author: BEACH, J.

text:
    CMB CAPITAL APPRECIATION, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF NORTH HAVEN
    (AC 31523)
    Gruendel, Harper and Beach, Js.

      Argued June 1
    officially released October 12, 2010

      Edward V. O’Hanlan, with whom, on the brief, were Peter S. Olson and Tyisha S. Hovanec, for the appellant (defendant).

      Neil R. Marcus, with whom was Barbara M. Schellenberg, for the appellee (plaintiff).
   Opinion

BEACH, J.

This appeal arises from the denial by the planning and zoning commission of the town of North Haven (commission), of an application by the plaintiff, CMB Capital Appreciation, LLC, for site plan approval of an affordable housing development. The plaintiff appealed from the commission’s decision to the trial court, pursuant to General Statutes § 8-30g. The court rendered judgment reversing the commission’s decision. On appeal, the commission claims that the court improperly (1) ordered it to approve the plaintiffs application conditionally in the absence of evidence that it was reasonably probable that the condition would occur, (2) reversed the commission’s decision to deny the plaintiffs application on the basis of drainage problems and (3) determined that there was insufficient evidence to support the commission’s denial of the plaintiffs application on the basis of inadequate provision for emergency services. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the commission’s appeal. On June 8, 2006, the plaintiff submitted an application to the commission for site plan approval to construct an affordable housing development pursuant to § 8-30g. The application proposed construction of a 350 unit condominium complex. The complex was to accommodate an active adult population aged fifty-five years or older. The commission subsequently held hearings on the application. The North Haven inland wetlands commission (inland wetlands commission) and the North Haven water pollution control authority (authority) also held separate hearings relating to the proposed development, which the commission took into consideration when rendering its decision. On December 5,2006, the commission denied the application.

Thereafter, on December 28, 2006, the plaintiff filed an amended application pursuant to § 8-30g (h). The amended application, inter aha, increased the proposed number of units from 350 to 396 and removed the age restriction. The commission, the inland wetlands commission and the authority held hearings related to the amended application. On March 12, 2007, the commission denied the plaintiffs amended application for, inter aha, the following reasons: (1) a negative referral from the authority, (2) the existence of “significant/probable” drainage problems and (3) the probability of inadequate provision for emergency services.

The plaintiff appealed to the trial court from the commission’s denial of its application. In its memorandum of decision, the court found that none of the reasons given by the commission for denying the plaintiffs application met the requirements of § 8-30g. As a result, the court sustained the plaintiffs appeal. The court ordered the commission to approve the plaintiffs amended site plan application subject to the condition that the plaintiff apply to the authority and obtain approval for adequate sewerage service for the proposed development. The commission thereafter filed in this court a petition for certification to appeal, which we granted. This appeal followed.

Our standard of review is as follows. Section 8-30g (g), which governs the plaintiffs affordable housing appeal, provides in relevant part that “the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1) (A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development . . . .” General Statutes § 8-30g (g). The foregoing determinations are “mixed factual and legal determinations, the legal components of which axe subject to plenary review. . . . [T]he planning and zoning commission remains the finder of fact and any facts found are subject to the ‘sufficient evidence’ standard of judicial review.” (Citations omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 24, 856 A.2d 973 (2004).

“Specifically, the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission’s decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development. . . . Because the plaintiff[’s] appeal to the trial court is based solely on the record, the scope of the trial court’s review of the [commission’s] decision and the scope of our review of that decision are the same.” (Citation omitted; internal quotation marks omitted.) Carr v. Planning & Zoning Commission, 273 Conn. 573, 596-97, 872 A.2d 385 (2005).

I

The commission first claims that the court improperly ordered it to approve the plaintiffs amended application on the condition that the plaintiff formally apply to the authority and obtain approval for adequate sewerage service for the proposed development. The commission argues that a conditional approval was improper because the evidence did not demonstrate, as the commission argues it must, that it was reasonably probable that the plaintiff would secure approval of a sewerage connection application from the authority, a coordinate agency. In the absence of such evidence, the commission contends, it acted appropriately in denying the plaintiffs amended application. We do not agree.

