source: Caselaw Access Project

license: Public Domain

text:
    AVALONBAY COMMUNITIES, INC. v. INLAND WETLANDS AND WATERCOURSES AGENCY OF THE TOWN OF STRATFORD
    (AC 31937)
    DiPentima, C. J., and Gruendel and Alvord, Js.

      Argued March 7
    officially released July 12, 2011

      Brian M. Stone, for the appellant (defendant).

      Timothy S. Hollister, with whom were Gian-Matthew Ranelli and, on the brief, Allison M. McKeen, for the appellee (plaintiff).

      Kevin C. Kelly, with whom, on the brief, was Carmine Perri, for the environmental intervenor.
   Opinion

ALVORD, J.

The defendant, the inland wetlands and watercourses agency of the town of Stratford, appeals from the judgment of the trial court reversing its decision to deny an application for a permit to conduct regulated activities filed by the plaintiff, AvalonBay Communities, Inc. On appeal, the defendant claims that the court did not properly apply the substantial evidence test in its review of the reasons given by the defendant for denying the plaintiffs application and that the court improperly ordered the defendant to issue the wetlands permit rather than simply sustaining the plaintiffs administrative appeal. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history of this case. In September, 2000, the plaintiff filed an application for a wetlands permit (initial application) with the defendant in connection with its proposal to construct an apartment complex that contained units set aside for low and moderate income housing. To that end, the plaintiff also filed its initial affordable housing application with the town’s zoning commission for an amendment to the zoning regulations, a zone change for the proposed development and approval of a site development plan. The defendant and the zoning commission denied both initial applications. In May, 2001, the plaintiff filed a revised application with the defendant and resubmitted its site plan to the zoning commission. Both the defendant and the zoning commission denied the plaintiffs revised applications. The plaintiff appealed from each entity’s decision on the revised applications to the Superior Court.

After the appeals had been pending for more than a year, the town of Stratford (town) through its town council filed in each case a verified pleading pursuant to General Statutes § 22a-19, the citizen intervention provision of the Environmental Protection Act of 1971 (act), General Statutes § 22a-14 etseq., claiming that the proposed development would have a negative impact on the environment. The plaintiff filed motions to strike the town’s petitions for intervention in both cases, which motions were granted by the court. The town appealed to the Appellate Court from both decisions.

On January 11, 2005, while the town’s appeals of the judgments granting the motions to strike were pending before this court, the administrative appeal from the defendant’s decision in this case proceeded to judgment on the merits. In its memorandum of decision, the court determined that the four reasons set forth by the defendant in its written decision were not legally sufficient to deny the plaintiffs application for the wetlands permit. Citing River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 848 A.2d 395 (2004), the court concluded that the proffered reasons did not rise above speculation or general concerns and that the defendant’s determination that the plaintiffs proposed activities would adversely impact wetlands or watercourses was not supported by substantial evidence in the record. Accordingly, the court reversed the defendant’s decision and remanded the matter to the defendant “ ‘for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record.’ ” The defendant filed the present appeal after this court granted its petition for certification to appeal.

I

On appeal, we first address the defendant’s claims that the court improperly determined that there was not substantial evidence in the record to support its denial of the plaintiffs application on the grounds that (1) the wetlands and watercourses would be negatively impacted by the sediment and siltation that would enter as a result of the plaintiffs activities, (2) wetland area no. 4 would be negatively impacted by changes to the hydrology of the site, (3) there would be a total loss of the pocket wetland located in the area of the plaintiffs proposed emergency access due to changes in the surface and groundwater flow at the site and (4) the wetlands area adjacent to Pumpkin Ground Brook would be negatively impacted by acid generation from the rock exposed by blasting at the site.

Whether the substantial evidence test was applied properly by the trial court in its review of an inland wetlands agency’s decision is a question of law over which our review is plenary. River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 70. “[T]he reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence .... Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 70-71.

“The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse.” (Emphasis in original.) Id., 74. We keep these constraints in mind in our analysis of the trial court’s application of the substantial evidence test in the present case.

A

One of the reasons given by the defendant for denying the application was “the significant likelihood of construction phase and post-development erosion and sedimentation of materials into both the regulated setback, the wetlands and Pumpkin Ground Brook.” The defendant found that “the erosion control measures proposed to be employed by the [plaintiff] during the construction phase would not protect the setback area and wetlands from sediment and siltation. . . . [D]ue to the steep slopes, the nature of the soils, the proximity to the wetlands, and our own experience with failures of what have been ‘state of the art’ erosion and sediment control plans . . . there is a significant likelihood of sedimentation during construction flowing into the wetlands and Pumpkin Ground Brook, especially given the plan to perform the construction without staged excavations and stabilizations.”

In its memorandum of decision, the court first noted that none of the plaintiffs activities will take place in the brook or any of its wetlands or within the regulated seventy-five foot upland review area. As the court properly recognized, however, an inland wetlands agency has statutory authority to regulate activities “around wetlands or watercourses” if those activities “are likely to impact or affect wetlands or watercourses.” (Internal quotation marks omitted.) See General Statutes § 22a-42a (f).

In reviewing this ground for denial of the permit, the court agreed with the defendant that the record supports a finding that some sediment and siltation will enter the brook and its associated wetlands despite the use of the control measures proposed by the plaintiff. Nevertheless, the court stated that the defendant “never moved beyond speculation in order to establish the volume of such infiltration either during construction or postconstruction or, more importantly, the adverse effects of infiltration. . . . Here, there is neither quantitative evidence of what the volume of flow would be into the wetlands and watercourse nor qualitative evidence of any adverse effects of the flow.”

At oral argument before this court, the defendant conceded that the record did not contain substantial evidence for this stated reason for denial if the fact of the entry itself does not constitute an adverse impact. Our review of the record likewise confirms that there is no evidence as to the amount of sediment and siltation that would enter or the harm to the wetlands or watercourse that would result from that amount, due to the plaintiffs activities at the site. Given the record before the defendant, we conclude that the concern regarding potential pollution from sediment and siltation does not rise above speculation. Accordingly, the record does not contain substantial evidence because there is “no specific finding of any actual adverse impact to any wetlands or watercourses.” River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 77. The defendant could not simply assume that the entry of sediment and siltation would adversely affect the wetlands and watercourse without evidence that it would in fact do so. See id., 81.

B

The second reason given by the defendant for denying the application was that “the proposed intense development of the site will clearly alter the hydrologic regime of the wetlands. The increase in total runoff, the removal of overburden, the creation of impervious surface will change the ratio of groundwater to surface flow and will, therefore, impact the hydrological regime of the wetlands. We concur with . . . Steven Danzer’s assessment that the rapid assessment field determination used by George T. Logan is not adequate to determine the hydrologic impact, and that longer term and empirical data should have been obtained. . . . This will result in irreversible damage to the wetlands on the site by disruption of the delicate homeostatic balance which has established the existing insect, vegetative and animal life which exists and thrives within this wetland ecosystem.”

In reviewing this ground for denial of the permit, the court acknowledged that Danzer, Penelope C. Sharp and Roman S. Mrozinski expressed concerns about siting a multi-building, multi-apartment complex on land adjacent to the brook and its wetland areas. In particular, Danzer opined that additional information was important “to guarantee that the wetland complex will continue to receive an adequate level of deep groundwater recharge dining the times critical to maintaining its ecology and hydrological function.” Basically, his concern was that the wetland would be “starved over the long term.”

From its review of the record, the court determined that the concerns expressed by the consultants and witnesses amounted to no more than the type of general concerns and speculation that our Supreme Court held did not qualify as substantial evidence. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 71. The court indicated that it found no evidence in the record to support the defendant’s “sweeping conclusion of irreversible damage to the wetlands.” (Internal quotation marks omitted.) To the contrary, the plaintiffs environmental assessment report provided “a detailed description of the existing conditions through a discussion of the functions and values of the wetlands on the property and considered both direct and indirect impacts on wetlands and watercourses, including potential hydrologic impacts. It concluded that such impacts would be ‘negligible.’ ”

The court recognized that the defendant was not obligated to accept the reports and testimony of the plaintiffs experts. Nevertheless, the fact that hydrologic changes would occur did not necessarily mean that those changes would adversely affect wetland area no. 4. “The question is whether there will be a specific adverse impact. . . . The [plaintiff] submitted expert evidence that such an impact will not occur. In the absence of any evidence, the [defendant] may not conclude to the contrary.” (Citation omitted.)

In its appellate brief, the defendant claims that remarks made by Danzer concerning the hydrology at the site provide substantial evidence for the denial of the wetlands permit. Danzer stated that the plaintiffs proposed activities would “result in many hydrological changes which will ultimately impact the wetlands and watercourses on site,” that “there are still valid concerns about the permanent and adverse alterations of the internal functional hydrology of the wetlands” that had not been addressed, that “more intensive study is needed” and that the plaintiff should prepare water budgets pre- and post-development to “guarantee” that the wetland complex would not be starved of groundwater. Even if there was no evidence of any specific harm to the wetland area, the defendant argues, it nevertheless was not required to accept the plaintiffs evidence and it could conclude that the plaintiff failed to demonstrate there was no negative impact to the wetland area.

We agree with the trial court that the record does not contain substantial evidence of an adverse impact to wetland area no. 4. The emphasis during the proceedings before the defendant was that there would be changes to the hydrology, but evidence as to any adverse impact resulting from those changes was not presented. With expert testimony and documentation concluding to the contrary, the defendant was not free simply to assume that there would be a negative impact because of the size and the scope of the proposed development. Danzer’s remarks, as characterized by the court, were general concerns and did not rise above speculation. “[A] finding of potential generalized impacts is insufficient to support a denial of an application for a permit to conduct a regulated activity. The commission must make a determination that the activity •will have a likely adverse impact on the wetlands and watercourses and that finding must be supported by substantial evidence in the record.” Cornacchia v. Environmental Protection Commission, 109 Conn. App. 346, 356, 951 A.2d 704 (2008).

The defendant further argues that, if it chose not to believe Logan’s evidence as to the hydrologic impact to wetland area no. 4, it then was left -without any evidence to demonstrate that the wetlands would not be negatively impacted by the proposed development. Because the applicant has the burden of proving that it met the necessary criteria for the issuance of a permit; Samperi v. Inland Wetlands Agency, 226 Conn. 579, 593, 628 A.2d 1286 (1993); it did not meet that burden if the critical evidence is discounted. On appeal, the defendant argues that the plaintiff “failed to provide the data and empirical evidence necessary to conclude that there was no negative hydrologic impact to the wetlands.”

During oral argument before this court, the defendant relied on Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 977 A.2d 127 (2009), as support for its position that it properly denied the application because the plaintiff failed to provide sufficient evidence that there would be no adverse impact to the wetlands. Unistar was decided after the appellate briefs were filed in this case. As noted by the defendant, Danzer stated that the plaintiff should provide water budgets and other data before the defendant could be convinced that no negative impact would result from the hydrologic changes to the site.

Although the defendant’s brief and reply brief filed with the trial court make mention of the need for additional information, during the trial court proceedings the defendant focused on its claim that there was substantial evidence in the record to support its determination that the plaintiffs proposed development would result in adverse impacts to the wetlands. The defendant now emphasizes that there is substantial evidence in the record to support the denial on the basis of the lack of information provided by the plaintiff. The defendant is correct that Unistar holds that an inland wetlands agency properly may deny an application for a wetlands permit if there is substantial evidence to support the agency’s determination that the application was incomplete. In Unistar, however, the stated reason for the denial was the lack of certain information, including a sufficiently detailed wildlife inventory and an analysis of alternatives to the proposed activity. The application was denied without prejudice because the application was incomplete-, id., 119; and the agency never reached the issue of whether the wetlands on the property would be impacted adversely by the plaintiffs revised development plan. Id., 102-103.

In the present case, the court never addressed the issue of whether there was substantial evidence in the record to show that the plaintiffs application was incomplete. If the defendant’s briefs squarely placed that issue before the court, then the court failed to discuss it in its memorandum of decision. We cannot determine whether the issue, as framed now, on appeal, was argued before the trial court at the hearing held on August 9, 2004, because the defendant has not provided us with a transcript of that proceeding.

If the court considered this claim and rejected it, we do not have the court’s factual and legal basis for that determination. It is the defendant’s responsibility to provide this court with an adequate record for our review. See Practice Book § 61-10. The court's memorandum of decision makes no mention of the lack of water budgets or any other data or information that the defendant now claims was the basis for the denial. “It is well settled that [a]n articulation [pursuant to Practice Book § 66-5] is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The . . . failure to seek an articulation of the trial court’s decision to clarify the aforementioned issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn. App. 665, 676, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). It is not the function of this court on review to engage in speculation.

C

The defendant, as an additional ground for its denial of the plaintiffs application, found that “the current application will result in the total loss of the pocket of wetlands at 152 Circle Drive” due to the hydrologic changes in that area caused by the construction of the development. On appeal, it argues that there is substantial evidence in the record to support that reason, citing the testimony previously referred to in part I B of this opinion, and additional testimony by Danzer, Mrozinski and Robert F. Good, Jr.

In its memorandum of decision, the court first noted that the pocket wetland is located on property adjacent to 140 Circle Drive, which is a .25 acre parcel on which the plaintiff planned to construct an emergency access route to the development as required by the town’s zoning commission. This off-site, man-made wetlands is 360 square feet and consists of a drainage ditch and earthen berm. The court determined that there was no evidence in the record that the pocket wetland would be “ ‘totally’ ” lost, as found by the defendant. The evidence indicated that the watershed serving that wetland would be reduced from 2.4 acres to .99 acres, but that enough water still would flow into that wetland to maintain it. Although Mrozinski expressed concerns that the wetland would be “dewatered” by the proposed development, the court concluded that he had provided no support for that opinion.

We agree that the record does not provide substantial evidence for the defendant’s finding that the pocket wetland would be totally lost because of the hydrologic changes to the site. As already discussed in part I B of this opinion, there is no evidence of any specific adverse impact to the wetlands caused by the hydrologic changes to the site. The additional referenced statements of Danzer, Mrozinski and Good do not alter that determination. Danzer stated that “[t]he cutting and filling as proposed will obviously directly and permanently impact the headwaters of this drainage area.” Good opined that “[t]he majority of the existing watershed contribution to the pocket wetland will be redirected by the proposed development . . . .” Mrozinski stated that “[t]he filling of these wetlands or the areas upslope of this drainageway will change surface and groundwater flow. Proposed construction and landscape modifications will dewater this drainageway and [ajffect the hydrologic regime.” These statements of general concerns are insufficient to deny the application, and any conclusions of total “dewatering” are unsupported by the record.

Although the plaintiff, in its presentation before the defendant on the permit application, acknowledged that there would be some impact to the pocket wetland, there is no support for the defendant’s determination that it would be “totally lost.” Moreover, as argued by the plaintiff, although there is a small impact, it is unavoidable because of the necessity of the emergency access as required by the zoning commission. Moreover, no evidence supports the defendant’s finding that any impact necessarily would be adverse. Accordingly, this stated ground is legally insufficient to deny the plaintiffs permit application.

D

The final reason given by the defendant for the denial of the plaintiffs application was the potential for acid generation from the rock exposed by blasting at the site. Specifically, the defendant stated that there was “the considerable likelihood of pollution of the wetland areas abutting to the west of Pumpkin Ground Brook due to acid drainage generated from groundwater and surface drainage flow over exposed bedrock.” The defendant further found that “acid concentrations in surface and ground water resulting from exposure to oxidized bedrock will enter and pollute and negatively impact the wetland areas adjacent to Pumpkin Ground Brook” and that “the information provided by the [plaintiff] giving the discovery of potential acid producing rock, is insufficient to fully quantify the scope and extent of the problem and the engineering constraints of proposed mitigation solutions and the degrees of mitigation are uncertain.” Although the defendant concurred with the plaintiffs experts that dilution would likely minimize any impact from acid drainage in Pumpkin Ground Brook, the defendant remained concerned about the wetlands abutting the brook “where the proposed land cover alterations of its contributing watershed represents a very significant proportion of the total flow into those wetlands, and where the acidic water would be the source of hydration to those wetlands.”

In reviewing this ground for denial of the permit, the court stated that the only evidence in the record to support a finding of potential acid generation from the rock was the discovery of small amounts of pyrite by the plaintiffs expert geologist. The pyrite was found in approximately 1 percent of the content of the rock that he examined, but the plaintiff presented reports and testimony from two experts who opined that the risk of any harmful acid draining from the bedrock into the wetland area was small. In addition to the fact that there were very small amounts of pyrite present in the rock, the plaintiff stated that the conditions necessary for the acid formation would not occur because the excavated rock would be removed promptly from the site to prevent its contact with stormwater, the stormwater would be retained in a closed system dining construction and no rock crushing would be done on site.

Further, the court stated that although the defendant was free to reject the plaintiffs expert evidence, which concluded that the potential for environmental impact due to acid rock drainage was minimal, it was not entitled to conclude that the opposite was true without any evidence to justify that conclusion. See Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 292-93, 545 A.2d 530 (1988). The court noted that Good, the expert relied on by the defendant, neither concluded that acid concentrations would enter the wetland area nor that any such entry would pollute and negatively affect it. Accordingly, the court found that the stated ground for denial was insufficient.

On appeal, the defendant quotes from Good’s report, which was the expert report referred to by the court in its memorandum of decision, and argues that his conclusions form a proper basis for the defendant’s denial of the application. Good concluded: “Simply stated, the results of this investigation indicate there is a potential for the rock exposed by blasting and blast rock used as fill on the property to be acid generating. This potential cannot be fully understood without a better understanding of the distribution of acid generating rock and storm water and groundwater interaction with these rock surfaces.” (Emphasis added.) The defendant claims that because Good identified the potential for acid rock generation, the plaintiff failed in its proof to demonstrate that there would be no adverse impact from acid rock drainage by failing to provide the necessary data to reach that conclusion. In other words, as in part IB of this opinion, the defendant is claiming that there is substantial evidence in the record to support the denial on the basis of the lack of information provided by the plaintiff.

We agree with the court that Good’s identification of the “potential” for acid generation is not sufficient to meet the substantial evidence test as articulated in River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 57. With respect to the claim that the plaintiffs lack of information was the basis for the denial, we note that the defendant, in its appellate brief, states that “[t]he court in its analysis . . . ignored the substantial testimony and evidence in the record as to the data and testing necessary to establish whether or not [the presence] of iron oxidizing metals would result in acid drainage which would negatively impact the wetlands.” As we discussed in part IB of this opinion, we have no transcript of the hearing before the trial court from which to determine whether the issue, as now framed on appeal, was raised. Further, because the memorandum of decision did not address the issue, we have no way of determining whether the court considered it and found it without merit. The defendant did not file a motion for articulation with the trial court. “The . . . failure to seek an articulation of the trial court’s decision to clarify the aforementioned issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Internal quotation marks omitted.) Chyung v. Chyung, supra, 86 Conn. App. 676.

II

The defendant’s final claim is that the court improperly ordered the defendant to issue the wetlands permit rather than simply sustaining the plaintiffs administrative appeal. The defendant argues that the court has judicially usurped the administrative function of the defendant by directing it to take a particular action. We disagree.

After concluding that there was not substantial evidence in the record to support the defendant’s denial of the plaintiffs application for a wetlands permit, the court reversed the defendant’s decision and remanded the matter to the defendant “for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record.” (Internal quotation marks omitted.) Although the court directed the defendant to issue the permit, it recognized the defendant’s authority to attach reasonable conditions in accordance with the evidence already presented in connection with the application.

When it appears that a land use agency reasonably could reach only one conclusion, the court may direct that agency to do that which the conclusion requires. Jersey v. Zoning Board of Appeals, 101 Conn. App. 350, 361, 921 A.2d 683 (2007). Under the circumstances of this case, we agree that there was but one conclusion that the defendant could reach and that the court properly ordered the issuance of the permit rather than simply sustaining the plaintiffs administrative appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The revised application is for 12.2 acres of property located at 1600 Cutspring Road and 140 Circle Drive in Stratford. Regulated wetlands and watercourses on the property, consisting of Pumpkin Ground Brook and its four adjacent wetland areas, total 1.37 acres. The 12.2 acre property is part of a 3200 acre watershed and is located at the bottom of that watershed. In addition to the on-site wetland areas, there also is a “pocket” off-site wetland area of 360 square feet located on the property of 152 Circle Drive. The proposed development consists of 146 apartments, some of which are reserved for low and moderate income families.

       On February 22, 2005, this court released the decision in AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn. App. 537, 867 A.2d 37 (2005), aff'd, 280 Conn. 405, 908 A.2d 1033 (2006), in which we concluded that the trial court improperly granted the plaintiffs motions to strike the town’s requests to intervene in the wetlands and zoning proceedings. That decision, which was affirmed by our Supreme Court; AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 908 A.2d 1033 (2006); allowed the town to intervene in these proceedings. Because the trial court already had rendered judgment in this matter on January 11, 2005, the town has participated as a party in appellate proceedings only.
      For that reason, the town’s issue in this appeal, as an intervenor pursuant to § 22a-19, merits little discussion. The town claims that the trial court improperly failed to find that feasible and prudent alternatives existed that would protect Pumpkin Ground Brook and its associated wetland areas. It argues that such a finding, made pursuant to § 22a-19 (b) of the act, would have precluded the plaintiffs proposed activities. The town, however, chose not to intervene during the permit proceedings before the defendant, and the defendant, therefore, made no findings with respect to § 22a-19 environmental issues. Id., 409-10. Furthermore, the town was not a party during the trial court proceedings or at the time judgment was rendered, because its appeal from the trial court’s granting of the plaintiffs motion to strike the town’s request for intervenor status was still pending before this court. In other words, § 22a-19 environmental issues were not before the trial court, and it clearly cannot be faulted for its failure to consider issues that were never presented.
      “Intervention allows one who was not a party in an original action to become a party upon his request. He has a derivative role by virtue of an action already shaped by the original parties. He takes the controversy as he finds it and may not introduce his own claims to restyle the action.” (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 154, 788 A.2d 1158 (2002).

       Because the trial court’s remand order directs the defendant to approve the plaintiffs application with conditions only as supported by the present record, and does not require the defendant to make further evidentiary determinations, we conclude that the defendant has appealed from a final judgment. See Barry v. Historic District Commission, 108 Conn. App. 682, 700, 950 A.2d 1, cert. denied, 289 Conn. 942, 943, 959 A.2d 1008 (2008).

       On November 21, 2005, the Supreme Court transferred this appeal to itself pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). The Supreme Court stayed this appeal until a final decision was issued in the proceedings on remand to the zoning commission with respect to the plaintiffs affordable housing application. On August 13,2009, the trial court, Cohn, J., concluded that the zoning commission’s denial based on its concern regarding pollution of the wetlands was not supported by the record but that its concern regarding emergency access to the proposed development was a sufficient reason for its denial of the application. Accordingly, the court dismissed the plaintiffs zoning appeal. The plaintiff filed a petition for certification to appeal with this court, and the zoning commission and the town filed cross petitions. We granted the petitions of all three parties (AC 31982 and AC 31983). On March 3, 2010, the Supreme Court terminated the stay in this matter and transferred the appeal to this court. We heard oral argument on all three appeals on March 7, 2011, and our decision in the zoning appeals was released on the same date as this opinion. See AvalonBay Communities, Inc. v. Zoning Commission, 130 Conn. App. 36, 21 A.3d 926 (2011).

       The area referred to as the pocket wetland by the parties and the court, which was located off the site on the properly of 152 Circle Drive, which is adjacent to the proposed emergency access at 140 Circle Drive, consisted of a man-made berm and drainage ditch measuring 360 square feet.

       The court noted one exception, which was the plaintiffs proposal to site an emergency access route within the seventy-five foot upland review area of the 360 square foot pocket wetland located next to 140 Circle Drive. See footnote 5 of this opinion.
      An upland review area is an area outside of the wetlands and watercourses within which an inland wetlands agency may regulate activities that are likely to affect the wetlands or watercourses. According to the defendant’s regulations, the regulated setback area in effect at the time of the plaintiffs application was seventy-five feet. See Stratford Inland Wetlands and Watercourses Regs., §§ 2.26 and 2.27.

       The court also discussed the extensive modifications made by the plaintiff to its erosion control plan in response to the defendant’s concerns. For example, building sites were moved, an additional line of sediment filter fence was added and numerous structural and nonstructural measures were put in place to eliminate or reduce contamination of the wetlands and watercourse by silt and sediment. The court referred to the 136 page environmental assessment report, with appendix, submitted as part of the plaintiffs revised application.

       The defendant claims that the case of Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 525 A.2d 940 (1987), supports its position that the flow of any amount of sediment or siltation into a wetlands or watercourse automatically would be deemed to be an adverse impact. We do not read Huck so broadly. In that case, the subject lot area measured 2.691 acres, but only .484 acres was dry land. Id., 540 n.11. As a reason for denial, the agency in Huck referred to “[s]evere sedimentation, erosion and downstream siltation into Frye Lake . . . .” (Emphasis added.) Id., 542. The mere entry of sediment into the lake was not the reason for the denial, it was the severity of the problem that was given as a ground for the denial.

       “[A]n impact on the wetlands that is speculative or not adverse is insufficient grounds for denial of a wetlands application. . . . [0]ur prior case law [does] not authorize the denial of a wetlands application due to uncertainty as to the impact of a proposed activity on wetlands and watercourses.” River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 79 n.28.

       “Hydrology” is defined as “ascience dealing with the properties, distribution, and circulation of water on and below the earth’s surface and in the atmosphere.” Merriam-Webster’s Collegiate Dictionary (11th Ed. 2005). In its memorandum of decision, the court noted: “By ‘hydrologic regime’ the [defendant] apparently means the amount, direction and rate of flow of surface and ground water through the property and into the wetlands and the brook.”

       Steven J. Danzer was the defendant’s consulting biologist and environmental planner.

       George T. Logan is a certified wildlife biologist and registered soil scientist. His associate, Sigrun N. Gadwa, is a plant biologist.

       The defendant has limited its argument to a claimed negative impact to wetland area no. 4. The trial court noted in its memorandum of decision: “At the hearing on this appeal, counsel for the [defendant] acknowledged that, besides the ‘pocket’ wetland adjacent to 140 Circle Drive, only one wetland area, wetland area no. 4, was claimed by the [defendant] to be subject to pollution as a result of the proposed development.”

       Penelope C. Sharp was an environmental consultant for the town.

       Roman S. Mrozinski was the executive director of the Fairfield County Soil and Water Conservation District.

       The proposed development contains five apartment buildings.

       Although the defendant was the arbiter of the credibility of witnesses and, therefore, was not bound to accept the reports and testimony of the plaintiffs experts, the conclusions provided by them cannot be ignored if they were the only factually based conclusions before the defendant substantiated by evidence in the record. See Cornacchia v. Environmental Protection Commission, 109 Conn. App. 346, 356, 951 A.2d 704 (2008).

       We note that “an agency cannot capriciously ignore the testimony of expert witnesses.” Strong v. Conservation Commission, 28 Conn. App. 435, 441, 611 A.2d 427 (1992), appeal dismissed, 226 Conn. 227, 627 A.2d 431 (1993).

       In Unistar, the court recognized that there could be situations in which an agency’s request for additional information is not reasonable. “[T]here may be a situation in which the distance between the regulated area and the areas on the property for which an inventory is requested is so remote and makes it so unlikely that the activity could have any effect on the wetlands that it would be arbitrary and capricious for the commission to impose such a demand on an applicant.” Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, supra, 293 Conn. 111 n.15.

       Robert F. Good, Jr., employed by Leggette, Brashears & Graham, Inc., was the town’s consulting geologist.

       As noted by the trial court, the defendant has acknowledged that any potential acid drainage would not affect Pumpkin Ground Brook, but only the adjacent wetland area no. 4.

       The defendant had expressed concern during the public hearing on the plaintiff’s initial application that acid drainage could occur if sulfur-containing rock blasted at the site was exposed to ground or surface water. With respect to the revised application, the uncontradicted evidence relative to acid drainage was that the potential for acidification from removed rock was a direct function of the degree of crushing, which increased the rock surface area exposed to water. If the crushed rock was left exposed on site for long periods of time, the potential for acidification became greater. At the public hearing on the revised application, the plaintiff represented that it would have a monitor on site on a daily basis to check pH levels, that it would not stockpile large amounts of small sized material, that blasted material would be taken off site in less than two weeks and that there would be no crushing of the blasted rock on site.

       After reviewing the record for substantial evidence to support the defendant’s four grounds for denial of the permit, and finding none, the court stated: “The [defendant’s] conclusions as to each of the grounds for denying the [plaintiffs] application can accurately be characterized as combining the aphorism, ‘Anything’s possible,’ with Murphy’s Law, that ‘anything that can go wrong will go wrong.’ ”

       Charles W. Dimmick, a certified professional geologist, made the following statements at the public hearing on the plaintiffs revised application: “So finding some pyrite in one of these samples is the exception and not the rule. Yes, it’s always possible [that there could be more pyrite]; it’s possible you could drill down there and find a vein of gold and abandon the project and find something else to do. ... As to the cost benefit to the thing, there is such a low risk of acid potential here that there is no real benefit for putting extra holes for this particular purpose [to obtain additional samples to test for pyrite], in my considered judgment.”


author: LAVERY, J.

text:
    VICTOR CZECZOTKA ET AL. v. DONALD J. ROODE, JR., ET AL.
    (AC 32025)
    Lavine, Robinson and Lavery, Js.

      Argued April 21
    officially released July 12, 2011

      Lloyd L. Langhammer, with whom, on the brief, was KaitlynM. Pechie, for the appellant (named defendant).

      William McCoy, for the appellants (defendant Maureen Poitras et al.).

      Jon C. Leary, for the appellees (plaintiffs).
   Opinion

LAVERY, J.

This action for the reformation of a deed concerns a parcel of land in Griswold. The named defendant, Donald J. Roode, Jr., appeals from the judgment of the trial court in favor of the plaintiffs, Victor Czeczotka, Lucy Lefevre and Murray Czeczotka. On appeal, the defendant claims that the court improperly failed to reform a deed in the parties’ chains of title based on its conclusion that he had failed to establish, by clear and convincing proof, that the deed was the result of a mutual mistake. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The crux of the parties’ dispute is the issue of whether an administrator’s deed was intended to convey a certain parcel in Griswold known as 166 Colonel Brown Road (disputed parcel). The disputed parcel consists of approximately twenty-nine acres of unimproved land and abuts a separate parcel owned by the defendant. The disputed parcel is also located in close proximity to several parcels owned by the plaintiffs.

