author: Dupont, C. J.

text:
    Joseph P. Wisniowski et al. v. Planning Commission of the Town of Berlin et al.
    (13181)
    Dupont, C. J., and O’Connell and Landau, Js.

      Argued December 7, 1994
    decision released March 21, 1995

      Kenneth R. Slater, Jr., with whom, on the brief, was Stephen J. Anderson, for the appellants (defendants).

      Karen P. Blado, with whom was Ann E. Lynch, for the appellees (plaintiffs).
   Dupont, C. J.

This appeal arises from the denial by the planning commission of the town of Berlin of the plaintiffs’ affordable housing subdivision application. The plaintiffs appealed that denial to the trial court, which sustained the appeal and ordered the commission to approve the plaintiffs’ application. We affirm the judgment of the trial court.

Certain facts are relevant to this appeal. The plaintiffs, Joseph Wisniowski and Stanley Wisniowski, filed, in accordance with General Statutes § 8-30g, an affordable housing development application with the Berlin planning commission (commission) to subdivide a 14.5 acre lot into thirty smaller lots. Six of the thirty lots were designated as affordable housing in the development proposal.

The property that the plaintiffs sought to subdivide was zoned R-43 by Berlin. This zoning designation requires that the minimum size of any lot be at least 43,000 square feet. The plaintiffs proposed that their property be divided into lots ranging in size from 8000 square feet to 23,000 square feet. The plaintiffs' proposal did not, however, disturb the zone’s single-family dwelling requirement. Although the size of the proposed lots did not comply with the requirements of the R-43 designation, the plaintiffs did not file an application with the Berlin zoning commission to change the zone of the property or to otherwise amend the regulations and zoning map to permit the undersized lots. Instead, the plaintiffs filed their application with the planning commission.

The commission held a public hearing on the subdivision application and then denied the plaintiffs’ application to subdivide the property for nine reasons, including the following three: “(1) The plan does not comply with existing regulations for the R-43 zone nor with the existing affordable housing regulations. The commission is therefore prohibited from approving this proposal by Section 8-26 of the statutes. ... (5) The applicant did not seek the remedy of an amendment to the zoning regulations or amendment to the zoning map. ... (7) The retaining walls on the site plan present safety and maintenance problems for the homeowners. Lots with slopes in excess of fifteen percent do not comply with the subdivision regulations and the proposed walls are an unacceptable solution.” The plaintiffs then appealed to the Superior Court from the commission’s decision and served both the planning commission and the town on appeal.

The trial court evaluated the reasons that the commission asserted for rejecting the application and found that these reasons were insufficient to satisfy the commission’s burden of proof under § 8-30g, the affordable housing land use appeals statute. The burden of proof is on the commission to prove the denial is necessary to protect substantial public interests in health, safety or other matters, and that those interests clearly outweigh the need for affordable housing and that those interests cannot be protected by reasonable changes to the affordable housing development. General Statutes § 8-30g (c). The court found that this burden was not met. The trial court noted, however, that the issue of the degree of the slope of the land of two lots might comprise a valid safety concern. Those two lots, however, were not designated as being available for affordable housing. Consequently, the trial court ordered the commission to approve the application, but it also remanded the potential problem of the degree of the slope of the two lots to the commission for further discussion to determine whether that safety concern regarding the degree of the slopes could be reasonably addressed or whether the two lots were, in fact, unbuildable.

The commission then sought certification in this court, which we granted. On appeal, the commission claims that the trial court (1) improperly concluded that § 8-30g overrides both the requirement that an applicant seek a zone change prior to obtaining subdivision approval pursuant to General Statutes § 8-26, if the development proposed does not comply with municipal zoning regulations, and the uniformity requirement of General Statutes § 8-2, and (2) illegally usurped the legislative and administrative authority of the planning and zoning commissions of Berlin.

I

The first question that we must address is whether this appeal is taken from a final judgment. “The expeditious resolution of disputes counsels against appellate review of trial court rulings that do not finally dispose of all the issues between the litigating parties. . . . Interlocutory orders . . . are immediately appealable only ‘(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.’ ” Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 409, 521 A.2d 566 (1987).

“A judgment by a trial court ordering further administrative proceedings cannot meet the first prong . . . because, whatever its merits, the trial court’s order has not terminate[d] a separate and distinct proceeding. The more difficult question is whether the trial court’s order so concludes the rights of the parties that further proceedings cannot affect them.” (Internal quotation marks omitted). Id., 409-10.

In Kaufman v. Zoning Commission, 232 Conn. 122, 653 A.2d 798 (1995), a § 8-30g appeal, the Supreme Court, determined that the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., does not govern zoning cases. In those administrative appeals that are not governed by the UAPA if the trial court remands the matter to the administrative agency for further consideration, the scope of the proceedings on remand dictates whether there has been a final judgment from which the parties can appeal. Byars v. Whyco Chromium Co., 33 Conn. App. 667, 668, 637 A.2d 805 (1994). If the remand is for ministerial action, then it will be treated as if there is a final judgment, but if the remand is for discretionary action, then there is no final judgment. Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990); Matey v. Estate of Dember, 210 Conn. 626, 630, 556 A.2d 599 (1989).

The distinction is premised on the reasoning that when a trial court concludes that an administrative ruling was in error and orders further administrative proceedings on that very issue, it is considered a final judgment “in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue. . . . A trial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication. Without dictating the outcome of the further administrative proceedings, the court may insist on further administrative evidentiary findings as a precondition to final judicial resolution of all the issues between the parties. . . . Such an order is not a final judgment.” (Citations omitted.) Schieffelin & Co. v. Dept. of Liquor Control, supra, 202 Conn. 410.

Kaufman v. Zoning Commission, supra, 232 Conn. 128, held that there was a final judgment where the trial court, after concluding that the affordable housing application must be granted, remanded the matter to give the commission the opportunity to “impose reasonable conditions and changes with respect thereto.” In finding that there was a final judgment, the Supreme Court reasoned, “[w]e attach significance to the fact that the trial court’s judgment did not order further evidentiary determinations on remand. Although the trial court’s remand may have allowed the commission to hear additional evidence in order to determine whether to impose ‘reasonable conditions’ on or to make ‘reasonable changes’ in the application, the remand in no way required the commission to conduct such an inquiry.

“Even more important, the trial court’s judgment required the commission to approve the plaintiffs application. With respect to this central issue, the trial court’s decision so concludes the rights of the parties that further proceedings cannot affect them. . . . After explicitly resolving all [of] the issues in favor of the plaintiff’ . . . the trial court remanded the case only for the limited purpose of allowing the commission to impose reasonable conditions on or make reasonable changes to the development, if it so chose. Because the proceedings on remand cannot deprive the plaintiff of the zone change that the trial court has ordered to be approved, the trial court has rendered a final judgment and this court has subject matter jurisdiction over the commission’s appeal.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 130-31.

We face a similar situation. Here, the trial court rendered a final decision on the affordable housing application, and held that the application should be granted. The proceedings on remand cannot affect the trial court’s decision because the two lots that are the subject of the remand are not included in the six lots designated as affordable housing lots. The approval of the application is final, no matter what is determined on remand relative to two of the thirty lots. As in Kaufman, the remand does not require a further evidentiary hearing. We conclude that this court has subject matter jurisdiction over the appeal and now turn to the merits of the defendant’s appeal.

II

The commission’s first claim is that the trial court should have found that it was necessary for the plaintiffs to seek a zone change prior to submitting a § 8-30g subdivision proposal that does not comply with the underlying zoning of an area. The commission refers this court to General Statutes § 8-2, which requires uniformity of zoning regulations, and General Statutes § 8-26,® which prohibits planning commissions from approving subdivision applications that do not comply with applicable zoning regulations. The commission claims that because these traditional zoning requirements compel the planning commission to deny all subdivision applications that do not comply with the underlying zoning of an area, the trial court should have affirmed the commission’s denial of the plaintiffs’ affordable housing subdivision application on that ground.

The commission argues that the plain language of § 8-30g indicates that it is an appeals act only, and, therefore, the fact that an appeal is brought under § 8-30g should not affect the standards and law applicable at the administrative level of land use decisions regarding affordable housing. Further, the commission argues that the legislative history of § 8-30g recognizes the need for a developer to comply with existing zoning or to seek zoning amendments to obtain approval for proposed developments. Thus, the commission’s basic claim is that the trial court improperly concluded that § 8-30g overrides the requirements of §§ 8-26 and 8-2.

Our conclusion is that the plain and unambiguous language of § 8-30g does not contemplate a denial of an affordable housing subdivision application on the ground that it does not comply with the underlying zoning of an area.

“ Tn construing a statute, we seek to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation . . . .’ ” (Citations omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507-508, 636 A.2d 1342 (1994).

General Statutes § 8-30g (c) provides in pertinent part: “Upon an appeal ... the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that (1) the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record; (2) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (3) such public interests clearly outweigh the need for affordable housing; and (4) such public interests cannot be protected by reasonable changes to the affordable housing development.” This burden of proof applies to “every type of application filed with a commission in connection with an affordable housing proposal.” West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 509. This includes affordable housing subdivision applications filed with planning commissions.

The burden of proof established in § 8-30g is a specific, narrow standard that a commission must satisfy on appeal. The plain and unambiguous language does not list noncompliance with zoning regulations as a reason to affirm the denial of an affordable housing subdivision application. The commission argues, however, that even if § 8-30g does not, itself, contemplate the denial of an affordable housing subdivision application on the ground of zoning noncompliance, § 8-30g should not affect the traditional land use policy as found in §§ 8-2 and 8-26. Therefore, despite the burden of proof established in § 8-30g, according to the commission, it must nevertheless deny an affordable housing application that does not comply with the zoning regulations, and the trial court must affirm the denial on that ground.

To the extent possible, statutes should be reconciled. Spring v. Constantino, 168 Conn. 563, 572, 362 A.2d 871 (1975). When two statutes conflict, however, as in the present case, the more specific legislation governs over the general legislation; McKinley v. Musshorn, 185 Conn. 616, 624, 441 A.2d 600 (1981); and the latest expression of the legislature prevails over a conflicting prior enactment. State v. Tyson, 195 Conn. 326, 331, 487 A.2d 1091 (1985). The affordable housing land use appeals act was enacted to deal with the particular problem of the lack of affordable housing in Connecticut. West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 511. It was not enacted as an amendment to the general zoning law. Section 8-30g is the later expression of the legislature and it prevails in the event of any conflict with §§ 8-26 or 8-2.

The commission contends that according to the plain language of the statute, § 8-30g applies only to appeals. This argument, however, assumes that administrative proceedings exist in a vacuum. The burden of proof in § 8-30g dictates the only effective reasons for a commission to deny an affordable housing application. That burden necessarily establishes the standards of the underlying proceeding. Section 8-30g, therefore, affects the administrative proceedings concerning affordable housing subdivision applications, as well as the appeal proceedings. The narrow rigorous standard of § 8-30g dictates that the commission cannot deny an application on broad grounds such as noncompliance with zoning. Section 8-30g anticipates that there will be many different types of applications that may be brought to many different types of agencies. Kaufman v. Zoning Commission, supra, 232 Conn. 137; West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 510-11. For example, in Kaufman, the application was made to the zoning commission, in West Hartford, to the town council, and in the present case, to the planning commission. Whichever zoning authority is asked to deal with the application, a zone change will necessarily be embodied in the application, either as to use, or as to bulk, as is the case here. If no zone change were involved, there would be no need for an application for affordable housing. An application may not be rejected just because it involves a zone change. West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 510-11. No formal zone change application is needed because the act is designed to allow circumvention of the usual exhaustion of zoning remedies and to provide prompt judicial review of a denial of an application. Huntington Branch NAACP v. Huntington, 844 F.2d 926 (2d Cir. 1988); Huntington Branch NAACP v. Huntington, 689 F.2d 391 (2d Cir. 1982), cert. denied, 460 U.S. 1069, 103 S. Ct. 1523, 75 L. Ed. 2d 947 (1983). Embodied in the plaintiffs’ application for an affordable housing subdivision is a zone change. Huntington Branch NAACP v. Huntington, supra, 689 F.2d 391.

The requirement of uniformity of § 8-2 “does not militate against the grant of a specific exception to a general zoning requirement so long as the exception is reasonable and for the general community benefit rather than for the benefit of a single landowner.” Lavitt v. Pierre, 152 Conn. 66, 75, 203 A.2d 289 (1964). Clearly, affordable housing legislation is for the benefit of the entire community, as well as for that of the state. West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 511.

The conclusion that zone conformity is not a mandatory prerequisite to approval of a subdivision application is consistent with the intent of the legislature as reflected by the legislative history of the affordable housing law. During the house debate, when asked by Representative Robert Farr if the fact that a proposed plan called for a multifamily dwelling in a single-family zone would in and of itself be a basis for denial of an application, Representative William J. Cibes, Jr., responded: “[T]he answer is no, not per se. The municipality might have very good grounds for not having multifamily dwellings in the particular area. The soil type, the capacity of the infrastructure, various reasons such as that might have been a reason for the municipality not to adopt a particular zone for that particular area, but per se, there would not — it would not [be] a reason for rejecting this application.” 32 H.R. Proc., Pt. 30, 1989 Sess., pp. 608-609. This indicates that zoning conformity is not necessarily required in an affordable housing application.

The commission refers to this passage and two others to support the position that the legislative history infers that the legislature clearly intended that zoning conformity be required. First, the commission cites Senator Richard Blumenthal as stating that “it is important to understand that these decisions involve specific projects on particular pieces of land and do not provide for any kind of general zoning override.” 32 S. Proc., Pt. 12, 1989 Sess., p. 4048. Next, the commission cites another passage from the floor debate in which Representative Cibes commented that “no one is suggesting that we’re going to build a 20-story high rise on two acres of land out in Roxbury. . . . This [statute] is a step forward. It provides some meaningful standards. It is within the constraints of the existing zoning statute. It is a narrow procedure which is available only to a few kinds of developers, developers who propose to build affordable housing and I think that it is important that we recognize this and recognize the limited nature of this action.” 32 H.R. Proc., Pt. 30, 1989 Sess., pp. 10662-64. The commission claims that these passages evidence the intent of the legislature to require zoning conformity.

The “key purpose of § 8-3 Og is to encourage and facilitate the much needed development of affordable housing throughout the state.” West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 511. The legislative history indicates that the legislature intended to accomplish this goal by creating specific legislation that affects only affordable housing applications, not the overall zoning scheme. Therefore, applications that do not fit into the definition of an affordable housing application are not affected by § 8-30g. If an application does satisfy the definition of an affordable housing application, however, then the commission must satisfy the increased burden of proof in order to deny the application effectively. Under these circumstances, nonconformity of zoning is not, per se, a reason to deny the application. The legislature did not intend zoning nonconformity to block an affordable housing subdivision application.

The commission claims that if we affirm the trial court’s decision, we will render affordable housing applications unworkable by local land use commissions acting in their administrative capacity because land use commissions would be forced to guess which regulatory standards should apply to proposals that do not comply with local zoning. We disagree.

Section 8-30g is not part of the traditional land use statutory scheme. Traditional land use policies did not solve Connecticut’s affordable housing problem, and the legislature passed § 8-30g to effect a change. The commission makes the mistake of looking at § 8-30g applications as though they were traditional zoning applications.

Section 8-30g does not allow a commission to use its traditional zoning regulations to justify a denial of an affordable housing application, but rather forces the commission to satisfy the statutory burden of proof. The factors that the commission considers when reviewing affordable housing subdivision applications are the same as those considered when it passes subdivision regulations. Instead of simply questioning whether the application complies with those regulations, however, under § 8-30g, the commission considers the rationale behind the regulations to determine whether the regulations are necessary to protect substantial public interests in health, safety or other matters.

The commission asserts that it will not have any guidance in making its decisions, and, therefore, that there will be no conformity in the decisions. Conformity is provided by § 8-30g because each decision must be justified in terms of the factors enumerated in the statute. Essentially, every subdivision application must be approved unless there is a justifiable reason to deny the application. The commission must look at the rationale behind its regulations to determine if there is a substantial interest, outweighing the need for affordable housing, that must be protected by the denial of an application.

We conclude that § 8-30g was correctly interpreted by the trial court to allow the plaintiffs to seek subdivision approval for affordable housing without first seeking a zone change.

III

The commission argues that the trial court improperly usurped the discretion of the Berlin zoning and planning commissions, first, by ordering approval of the plaintiffs’ development, despite the proposal’s noncompliance with the established zoning, and, second, by undertaking its own evaluation of whether the subdivision proposal was consistent with other zones within the town.

Certain facts are relevant to this claim. After the trial court determined that zoning compliance was not a mandatory prerequisite to subdivision approval under § 8-30g, the court addressed the issue of the denial based on noncompliance under traditional land use law. The court noted that the proposal presented a situation in which the variation was not a use variation, but rather a bulk and lot variation. Because this type of variation is not totally inimical to the underlying zoning scheme, the court concluded that the commission had a basis, in town wide bulk and lot requirements, for evaluating the application.

The commission first argues that when the trial court ordered approval of the plaintiffs’ application it essentially rezoned part of Berlin without the zoning commission’s approval. We have already concluded that zoning compliance is not mandatory prior to approval of an affordable housing subdivision application. Land use commissions derive all of their power from the General Statutes. Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 490, 547 A.2d 528 (1988). The burden of proof in § 8-30g (c) takes away some of the discretion that local commissions have under traditional land use law and allows the reviewing trial court to effect a zone change if the local commission cannot satisfy the statutory requirements for its denial of an application. Section 8-30g (c) provides that if the commission fails to satisfy its burden of proof, the trial court, “shall wholly or partly, revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.” (Emphasis added.)

Here, the trial court found that the commission had failed to satisfy its burden of proof under the statute and accordingly reversed the decision of the commission. Although the effect of that action was to approve a subdivision application that did not comply with the existing zoning of the area, the decision did not usurp the authority of Berlin’s zoning commission.

Second, the commission claims that the trial court usurped the commission’s authority when the court conducted its own policy review of the application based on standards it gleaned by reviewing regulations applicable to other properties and uses in Berlin.

“[WJhere a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission. It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision.” DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).

Here, the commission asserted noncompliance with existing zoning as one reason for denying the plaintiffs’ application. The trial court found that noncompliance was not, itself, a reason to deny the plaintiffs’ application.

Because the trial court was concerned with the issue of standards by which a commission could judge an application, the trial court examined the town wide zoning plan to determine whether the bulk and lot sizes of the proposed development complied with Berlin’s regulations. This review may have been superfluous, but it was not a usurpation of the commission’s authority. A determination of whether a plan is in violation of public health and safety regulations is an appropriate exercise of authority under § 8-30g.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-30g provides in relevant part: ‘ ‘affordable housing land use appeals procedure, (a) As used in this section:

        (1) ‘Affordable housing development’ means a proposed housing development . . . (B) in which not less than twenty per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that such dwelling units be sold or rented at, or below, prices which will preserve the units as affordable housing, as defined in section 8-39a, for persons and families whose income is less than or equal to eighty per cent of the area median income, for at least twenty years after the initial occupation of the proposed development . . . .”
      “[General Statutes] Sec. 8-39a. ‘affordable housing’ defined. As used in this title, ‘affordable housing means housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to the area median income for the municipality in which such housing is located, as determined by the United States Department of Housing and Urban Development.”

         The original application of the plaintiffs provided for the property to be divided into thirty-two lots. The application was subsequently modified to provide for a division into thirty lots.

       This is approximately one acre in size.

       The six remaining reasons are as follows: “(2) There was insufficient demonstration that there would be no adverse impact on the adjacent neighborhood. (3) It was not demonstrated that affordable housing units will be of comparable size and workmanship as intended by the legislature in its affordable housing legislation including Section 8-2g. (4) There was no information given on housing prices nor any financial justification given for the proposed density bonus. ... (6) There is insufficient usable area on-site for recreational purposes to support the increased density. ... (8) The property is within a watershed and recharge area for potential wells and future water supply. No evidence has been presented to indicate that the development will not be detrimental to future water supply development. (9) Approval of this application would subvert the planning process for affordable housing as outlined in the Plan of Development.”
      Some of these issues were resolved on a prior remand by the trial court to the commission.

         General Statutes § 8-30g (c) provides: “Upon an appeal taken under subsection (b) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that (1) the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record; (2) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (3) such public interests clearly outweigh the need for affordable housing; and (4) such public interests cannot be protected by reasonable changes to the affordable housing development. If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.”
      Subsection (b) provides in pertinent part: “Any person whose affordable housing application is denied . . . may appeal such decision pursuant to the procedures of this section. ...”

       Although this issue was not briefed by the parties, they were asked by this court to address the issue of whether there was a final judgment at the time of their oral argument because of our concern that our subject matter jurisdiction was implicated.

        Schieffelin & Co. v. Dept. of Liquor Control, supra, 202 Conn. 405, discusses administrative appeals under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. After this case was written, however, effective July 1, 1989, the UAPA was amended. “For appeals governed by the Uniform Administrative Procedure Act, General Statutes § 4-183 (j) provides in relevant part: ‘For purposes of this section, a remand is a final judgment.’ ” Kaufman v. Zoning Commission, 232 Conn. 122, 129 n.6, 653 A.2d 798 (1995). The reasoning of Schieffelin, however, remains applicable to cases not falling under the UAPA.

       General Statutes § 8-2 provides in relevant part: “regulations. . . . Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district . . . .’’See Veseskis v. Bristol Zoning Commission, 168 Conn. 358, 360, 362 A.2d 538 (1975).

       General Statutes § 8-26 provides in relevant part: “approval of subdivision AND RESUBDIVISION PLANS. WAIVER OF CERTAIN REGULATION REQUIREMENTS. APPLICATIONS INVOLVING INLAND WETLANDS AND WATERCOURSES. . . . The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . .”

       General Statutes § 8-25 (a) provides in relevant part: “Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, drainage and sewerage and, in areas contiguous to brooks, rivers or other bodies of water subject to flooding, including tidal flooding, that proper provision shall be made for protective flood control measures and that the proposed streets are in harmony with existing or proposed principal thoroughfares . . . especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs. Such regulations shall also provide that the commission may require the provision of open spaces, parks and playgrounds when, and in places, deemed proper by the planning commission, which open spaces, parks and playgrounds shall be shown on the subdivision plan. . . .”
      General Statutes § 8-25 (c) provides: “The regulations adopted under subsection (a) of this section, may, to the extent consistent with soil types, terrain, infrastructure capacity and the plan of development for the community, provide for cluster development, and may provide for incentives for cluster development such as density bonuses, or may require cluster development.”

       The commission argues, in a footnote in its brief, that the trial court’s analysis calls into question the constitutionality of one acre zoning in Connecticut. The commission, however, did not analyze this issue. “Both this court and our Supreme Court have declined to review constitutional claims, deeming them to have been abandoned, when the defendant has not briefed and analyzed the claim.” State v. Harrison, 30 Conn. App. 108, 122-23, 618 A.2d 1381 (1993). We choose not to review this claim.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Kathy Matyas et al. v. Helen A. Minck et al. Marion F. Ellicott et al. v. Ralph Edward Matyas et al.
    (12528)
    Foti, Hennessy and Cretella, Js.

      Argued December 12, 1994
    decision released March 21, 1995

      Zbigniew S. Rozbicki, for the appellants (plaintiffs in the first case, defendants in the second case).

      Elizabeth Fairbanks Flynn, with whom was Lorinda S. Coon, for the appellee (defendant in the first case).

      David P. Burke, for the appellees (plaintiffs in the second case).
   Foti, J.

These companion cases were tried together. In one, Kathy Matyas and Ralph Matyas, owners of real estate, commenced an action against Peter Curcio, a civil engineer, for negligence in the design of a subsurface septic system. In the other, Marion F. Ellicott and Jamie Eagan, subsequent purchasers of the Matyases’ real estate, commenced an action against the Matyases for misrepresentation and breach of contract. The Matyases appeal from both judgments rendered by the trial court.

The jury could reasonably have found the following facts. In 1985, the Matyases contacted and hired Curcio to design an engineered septic system for a residence that the Matyes were constructing on lot four of a subdivision in Litchfield. Curcio is a civil engineer licensed to practice engineering in Connecticut and New York. After obtaining a map of the subdivision from the Matyases, Curcio went to the property on July 1,1985, and conducted various tests. He then sent a surveyor, William Whynott, to the site to locate the property boundaries, to establish benchmarks and to plot contours. Curcio then prepared a design that showed the proposed locations for the various elements of the septic system. This plan was approved by the Torrington area health department. Curcio sent the design to the Matyases. Neither the Matyases nor the septic system installer questioned Curcio regarding the design. Curcio was not asked to oversee the installation of the system and he was not present during the installation.

The Matyases resided on their property until August, 1989, when they entered into a contract with Ellicott and Eagan for the sale of the property. When these potential buyers looked at the property, the Matyases were present and made certain representations as to the location of the septic system. The deed to the property was delivered to Ellicott and Eagan on August 11,1989. Approximately two years later, Ellicott and Eagan learned that a portion of their septic system was located on the property of an adjoining landowner, lot three of the subdivision, when the adjoining landowner complained that a portion of the leech fields was on her property. Ultimately, Ellicott and Eagan had to install a new system. They subsequently sued the Matyases for breach of contract and for damages incurred in relocating the septic system. The Matyases, in turn, brought suit against Curcio, alleging that he had negligently planned and designed the system in that he failed to locate the boundary line accurately and designed the system to be located beyond the boundary line.

In the Matyases’ suit, the jury returned a general verdict in their favor on January 27, 1993. Curcio filed a motion to set aside the verdict and for judgment notwithstanding the verdict, which the trial court granted on April 30,1993. In the action by the subsequent purchasers, Ellicott and Eagan, the jury returned a general verdict in favor of the plaintiffs. The Matyases’ motion to set aside the verdict was denied by the trial court. The Matyases have appealed from the judgments rendered in both cases. We affirm both judgments.

I

In their appeal from the judgment rendered in their action against Curcio, the Matyases claim that the trial court improperly (1) set aside the jury verdict for evidentiary insufficiency on the ground that the Matyases had failed to provide expert testimony, and (2) set aside the jury verdict and rendered judgment notwithstanding the verdict without setting aside the judgment rendered on the verdict.

A

The Matyases’ first claim is that the trial court should not have set aside the verdict for evidentiary insufficiency. The trial court held that the Matyases “failed to show by expert testimony the standard of care required of a professional engineer under the circumstances encountered by Peter Curcio. Nor was there any evidence offered to prove that [Curcio] failed to conform to the requisite standard of care .... Since there was no evidence of an expert nature explaining the standard of care, any finding of negligence is not supported by the evidence . . . .” The Matyases argue that, despite the lack of expert testimony, the evidence presented was sufficient to allow the jury reasonably to find that Curcio had negligently designed the septic system. We disagree.

“The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence.” Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988). “The decision to set aside a verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. . . . Our review of the trial court’s action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness . . . .” (Citations omitted.) Id., 24. The trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their testimony. Moreover, the trial judge can gauge the tenor of the trial, which, on the written record, we cannot, and can detect any factors that could improperly have influenced the jury. Id., 25.

Litigants, however, have a constitutional right to have issues of fact determined by a jury. Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 380, 562 A.2d 570, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). Because the trial court, in setting aside the verdict, has deprived the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, we must examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Palomba v. Gray, supra, 208 Conn. 25.

At trial, all parties stipulated that the septic system, as installed, went over the boundary of lot four into the adjoining lot, lot three. The dispute concerned whether this situation was the result of negligence by Curcio in his design of the system or some other factors not under his control. A review of the record shows that the Matyases failed to present any expert testimony to describe either the applicable standard of care in this case, or any alleged breach of that standard.

“ ‘When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not suffice.’ ” Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A. 897 (1937); Slimak v. Foster, 106 Conn. 366, 368, 138 A. 153 (1927). In cases involving claims of professional negligence, as here, expert testimony is essential to establish both the standard of skill and care applicable and that the defendant failed to conform to the standard, as these matters are outside the knowledge of the jury. Mather v. Griffin Hospital, 207 Conn. 125, 131, 540 A.2d 666 (1988); Campbell v. Palmer, 20 Conn. App. 544, 548, 568 A.2d 1064 (1990). In a case against an engineer, it is incumbent upon the plaintiff to produce evidence as to what “a skilled engineer of ordinary prudence engaged in the same line of business would have exercised in the same or similar circumstances.” Goodrich Oil Burner Mfg. Co. v. Cooke, 126 Conn. 551, 553, 12 A.2d 833 (1940); Ferrie v. Sperry, 85 Conn. 337, 343, 82 A. 577 (1912).

This case involved a claim of professional negligence. The issues in the case were technical. The preparation, design and drawing of an engineered septic system require training and technical expertise beyond the ordinary knowledge and experience of jurors and judges. Therefore, in order to prove professional negligence, expert testimony was required. No such testimony was presented. The Matyases made various allegations of negligence but failed to present any “positive evidence of an expert nature from which the jury could reasonably and logically conclude that [Curcio] was negligent.” Levett v. Etkind, 158 Conn. 567, 574, 265 A.2d 70 (1969). Without expert testimony, the jury could not determine whether Curcio used improper techniques in calculating the boundaries of the Matyases’ property, whether he should have ascertained that the area designated for the septic system was within the boundaries of the Matyases’ property, or whether he should have inspected the “as built dimensions” to ensure the proper location of the system.

At trial, there was testimony that the septic system was not installed as set out in Curcio’s design. The only testimony that compared Curcio’s plan with his engineered drawing and the system as it was installed was that of Curcio and the surveyor he hired, William Whynott. Both testified that the system was not installed in accordance with the design. The Matyases failed to provide any positive evidence showing that Curcio designed the system to be installed on the wrong property. They failed to show the standard of care required of a professional engineer under the circumstances encountered by Curcio. The jury, lacking the knowledge of a professional engineer, was required to resort to speculation in order to determine the appropriate standard of care -by which to assess Curcio’s professional performance.

The Matyases argue that this case falls within the exception to the general rule that requires that expert testimony be used to prove professional negligence. The exception provides that expert testimony may be dispensed with when “there is such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence.” Levett v. Etkind, supra, 158 Conn. 574. The Matyases argue that the evidence they presented demonstrated such gross want of care or skill by Curcio that no expert testimony was required. The evidence to which the Matyases refer in their brief consists of two exhibits and the testimony of three fact witnesses. The exhibits are (1) the map of the subdivision in which their lot was located, and (2) the septic system design drawn by Curcio. The Matyases argue that the jury was qualified to read maps and drawings, and, based on this evidence, it could have found that the defendant incorrectly located the property line and incorrectly selected the area for the system. We find this argument to be without merit. The maps and drawings to which the Matyases refer are technical documents. The process of understanding an engineered design is complex. The evidence presented did not demonstrate negligence was so obvious as to be clear to a layperson without expert assistance.

Our review of the evidence leads us to conclude that the trial court did not abuse its discretion in granting Curcio’s motion to set aside the verdict on the ground that the Matyases failed to prove a breach of the standard of care through expert testimony.

B

Next, the Matyases claim that the trial court should not have set aside the jury verdict and rendered a judgment notwithstanding the verdict without setting aside the judgment entered upon the verdict. We disagree.

The Matyases argue that under Practice Book § 321, a motion to set aside a verdict must request that both the verdict and the judgment rendered thereon be set aside. The Matyases allege that Curcio did not move to have the judgment set aside in his motion to set aside the verdict, and the trial court rendered the judgment notwithstanding the verdict without setting aside the previous judgment. On this basis, the Matyases argue that the judgment notwithstanding the verdict should be rendered null and void.

Our review of the record shows that the jury returned a verdict in favor of the Matyases on January 27,1993. No judgment was rendered on this verdict. On January 29, 1993, Curdo filed his motion to set aside the verdict and for judgment notwithstanding the verdict. Curcio’s motion requested that the court “set aside the verdict entered . . . and direct a judgment for the defendant.” On April 30,1993, the trial judge, through a written memorandum of decision, rendered a judgment. The judge granted Curcio’s motion to set aside the verdict and rendered a judgment notwithstanding the verdict. Since the trial court did not render a judgment on the original verdict, it did not improperly set aside only the verdict.

The Matyases rely on Haag v. Beard Sand & Gravel Co., 151 Conn. 125, 193 A.2d 711 (1963), as support for their position. In that case, our Supreme Court noted that it is essential that the motion for judgment notwithstanding the verdict include a request that both the verdict and the judgment rendered thereon be set aside. Id., 126. In Haag, a judgment had been rendered on the jury verdict prior to the filing of the motion to set aside the verdict. Here, no judgment had been rendered on the jury verdict prior to Curcio’s motion to set aside the verdict. In their brief, the Matyases assert that judgment enters at the time the verdict is accepted in open court. The only authority they cite for this proposition is Practice Book § 4009. This rule discusses the time frame within which to file an appeal. For purposes of an appeal from a judgment rendered on a jury verdict where no motion to set aside is filed, the time to appeal is deemed to run from the time the verdict is accepted in open court. This does not mean that judgment in fact enters at that moment for all purposes. In fact, Practice Book § 324 provides that “[t]he court shall render judgment on all verdicts of the jury . . . unless the verdict is set aside . . . .” (Emphasis added.) Our Supreme Court has repeatedly held that “the acceptance of the jury verdict at the time it is rendered is deemed to constitute a final judgment . . . unless a motion to set aside is later filed.” (Citations omitted.) Pietrorazio v. Santopietro, 185 Conn. 510, 512-13, 441 A.2d 163 (1981); see also Clime v. Gregor, 145 Conn. 74, 76, 138 A.2d 794 (1958). We find the Matyases’ claim that judgment entered at the time the verdict was accepted in open court to be without merit.

II

In their appeal from the judgment rendered in Ellicott and Eagan’s misrepresentation action, the Matyases claim that the trial court improperly (1) charged the jury on the law of innocent misrepresentation, (2) allowed in evidence of attorney’s fees, (3) failed to charge the jury on the doctrine of merger in real estate contracts, and (4) failed to charge the jury on the doctrine of caveat emptor.

A

In the underlying action, Ellicott and Eagan alleged misrepresentation on the part of the Matyases. Specifically, the plaintiffs alleged that the Matyases had misrepresented that the septic system servicing the property was located entirely within the boundaries of the property being sold. This claim was based on the following facts, which are supported by the evidence presented in the trial court. Prior to entering the contract for sale of the property, the plaintiffs had looked at it. The Matyases were present at the time and made representations as to the location of the septic system. During direct examination, Ralph Matyas testified as follows: “I showed them . . . what I had done on the property. ... I just said, ‘This is where the septic is, this is where the well is.’ ” Also, the contract of sale executed by the parties provided in part: “Seller represents . . . If the premises are served by on-site well and/or sewage disposal system[s], that such well and/or sewage disposal system[s] are entirely within the boundary lines . . . .” Ellicott testified that she thought this representation was true at the time she purchased the property. The Matyases claimed that they believed the septic system was within their boundaries when they conveyed the land, and they had no intention of defrauding or misleading the plaintiffs.

The Matyases claim that the trial court improperly charged the jury on the elements necessary for recovery based on innocent misrepresentation. The trial court’s charge was as follows: “The rule of law applicable to misrepresentations is that if a person makes a statement in regard to a matter upon which a hearer may reasonably suppose he has the means of information, and the statement is made as part of a business transaction, or to induce action from which the speaker expects to gain advantage, he should be held liable for the consequences of reliance upon the misstatement. If the [Matyases], in fact, misrepresented the location of the septic system, it does not matter that such misrepresentation was innocent, for a party is entitled to recover for the consequences of reliance upon misrepresentation even if there was no fraud or bad faith or deceit. In other words, an innocent or mistaken representation would still allow the plaintiffs to recover.” The Matyases essentially claim that the instruction was incomplete because it did not state that “innocent misrepresentation may be actionable only if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.” Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967). We are not persuaded.

Our standard of review concerning claims of instructional error is well settled. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict .... The trial court must adapt its instructions to the issues raised in order to give the jury reasonable guidance in reaching a verdict and not mislead them.” (Citations omitted; internal quotation marks omitted.) Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 592-93, 627 A.2d 443 (1993). The test of a court’s charge is not whether it is as accurate on legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. Seperack v. Solaz, 17 Conn. App. 684, 696, 556 A.2d 175, cert. denied, 211 Conn. 804, 559 A.2d 1138 (1989).

Under this standard of review, we conclude that the trial court properly instructed the jury in a manner calculated to give a clear understanding of the issue presented for its consideration. This court has long recognized liability for innocent misrepresentation. The elements of this cause of action are “(1)a representation of material fact, (2) made for the purpose of inducing the purchase, (3) the representation is untrue, and (4) there is justifiable reliance by the plaintiff on the representation by the defendant and (5) damages.” Frimberger v. Anzellotti, 25 Conn. App. 401, 410, 594 A.2d 1029 (1991); Johnson v. Healy, 176 Conn. 97, 101, 405 A.2d 54 (1978). The trial court’s instruction was sufficiently correct in law. It accurately described the necessary elements for a cause of action based on innocent misrepresentation. It also was virtually a direct quotation from Johnson v. Healy, supra, 101, a case in which our Supreme Court discussed the theory of recovery based on innocent misrepresentation.

The trial court’s refusal to include the specific language requested by the Matyases was not improper. The language requested by the Matyases, which emphasizes constructive or actual knowledge on the part of the declarant, has not been set forth as an essential element of a cause of action for innocent misrepresentation as such cause of action has been, described by both this court and our Supreme Court. The trial court’s charge did provide that liability could be found only for a statement “in regard to a matter upon which a hearer may reasonably suppose [the declarant] has the means of information . . . .” A court is under no duty at any time to charge in the exact language requested. Elliot v. Sears, Roebuck & Co., 30 Conn. App. 664, 668, 621 A.2d 1371 (1993), aff'd, 229 Conn. 500, 642 A.2d 709 (1994). Our review of the jury instuction leads us to conclude that it was sufficiently correct in law, adapted to the issues and ample to guide the jury in its factual determination.

B

Next, the Matyases claim that the trial court should not have allowed evidence of the plaintiffs’ expenses for attorney’s fees. We disagree.

At trial, the plaintiffs introduced evidence of attorney’s fees that they had incurred in connection with this case. They introduced invoices and a bill in the amount of $2902.36. The trial court allowed admission of this evidence under a default provision of the real estate contract between the parties. This provision provides, in part, that “[if] the Seller is in default by reason of failure ... to comply with any terms of this contract, the Purchaser may pursue any remedy available to him in law or in equity and further recover damages due him as a result of the Seller’s default .... The parties further agree that the party who is in default shall pay all costs and expenses incurred by the other party as a result of such other party’s enforcement of this contract, including a reasonable attorney’s fee.” The Matyases argue that the evidence of attorney’s fees should not have been admitted because of the general rule that parties in civil actions pursuing their rights are responsible for their own attorney’s fees. The Matyases cite Doe v. Heintz, 204 Conn. 17, 23, 526 A.2d 1318 (1987), as support for their position.

While it is true that “ ‘a prevailing litigant ordinarily is not entitled to collect a reasonable attorney’s fee from the opposing party as part of his or her damages or costs’ Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14, 513 A.2d 1218 (1986), quoting Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); there are certain exceptions to this rule. In the main, exceptions are based on statutory or contract provisions authorizing the recovery of attorney’s fees by a prevailing litigant. O’Leary v. Industrial Park Corp., 211 Conn. 648, 651, 560 A.2d 968 (1989). “ ‘A contract may provide for the payment of attorney’s fees by a defaulting party, but those fees are recoverable solely as a contract right and not as damages . . . .’ ” Litton Industries Credit Corp. v. Catanuto, 175 Conn. 69, 76, 394 A.2d 191 (1978).

In this case, there is a contract provision that provides for the payment of reasonable attorney’s fees by the defaulting party. Therefore, the plaintiffs’ right to recover attorney’s fees derives from the contract. The trial court relied on this provision when it allowed the evidence of the attorney’s fees and the plaintiffs’ recovery of those fees. “ ‘[A] contract clause pro Adding for reimbursement of “incurred” fees permits recovery [of such fees] upon the presentation of an attorney’s bill, so long as that bill is not unreasonable upon its face and has not been shown to be unreasonable by countervailing eAddence or by the exercise of the trier’s OAvn expert judgment.’ ” Vespoli v. Pagliarulo, 212 Conn. 1, 5-6, 560 A.2d 980 (1989), quoting Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982). The plaintiffs in this case presented their attorney’s bill. The trial court properly allowed the award of the plaintiffs’ attorney’s fees in this case.

C

Next, the Matyases claim that the trial court improperly failed to instruct the jury, pursuant to their request to charge, that the alleged misrepresentation did not survive the closing of title. We disagree.

