempt to commit risk of injury to a child. To establish the crime of attempt to commit risk of injury to a child under the “situation” prong of § 53-21 (a) (1), the state must prove that the defendant took a substantial step wilfully or unlawfully to cause or permit a child younger than age sixteen to be placed in a situation in which the life or limb of the child was endangered, the health of the child was likely to be injured or the morals of the child were likely to be impaired. See State v. Na’im B., supra, 288 Conn. 297. In general terms, “[a] substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime, and thus the finder of fact may give weight to that which has already been done as well as that which remains to be accomplished before commission of the substantive crime. ... In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.” (Internal quotation marks omitted.) State v. Sorabella, supra, 277 Conn. 180-81.

The defendant does not dispute that there was evidence adduced at trial that P was younger than the age of sixteen at the time of the incident. The defendant argues, however, that (1) in light of Connecticut’s case law regarding § 53-21 (a) (1), no rational jury could have concluded that his behavior vis-a-vis P was an attempt to create a situation that would impair her physical or psychological well-being in violation of the statute and (2) the jury’s verdict finding him not guilty of attempt to commit kidnapping in the second degree, unlawful restraint in the first degree and assault in the third degree indicates that the jury rejected P’s claim that he had grabbed her and tried to pull her into his vehicle.

Relying primarily on State v. Winot, 95 Conn. App. 332, 897 A.2d 115, cert. granted, 279 Conn. 905, 901 A.2d 1229 (2006), and State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), the defendant argues that a rational juror familiar with Connecticut case law regarding the scope and purpose of § 53-21 (a) (1) could not conclude that he violated the statute because his conversation with P was not sexually explicit or threatening. We are unpersuaded.

The case at hand is distinguishable from Winot and Schriver, in which the defendants’ convictions of violating § 53-21 (a) (1) were reversed on the ground that the acts involved were of insufficient severity to constitute a risk of injury. Those cases were decided solely on the “act” prong of § 53-21 (a) (1). The “act” prong requires proof that the defendant directly perpetrated an act injurious to the child’s moral or physical well-being on the actual person of the child. See, e.g., State v. Padua, 273 Conn. 138, 148, 869 A.2d 192 (2005). In contrast, the “situation” prong requires proof only that the defendant created or permitted a situation inimical to the moral or physical welfare of the child. Id. In Winot, the “act” was a forcible pull on the victim’s arm, and in Schriver, the defendant’s “act” was to grab the waist of a fully clothed thirteen year old girl while saying something sexually suggestive. Although this court in Winot and our Supreme Court in Schriver found those two circumstances not violative of the “act” prong § 53-21 (a) (1), here we confront a different character of conduct that the jury reasonably could have found is proscribed by the “situation” prong of § 53-21 (a) (1). As noted, the record reveals that the defendant engaged the victim in flirtatious conversation, grabbed her wrist and neck, and attempted to pull her forcibly through his vehicle’s open window, endangering her mental health and physical well-being. Pursuant to § 53-21 (a) (1), ample evidence was offered from which the jury reasonably could have concluded that the defendant had attempted to engage P in conduct that would result in injury to her physical well-being or mental health, or the impairment of her morals. See State v. Na’im B., supra, 288 Conn. 297.

The defendant also argues that in light of the jury’s verdict finding him not guilty of attempt to commit kidnapping in the second degree, unlawful restraint in the first degree and assault in the third degree, the jury rejected P’s claim that he grabbed her and tried to pull her into his vehicle. The court did not find that the not guilty verdict on the other counts required the conclusion that the jury rejected or disbelieved any portion of P’s testimony. We agree.

In reviewing the sufficiency of the evidence, the evidence in its entirety must be considered in the light most favorable to sustaining the verdict. State v. Owens, supra, 100 Conn. App. 635. At issue is whether the jury, upon a consideration of the evidence, reasonably could have found that the defendant committed the crime of attempt to commit risk of injury to a child. The fact that a verdict of not guilty was returned on the other counts, which all involved different elements, lends no support to the defendant’s claim. The jury could have accepted P’s’testimony in its entirety but found that the evidence did not support a finding beyond a reasonable doubt as to the other counts.

The defendant further claims that no reasonable juror could have concluded that he lifted P from the ground and partially pulled her into the vehicle as claimed by the victim. The jury, however, did not have to find that the defendant actually succeeded in lifting P and partially pulling her into the vehicle to find him guilty of a criminal attempt to place her in a situation proscribed by § 53-21 (a) (1). The jury could have rejected Ps claim that the defendant succeeded in lifting her off the ground but believed nevertheless that by his conduct, he attempted to create a situation proscribed by § 53-21 (a) (1). As noted, the jury heard evidence that the defendant engaged P in inappropriate conversation, cornered her with his vehicle and attempted to get her into his vehicle. Crediting that testimony alone would provide the jury with sufficient evidence that the defendant took a substantial step toward placing P in a situation that could impair her health or morals. “To sustain a conviction under the first part of § 53-21 (1), which prohibits a person from causing or permitting a child to be placed in a situation likely to endanger the life or limb of such child or to injure the health or impair the morals of such child, it is not necessary, nor have the courts required, that a defendant touch any part of the victim’s body .... Rather, the creation of a prohibited situation is sufficient to breach the statute.” (Internal quotation marks omitted.) State v. Robert H., 273 Conn. 56, 62, 866 A.2d 1255 (2005). Thus, we reject the defendant’s sufficiency claim.

II

Next, the defendant contends that § 53-21 (a) (1) is unconstitutionally void for vagueness as applied to this case. Specifically, he argues that although the “situation” prong is quite broad, it has never been extended to a conversation between an adult male and a teenage girl that did not also include explicit threats or sexual content. The state counters that the challenged section provides fair notice and guidance to the defendant sufficient to allow him to determine whether his conduct was permitted or prohibited. We agree with the state.

We begin by setting forth the relevant legal principles. “The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited. . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 157, 921 A.2d 622 (2007).

In challenging the constitutionality of a statute, the defendant bears a heavy burden. To prevail on a vagueness claim, “[t]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. ... On appeal, a court will indulge in every presumption in favor of a statute’s constitutionality. ... If a penal statute provides fair warning, it will survive a vagueness attack. . . . This court must . . . look to see whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.” (Citations omitted; internal quotation marks omitted.) State v. Winot, supra, 95 Conn. App. 339.

With these principles in mind we turn to the specifics of this case. The defendant waived his constitutional right to remain silent and voluntarily gave a statement to Detective Michael Morrissey. During the interview, the defendant told Morrissey that “sometimes, if I see a girl that I want, I’ll say ‘you look pretty; you look nice.’ ” P testified that shortly before attempting to pull her into his vehicle, the defendant told her that she looked pretty and that he wanted to be a friend to her. A person of ordinary intelligence would have understood that this conduct constituted a substantial step in furtherance of the crime of attempt to commit risk of injury to a child. The defendant, by means of the common and legal meanings of health, impairment, and morals, and through legal precedents, had fair warning that this conduct was violative of the “situation” prong of § 53-21 (a) (1). See State v. Sorabella, supra, 277 Conn. 174-84; see also State v. Eastwood, 83 Conn. App. 452, 850 A.2d 234 (2004) (enticing minors to enter vehicle for sexual purposes prohibited under “situation” prong), cert. denied, 286 Conn. 914, 945 A.2d 978 (2008). Furthermore, it was neither unforeseeable nor unreasonable for the jury to conclude that the defendant took a substantial step in a course of conduct planned to culminate in his commission of the crime of risk of injury to a child.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of the crime of attempt to commit risk of iiyury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony . . . .”