author: DUPONT, J. BISHOP, J.,

text:
    LOREN YOUNG MUNROE ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD ET AL.
    (AC 19672)
    Foti, Bishop and Dupont, Js.
    Argued October 16, 2002
    officially released April 1, 2003

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and Roger M. Sullivan, for the appellants (plaintiffs).

      Timothy J. Lee, with whom, on the brief, was Leonard A. Fasano, for the appellee (named defendant).
   Opinion

DUPONT, J.

The plaintiffs appeal from the judgment of the trial court affirming the dismissal of their appeal by the defendant zoning board of appeals of the town of Branford (board). In dismissing the plaintiffs’ appeal, the board upheld the zoning enforcement officer’s (zoning officer) granting of a certificate of zoning compliance (certificate) to the defendant Thomas Simjian and found that it did not have the authority to act on the appeal from the building official’s renewal of Simjian’s building permit (permit).

On appeal to this court, the plaintiffs claim that the court improperly affirmed the board’s decision to dismiss the appeal because the board (1) did not conduct a de novo review of § 5.7 of the Branford zoning regulations and (2) refused to review the action of the town building official’s issuance of a permit. We conclude that the appeal should not have been dismissed and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the present appeal. Simjian owned a parcel of property at 9 Etzel Road in Branford, on which there is a freestanding garage. The garage is a nonconforming structure under the zoning regulations because its footprint does not conform to area setback regulations. On May 1,1997, Simjian applied for a certificate and a permit to extend his garage vertically by adding a second story. On August 26, 1997, the zoning officer, Justine K. Gillen, issued a certificate. In making her decision, Gillen relied, in part, on a 1987 letter of town attorney Norbert Church, who opined that a vertical expansion within an existing first floor footprint is not an increase in nonconformity under § 5.7, and, therefore, the certificate could issue without a variance.

On September 8, 1997, the town’s building official issued the requested permit, which automatically followed the issuance of a certificate. This permit by its terms lapsed on March 8, 1998, because Simjian had not started construction within six months of issuance and the permit had not been renewed.

On March 13, 1998, the new town attorney, Penny Bellamy, issued a memorandum that interpreted § 5.7 for the third time. In her memorandum, she determined that a vertical addition to an existing, nonconforming structure is an increase in nonconformity and, thus, is prohibited under § 5.7 of the zoning regulations unless a variance is obtained. This interpretation negated the Church interpretation and followed the interpretation that had been made in 1997 by a previous town attorney, Leonard A. Fasano, who also determined that a vertical addition to a nonconforming structure is an expansion under § 5.7 that requires a variance. See footnote 6.

On April 2,1998, Simjian submitted a second application for a permit to the building official and began demolition of the garage roof that day to begin construction. The plaintiffs, on that same day, spoke with Gillen to notify her of a possible zoning infringement because of the Bellamy memorandum. Gillen refused to revoke the certificate, which had issued on August 26, 1997, and had an unlimited duration. Thus, because there was a valid certificate, the building official acted on Simjian’s second application and issued a new permit on April 7, 1998.

Contesting the issuance of the certificate and the permit, the plaintiffs appealed to the board. On May 19, 1998, the board held a hearing and, by a four to one vote, denied the plaintiffs’ appeal because it found that Gillen was “acting consistently with the law and the rules as she knew them at the time” when she issued, and refused to revoke, the certificate.

The plaintiffs appealed from that decision to the Superior Court, alleging that the board had acted illegally, arbitrarily and in abuse of its discretion in several respects. The Superior Court affirmed the board’s decision. The issue, according to the court, was framed by first determining what the board was asked to decide. According to the court, the plaintiffs were asking the board, when reviewing Simjian’s application for a certificate, to apply the current town attorney’s interpretation of § 5.7, which was in effect at the time the plaintiffs asked Gillen to revoke the certificate, instead of the interpretation of a former town attorney. In its memorandum of decision, the court found that the board did not consider Fasano’s oral interpretation of § 5.7 binding as to Simjian’s application for a certificate and, therefore, that Gillen was correct to rely on the opinion of Church when issuing the certificate.

The court concluded that the board had the authority to decide the manner in which a regulation applies and, therefore, refrained from interpreting § 5.7 of the zoning regulations. It also concluded that the board had conducted a proper de novo hearing and did not act illegally, arbitrarily or in abuse of its discretion when it denied the plaintiffs’ appeal.

The plaintiffs essentially claim that neither the board nor the court applied the proper standard of review. In addressing this claim, we first set forth the applicable standard of review for an appeal to the board. The board conducts a de novo review on an appeal from a decision of the zoning officer. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993).

The board “is in the most advantageous position to interpret its own regulations and apply them to the situations before it.” (Internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002). It is, therefore, “entrusted with the function of interpreting and applying [its] own zoning regulations.” (Internal quotation marks omitted.) Borden v. Planning & Zoning Commission, 58 Conn. App. 399, 411, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000). “Generally, it is the function of a zoning board ... to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.” (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001).

The town first argues that this standard is inapplicable because the issue before the board was not the legal interpretation of § 5.7, but whether the zoning officer, having relied on Church’s interpretation, rather than Fasano’s or Bellamy’s, was using the interpretation applicable at the time she issued, and at the time she subsequently refused to revoke, Simjian’s certificate. The town argues that this is a discretionary decision requiring the court, as it correctly did, to determine only if the board’s decision was unreasonable, arbitrary or illegal. The court agreed with the town and, thus, did not conduct an independent interpretation of § 5.7. The court decided only that the board had conducted a sufficient de novo review and reasonably had endorsed the zoning officer’s issuance of the certificate, which followed the Church interpretation.

The issue before the board was whether a variance was required to expand vertically an existing, nonconforming structure, in this case, Simjian’s garage. That issue depended on the interpretation of § 5.7. While there were certainly questions regarding what the existing and applied interpretation of § 5.7 was at the relevant times, in ultimately resolving the issue before it, the board was required to interpret independently § 5.7 and to apply its interpretation to the facts of this case. It is the function of a zoning board to decide whether a particular section of the zoning regulations applies. See Caserta v. Zoning Board of Appeals, supra, 226 Conn. 90; Doyen v. Zoning Board of Appeals, supra, 67 Conn. App. 603-604.

The plaintiffs claim that the board did not interpret § 5.7 at all, but simply approved the zoning officer’s decision. The town contends that the board did interpret the regulation by deciding, as a policy matter, that no variance was needed in this case to extend vertically a preexisting, nonconforming structure. The town argues that the court properly deferred to the board when it concluded that the interpretation of § 5.7 is a policy decision left to the board’s discretion.

The board, in rendering its decision, essentially applied the zoning officer’s interpretation, which relied on Church’s interpretation, of § 5.7. The board did not render its own independent interpretation of § 5.7 as it was required to do. A determination by the board that a certificate was issued because of a policy existing at the time of issuance is not the equivalent of an interpretation of a regulation necessary to resolving the rectitude of issuance. In rendering its decision, the court did not have an interpretation of § 5.7 by the board to review.

“[0]n appeal from [the] zoning board’s application of [a] regulation to [the] facts of [a] case, [the] trial court must decide whether the board correctly interpreted the regulation and applied it with reasonable discretion.” (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 698. “[C]ourts should accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Internal quotation marks omitted.) Cimochowski v. Hartford Public Schools, 261 Conn. 287, 296, 802 A.2d 800 (2002).

We do not have for review the board’s independent inteipretation of § 5.7. We therefore have no interpretation by the board to which either we can, or the trial court could have, deferred. In any case, we would not be bound by such an interpretation, which is a question of law, requiring plenary review. Doyen v. Zoning Board of Appeals, supra, 67 Conn. App. 604. It is our job, as an appellate court, to construe the relevant zoning regulation because, with or without the benefit of a review of the language of § 5.7 by either the board or the trial court, the outcome of this appeal eventually will depend on a legal inteipretation of the regulation by an appellate court. See id., 603. We therefore conduct our own de novo review of § 5.7 without the usual initial interpretation of the board.

“[A] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances.” (Interna! quotation marks omitted.) Id., 604. In interpreting a zoning ordinance, “the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” (Citation omitted; internal quotation marks omitted.) Id., 604-605.

In interpreting the zoning regulations at issue in this case, we read the regulations as a cohesive whole. Section five of the zoning regulations is entitled “Nonconformity.” Section 5.1 provides: “Intent: It is the intent of these Regulations that nonconformities are not to be expanded, that they should be changed to conformity as quickly as the fair interest of the owners permit and that the existence of any existing nonconformity shall not of itself be considered grounds for the approval of a variance for any other property.” Section 5.1 requires us to read § 5.7 narrowly because the town’s intent, as expressed in § 5.1, is to eliminate nonconformity as quickly as possible.

Other sections of the regulations reinforce our view that § 5.7 should be read narrowly. Section 5.8 provides that no nonconforming structure shall be moved unless it reduces or eliminates nonconformity. Section 5.9 prohibits changing a conforming use, previously nonconforming, back to a nonconforming use. Section 5.10 prohibits reconstruction or repair if a nonconforming building or structure is destroyed.

Section 5.7, itself, provides in relevant part: “No nonconforming building or structure shall be enlarged, extended, reconstructed or structurally altered, if the result would be an increase in nonconformity.” A nonconforming building or structure, as provided in § 5.2, is one that existed lawfully on the date the zoning regulations became effective and that fails to conform to one or more of the zoning regulations. The nonconformity in this case is the location of the garage on the land, that is, the lack of conformity to the regulations because the footprint of the garage violates the setback requirements. The relevant question is whether the addition of a second story to Simjian’s garage, which does not enlarge the existing ground level footprint, would be an extension, enlargement, reconstruction or structural alteration that increases the nonconformity.

In resolving this question, we primarily rely on an analysis of the particular language of the zoning regulations. “A determination as to whether an alteration, extension, reconstruction, or repair of a nonconforming structure ... is permissible is dependent on, or is affected by, the particular provisions of the applicable zoning ordinance . . . .” (Citation omitted.) Annot., 63 A.L.R.4th 275, 287 (1988). We also consult treatises and prior appellate cases for guidance.

We first consider what is embraced in the term “nonconforming use.” “The term ‘nonconforming uses’ is often used without consideration as to what aspect of the use of property is nonconforming, and in determining whether an activity is an expansion or change of a nonconforming use, the nature of the nonconformity is important. There are basically four types of nonconformity: (1) nonconforming use — the use of the land or structure on it is nonconforming (e.g., commercial use in a residential zone); (2) a nonconforming lot — the lot is undersized, irregularly shaped, has inadequate width or depth or inadequate frontage; (3) nonconforming building or structure — the structure does not meet the minimum or maximum size requirements, floor area ratio, height or bulk requirements of the existing zoning regulations; (4) nonconformity as to location of structure, i.e., it does not conform with one or more of the setback requirements. These distinctions are important because a particular piece of property may be nonconforming in one of these respects, but conforming as to the others. The prohibition of expansion of nonconforming uses applies only to the aspect of the use or structure which is nonconforming.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 52.1, p. 548.

In this case, we are dealing with the fourth type of nonconformity, that aspect of use of land or property that relates to the location of the structure or building on the land and whether a second story addition to the building is an increase in that type of nonconforming land use. The change sought relates to an increase in the floor area of 400 square feet available for use without having changed the footprint of the building.

We turn next to the particular words of the zoning regulations. Section 5.7 prohibits the structural alteration of a building if that alteration increases nonconformity. The interpretation of the words “structurally altered” depends on the ordinary meaning attributable to them based on common usage. See Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 412, 429 A.2d 905 (1980). An alteration is commonly defined as a modification or change. A building or structure is a “constructed edifice designed to stand more or less permanently, covering a space of land, [usually] covered by a roof and more or less completely enclosed by walls” and serving a particular purpose. (Internal quotation marks omitted.) Id. The garage in this case fits the definition of a building. It may also be termed a structure. See Hendryx Co. v. New Haven, 104 Conn. 632, 639-40, 134 A. 77 (1926) (one definition of structure is something constructed or built). A structural alteration exists if a building would be changed into a different structure. See Guilford v. Landon, 146 Conn. 178, 183, 148 A.2d 551 (1959). We conclude that the addition of a second story is a structural alteration because the addition would convert the garage into a substantially different building. See Marris v. Cedarburg, 176 Wis. 2d 14, 38, 498 N.W.2d 842 (1993). The question, thus, becomes whether that structural alteration would be an increase in nonconformity. “Increase,” as a norm, is usually defined as the act of becoming greater as to amount, number or intensity. Merriam-Webster’s Collegiate Dictionary (10th Ed. 1995). With this definition in mind, we next examine appellate case law.

Scores of zoning cases deal with the first type of nonconforming uses of land, as defined in Fuller’s treatise, as for example, a commercial use in a residential zone. Very few deal with expansions or enlargements of nonconformities relating to the land itself or to the location and area of a building on the land. We could find no Connecticut appellate case directly dispositive of the issue before us. Some Connecticut cases, however, are instructive in that they discuss what constitutes an increase in a particular type of nonconformity.

In State v. Perry, 149 Conn. 232, 235, 178 A.2d 279 (1962), the court held that the placement of a trailer on the defendant’s land for use in the freezing and storing operations in his production of ice cream was an extension of a nonconforming use because it provided him with additional enclosed space not otherwise allowed by the zoning regulations of Stamford. At the time the zoning regulations were passed, there was an existing building on the defendant’s premises, and all of the land, including the portions on which he placed the trailer, was used for the production of ice cream. Fuller, in his treatise, cites the case as standing for the proposition that the providing of additional enclosed space, although not a change in the type of use of the property, the manufacture of ice cream, was an extension of a nonconformity.

If there is no change in the type of nonconforming use, such as the rental of cottages, but a change in the period of time that the rental occurs, such as year round instead of seasonal, there has been a prohibited enlargement of the nonconformity. Cummings v. Tripp, 204 Conn. 67, 85, 527 A.2d 230 (1987). If there has been no change in the permitted use, such as a residence or a church, and no change in setback requirements, the renovation to the interior of an existing structure is not a prohibited enlargement of the nonconformity. Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979). The construction of a larger, single-family dwelling on a substandard lot with inadequate frontage to replace an existing dwelling on the lot, however, is an expansion of the nonconformity. Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 59, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988). The “proposed, larger house would clearly fail to meet [the] restrictions” that prohibit a nonconforming use from being extended or enlarged. Id.

The paucity of Connecticut decisional law on the precise issue of this case exists in other states. New cases of which we are aware concern whether structural alterations that involve the addition of vertical floors to a building located on a nonconforming footprint are expansions of that nonconformity.

In Lewis v. Maine Coast Artists, 770 A.2d 644, 652-53 (Me. 2001), it was held that any modification or addition to a building that would increase the square footage of nonconforming space of the building, even if the modification does not increase the linear extent of the nonconformity, increases the building’s nonconformity. Likewise, the addition of a second story, an increase of eight to ten feet in the height of a building, is an expansion of the nonconformity of a setback requirement. Devaney v. Windham, 132 N.H. 302, 305-306, 564 A.2d 454 (1989); see also Reddington Shores v. Innocenti, 455 So. 2d 642, 643 (Fla. App. 1984).

Courts “have set forth a number of general rules where the nonconformity was based on . . . location or dimension .... The view has been expressed that a negligible and incidental enlargement of a structure is permissible but that a substantial and purposeful enlargement is not . . . .” Annot., 63 A.L.R.4th supra, 287-88.

Zoning regulations that deal with legal nonconforming uses of land or buildings balance two competing interests, the protection of individual property rights and the protection of the community’s interest in a speedy elimination of the particular nonconformity. Marris v. Cedarburg, supra, 176 Wis. 2d 33. The landowner has an interest in making reasonable renovations to prevent deterioration, but the community has an interest in not extending the life of the nonconformity so that the nonconformity gradually will be eliminated. Id., 34. If a property owner is allowed to make drastic changes in a building, that interest would be favored over the interest of the community. Id.

Nonconformities prevent uniformity with surrounding areas and can affect the value of neighboring property. A vertical extension of a building by adding a second story can change and affect the amount of air or light between buildings and may detract from the aesthetic value of a neighborhood. The addition of a second story is not a negligible or cosmetic change from the original nature of the nonconformity. The bulk of the building has been increased in quantity and dimension, thereby intensifying the nonconformity. The second story provides a significant additional amount of enclosed space within the confines of the nonconforming footprint, causing a substantial increase in the nonconformity.

On the basis of the general goal of zoning law and the Branford regulations that nonconformities should be reduced to conformities with all the speed justice will tolerate; see Neumann v. Zoning Board of Appeals, supra, 14 Conn. App. 62; and the reasoning of the appellate authority in Connecticut and other states, we reverse the judgment of the trial court. The certificate should not have been issued to the defendant Simjian without a variance.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal and to order the defendant zoning board of appeals to revoke the certificate issued by the zoning officer.

In this opinion FOTI, J., concurred.

BISHOP, J.,

concurring in part and dissenting in part. I agree with my colleagues that the judgment of the trial court must be reversed because the defendant zoning board of appeals of the town of Branford (board) failed to exercise its independent judgment in determining whether the zoning enforcement officer had properly issued a certificate of compliance.

Having reached that conclusion, however, I would remand the matter to the trial court with direction that the appeal be sustained and the matter remanded, in turn, to the board for it to determine, de novo, the proper application of its zoning regulations to the proposed building addition. Instead, the majority has reached and decided the ultimate question of whether the proposed building addition complies with the zoning regulations or would require a variance.

In reaching this question I believe, respectfully, that the majority has usurped the role of the board in the name of judicial economy. I believe that it is inconsistent to say, on one hand, that the board should have exercised its responsibility to interpret its regulations independently, but, on the other hand, to take from that body the right to do so merely on the ground that this case may return to this court again.

Additionally, in its quest for efficiency, the majority has neglected our own jurisprudence concerning the authority of a zoning board of appeals to interpret its own regulations and abandoned the deference normally accorded to decisions of such boards. In Fedorich v. Zoning Board of Appeals, 178 Conn. 610, 424 A.2d 289 (1979), for example, the court affirmed the right of the zoning board of appeals to make a determination based, in part, on its past practices. In affirming the judgment of the trial court, the Supreme Court opined that “[t]he court . . . was entitled to accord considerable deference to the policy adopted by the defendant board in 1971, inteipretive of [§] 105 of the [Torrington] zoning regulations . . . .” Id., 616. See also Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991), in which the court concluded that to prevail on an appeal from a decision of a zoning board of appeals, the plaintiff must demonstrate that the board acted unreasonably, arbitrarily or illegally.

By preempting the board, the majority has prevented it from analyzing whether its past practices reflect an established policy concerning additions to nonconforming structures and determining under what circumstances the additions have been treated as increasing the nonconformity of the existing structure. The problem is exacerbated in this instance because, as the majority notes, there is no Connecticut appellate gloss of the regulatory language in question. While the majority has now determined for the first time that the proposed addition would constitute an increase in the nonconformity requiring a variance, I do not believe that this outcome would inevitably be the same if we had yielded to the board the opportunity to interpret its own regulations in light of its past practices regarding proposed additions to nonconforming structures.

It is not unreasonable to forecast that if the board conducts such an analysis and determines that no variance is required, a trial court could find that the board’s determination was, in fact, reasonable. Because, on review, the decision of a board will be reversed only if it is found to be unreasonable, arbitrary or illegal, the majority has, by force of this decision, preordained that no other interpretation of the regulation in question could be reasonable, and it reached that conclusion without the benefit of the board’s assessment of its past practices and policies regarding this precise issue.

In this circumstance, I would be inclined to give the board the first opportunity to interpret its own regulation. Even if the majority’s concern is well founded and a remand of this case may result in its eventual reappearance before this court, I do not believe that its goal of judicial economy warrants denying the board the opportunity to fulfill its responsibilities as we have determined them to be.

Accordingly, I concur in the reversal of the trial court’s judgment dismissing the appeal from the decision of the defendant zoning board of appeals, but I respectfully dissent from this court’s decision to determine itself whether the proposed building addition complied with the applicable zoning regulation and this court’s direction to the trial court on remand.

       The plaintiffs are Loren Young Munroe, Patrick Munroe, Marci T. Palluzzi and John D. Palluzzi.

       This case previously was before this court in Munroe v. Zoning Board of Appeals, 63 Conn. App. 748, 778 A.2d 1007 (2001), rev’d, 261 Conn. 263, 802 A.2d 55 (2002). The appeal was filed after we granted the plaintiffs petition for certification. We did not reach the issues involved in the appeal because we concluded that subject matter jurisdiction was lacking. The Supreme Court, however, concluded that there was subject matter jurisdiction, and reversed this court’s judgment and remanded the case for our consideration of the issues. Munroe v. Zoning Board of Appeals, 261 Conn. 263, 802 A.2d 55 (2002).

       The property of the plaintiffs abuts Simjian’s property.

       Section 5.7 of the Branford zoning regulations provides: “Enlargement: No nonconforming use of land shall be enlarged, extended or altered, and no building or other structure or part thereof devoted to a nonconforming use shall be enlarged, extended, reconstructed or structurally altered, except where the result of such changes is to reduce or eliminate the nonconformity. No nonconforming use of a building or other structure shall be extended to occupy land outside such building or other structure or space in another building or other structure. No nonconforming building or structure shall be enlarged, extended, reconstructed or structurally altered, if the result would be an increase in nonconformity.”

       The issuance and renewal of the permit was contingent on, and directly followed, the issuance of and failure to revoke the certificate. Because we conclude that the certificate should not have been issued, and should now be revoked, it is unnecessary to consider whether the board had the authority to hear the plaintiffs’ appeal from the building official’s action to renew the permit.

       In the summer of 1997 a successor town attorney, Leonard A. Fasano, had advised officials orally that a vertical addition to a nonconforming building is an expansion under § 5.7 and, therefore, requires a variance before a certificate can issue. Gillen never received that oral communication.

       Section 113.2.1 of the state building code provides in relevant part: “Any permit issued shall lapse if the building official finds that the authorized work was not started within a period of six (6) months after the permit was issued . . .

       In their brief to the trial court, the plaintiffs claimed that the board did not apply to the issues before it the proper de novo standard of review, failed to act on the appeal of the issuance of the permit, failed to interpret correctly the regulations at issue and reached a decision not supported by the evidence or the law.

       The court did not consider the fact that when the zoning officer was asked by the plaintiffs to revoke the certificate the new town counsel had agreed with town attorney Fasano and disagreed with town attorney Church as to the interpretation of § 5.7.

       “The issue is . . . whether you need a variance to go up on the same footprint as of September of this year or as of the time when, April, this permit got renewed.”

       The defendants do not offer any argument as to the interpretation of the regulations beyond arguing that the zoning officer had followed the inteipretation of the regulation that the board previously had followed. The plaintiffs do not offer an expansive argument in their brief as to the interpretation of § 5.7, and seek a remand to the trial court for its consideration of the interpretation and application of the pertinent zoning regulations. The plaintiffs, in the trial court, argued in their brief that the zoning regulations of the town prohibited the vertical expansion of a building, nonconforming as to its setbacks, in the absence of a variance. The plaintiffs’ petition for certification to appeal, which was filed in this court, asked for a review of (1) whether the zoning regulations were violated by the issuance of a certificate without a variance, and (2) whether the board improperly had failed to conduct a de novo review of the zoning officer’s issuance of the certificate. The plaintiffs characterized these questions as of “great public importance.” Because appellate analysis by this court or the Supreme Court must be had eventually, assuming another appeal is heard by either court after an interpretation by the trial court, we see no purpose in remanding a case that already is more than five years old. The interests of judicial economy would not be served by a remand. See Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 826, 663 A.2d 382 (1995). In view of the foregoing, we have determined that in this case, we can properly interpret the regulation without the benefit of an interpretation by the board.

       There is no issue in this case of whether the second story of the garage would enlarge its primary purpose as a garage. There was no claim that the addition, which was to be used as an exercise and storage area, would enlarge that purpose.

       Zoning regulations of other towns differ in their wording and scope from those of Branford. For example, the language of a zoning regulation recently interpreted in Doyen v. Zoning Board of Appeals, supra, 67 Conn. App. 597, differs significantly from that of the zoning regulation in the instant case. Prior cases are inapposite and unpersuasive because the zoning regulations that must be interpreted in them are markedly distinct from those regulations that are the subject of the case at hand. Id., 612 n.20. In Doyen, the regulations of the town of Essex did not include a prohibition against reconstruction or structural alteration and contained language implying that appurtenant structures are not necessarily expansions of nonconformity. Doyen determined that a five foot to six foot vertical expansion over an existing, nonconforming footprint of a deck on the side of a residence was not an expansion of a nonconformity as defined in the regulations of the town of Essex.

       Alterations that do not affect the size of a building and are limited to remodeling for appearance or efficiency are not usually considered structural alterations. 83 Am. Jur. 2d 580, Zoning and Planning § 674 (1992). We recognize that not all structural alterations involve a prohibited increase in nonconformity. Changes in the location of doors or windows or to the interior of the existing one story garage, for example, might be structural alterations that would pass muster as not enlarging the nonconformity of setback requirements. See Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484, 408 A.2d 243 (1979). Structural alterations, however, that enlarge the kind of business conducted on the premises may be an enlargement of that nonconforming use. Guilford v. Landon, supra, 146 Conn. 178.

       In doing so, the majority appears to have deviated from our long-standing policy of not deciding issues that have not been briefed on appeal. See State v. Torres, 242 Conn. 485, 486-87 n.4, 698 A.2d 898 (1997); National Associated Properties v. Planning & Zoning Commission, 37 Conn. App. 788, 796-97 n.6, 658 A.2d 114, cert. denied, 234 Conn. 915, 660 A.2d 356 (1995). The primary issue on appeal was whether the trial court correctly determined that the board had exercised its independent judgment when considering the plaintiffs’ appeal from the decision of the zoning enforcement officer to issue the certificate of zoning compliance to the defendant Thomas Simjian. None of the parties briefed the question the majority now answers.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JANCIS L. FULLER v. COMMISSIONER OF CORRECTION JANCIS L. FULLER v. STATE OF CONNECTICUT
    (AC 22522)
    Lavery, C. X, and Bishop and Cretella, Js.
    Argued January 13
    officially released April 1, 2003

      Janeis L. Fuller, pro se, the appellant (petitioner).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, was Angela R. Macchiarulo, assistant state’s attorney, for the appellees (respondent in the first case, state in the second case).
   Opinion

PER CURIAM.

The petitioner, Janeis L. Fuller, appeals from the trial court’s dismissals of her petitions for a writ of habeas and for a new trial. On appeal, the petitioner claims that the court improperly denied her motion for a continuance and dismissed both her petition for a writ of habeas corpus and her petition for a new trial. We disagree and affirm the judgments of the habeas court.

Following her conviction of two counts of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), the petitioner appealed to this court, which affirmed the judgment of conviction. State v. Fuller, 56 Conn. App. 592, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). The petitioner subsequently filed a habeas petition alleging ineffective assistance of both trial and appellate counsel, which was filed on July 29,1998, and amended for a final time on October 29,2001. On August 22, 2000, the petitioner also filed a petition for a new trial that alleged, inter alia, that the state improperly withheld ballistics evidence and that the state, the victims, the police and her attorneys conspired to fabricate ballistics evidence to ensure that she was convicted. The court, Dyer, J., granted the motion filed by the respondent commissioner of correction to consolidate the two actions because they contained claims that were legally and factually intertwined. We do likewise in considering this appeal.

On August 21, 2000, the petitioner filed a motion for a trial date on her habeas petition, advising the court that the matter had been on the “firm hearing list” since March 19,1999. In her motion, the petitioner stated that she was “ready to proceed with the trial and would like to present her case within the next ninety days.” Numerous time consuming discovery requests and several continuances to prepare for trial followed.

On June 26, 2001, the petitioner filed a motion for the disqualification of Judge Dyer. According to the motion, the petitioner alleged that Judge Dyer was biased against her. A hearing was held on the petitioner’s motion to disqualify, and although Judge Dyer advised that he disagreed with the petitioner’s allegations, he nevertheless voluntarily withdrew from the petitioner’s case to avoid the appearance that his actions would be influenced by the fact that the petitioner had sought to disqualify him.

On September 27, 2001, the petitioner was advised by the court, Devlin, J., that the trial date on her habeas allegations and petition for a new trial would be November 7, 2001. On October 3, 2001, the petitioner filed a motion for an indefinite postponement of the trial date for at least four months, due to her allegation of illness relating to the functioning of her thyroid gland and to continue the discovery process. At the hearing on the petitioner’s motion for postponement, the respondent alleged that the petitioner was engaged in delay tactics, given that she had filed another amended habeas petition and a motion for discovery dated October 25, 2001. The court denied the motion for a continuance, finding that the medical documents submitted indicated that the petitioner was mildly hypothyroidic and refused to take any medication that was prescribed. Additionally, a complete physical examination of the petitioner on September 27, 2001, did not reveal anything other than a urinary tract infection.

When asked by the court to call her first witness, the petitioner responded, “I don’t have my material with me. I was not intending to put on a trial today. I can’t do it.” The court then postponed the petitioner’s case until the following day to give her the opportunity to present whatever evidence she had. On the following day, the petitioner again informed the court that she was unable to proceed. The court then dismissed the petitions for a new trial and for a writ of habeas corpus pursuant to Practice Book § 14-3. This appeal followed. There was no hearing or evidence presented on either the claim of ineffective assistance of counsel or the matter of alleged new evidence and, therefore, in this appeal, we limit our review only to the issue of a continuance.

“A trial court possesses broad discretion in deciding whether to grant or deny a motion for a continuance. . . . The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [ejvery reasonable presumption in favor of the proper exercise of the trial court’s decision will be made. ... To prove an abuse of discretion, the appellant must demonstrate that the denial of the continuance was unreasonable or arbitrary. . . . [T]he right of a defendant to a continuance is not absolute and the propriety of a denial of one is to be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Citations omitted; internal quotation marks omitted.) State v. Breckenridge, 66 Conn. App. 490, 495-96, 784 A.2d 1034, cert. denied, 259 Conn. 904, 789 A.2d 991 (2001).

The court denied the petitioner’s motion for a continuance because her medical records revealed only a case of mild hypothyroid that was treatable by medication, which she refused to take. The petitioner’s medical records stated clearly that she “adamantly refuses meds.”

Initially, we note that “[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Citation omitted; internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn. App. 574, 575, 808 A.2d 710 (2002).

“The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Wilson v. Office of Adult Probation, 67 Conn. App. 142, 145, 786 A.2d 1120 (2001).

Practice Book § 23-29 (5) permits a habeas court to dismiss a petition for “any . . . legally sufficient ground . . . .” Practice Book § 14-3 permits a habeas court, on its own motion, to dismiss an action if the petitioner fails to “prosecute an action with reasonable diligence . . . .” Those rules of practice are to ensure the proper movement of cases and to prevent a backlog of the docket. Nickerson v. Gachim, 183 Conn. 413, 415, 439 A.2d 379 (1981), overruled on other grounds, Morelli v. Manpower, Inc., 226 Conn. 831, 835, 628 A.2d 1311 (1993). They also are consistent with General Statutes § 52-470 (a), which requires the court to proceed in a summary way to determine the facts and issues of a case.

“Practice Book § 14-3 reflects the judicial branch’s interest in having [a party] prosecute actions with reasonable diligence. Judges, faced with case flow management concerns, must enforce the pace of litigation coming before the court, rather than allowing the parties to do so. . . . This case directly implicates the axiom that [o]ur judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system.” (Citation omitted; internal quotation marks omitted.) Gillum v. Yale University, 62 Conn. App. 775, 786-87, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). After our review of the record, we agree with the court’s finding that “the petitioner has wholly and completely failed to offer any evidence regarding the numerous claims she has raised.”

The petition for a new trial was closely intertwined with the petitioner’s habeas petition in that both relied, to a great extent, on the ballistics evidence that was produced at her trial. The testimony of a ballistics expert on her behalf would have been necessary to establish her claim of newly discovered evidence. The petitioner, however, was unable to produce such an expert and failed to prosecute her case. She claimed that her thyroid condition was of such severity that it prevented her from obtaining such an expert and from properly pursuing her legal remedies. The medical evidence before the court stated otherwise. The court’s dismissal was based on its findings that the petitioner had only a mild case of hypothyroidism and that such illness did not prevent her from presenting evidence. Accordingly, we do not find that the court abused its discretion in denying the petitioner’s motion for a continuance. The dismissals of both petitions was not improper.

The judgments are affirmed.


author:
LAVERY, C. J.
      LANDAU, J.,

text:
    MOHINDER P. CHADHA v. MYER B. SHIMELMAN ET AL.
    (AC 22129)
    Lavery, C. J., and Foti and Landau, Js.

      Argued September 26, 2002
    officially released April 1, 2003

      MohinderP. Chadha, pro se, the appellant (plaintiff).

      Thomas J. Ring, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiff, Mohinder P. Chadha, appeals from the judgment of the trial court rendered in favor of the defendants, Myer B. Shimelman and Neil J. Grey, following the granting of their motion for summary judgment. On appeal, the plaintiff claims that the court improperly (1) applied the wrong definition of “malice,” (2) determined that he failed to present a factual predicate for his contention that the defendants’ actions were taken with malice and (3) determined the issue of malice, which is not appropriately determined on a motion for summary judgment. We affirm the judgment of the trial court.

In determining a motion for summary judgment, the court may rely on “affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . .” Practice Book § 17-45. That evidence reveals the following. In February, 1997, the plaintiff, a licensed psychiatrist, was a member of the Charlotte Hungerford Hospital (hospital) medical staff with admitting privileges. On February 20,1997, the plaintiff filed a complaint with the hospital against Samuel Langer, the chairman of the department of psychiatry at the hospital, alleging that Langer had falsified the minutes of a departmental meeting.

Grey, the medical director of the physician health program (health program) of the Connecticut state medical society (medical society), regularly receives complaints and petitions, in accordance with General Statutes § 20-lSd and the department of public health’s protocol governing participation of established medical organizations in the implementation of Public Acts 1984, No. 84-148 (protocol), concerning physicians who are or may be unable to practice medicine with reasonable skill and safety. On March 3, 1997, Grey received a telephone call from the vice president of patient operations at the hospital, indicating that the hospital was concerned about the plaintiffs ability to practice medicine with reasonable skill and safety due to perceived emotional health issues. Grey, pursuant to standard health program procedure, asked the plaintiff to submit to a psychiatric evaluation and referred the plaintiff to Shimelman. The plaintiff met with Shimelman on March 7 and March 14, 1997. On March 20, 1997, Shimelman forwarded a letter to Grey in which he reported that “it is my firm opinion as a Board Certified Psychiatrist that Dr. Chadha cannot practice Psychiatry with reasonable skill and safety as a result of his Paranoia.” Grey, as mandated by § 20-13d and the provisions of the protocol, submitted a “stage two report” to the department of public health, in which he forwarded Shimelman’s opinion. Thereafter, the department of public health filed a motion with the Connecticut medical examining board (board) seeking the summary suspension of the plaintiff’s license to practice medicine. On May 20,1997, the board ordered the summary suspension of the plaintiffs license to practice medicine pending a final determination by the board. In January, 1998, the board issued a final decision ordering the immediate suspension of the plaintiffs license.

On July 23, 1999, the plaintiff filed an amended complaint alleging that Shimelman maliciously produced a false evaluation report and that Grey maliciously made a false complaint to the department of public health. The defendants each filed an answer in response to the plaintiffs complaint. Both defendants asserted the special defense of statutory immunity pursuant to General Statutes § 19a-20.

In December, 2000, the plaintiff filed a motion for summary judgment, which the court denied. Thereafter, in May, 2001, the defendants filed a motion for summary judgment, which the court granted. The court determined that, pursuant to § 19a-20, a qualified immunity existed with respect to the defendants that could be overcome only by a showing of actual malice, and that the plaintiff bore the burden of proof with respect to the malice requirement. The court determined that the plaintiff, in opposing the defendants’ motion for summary judgment, failed to present facts sufficient to establish malice, and, therefore, the court determined that the defendants were entitled to judgment as a matter of law. This appeal followed.

“The standards governing ... a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material [fact] which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . .

“We emphasize the important point, that [although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 549-50, 791 A.2d 489 (2002).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Mulla v. Maguire, 65 Conn. App. 525, 531, 783 A.2d 93, cert. denied, 258 Conn. 934, 785 A.2d 229 (2001).

I

The plaintiff first claims that the court applied the wrong definition of malice. Specifically, the plaintiff asserts that the court applied the definition of “actual malice,” which is used for defamation actions, when it should have applied the general definition of malice, or malice in law. We disagree.

Although § 19a-20 does not define “malice,” our Supreme Court has held that the malice required to overcome a qualified privilege in defamation cases is malice in fact or actual malice. See, e.g., Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 28, 662 A.2d 89 (1995); Hassett v. Carroll, 85 Conn. 23, 35-36, 81 A. 1013 (1911) (“[o]ne publishing defamatory words under a qualified or conditional privilege is only liable upon proof of express malice”). We can perceive no reason, and the plaintiff has provided us with none, to apply a different definition of malice in the context of § 19a-20. We therefore conclude that the court correctly determined that the malice required by § 19a.-20 is actual malice.

II

The plaintiff next claims that the court improperly concluded that he failed to demonstrate a factual predicate for his contention that the defendants’ actions were taken with malice. Specifically, the plaintiff argues that the court misrepresented material facts contained in his complaint and opposition to the defendants’ motion for summary judgment. The plaintiff also argues that the court ignored his exhibits, which were submitted with his opposition to the defendants’ motion for summary judgment. We take the plaintiffs arguments, though inartfully made, to state the claim that he did in fact present a factual predicate for his contention that the defendants’ actions were taken with malice. We are not persuaded.

As stated previously, § 19a-20 provides the defendants with a qualified immunity that can be overcome only by a showing of actual malice. “Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false. ... A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth.” (Citations omitted; internal quotation marks omitted.) Abdelsayed v. Narumanchi, 39 Conn. App. 778, 781, 668 A.2d 378 (1995), cert. denied, 237 Conn. 915, 676 A.2d 397, cert. denied, 519 U.S. 868, 117 S. Ct. 180, 136 L. Ed. 2d 120 (1996). “Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives.” State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33 (1961); see also Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985).

Although the plaintiff did allege quite clearly that the defendants’ acted maliciously and even, at one point, that Grey was conspiring with the hospital to punish him for filing charges against Langer, those allegations are conclusory and do not, themselves, equate to a factual showing that the defendants’ actions were taken with malice. “Mere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment.” (Citation omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 170, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992). Instead, the plaintiff must plead specific facts, which, if true, would allow a fact finder to reach the conclusion that the defendants did indeed act with malice.

Because the plaintiff alleges different malicious acts by each defendant, we address the plaintiffs claims with regard to each defendant separately.

A

In his amended complaint, the plaintiff contends that Shimelman maliciously produced a false evaluation report because it was inadequate and incorrect. Specifically, the plaintiff alleges that Shimelman’s “diagnosis” of paranoia was incorrect, that he did not adequately investigate information provided to him by the plaintiff and that Shimelman’s letter did not meet the standards of a forensic psychiatric evaluation.

After carefully reviewing the record, we conclude that although there is some evidence supporting the plaintiffs contentions that Shimelman’s evaluation was inadequate and incorrect, the evidence does not provide a factual basis by which a trier of fact could conclude that Shimelman prepared his evaluation with actual malice, that is, with knowledge that his evaluation was false or in reckless disregard of the truth. At most, the evidence supporting the plaintiffs allegations could only support a finding that Shimelman was negligent in his evaluation of the plaintiff. As we have previously noted, however, “[a] negligent misstatement of fact will not suffice [to establish malice]; the evidence must demonstrate a purposeful avoidance of the truth.” (Internal quotation marks omitted.) Abdelsayed v. Narumanchi, supra, 39 Conn. App. 781. There simply is no evidence in the record to support a claim that Shimelman purposefully avoided the truth or prepared his report with knowledge that it was false or in reckless disregard of whether it was true. The court, therefore, properly determined that the plaintiff had failed to present a factual predicate for his contention that Shimelman acted with malice when he prepared his psychiatric evaluation of the plaintiff.

B

In his amended complaint, the plaintiff contends that Grey maliciously submitted a false and unsubstantiated stage two report to the department of public health. Specifically, the plaintiff alleges that “Grey knew or should have known that the aforesaid evaluation by the defendant . . . Shimelman was inadequate but he nevertheless reported defendant Shimelman’s conclusions to the Connecticut Department of Health.” The plaintiff further alleges, inter alia, that Grey did not investigate the complaint he received from the hospital, that Grey had a responsibility to review Shimelman’s report before passing it on to the department of public health, and that Grey had certain duties pursuant to § 20-13d and the protocol agreement with the state with which he did not comply.

The plaintiff has produced no evidence to support those allegations. Moreover, even if those allegations were true, they do not, in and of themselves, support a finding that Grey acted with malice when he submitted his stage two report. See Woodcock v. Journal Publishing Co., 230 Conn. 525, 545, 646 A.2d 92 (1994) (“failure to undertake an adequate investigation is not dispositive of the issue of actual malice”), cert. denied, 513 U.S. 1149, 115 S. Ct. 1098, 130 L. Ed. 2d 1066 (1995). The fact remains, that the plaintiff has produced no evidence demonstrating that Grey made his stage two report with any improper or unjustifiable motive. The plaintiff also has not produced evidence that Grey published his report with knowledge that statements contained therein were false or with reckless disregard of whether they were false. The corut, therefore, properly determined that the plaintiff failed to present a factual predicate for his contention that Grey acted with malice when he submitted his stage two report.

III

The plaintiff finally claims that malice is a question of fact that is not appropriately determined on a motion for summary judgment. The plaintiff argues that malice, as with issues of motive, intent and good faith, is not properly resolved on a motion for summary judgment.

Although the existence of malice is an issue that must be determined by the trier of fact, the plaintiff, to defeat summary judgment, bore the burden of presenting a factual predicate for his contention that the defendants’ actions were taken with malice. See Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 250 (“[w]e have also held, however, that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact”). In other words, the plaintiff had to be able to point to facts, which, when taken in a light most favorable to the plaintiffs position, could be found by a trier of fact to constitute malice. In the present case, the plaintiff was unable to make a showing that either defendants’ publications were made with knowledge of their falsity or in reckless disregard for the truth. See Abdelsayed v. Narumanchi, supra, 39 Conn. App. 781. The court, therefore, properly determined that the plaintiff failed to present the necessary factual predicate to raise a genuine issue of material fact as to whether the defendants acted with malice.

The judgment is affirmed.

In this opinion the other judges concurred.

LANDAU, J.,

concurring. I concur in the majority’s result affirming the judgment of the trial court. I, however, respectfully disagree that this court needs to distinguish actual malice and general malice in a case of this nature. I also disagree with the majority’s assertion that the plaintiff could have prevailed on the motion for summary judgment if he had demonstrated a factual predicate that the defendants acted with malice. I do not believe that General Statutes §§ 19a-17b and 19a-20 abrogate the public policy grounds underlying the common-law rule providing absolute immunity to parties to and witnesses before judicial and quasi-judicial proceedings. See Petyan v. Ellis, 200 Conn. 243, 247-48, 510 A.2d 1337 (1986) (information supplied by employer on fact-finding supplement form of employment security division of state labor department entitled to absolute immunity);Preston v. O’Rourke, 74 Conn. App. 301, 309-15, 811 A.2d 753 (2002) (arbitration is quasi-judicial proceeding and testimony entitled to absolute immunity); Field v. Kearns, 43 Conn. App. 265, 270-77, 682 A.2d 148 (“bar grievants are absolutely immune from liability for the content of any relevant statements made during a bar grievance proceeding”), cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).