The Matyases argue that they should not be held liable for their misrepresentation regarding the location of the septic system because of language in the contract providing that the representation was not to survive the closing. Essentially, the Matyases are claiming that the terms of the sales contract were merged into and superseded by the deed, and, thus, there can be no action on a breach of contract. In making this claim, the Matyases overlook the fact that in this action the plaintiffs are not seeking to add to, subtract from or alter the terms of the written contract itself. They are claiming that they were induced to enter into the contract by misrepresentations of material facts. This action is concerned with material misrepresentations in the inducement of the contract. See Richard v. A. Waldman & Sons, Inc., supra, 155 Conn. 348.

In Knight v. Breckheimer, 3 Conn. App. 487, 489 A.2d 1066 (1985), the case cited by the Matyases to support their claim, the plaintiffs instituted an action against the defendants alleging fraudulent misrepresentation, failure to disclose and breach of warranty arising out of the sale of a residence. This court affirmed the trial court’s finding that the plaintiffs had failed to show any material misrepresentations on the part of the defendants. This court then held that the trial court was justified in finding that representations made in the contract merged in the delivery of the deed for purposes of the plaintiffs’ breach of warranty claim. Id., 490. Here, the plaintiffs’ claim has been construed validly to state a cause of action based on innocent misrepresentation in the inducement of the contract. The holding in Knight v. Breckheimer, supra, 490, is not controlling. We conclude that the trial court properly refused to charge the jury on the doctrine of merger.

D

Finally, the Matyases claim that the trial court improperly failed to instruct the jury on the doctrine of caveat emptor. We disagree.

The Matyases argue that Ellicott testified at trial that she did not examine the property prior to purchasing it. On the basis of this testimony, the Matyases submitted a request to charge that states that the doctrine of caveat emptor still applies to the sale of real estate in Connecticut. They argue that the trial court should have given this requested charge.

In the not too distant past, caveat emptor dominated the law of real estate. In this state, however, caveat emptor has not been allowed to stand in the way of imposition of liability for negligent misrepresentation. Johnson v. Healy, supra, 176 Conn. 102. “To shield a seller with a buyer’s negligence in not finding out whether the representation was true or false would be to give a seller the fruit of his falsehood.” Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 301, 478 A.2d 257 (1984).

The trial court properly refused to charge the jury on the doctrine of caveat emptor.

The judgments are affirmed.

In this opinion the other judges concurred.

       Originally, Helen A. Minek was a defendant in this case but the action against her was subsequently withdrawn.

       In its memorandum granting the motion to set aside the verdict, the trial court noted that the reason no expert testimony was offered was because no expert disclosure was made by the Matyases prior to trial in compliance with Practice Book § 220. Any offer of expert testimony was properly excluded. See Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 476 A.2d 1074 (1984). This ruling has not been challenged on appeal.

       These witnesses were Allan Towne, the excavating contractor, Donald Winters, the excavator’s employee, and Gil Roberts, the senior sanitarian and director of the Torrington area health district. Towne and Winters testified that they took directions from Curcio regarding where the septic system would be installed, and Roberts testified, inter alia, that he observed Curcio at the site and they discussed the septic system.

       In Ms brief, Curcio argues that if the Matyases are successful on appeal, this court should order a new trial rather than a judgment for the Matyases on the verdict because of misconduct by the Matyases’ counsel at trial. The claim is that counsel attempted to elicit expert testimony from various witnesses despite the trial court’s ruling that no expert testimony could be offered, and that this unfairly prejudiced Curcio. In response, the Matyases argue that this issue cannot be raised on appeal because it was not raised in the trial court. Given our disposition of the other issues raised in this appeal, we will not review the merits of this claim.

       We note that this claim was not included in the Matyases’ preliminary statement of issues pursuant to Practice Book § 4013 (a). Their failure to identify this issue in their preliminary statement of issues does not preclude review unless the opposing party is prejudiced thereby. See State v. McIver, 201 Conn. 559, 568 n.3, 518 A.2d 1368 (1986). Because both parties have fully briefed and argued the issue, we do not feel that Curcio would be prejudiced by our review of this issue.

       Practice Book § 321 provides in relevant part: “After the acceptance of a verdict ... a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside . . . .”

       In that opinion, our Supreme Court noted that “strict liability for innocent misrepresentation was imposed in a construction contract in E. & F. Construction Co. v. Stamford, 114 Conn. 250, 158 A. 551 (1932). In Stamford, the defendant’s erroneous description of subsurface conditions materially affected the plaintiff’s excavation costs. This court held the misrepresentation to be actionable, even though there was no allegation of fraud or bad faith, because it was false and misleading .... Stamford quotes, with approval, from 3 Williston, Contracts § 1512, p. 2689 (1920): If a man makes a statement in regard to a matter upon which his hearer may reasonably suppose he has the means of information . . . and the statement is made as part of a business transaction, or to induce action from which the speaker expects to gain an advantage, he should be held liable for the consequences of reliance upon his misstatement.” (Internal quotation marks omitted.) Johnson v. Healy, supra, 176 Conn. 101.


text:
    State of Connecticut v. Devon Dunbar
    (13155)
    Dupont, C. J., and Foti and Spear, Js.

      Argued December 8, 1994
    decision released March 28, 1995

      Louis S. Avitabile, special public defender, with whom, on the brief, was Meryl Anne Spat, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John Davenport, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault of a peace officer in violation of General Statutes § 53a-167c, assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and assault in the third degree in violation of General Statutes § 53a-61 (a). The defendant was sentenced on each of the first two counts for a term of imprisonment of six years, suspended after one year, followed by five years probation, and for a term of one year on each of the remaining counts, with all sentences to run concurrently.

The defendant raises three claims on appeal: (1) that the trial court improperly instructed the jury on the intent necessary for the crimes of assault of a peace officer; (2) that punishment for the convictions of assault in the second degree and assault of a peace officer violated his double jeopardy rights; and (3) that punishment for the convictions of assault in the third degree and assault of a peace officer violated his double jeopardy rights. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 27,1992, at approximately 8:15 p.m., members of the Waterbury police department were effecting arrests on Walnut Street in Waterbury. As Officer John Kennelly was struggling with an arrestee, the defendant approached Kennelly from behind and struck him on the head, at least twice. Officer Walter Faust observed the defendant’s actions and rushed to Kennelly’s aid. The defendant wrenched a flashlight from Faust’s hand and struck him over the left eye with it. The defendant then struck Faust with the flashlight at least three more times, knocking him to the ground. The defendant was then arrested and handcuffed with the aid of another officer.

I

The defendant claims that the trial court improperly failed to instruct the jury on the specific intent necessary to commit the crimes of assault of a peace officer. This claim was not preserved at trial. The defendant seeks review under the plain error doctrine and the bypass doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant argues that the trial court failed to instruct on an essential element of the crimes charged, which is constitutionally impermissible. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988).

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. State v. Wideman, 36 Conn. App. 190, 204-205, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). “We may . . . dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Plude, 30 Conn. App. 527, 537, 621 A.2d 1342, cert. denied, 235 Conn. 923, 625 A.2d 824 (1993).

The claim of failure to instruct the jury adequately with regard to an essential element of the crime of assault of a peace officer, may result in a due process violation implicating the fairness of the trial. State v. Hinton, 227 Conn. 301, 313-14, 630 A.2d 593 (1993). The issue is one of constitutional magnitude implicating a fundamental right. The defendant, however, has not satisfied the third condition enunciated in Golding. He has failed to show that a constitutional violation clearly exists and that he was deprived of a fair trial.

The trial court instructed the jury as follows: “Now, I want to talk to you about these charges and what elements the state has to prove to meet its burden of proof. As for the charge of assault on a police officer, in the first and second counts of the information, the defendant is charged with the crimes of assault on a police officer in violation of General Statutes § 53a-167c; that statute provides in pertinent part that a person is guilty of assault of a peace officer when with intent to prevent a reasonably identifiable police officer as defined in § 53a-3 (9) — which I’ll explain to you later — this person intends to prevent a reasonably identifiable peace officer from performing his duty and in doing so causes physical injury to such peace officer while this officer is in the performance of his duty.”

The trial court did not specifically define the term intent until it gave its charge on the offense of assault in the third degree. The trial court repeated an identical definition of intent with regard to the charge of assault in the second degree. The court also reminded the jury “that the burden of proving intent beyond a reasonable doubt is on the state.”