The following additional facts are relevant. The plaintiff did not submit a formal application to the authority. Rather, as part of the proceedings before the commission, the plaintiffs affordable housing application was referred to the authority for review, comment and recommendation. Following hearings on the matter, the authority issued a negative referral. The commission subsequently based its denial, in part, on the authority’s negative referral. In denying the plaintiffs amended application, the commission reasoned, inter aha: “Based upon the [authority’s] (4-0) negative referral, the [plaintiffs] sewer connection application will probably be denied by the [authority]. The modifications of adding forty-six units to the development and eliminating the age restriction only exacerbated the problem relative to the original application.”

On appeal, the trial court concluded that the negative referral of the authority did not constitute sufficient evidence to support the commission’s denial of the plaintiffs amended application. The court noted that at the time of the negative referral, the plaintiff had not yet submitted a formal sewer application to the authority. It reasoned that the evidence did not indicate that the authority would deny the plaintiffs sewer application, but merely indicated that the plaintiff had not provided sufficient information for it to provide a positive referral. The trial court sustained the appeal, reversed the decision of the commission and remanded the application to the commission for it to approve the amended application subject to the condition that the plaintiff apply to the authority and obtain approval for adequate sewerage service for the proposed development.

We begin by noting that “[t]he scope of the planning commission’s authority to grant a conditional approval of [the plaintiffs] application under. . . [§] 8-30g is a question of statutory interpretation over which our review is plenary.” River Bend Associates, Inc. v. Planning Commission, 271 Conn. 41, 55, 856 A.2d 959 (2004).

In resolving this claim we must determine whether it was proper for the court to order the commission conditionally to approve the plaintiffs affordable housing site plan application. A brief overview of the case law regarding conditional approvals offers insight into the resolution of this issue. In Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 963 A.2d 31 (2009), our Supreme Court distinguished unconditional approvals from conditional approvals. Regarding unconditional approvals from a zoning commission, the court held that an agency action “which is dependent for its proper functioning on action by other agencies and over which the zoning commission has no control cannot be sustained unless . . . the necessary action appears to be a probability.” (Internal quotation marks omitted.) Id., 323; see also Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 50, 301 A.2d 244 (1972); Wilson v. Planning & Zoning Commission, 162 Conn. 19, 25, 291 A.2d 230 (1971); Stiles v. Town Council, 159 Conn. 212, 221, 268 A.2d 395 (1970); Faubel v. Zoning Commission, 154 Conn. 202, 211, 224 A.2d 538 (1966). In Gerlt, the Supreme Court stated that “Jarvis Acres, Inc., Wilson, Stiles and Faubel all involved zone change approvals that were not conditioned on another agency’s action but, instead, were premised on the zoning authority’s factual finding that the action would occur. . . . [T]he unconditional approvals at issue in [those] cases would have remained valid even if the other agency had failed to take the action required for the proper functioning of the new zones, while, in . . . cases [where approvals have been conditioned on approval by other agencies], the approvals would have been invalid unless the other agency took the required actions.” Gerlt v. Planning & Zoning Commission, supra, 325-26.

The second type of case, as explained by Gerlt, concerns conditional approvals from a commission. In one such case, Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), our Supreme Court held that “where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition.” Id., 307. In Blaker v. Planning & Zoning Commission, 212 Conn. 471, 562 A.2d 1093 (1989), our Supreme Court elaborated on its holding in Lurie by stating: “Our holding [in Lurie] was intended to achieve greater flexibility in zoning administration by avoiding stalemates between a zoning authority and other municipal agencies over which it has no control. . . . Nowhere did we intimate, therefore, that, in order to be valid, conditional approval requires evidence that the other agency will act favorably on the future request. . . . Further, it would be contrary to the policy of allowing a planning and zoning commission to make the first move and the decision as to the conditions under which it would approve the issuance of a permit .... This is so even though the project may subsequently fail to materialize because one or more of the conditions has for any reason not been met. . . . We conclude, therefore) that the phrase reasonably conditional in Lurie contemplates giving the other agency, over which a planning and zoning commission has no control, the opportunity to review the revised plans, thereby furthering the goal of cooperative action among municipal agencies, and that the record need not indicate whether the conservation commission is likely to approve the revised site plans.” (Citations omitted; internal quotation marks omitted.) Id., 482-83. Our Supreme Court noted in Gerlt v. Planning & Zoning Commission, supra, 290 Conn. 325, that Lurie and Maker both involved conditional approval of site plan applications for a specially permitted use. The court further explained that “the approvals [in Lurie and Blaker] would have been invalid unless the other agency took the required actions. . . . When an approval will not be operative until a specific action occurs, however, there is no need to establish on the record that the action probably wall occur because there is no risk to the public interest if the action does not occur.” Id., 325-26.

None of these cases, however, were affordable housing cases. In Kaufman v. Zoning Commission, 232 Conn. 122, 653 A.2d 798 (1995), our Supreme Court considered the effect of the affordable housing land use appeals act; General Statutes (Rev. to 1991) § 8-30g; on an application for a zone change. In Kaufman, the Danbury zoning commission denied the plaintiffs application for a zone change, which was made in connection with an application for an affordable housing development. Kaufman v. Zoning Commission, supra, 124, 127. The trial court reversed the zoning commission’s decision, concluding that the zoning commission was required to approve the plaintiffs application and thereby remanded the case to give the zoning commission the opportunity to impose reasonable conditions and changes with respect thereto. Id., 128. On appeal to the Supreme Court, the zoning commission argued, citing Faubel v. Zoning Commission, supra, 154 Conn. 202, that the evidence of record supported its decision to deny the application because the proposed affordable housing development would result in excessive traffic on existing roads. Kaufman v. Zoning Commission, supra, 162. The Supreme Court noted that its holding in Faubel “reflects the policy concern that, in the face of evidence of impending harm to the public interest, zoning commissions should not grant zone changes without assurances, in the record, that preventive steps will be taken to minimize the risk of harm.” Id., 163. The court reasoned, however, that “[t]he concerns that underlay Faubel do not . . . control the decision in this case if the commission has the authority to grant the application for a new zone on the condition that the planning commission approves, and the plaintiff makes, the necessary road improvements. If the roads are not built, the existing zone will continue in place, and the public interests in traffic control will remain protected. If the roads are built, on the other hand, the public interests in traffic control will not be adversely affected. In other contexts, therefore, we have allowed zoning commissions to approve a proposed development project on the condition that the applicant take other action, even when the other action required another agency’s approval, and even when there was no evidence that the other agency will act favorably on the future request.” (Internal quotation marks omitted.) Id.

The court in Kaufman concluded that the zoning commission was empowered to grant a conditional approval, but noted that this authority did not “demonstrate that the commission was . . . required to do so. In our past cases approving conditional zoning, we have described conditional zoning not as an obligation, but as a means of achieving greater flexibility in zoning administration . . . .” (Internal quotation marks omitted.) Id., 165. The court held, however, that “[i]n light of the statutory requirements of § 8-30g and the specific facts presented in this case”; id.; a conditional approval was required because the zoning commission had not demonstrated “that its denial of the plaintiffs affordable housing application had been ‘necessary to protect substantial public interests’; General Statutes § 8-30g (c) (2) [now § 8-30g (g) (1) (A)]; [in other words] the commission was required [but failed to] show that, on the basis of the evidence in the record, it reasonably could have concluded that it could not simultaneously grant the zone change and protect the public interest. In this case, however, all the evidence in the record showed that the potential traffic problem would be solved by making certain road improvements. The plaintiff, furthermore, agreed to make those improvements. On this record, therefore, the commission’s decision to deny the zone change was not ‘necessary to protect substantial public interests.’ General Statutes § 8-30g (c) (2) [now § 8-30g (g) (1) (A)].” Kaufman v. Zoning Commission, supra, 232 Conn. 165-66. Accordingly, the court concluded: “In the context of an application to build affordable housing ... we agree with the trial court that, on the present record, the conditional granting of a zone change was not only authorized but required.” Id., 164.

In accordance with Kaufman, the commission in the present case was required to approve the plaintiffs amended application conditioned upon the plaintiff obtaining approval from the authority. As in Kaufman, the conditional approval in the present case protects against the risk of harm to the public interests. If the plaintiffs application is approved by the authority, then the public interests in maintaining adequate sewage systems will not be adversely affected. See id., 163. If, however, the plaintiff does not obtain approval from the authority for its sewer application, then the plaintiff cannot implement its proposed development and the public interests in maintaining adequate sewage systems will remain protected. See id. A conditional approval, therefore, protects the public interests in maintaining adequate sewage systems and “advances the legislative purpose of encouraging the construction of affordable housing. [P]ublic officials are expected to cooperate in helping [affordable housing] to [be] locate[d] in their community . . . but it is hardly reasonable to expect that a [coordinate agency] would make the necessary expenditures and changes without knowing that when such work was completed the . . . zoning commission would approve and permit the project which the work was designed to make possible, nor, logically, should the commission grant an unconditional permit for a project when in its judgment the project was impermissible unless off-site work were done. In such circumstances it is entirely reasonable and logical that the . . . zoning commission which is entrusted with large powers . . . should be the agency to make the first move and the decision as to the conditions under which it would approve the [project]. This is so even though the project may subsequently fail to materialize because one or more of the conditions has for any reason not been met. ” (Internal quotation marks omitted.) Id., 164-65.

The commission points to nothing in the record establishing that its denial of the plaintiffs application was necessary to protect substantial public interests—or in other words, the commission has not shown that it reasonably could have concluded that it could not simultaneously grant the site plan application and protect the public interests. See id., 165-66; see also General Statutes § 8-30g (g) (1) (A). The plaintiff had not yet submitted a formal application and the authority’s negative referral was preliminary in nature. The evidence in the record shows that the authority anticipated that any potential sewerage problem would be addressed when the plaintiff submits a formal application to it. Richard A. Werner, chairman of the authority, stated in a November, 2006 letter to the chairman of the commission regarding the plaintiffs original application, that he had concerns “that the sewage flow would exceed design capacity” and had concerns with “[t]he applicant’s suggestion of metering and bonding [because] . . . the [authority’s] regulations do not permit bonding.” Werner then stated, however, that “it is the [authority’s] further understanding that the specific issues of design capacity, construction and bonding would be dealt with at the time that a sewer connection application is made to the [authority].” In a March 5, 2007 letter written in connection with the plaintiffs amended application to the commission, Werner explained that the negative referral of the authority was based on a lack of clarification at the present time regarding how to minimize certain potential long-term maintenance issues. The fact that the authority provided negative referrals does not necessarily mean that the agency would deny a formal application made by the plaintiff. Thus, contrary to the commission’s assertion, it simultaneously could have granted the site plan application and protected the public interests in adequate sewerage service availability.

       The plaintiff had not submitted formal applications to the authority or the inland wetlands commission at that time.

       Again, the plaintiff had not submitted a formal application to the authority.

       The plaintiffs appeal to the trial court regarding the North Haven application was consolidated with an appeal that the plaintiff had taken from a decision of the East Haven planning and zoning commission denying its site plan application for the construction of a driveway, recreational golf holes and roadway improvements associated with its proposed affordable housing development in North Haven. This court granted petitions for certification to appeal filed by the planning and zoning commissions of North Haven and East Haven. The planning and zoning commission of East Haven did not file an appeal with this court. The present appeal is filed by the North Haven planning and zoning commission and, as such, concerns only the court’s decision regarding the North Haven applications.
      We further note that the plaintiff appealed from the denial of both its original and amended application. In its brief to this court, the commission focuses on the denial of the amended application. We focus on the denial of the amended application as well.

       “General Statutes § 7-247 (a) defines the powers and duties of water pollution control authorities and provides, inter alia, that they may establish and revise rules and regulations for the supervision, management, control, operation and use of a sewerage system, including rules and regulations prohibiting or regulating the discharge into a sewerage system of any sewage or any stormwater runoff which in the opinion of the water pollution control authority will adversely affect any part or any process of the sewerage system .... Under the terms of the statute, a municipality has wide discretion in connection with the decision to supply sewerage. . . . Although this discretion is not absolute, [t]he date of construction, the nature, capacity, location, number and cost of sewers and drains are matters within the municipal discretion with which the courts will not interfere, unless there appears fraud, oppression or arbitrary action.” (Internal quotation marks omitted.) Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 282, 968 A.2d 345 (2009).

       The court in Gerlt v. Planning & Zoning Commission, supra, 290 Conn. 326 n.9, noted that “a different rule applies to subdivision applications, the approval of which cannot be subject to conditions.”


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    ROBERT P. NEUBIG v. LUANCI CONSTRUCTION, LLC
    (AC 31628)
    Bishop, Gruendel and Lavery, Js.

      Argued May 27
    officially released October 12, 2010

      E. James Loughlin, for the appellant (plaintiff).

      George G. Mowad II, with whom, on the brief, was Melissa A. Scozzafava, for the appellee (defendant).
   Opinion

BISHOP, J.

In this case stemming from a contract dispute regarding the purchase and development of certain real property, the plaintiff, Robert P. Neubig, appeals from the judgment rendered by the trial court in favor of the defendant, Luanci Construction, LLC. On appeal, the plaintiff claims that the court improperly (1) determined that he breached the parties’ agreement and (2) declined to impose a resulting trust on the subject property for his benefit. We affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of the plaintiffs appeal. At the time of the events giving rise to this litigation, the plaintiff was a site developer whose experience included the installation of roads, septic systems and storm drains in conjunction with real estate development. The defendant was a home building entity whose business, generally, involved the purchase of lots that had already been developed suitably for home construction. In conjunction with his business, the plaintiff entered into a contract with a third party to purchase property in North Branford known as 118 Parsonage Hill Road for $1.2 million. Because he did not have adequate funds to consummate this purchase on his own, the plaintiff, on August 25, 2005, entered into an agreement with the defendant involving the purchase and development of the property through which the defendant would contribute toward the purchase price and receive, in return, a certain number of lots. Accordingly, pursuant to the terms of the parties’ agreement, the plaintiff and the defendant each contributed $600,000 toward the purchase price. The plaintiff conveyed the property to the defendant on August 15, 2005, and that deed was recorded on the land records on August 26, 2005. Additionally, in order to secure the defendant’s investment in the property, the plaintiff assigned the purchase and sale agreement that he had with the sellers of the property to the defendant on August 26, 2005.

In order for the plaintiff to reacquire any interest in the property from the defendant, the contract imposed certain obligations on him. Paragraph 3 of the agreement provides: “[The plaintiff] shall be responsible for obtaining approval for a fourteen (14) lot residential subdivision on the subject property, in accordance with site plans, subdivision plans, and specifications agreeable to both parties. [The plaintiff] shall pay all expenses related to said approvals. [The plaintiff] shall have 12 months from the date of purchase of the aforementioned real property to obtain said approvals.” The agreement was subsequently amended to extend the deadline for subdivision approval to December 31,2006. The agreement further provides in paragraph 5: “Upon approval of said lots, [the defendant] shall retain title to the first four (4) approved and ‘building permit’ ready lots in exchange for [the defendant’s] $600,000 contribution. [The defendant] shall convey to [the plaintiff] or an entity he shall form for the purposes of holding title to the remaining property.” The agreement also provided that the defendant would have the option to purchase all the remaining approved building permit ready lots for $150,000 each. Finally, the agreement included a provision requiring the plaintiff to pay specified interest to the defendant on the $600,000 advanced by the defendant for the purchase of the property.

In sum, the plaintiff and the defendant entered into an agreement for the purchase of property intended for the development of fourteen building lots. Each paid $600,000 toward the purchase price. The agreement contemplated that the plaintiff would be obligated to obtain the approvals necessary to construct homes on the sites and that once the approvals were received, the defendant would retain title to four of the lots, transferring two lots to the plaintiffs wife and eight lots back to the plaintiff with the further proviso that the defendant would have the option to purchase those eight lots from the plaintiff at a cost of $150,000 per lot. The agreement provided, as well, that if the plaintiff was unable to obtain approvals within the allotted time, he would have the right to pay the defendant the sum of $600,000, plus interest, in return for a reconveyance of all of the property. Finally, the agreement provided that if the plaintiff did not make such payments, he would have no claim to any of the real property deeded to the defendant as part of their arrangement despite having contributed the sum of $600,000 toward the purchase.

The plaintiff applied for subdivision approval three times. The first application was withdrawn and the second was denied. On October 19, 2006, the North Bran-ford planning and zoning commission approved the third application subject to certain standard and special conditions. One of the conditions required the plaintiff to file with the town clerk a Mylar map showing the plans as finally approved within ninety days of the expiration of the appeal period. If the plaintiff failed to timely file the Mylar map, the subdivision approval would be null and void. The town also required that a performance bond of $417,000 be posted prior to the filing of the Mylar map to ensure that the developer completed the project. Although the plaintiff intended to mortgage the subject property in order to finance the bond, he was unable to do so because the defendant refused to convey the property to him for this purpose. The town of North Branford, however, would not issue a building permit to the plaintiff until the plaintiff filed the required map and posted a performance bond. The plaintiff received two extensions, which expired on August 4, 2007, within which to file the Mylar map, but ultimately failed to do so because he could not afford the cost of the bond.

On December 27, 2006, the plaintiff sought to terminate the agreement with the defendant by invoking paragraph 4. Paragraph 4 of the agreement provides: “In the event that [the plaintiff] is unable to obtain said [subdivision] approvals within said time frame, the [plaintiff] shall have thirty (30) days to pay to [the defendant] $600,000 plus all accrued interest (as hereinafter described) in exchange for the aforementioned real property. If [the plaintiff] shall fail to make said payment within said time frame, then title shall rest with [the defendant] and [the defendant] shall have no obligation to repay [the plaintiff] any portion of the purchase price contributed by [the plaintiff] or any other source.” In response, the defendant rejected the plaintiffs attempted termination of their arrangement, stating that paragraph 4 was not applicable because the plaintiff had, in fact, obtained subdivision approval but had not complied with the town’s requirement that he file a Mylar map and post a performance bond. Subsequently, because of the plaintiffs failure to file the Mylar map and to post the bond, the subdivision approval lapsed.

By way of a five count revised complaint filed September 15, 2008, the plaintiff alleged breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; unjust enrichment and trust by operation of law. The defendant filed an answer and special defenses, claiming that the plaintiff breached the implied covenant of good faith and fair dealing and that the plaintiffs claims were barred by the doctrine of unclean hands in that he entered into the agreement when he knew or should have known that he did not have the financial resources to fulfill his contractual obligations. The defendant also filed a counterclaim alleging that the plaintiff had breached the agreement.

Following a bifurcated trial, the court found in favor of the defendant on all of the plaintiffs claims. The court also found in favor of the defendant on its counterclaim that the plaintiff breached the agreement. The court declined to impose either a constructive or resulting trust in favor of the plaintiff, noting that the purpose of having the defendant hold title to the subject property was to provide security for its investment in the project, and because the plaintiff had failed to comply with the agreement, the court reasoned, the remedy of a trust was unavailable to him. The court awarded damages to the defendant on its counterclaim in the amount of $54,641.02, representing interest that the plaintiff was obligated to pay to the defendant pursuant to the agreement, from January 26, 2006, to August 4, 2007, the date on which the subdivision approval lapsed. This appeal followed.

On appeal, the plaintiff does not challenge the court’s conclusion as to his claims for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of CUTPA or unjust enrichment. The plaintiff claims only that the court improperly determined that he breached the agreement and that the court incorrectly failed to impose a resulting trust. We address each claim in turn.

I

In challenging the court’s finding that he breached the contract, the plaintiff claims that the court erroneously found that the subdivision approvals he obtained were to the mutual satisfaction of the parties, which, he claims, was required pursuant to the terms of the agreement. In making this assertion, the plaintiff misconstrues the plain language of the contract. Nowhere does the contract provide that the subdivision approvals had to be to the parties’ mutual satisfaction. Thus, the plaintiffs claim that he did not obtain mutually satisfying approvals is of no avail to him.