For these reasons, I respectfully concur.

       General Statutes § 20-13d (a) provides in relevant part: “The state society or any county society or any physician or hospital shall within thirty days . . . file a petition when such society, physician or hospital . . . has any information which appears to show that a physician is or may be unable to practice medicine with reasonable skill or safety for any of the reasons listed in section 20-13c. ...”

       Public Acts 1984, No. 84-148, was codified as General Statutes §§ 20-13d, 20-13e and 20-13Í.

       In 1988, the medical society entered into a protocol agreement with the department of health services (now the department of public health). Pursuant to the protocol agreement, the medical society agreed to conduct its impaired physician program in accordance with the department’s protocol and thereby was approved as a “participant association” by the department of public health. According to the terms of the protocol, a person or organization mandated to report information that shows that a physician is or may be unable to practice medicine with reasonable skill or safety may fulfill that obligation by notifying a participant organization.

         According to the terms of the protocol, a participant association that receives a complaint or petition appearing to show that a physician is or may be unable to practice medicine with reasonable skill and safety is required to report to the department of health. The participant association must make a stage one report within thirty days of receipt of the initial complaint or petition. A stage one report must include the name and address of the physician and a summary of the complaint. A stage two report is generally required to be made within forty-five days of the initial complaint or petition and must “be sufficient in detail to advise the Department of the nature of the purported impairment and include a detailed description of all steps that the Participant Association has taken in the investigation to that point . . . .”

       The plaintiffs license was to be suspended until the plaintiff entered counseling in accordance with the board’s decision and provided a copy of the first session to the board. Once the plaintiff complied with those conditions, his license was to be placed on probation for five years.

       The plaintiff claimed that he suffered the loss of his right to practice medicine for a year, the complete loss of his medical practice, an inability to obtain professional liability insurance, an inability to obtain employment as a physician or psychiatrist, libel per se, defamation, and loss of standing in the community and medical profession.

       General Statutes § 19a-20 provides in relevant part: “No member of any board or commission subject to the provisions of . . . chapters 369 to 375, inclusive . . . including a member of a medical hearing panel established pursuant to subsection (g) of section 20-8a, and no person maldng a complaint or providing information to any of such boards or commissions or the Department of Public Health as part of an investigation pursuant to section 19a-14, or a disciplinary action pursuant to section 19a-17, shall, without a showing of malice, be personally liable for damage or injury to a practitioner arising out of any proceeding of such boards and commissions or department. ...” (Emphasis added.)

       We note that although the court apparently found that the defendants also were provided with qualified immunity by General Statutes § 19a-17b, we do not address that statute. Subsections (b) and (c) of § 19a-17b confer qualified immunity to certain classes'of people and contain standards other than malice that must be overcome for a plaintiff to defeat the immunity provided by those subsections. We do not address § 19a-17b, however, because we consider any claim to the immunity provided by either subsection of that statute to be abandoned. Neither party briefed the issue of immunity under § 19a-17b or the necessary standard to overcome the immunity provided by either of its subsections. See Kelley v. Tomas, 66 Conn. App. 146, 164 n.2, 783 A.2d 1226 (2001). Moreover, after reviewing the record, we conclude that it was inadequate for the court to determine the applicability to the defendants of either subsection of § 19a-17b because the defendants did not provide the court with any evidence establishing that they were within the class of people protected by § 19a-17b (b) or (c).

       We note that although the concurring opinion would apply the common-law doctrine of quasi-judicial absolute immunity to the defendants even if the plaintiff had demonstrated malice, the defendants in this case did not, at any point, contend that they were entitled to quasi-judicial absolute immunity. Moreover, when asked specifically at oral argument whether an absolute immunity or a qualified immunity applied to this case, the defendants’ counsel responded that he believed that a qualified immunity applied, pursuant to statute, and that he was not relying on common-law absolute immunity.

       The definition of malice suggested by the plaintiff in his brief, for which he did not provide a citation is: “[T]he intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. A condition of mind which prompts a person to do intentionally a wrongful act . . . without justification or excuse. A conscious violation of the law (or prompting of the mind to commit it) which operates to the prejudice of another. Malice in law is not necessarily hate or ill will, but the state of mind which is reckless of law and of the legal rights of the citizen.”

       In his brief, the plaintiff characterizes his lawsuit as one “claiming damages for the malicious conduct of the defendant Dr. Shimelman in producing a false evaluation report and for the malicious conduct of Neil Grey, M.D., in making a false complaint to the department of public health.” Although it appears in reading the plaintiffs amended complaint and other documents before the court that the plaintiff believes that malice itself or “malicious conduct” is his cause of action, the court properly viewed the allegations contained in his complaint as stating a cause of action for defamation. We further note that there is no tort cause of action for “malicious conduct.”

       In the plaintiffs amended complaint, he alleged that Shimelman’s psychiatric evaluation of him was “malicious in that it was deplorably inadequate, was without any finding to support the allegation of ‘impaired physician,’ did not meet the proper criteria for the conclusions reached, was made with reckless disregard for the truth, and was made with reckless indifference to the right of the plaintiff to practice his chosen profession.” The plaintiff alleges that Grey’s “conduct was malicious in that it was done with reckless disregard for the truth and with reckless indifference to the right of the plaintiff to practice his chosen profession, and he did not withdraw his report to the Connecticut Department of Health before the Department acted upon it although he had sufficient time to do so.”

       We note that the defendants argue that many of the plaintiffs exhibits attached to his opposition to the motion for summary judgment are not competent evidence to support an opposition to a motion for summary judgment and should not be reviewed by this court. We decline to address that issue, however, because, even if we assume that all of the plaintiffs exhibits were admissible and should be reviewed by this court, the plaintiff, nonetheless, failed to present a factual basis for his contention that the defendants’ actions were taken with malice.

      The plaintiff also alleges that Shimelman was unable, at the hearing before the board, to substantiate his opinion that the plaintiff could not practice psychiatry with reasonable skill and safety. There is no evidence in the record, however, to support that allegation.

       For instance, the board, in its memorandum of decision, did specifically find that there was insufficient evidence to conclude that the plaintiff suffered from paranoia. Additionally, other psychiatrists who examined the plaintiff disagreed with Shimelman’s “diagnosis” of paranoia and criticized the thoroughness of his evaluation and report.

       The plaintiff also alleges that Grey suggested to the hospital administrator that the hospital should threaten to suspend the plaintiff unless the plaintiff agreed to meet with Grey on March 5, 1997. Even if that is true, it does not evince malice.

       In support of his contention, the plaintiff cites to the court’s memorandum of decision on his motion for summary judgment. There, the court denied the plaintiffs motion for summary judgment because it found that malice involves questions of credibility and motive that raise a genuine issue of material fact.


author: FLYNN, J.

text:
    BAY HILL CONSTRUCTION, INC. v. CITY OF WATERBURY ET AL.
    (AC 22651) (AC 22652)
    Flynn, Bishop and Hennessy, Js.

      Argued January 14
    officially released April 1, 2003

      Robert P. Hanahan, with whom, on the brief, was Patrick E. Maloney, for the appellant (plaintiff).

      Charles E. Oman III, for the appellee (defendants).
   Opinion

FLYNN, J.

The plaintiff, Bay Hill Construction, Inc., appeals from the judgments of the trial court rendered in favor of the defendants, the city of Waterbury (city) and its board of tax review (board). The trial court refused to reduce the valuation of the plaintiffs property located at 42 Gayridge Road in Waterbury. The sole issue on appeal is whether the court improperly determined that the highest and best use of the plaintiffs condominium units for tax assessment purposes was as condominiums instead of as rental apartments. We affirm the judgments of the trial court.

The court found the following facts, which are undisputed. “In 1987, the plaintiff commenced construction of a sixty-four unit condominium development on Gayridge Road. The plans called for two buildings each with seven units and five buildings with ten units each. All approvals for the condominium development had been given by the city. During 1988, the plaintiff completed construction of two buildings and made one sale late that year. In 1989, the plaintiff completed another building and continued selling units in the two buildings that had been completed. In 1990, the plaintiff began erecting the fourth building when the condominium market became severely depressed. At that time, all roads, asphalt paving, water, sewers and foundations for all planned buildings were installed.

“The plaintiff financed the construction by virtue of first and second mortgages. By 1990, the plaintiff had sold a total of twenty-seven units. When, in 1990, the plaintiff was unable to sell additional units, [American Bank of Connecticut] agreed to extend the loan on condition that no additional advances for construction would be made.

“In 1994, the plaintiff sought additional bank financing to complete construction of the project. The bank advanced the sums on condition that the plaintiff offer the units only as apartments for rent. However, the buildings and/or project were never undeclared as condominiums, and according to the plaintiff, the bank requested that the units remain declared to protect the bank’s interests. The subject property’s assessment is based on the 1980 valuation as condominiums.”

The plaintiffs property was declared as condominiums in 1989 pursuant to the Common Interest Ownership Act codified in General Statutes § 47-200 et seq. The last revaluation in Waterbury at the time of the trial was conducted in 1980. This fact is important because the city assessor was required to value newly constructed property as of the 1980 date of the last revaluation. See Torres v. Waterbury, 249 Conn. 110, 120-21, 733 A.2d 817 (1999); Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 95, 626 A.2d 1292 (1993). The valuation of the plaintiffs property as of the 1980 revaluation was done to prevent grossly disproportionate or excessive assessments of newly constructed property built after the last general revaluation.

The issue before the court was to determine whether the assessment of the property as condominiums was improper. The plaintiff presented the testimony of Robert J. Nocera, a real estate appraiser and consultant. Nocera testified that the highest and best use of the plaintiffs property in 1980 was as rental apartments. His opinion was based on the market conditions for condominiums in 1980 including the presence of high interest rates, the availability of financing for condominiums, a limited amount of existing condominium units, and the novelty of condominium ownership. These factors, he concluded, resulted in the lack of a market for condominiums in 1980, and, therefore, the property’s highest and best use was as rental apartments.

The defendants presented the testimony of Armand Carbone, a real estate appraiser for the city. Carbone stated that utilizing a comparable sales approach, the highest and best use of the property in 1980 was as condominiums. In reaching his conclusion, Carbone researched condominium sales in Waterbury for the years 1979 and 1980. Waterbury had three condominium complexes in 1980. He found that there were thirty-one sales of condominiums during these years with an average pnce of $38,000. Carbone also researched the sale of apartments in Waterbury during 1980. He discovered four sales of apartments ranging from $15,476 to $19,439. On the basis of these values, Carbone concluded that the highest and best use of the property in 1980 was as condominiums and the court so found.

Our law governing tax appeals pursuant to General Statutes § 12-117a is well settled. “[T]he trial court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the [taxpayer’s] property. ... At the de novo proceeding, the taxpayer bears the burden of establishing that the assessor has overassessed its property. . . . The trier of fact must arrive at his own conclusions as to the value of [the taxpayer’s property] by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value.” (Internal quotation marks omitted.) Ireland v. Wethersfield, 242 Conn. 550, 556-57, 698 A.2d 888 (1997).

“We review the trial court’s conclusion in a tax appeal pursuant to the well established clearly erroneous standard of review. Under this deferential standard, [w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 23, 807 A.2d 955 (2002).

The parties agree that the value of the plaintiffs property, which was constructed subsequent to the last general revaluation in Waterbury in 1980, should be assessed as if the property had been in existence at that time. See Torres v. Waterbury, supra, 249 Conn. 120-21; Newbury Commons Ltd. Partnership v. Stamford, supra, 226 Conn. 95. General Statutes § 12-63 (a) provides in relevant part that “[t]he present true and actual value of . . . property shall be deemed by all assessors and boards of assessment appeals to be the fair market value thereof and not its value at a forced or auction sale.”

“A property’s highest and best use is commonly accepted by real estate appraisers as the starting point for the analysis of its true and actual value. . . . [U]nder the general rule of property valuation, fair [market] value, of necessity, regardless of the method of valuation, takes into account the highest and best value of the land. ... A property’s highest and best use is commonly defined as the use that will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate. . . . The highest and best use determination is inextricably intertwined with the marketplace because fair market value is defined as the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use. . . . The highest and best use conclusion necessarily affects the rest of the valuation process because, as the major factor in determining the scope of the market for the property, it dictates which methods of valuation are applicable. Finally, a trier’s determination of a property’s highest and best use is a question of fact that we will not disturb unless it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) United Technologies Corp. v. East Windsor, supra, 262 Conn. 25-26.

The sole issue is whether the court, in its de novo review, improperly concluded that the highest and best use of the plaintiffs property was as condominiums in arriving at the fair market value of the property. “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible. . . . On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Internal quotation marks omitted.) Id., 26.

We conclude that the court’s determination that the highest and best use of the property was as condominiums in 1980 is not clearly erroneous. The court stated in its memorandum of decision: “The appraiser used the market sales approach to reach his conclusion and the court is persuaded by his testimony. In weighing the opinions of highest and best use proffered by both the plaintiff and the defendants, the claims of the parties in light of all the circumstances in evidence bearing on value, it is the court’s conclusion that the highest and best use of and value of the property is for condominiums.” The court’s factual finding is supported by Car-bone’s testimony detailing the sales of apartments and condominiums in 1980 in Waterbury, the property assessment cards of the plaintiffs property and the valid declaration of the plaintiffs property as a condominium complex.

In its memorandum of decision, the court quoted the language in Saybrook Point Marina Partnership v. Old Saybrook, 49 Conn. App. 106, 111, 712 A.2d 980, cert. denied, 247 Conn. 904, 720 A.2d 515 (1998), that “the sole factor in determining whether property should be assessed as a condominium is the existence of a valid declaration of condominium.” The plaintiff attempts to distinguish Saybrook Point Marina Partnership from the present case. The plaintiff argues that in Saybrook Point Marina Partnership, we held only that property could not be taxed as a condominium unless there was a valid declaration although a planned conversion from apartments to condominiums might enhance the property’s value. Furthermore, the plaintiff contends that we did not hold that the existence of a valid declaration dictates that property must be assessed as condominiums. We decline to address this issue because it is not necessaiy to the disposition of this appeal. The plaintiff did not meet its burden of proof that its property was overassessed, and the court’s determination that the highest and best use of the plaintiffs property was as condominiums was not clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.