The defendant argues that the trial court specifically defined intent as to the third and fourth counts charging assault in the second degree and assault in the third degree, but did not do so for the first and second counts charging assault of a peace officer. Although the court could have provided a more thorough instruction by referring to its definition of intent as applying to all crimes charged against the defendant, our review must determine whether it was reasonably possible that the jury was mislead. Under the third prong of Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if from the substance of the charge rather than its form, it is reasonably possible that the jury was misled. State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). To be adequate, the charge must have provided the jurors with a clear understanding of the elements of the crime of assault of a peace officer, and have afforded proper guidance for the determination of whether those elements were proved beyond a reasonable doubt. See State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985).

Having reviewed the charge as a whole, we conclude that it is not reasonably possible that the jury was misled. The element of intent required for the crime of assault of a peace officer was conveyed to the jury. While the court did not define intent as part of its instruction on the crime of assault of a peace officer, it used the word in its ordinary sense, in a manner that clearly conveyed what had to be proved by the state to justify a conviction. “ ‘[Wjhen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.’ ” Id., 581. Under the circumstances, the jury was adequately instructed on the element of intent and the instruction was not constitutionally inadequate. See State v. Howard, 204 Conn. 1, 3-4, 526 A.2d 526 (1987). Therefore, the defendant’s claim fails under the third prong of Golding.

Under the plain error doctrine, the defendant can prevail only if the error undermines the public confidence in, or impairs the fairness and integrity of, the judicial process. State v. Avila, 223 Conn. 595, 607, 613 A.2d 731 (1992). We conclude that the defendant’s claim does not warrant plain error review.

II

The defendant next claims that he was twice subjected to jeopardy when punished for the offense of assault of a peace officer and for the offense of assault in the second degree. He seeks review of this unpreserved claim under Golding and makes his claim under the multiple punishments aspect of the double jeopardy bar. Double jeopardy claims arising in the course of a single trial and raised for the first time on appeal are reviewable. State v. Chicano, 216 Conn. 699, 705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. . . . Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy. . . . This constitutional guarantee serves three separate functions: (1) It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial].” (Citations omitted; internal quotation marks omitted.) State v. Chicano, supra, 216 Conn. 705-706.

The defendant’s claim implicates the third type of constitutional protection. When a defendant alleges multiple punishments for the same offense, he bears the burden of demonstrating that the charges arise out of the same act or transaction, and that the charged crimes are the same offense. State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988). Here, the charges arose out of the same transaction. Therefore, the sole issue is whether the crimes constitute the same offense. “The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” State v. Chicano, supra, 216 Conn. 706-707. “ ‘[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ ” State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990).

The defendant concedes that under the Blockburger test, assault in the second degree is not a lesser included offense of assault of a peace officer. The defendant agrees that applying the Blockburger test clearly demonstrates that these are two separate crimes for which the defendant could be prosecuted and punished without violating the constitutional prohibition against double jeopardy. State v. Russell, 25 Conn. App. 243, 250, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991). He argues, however, that the presumption under Blockburger may be rebutted by showing a “clear legislative intent that the two statutes be treated as one for double jeopardy purposes.” Id., 251. To support his argument, the defendant relies on the following legislative history. In 1969, the legislature approved Public Acts 1969, No. 828, which was codified, in part, as General Statutes § 53a-60, “Assault in the Second Degree: Class D Felony,” to take effect on October 1, 1971. Section 53a-60 (a) originally proscribed six types of conduct, including (1) intentionally causing serious physical injury, (2) intentionally causing or attempting to cause injury by means of a deadly weapon or dangerous instrument, and (3) causing physical injury to a police officer or fireman with intent to prevent him from performing his lawful duty. In 1973, the legislature repealed General Statutes (1972 Noncum. Sup.) § 53a-60 (a) (3) and replaced it with § 53a-167c (a). See Public Acts 1973, No. 73-639. The defendant argues that because the current offense of assault of a peace officer; General Statutes § 53a-167c (a); was derived, in part, from the then existing offense of second degree assault; General Statutes (1972 Noncum. Sup.) § 53a-60 (a); the legislature clearly intended to treat §§ 53a-167c (a) and 53a-60 (a) (2) as one offense for double jeopardy purposes. We find the defendant’s argument unpersuasive.

We recently concluded that a defendant’s convictions of assault in the second degree as an accessory in violation of § 53a-60 (a) (5) and assault of an employee of the department of correction in violation of § 53a-167c (a) (1) did not violate his double jeopardy rights. State v. Nixon, 32 Conn. App. 224, 235-40, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). Our reasoning in Nixon is controlling in this case. The purpose of § 53a-167c (a) is to prevent and punish injurious behavior intended to interfere with public servants’ performing their duties. The purpose of § 53a-60 (a) (2) is to prevent and punish the use of a deadly weapon or dangerous instrument to injure another person. The statutes have different intents, one targets a specific victim and the other targets an instrumentality. The legislature enacted § 53a-167c (a), knowing full well that § 53a-60 (a) (2) is a separate provision for the intentional infliction of physical injury by means of a deadly weapon or dangerous instrument. “It is a basic tenet of statutory construction that the legislature acts with full knowledge of existing statutes and that it intends to create one body of law.” State v. Nixon, supra, 240.

We conclude that the defendant’s historical analysis has not established a clear legislative intent to treat §§ 53a-167c (a) and 53a-60 (a) (2) as one offense for double jeopardy purposes. Having failed to rebut the presumption under Blockburger, the defendant cannot prevail on this double jeopardy claim.

Ill

The defendant lastly claims that he was twice subjected to jeopardy when punished for the offense of assault of a peace officer and for the offense of assault in the third degree. He argues that the legislature did not intend to create separate and distinct liability for a single assault that violated both §§ 53a-167c (a) and 53a-61 (a) (1).

Although the defendant cannot argue that § 53a-167c (a) (1) was derived from § 53a-61, assault in the third degree, the defendant relies on all the other law and arguments presented in part II. For the reasons given in part II, we reject the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-167c provides in relevant part: “(a) A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer . . . .”

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . .

       Practice Book § 4185 provides: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interest of justice notice plain error not brought to the attention of the trial court.”

       In its charge, the court stated: “Intentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent. One way in which a jury can determine what a person’s intention was at any given time, aside from that person’s own testimony, is first by determining what that person’s conduct was, including any statements he made, and what the circumstances were surrounding that conduct, and then from that conduct and those circumstances inferring what his intention was.
      “In other words, a person’s intention may be inferred from his conduct. You may infer from a fact that the accused engaged in conduct, that he intended to engage in that conduct. This inference is not a necessary one.
      “You are not required to infer intent from the accused’s conduct, but it is an inference that you may draw if you find it is a reasonable and logical inference.”

       Each of the crimes of assault of a peace officer and assault in the second degree contains an element that the other does not. A comparison of the intent elements of these crimes reveals a critical difference between the two statutes. An assault of a peace officer under § 53a-167c (a) occurs when a person intends to prevent a reasonably identifiable peace officer from performing his duties. Intent to cause physical injury is not a prerequisite to culpability under this statute. By contrast, assault in the second degree under § 53a-60 (a) (2) occurs when a person intends to cause physical injury to another person.

       The defendant also argues that § 53a-60 (a) (2) relates to assaults on all persons and is a general law, and § 53a-60 (a) (3), from which § 53a-167c (a) is partially derived, relates to assaults on all peace officers as particular persons and is a specific law. He argues that it is a rule of statutory construction that a specific law controls over a general one. We find no merit in this argument as applicable to an analysis of double jeopardy.


author: O’Connell, J.

text:
    Par Developers, Limited v. Planning and Zoning Commission of the Town of Killingworth
    (12935)
    O’Connell, Foti and Spear, Js.

      Argued January 5
    decision released March 28, 1995

      Brian G. Enright, for the appellant (plaintiff).

      William Howard, with whom was Eric Kaplan, for the appellee (defendant).
   O’Connell, J.

This is a mandamus action in which the plaintiff appeals from a judgment rendered in favor of the defendant. The plaintiff claims that the trial court improperly (1) determined that the plaintiff failed to establish a clear right to the relief requested, (2) determined that the plaintiff failed to submit a copy of the subdivision application to the inland wetlands and watercourses commission (wetlands commission), and (3) found that the defendant was not otherwise required by operation of law to issue a subdivision permit to the plaintiff. We affirm the judgment of the trial court.