We begin by setting forth our standard of review. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . .

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties [to a contract] is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... [C]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law. . . . Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement .... As stated by our Supreme Court, a presumption that the language used is definitive arises when . . . the contract at issue is between sophisticated parties and is commercial in nature.” (Citations omitted; internal quotation marks omitted.) William Raveis Real Estate, Inc. v. Newtown Group Properties Ltd. Partnership, 95 Conn. App. 772, 776-77, 898 A.2d 265 (2006).

“Whether there was a breach of contract is ordinarily a question of fact. . . . We review the court’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings are binding upon this corut unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... 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.) Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn. App. 462, 471-72, 823 A.2d 438 (2003).

At trial, in his motion to reargue and in his appellate brief, the plaintiff concedes that he obtained subdivision approval. Nevertheless, in his appellate brief, the plaintiff claims that the parties had to be mutually satisfied with the conditions imposed by the town for the issuance of building permits. This claim, however, is premised on a flawed reading of the contract. Pursuant to paragraph 3 of the agreement, the plaintiff was responsible for obtaining approval for a fourteen lot residential subdivision of the property “in accordance with site plans, subdivision plans, and specifications agreeable to both parties.” The clear and unambiguous language of the contract does not require that the subdivision approvals be to the parties’ satisfaction but that the site plans, subdivision plans and specifications be agreeable to both parties. In other words, the agreement contemplates that the information submitted to the town in its application for the approvals must be agreed upon by both parties. The plaintiff made no claim at trial, nor does he on appeal, that the site plans, subdivision plans or their specifications were not mutually agreed upon by the parties.

Paragraph 5 also provides that the defendant would retain title to the first four “ ‘building permit’ ready lots” and then convey the remaining property to the plaintiff and his wife. Thus, in addition to obtaining subdivision approval, the plaintiff was also required, under the agreement, to make the lots building permit ready. The plaintiff admitted at trial that filing the Mylar map and posting the bond were his responsibilities under the agreement. The plaintiff, however, never fulfilled either of those responsibilities. The court found that because the plaintiff did obtain subdivision approvals, he was not entitled to invoke the buyout option of paragraph 4 of the agreement, which is premised on a failure to obtain approvals from the town. In sum, because the plaintiff failed to timely act on the approvals he had received from the town, and the approvals ultimately lapsed, he was not in a position to provide the defendant four building permit ready lots in exchange for the defendant’s interest in the property. Therefore, the court properly found that he breached the contract.

II

The plaintiff also claims that the court improperly declined to impose a resulting trust on the property. We disagree.

“A resulting trust arises by operation of law at the time of a conveyance when the purchase money for property is paid by one party and the legal title is taken in the name of another. ” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 210 n.22, 994 A.2d 106 (2010). The presumption of the existence of such a trust, however, is one of fact rather than law and “may be rebutted by proof of contrary intent.” Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982). The existence of a resulting trust is an issue of fact. Id., 501. “If it can be proved that the intention of the parties was otherwise, there is no resulting trust.” (Internal quotation marks omitted.) Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980). “In deciding . . . what the intent of the parties was at the time of the conveyance, the court [must] rely upon its impression of the credibility of the witnesses. Intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which could not reasonably be drawn.” (Internal quotation marks omitted.) Lord v. Stavrakis, 6 Conn. App. 161, 162, 503 A.2d 629, cert. denied, 199 Conn. 804, 506 A.2d 146 (1986). “When the agreement proven is not identical with that implied by law, it cannot be held that the intention of the parties is identical with that implied by law; hence no resulting trust arises.” Wilson v. Warner, 89 Conn. 243, 246, 93 A. 533 (1915). When an agreement is made for a valuable consideration, the presumption of a trust resulting at the time of the conveyance is rebutted. See Bassett v. Pallotti, Andretta & Co., 117 Conn. 58, 62, 166 A. 752 (1933); Andrews v. New Britain National Bank, 113 Conn. 467, 470, 155 A. 838 (1931); Meeker v. Meeker, 16 Conn. 383, 385 (1844); Belden v. Seymour, 8 Conn. 304, 311-12 (1831).