The scenario leading to this appeal commenced with the plaintiff’s application for approval of its four lot subdivision on Bar Gate Trail in Killingworth. The application was officially received at the defendant’s November 19,1991 meeting. See General Statutes § 8-26d (c).

When no public hearing is held, as in this case, a planning and zoning commission must make its decision within sixty-five days of the receipt of the application. The applicant may consent to an extension not to exceed an additional sixty-five days. General Statutes § 8-26d (b). In the present case, the plaintiff consented to a sixty-five day extension so that April 1, 1992, became the deadline. The defendant neither granted nor denied the application by April 1, 1992, but eventually denied it on November 17, 1992.

The plaintiff seeks this mandamus on the ground that its application should be deemed automatically approved pursuant to § 8-26d (b) because the defendant did not act on it by April 1, 1992.

If the land in a proposed subdivision is located in a wetlands or watercourse area, § 4.7 of the Killingworth subdivision regulations mandates the simultaneous filing of a copy of the subdivision application with the wetlands commission. The regulation states that “if such application shall not be filed with the [wetlands commission] as prescribed herein, the application shall be considered incomplete and the commission shall not proceed with further proceedings thereon until such copy of the application is received by the [wetlands commission].” (Emphasis added.)

The plaintiff did not file a copy of the subdivision application with the wetlands commission. Instead, it filed a form entitled “Application to Conduct a Regulated Activity in Wetlands or Watercourses.” Despite the form’s title, the plaintiff indicated thereon that it was not seeking permission to conduct a regulated activity. Consequently, the wetlands commission returned the form and application fee.

The trial court found that in the context of § 4.7 the plaintiff’s claimed application to the wetlands commission was a nullity and thus the plaintiff had not complied with § 4.7. Accordingly, the trial court concluded that the plaintiff had not established a clear right to have the application granted and denied the mandamus.

The plaintiff’s first two claims are subsumed under the common issue of whether the plaintiff had submitted the required copy of the application to the wetlands commission so as to trigger the statutory time limits for automatic subdivision approval.

A writ of mandamus is available only if (1) the party applying for the writ has a clear legal right to have the duty performed, (2) the defendant has no discretion with respect to performance of that duty, and (3) the plaintiff has no adequate remedy at law. Golab v. New Britain, 205 Conn. 17, 20, 529 A.2d 1297 (1987). The time limits established in General Statutes § 8-26 are mandatory. Finn v. Planning & Zoning Commission, 156 Conn. 540, 544, 244 A.2d 391 (1968).

The plaintiff maintains that because its application was deemed received at the defendant’s November 19, 1991 meeting and the defendant did not approve or deny the application by April 1, 1992, we can look at nothing but the calendar to determine whether a mandamus should issue. We do not agree.

The plaintiff relies on a line of cases that hold that where statutory language is mandatory, the first two requirements for a mandamus are met. Vartuli v. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). Those cases, however, are inapposite to the present case. Vartuli was based on General Statutes § 8-7d (b), the relevant portion of which provided that “ ‘[w]henever the approval of a [coastal] site plan is the only requirement . . . remaining to be met . . . a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt . . . .’’’(Emphasis added.) Id., 358. No other approvals were required in Vartuli or the cases on which Vartuli relies. In the present case, by contrast, the submission of a copy of the plan to the wetlands commission remained to be accomplished. Thus, it was the duty of the trial court here to determine if the plaintiff had satisfied the first two mandamus requirements. Golab v. New Britain, supra, 205 Conn. 20.

The plaintiff contends that the trial court ignored the fundamental administrative law principle that examination and evaluation of evidence is the province of the administrative agency and should be overturned by the trial court only in extreme circumstances. The significance of this argument lies in the plaintiffs contention that the defendant’s action in receiving and discussing the application represented factual findings of the defendant that started the clock running and the trial court could not overrule those factual findings. The plaintiff relies on Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991), and Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). The fallacy in this argument is that the cases relied on by the plaintiff are administrative appeals in which the trial court reviewed the agency’s decision in an appellate capacity, hearing the appeal on the record. This is not an administrative appeal. Rather, as a mandamus action, it is a case brought to the Superior Court under its original jurisdiction. General Statutes § 52-485 (a); Kiernan v. Borst, 144 Conn. 1, 4-5, 126 A.2d 569 (1956); see Griffin v. Planning & Zoning Commission, 30 Conn. App. 643, 653, 621 A.2d 1359 (1993). Here, the Superior Court, not the administrative agency, is the finder of fact. “An action for mandamus is a lawsuit like any other lawsuit.” Marciano v. Piel, 22 Conn. App. 627, 628, 579 A.2d 539 (1990).

Although mandamus is a legal remedy, it is governed by equitable principles; Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906 (1967); and will not issue to compel a violation of the law. P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983). Numerous cases have denied writs of mandamus where automatic approval conflicted with other laws. Cheshire Taxpayers’ Action Committee, Inc. v. Guilford, 193 Conn. 1, 6, 474 A.2d 97 (1984) (conflicting with General Statutes § 7-188); Stolberg v. Caldwell, 175 Conn. 586, 612, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981) (conflicting with Conn. Const., art. Ill, § 11); Coastal Suburban Builders, Inc. v. Planning & Zoning Commission, 2 Conn. App. 489, 493, 479 A.2d 1239 (1984) (conflicting with zoning regulations).

Section 4.7 of the Killingworth subdivision regulations prohibited the defendant from processing the application until a copy thereof had been filed with the wetlands commission. Where the effect of automatic approval would result in a questionable certificate of approval because another law is violated, the plaintiffs right to have the duty performed is far from clear. Shapero v. Zoning Board, 192 Conn. 367, 371, 472 A.2d 345 (1984); Camm v. Hart, 6 Conn. App. 284, 289, 504 A.2d 1388 (1986).

In its third claim, the plaintiff argues that, even if its wetlands commission application was defective, or even if it had not submitted application to the wetlands commission, the trial court should have held that its application was automatically approved as of April 1, 1992. We are not persuaded that the trial court should have overlooked § 4.7 and found that the plaintiff had a clear right to have the certificate of approval issued.

The trial court properly denied the plaintiff’s application for a writ of mandamus.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal is limited to whether the trial court properly denied the writ of mandamus when the defendant had not acted on the plaintiffs application by April 1,1992. Testimony and exhibits relating to the defendant’s eventual denial of the plaintiffs application on November 17,1992, are not relevant to this issue.

       General Statutes § 8-26d (c) provides in relevant part: “[T]he receipt of an application . . . shall be the day of the next regularly scheduled meeting of such commission or board, immediately following the day of submission to such board or commission or its agent of such application ... or thirty-five days after such submission, whichever is sooner. . . .”

       General Statutes § 8-26d (b) provides: “A decision on an application for subdivision approval, on which no hearing is held, shall be rendered within sixty-five days after receipt of such application. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed sixty-five days.”

       Section 4.7 of the Killingworth subdivision regulations provides: “One copy of the application form, and of each item of supporting information required hereunder, for approval of a plan of subdivision within the Plan Area of which there exists any wetlands or watercourses shall be filed by the applicant with the Inland Wetlands and Watercourses Commission not later than the day the Planning and Zoning application is filed. If such application shall not be filed with the Inland Wetlands and Watercourses Commission as prescribed herein, the application shall be considered incomplete and the Commission shall not proceed with further proceedings thereon until such copy of the application is received by the Inland Wetlands and Watercourses Commission.”

       Although the trial court based its decision on the local regulation, General Statutes § 8-26 also mandates that an application be filed with the wetlands commission and forbids a planning commission from rendering a decision until the wetlands commission has submitted a report with its final decision to the planning and zoning commission. General Statutes § 8-26 provides in relevant part: “If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency. . . .”

       General Statutes § 52-485 (a) provides: "The superior court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the superior court or, in default thereof, according to the course of the common law.”

       Furthermore, General Statutes § 8-26d (d) exempts the defendant from making a decision until thirty-five days after receipt of the wetlands commission decision, and no such decision from the wetlands commission was received by April 1, 1992.
      General Statutes § 8-26d (d) provides: “Notwithstanding the provisions of this section, if an application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, and the time for a decision by a planning commission established pursuant to this section would elapse prior to the thirty-fifth day after a decision by the inlands wetlands, the time period for a decision shall be extended to thirty-five days after the decision of such agency. The provisions of this subsection shall not be construed to apply to any extension consented to by an applicant.”