Here, the court properly found, on the basis of the evidence presented, including the testimony of both parties, that the purpose of having the defendant hold title to the property, as required by the agreement, was to provide security for its investment in the development project. In other words, as the court found, the intent of the parties in this regard was set forth in then-agreement. The plaintiff also testified at trial as to his understanding of the parties’ arrangement. He acknowledged that if he failed to perform his contractual obligations, namely, obtaining approvals for a fourteen lot development or paying the defendant the sum of $600,000, the defendant would maintain title to the subject property free and clear of any claim by the plaintiff. On the basis of the evidence, the court properly denied the plaintiff’s claim for a resulting trust.

The court noted, and we agree, that this outcome may appear harsh, as it results in the defendant’s ownership of the entire parcel for the sum of $600,000 and the plaintiffs loss of an equal sum, apart from the lost business opportunity. We also agree with the court, however, that the plaintiff, as a businessperson, knew when he entered into this agreement that he was investing a substantial sum of money and that he would lose his interest in the property if he did not obtain the required approvals for the anticipated lots. The record reflects that the plaintiff testified that he knew when he entered into the agreement that he would not secure any ownership interest in the property except in accordance with the terms of the parties’ agreement until after he delivered to the defendant four approved and building permit ready lots and that if he did not do so, the defendant would have absolute title to the property with no obligation to the plaintiff. Thus, although the plaintiff lost a $600,000 investment, his loss, ultimately, was the result of his failure to fulfill his obligations under a, perhaps, unwise agreement that is not our role to alter or reform.

The judgment is affirmed.

In this opinion the other judges concurred.

       “A Mylar map is a map prepared on a thin polyester film suitable for recording on the land records.” Torgerson v. Kenny, 97 Conn. App. 609, 615 n.5, 905 A.2d 715 (2006), cert. denied, 281 Conn. 913, 916 A.2d 54 (2007).

       The court first determined the issue of liability and then, in a separate hearing, heard evidence on the issue of damages.

       See also 1 Restatement (Third), Trusts § 9, comment (e), p. 129 (2003) (“Where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust does not arise if the person by whom the purchase price is paid manifests a contrary intention. The normal inference of a purchase-money resulting trust may be overcome by written or spoken words or by the conduct of the parties, or by other evidence, showing in the circumstances an intention that a resulting trust should not arise but rather that the transfer was to serve another purpose. That intention may be found in evidence of either an intention of the payor or an agreement of the payor and transferee that the transaction is to serve some donative, business or other purpose.”).

       As noted, the plaintiff has not challenged on appeal the court’s ruling denying his unjust enrichment claim.

       The plaintiffs testimony at trial belies his current claim for a resulting trust. He testified, on direct examination, as follows:
      “[The Plaintiffs Counsel]: Was there a deadline in the contract within which you had to do something?
      “[The Plaintiff]: We had an extended agreement that would expire, I believe, it would have been at the end of December. We had an original agreement. We had an extended agreement that gave us another ninety days to get through the final approval.
      “Had I not either performed the building permit ready lots or required [the defendant] to come in and pick up his original advance of money, the title would have vested with [the defendant]. That was the only option I had.
      “[The Plaintiffs Counsel]: So, after December 31, 2006, if you didn’t ask for an exchange of the property> money for exchange of the property or gotten building permit ready lots, what would have happened?
      “[The Plaintiff]: [The defendant] would have held title and had absolutely no obligation to me.
      “[The Plaintiffs Counsel]: He would have owned free and clear of any interest of you?
      “[The Plaintiff]: Correct.
      “[The Plaintiffs Counsel]: So, you knew when you entered into this agreement in August of 2005 that you would not be obtaining ownership of any of the property until [the defendant] at least received four approved and building permit ready lots, correct?
      “[The Plaintiff]: To answer your question, that’s correct.”

       We note that neither party contends that the outcome obtained by the plaintiffs breach of contract, i.e., the retention of title to the property in the defendant with no obligation to the plaintiff, constitutes a penalty or in any other way violates public policy. Accordingly, we do not make that uninvited assessment.