On August 23, 1939, the defendant’s grandmother, Carrie Roode, executed an administrator’s deed conveying certain real property from the estate of her deceased sister, Bessie H. Burton, to Victor M. Czeczotka (plaintiffs’ father). The deed purports to convey a single parcel containing approximately seventy acres, which previously had been divided into two parcels owned by two different persons. The deed makes reference to the two prior deeds by which Burton’s predecessor in interest had acquired title to those two parcels (prior deeds). Each of these prior deeds purports to convey a single parcel containing approximately seventy acres, which it describes by reference to landmarks, compass directions and abutting landowners. The disputed parcel is situated within the boundaries of the parcel described by the first of these prior deeds to be recorded in the Griswold land records.

Between 1939 and 1948, the plaintiffs’ father executed a total of four mortgages affecting the property that he had acquired under the terms of the administrator’s deed. The parties introduced two mortgage deeds, which are the products of the first and fourth mortgage transactions, respectively, as full exhibits at trial. Both mortgage deeds are similar in that they purport to encumber all of the property that the plaintiffs’ father had acquired by way of the administrator’s deed. The mortgage deeds are dissimilar, however, in that the earlier mortgage deed contains only a basic description of the property that it purports to encumber, while the latter contains a more detailed property description. More specifically, the latter mortgage deed describes the encumbered property as two distinct parcels and makes use of landmarks, compass directions and references to abutting landowners in order to describe those parcels. The disputed parcel is not included within the boundaries of either parcel.

On January 15, 1966, the plaintiffs’ father died intestate. On November 2, 1966, the Probate Court issued a certificate of descent that purports to convey to the plaintiffs, as well as to their now deceased siblings, Julian Czeczotka and Irene Hlastava, all of the property that their father had acquired under the terms of the administrator's deed, excluding a parcel that he previously had conveyed. The certificate of descent was recorded in the Griswold land records on November 2, 1966.

The plaintiffs commenced this action by service of a writ of summons and a complaint dated March 13, 2007. In their complaint, the plaintiffs requested, among other things, a determination of the parties’ rights in the disputed parcel. On January 8, 2008, the defendant filed an answer, four special defenses and a five count counterclaim alleging that the parties to the administrator’s deed had committed a mutual mistake by including the disputed parcel within the boundaries of the property that the deed purports to convey. Accordingly, the defendant argued that the administrator’s deed did not convey title to the disputed parcel, and, thus, the plaintiffs held no interest therein. The defendant further argued that he held an ownership interest in the disputed parcel by virtue of his predecessor in interest’s retention of title. The defendant therefore requested that the court reform the administrator’s deed in order to express the true intent of the parties thereto. The plaintiffs filed a reply to the defendant’s special defenses and counterclaim on March 25, 2008, denying the defendant’s allegations with respect to the administrator’s deed. The defendant subsequently amended his counterclaim to allege that he is the sole owner of the disputed parcel.

The case was tried to the court on December 10, 2009. During the trial, both sides offered testimony and introduced exhibits concerning the status of title to the disputed parcel. The plaintiffs called Elton Harvey, who was qualified as an expert title examiner, to testify. Harvey testified that the administrator’s deed had conveyed title to the disputed parcel to the plaintiffs’ father and that title presently rested with the plaintiffs and the estates of their deceased siblings. Harvey further testified that three of the four mortgage deeds, including the mortgage deed that was executed contemporaneously with the administrator’s deed, encumbered the disputed parcel.

The defendant offered testimony at trial regarding the status of title to the disputed parcel. On cross-examination and recross-examination, the defendant testified that he did not claim to hold title to the disputed parcel. Although the defendant did not offer any additional testimony regarding the status of title to the disputed parcel, he did offer evidence regarding the use of the disputed parcel since the date of the administrator’s deed. During his case-in-chief, the defendant called Stuart Norman, Sr., to testify. Norman testified that he had worked on the disputed parcel during a logging operation that occurred on the disputed parcel around 1940. Norman also testified that a portable sawmill had been situated on the disputed parcel at that time and that the plaintiffs’ father worked on the disputed parcel as part of the logging operation.

On February 16, 2010, the court issued a memorandum of decision denying the defendant’s request to reform the administrator’s deed on the ground of mutual mistake. The court found that the defendant had failed to establish by clear and convincing proof that the parties to the administrator’s deed did not intend to convey title to the disputed parcel. Moreover, the court found that the evidence adduced at trial demonstrated that, at most, the plaintiffs’ father was unsure as to the precise boundaries of his property. This appeal followed.

On June 7, 2010, the defendant filed a motion for articulation, requesting that the court articulate the factual basis for its decision denying the defendant’s request to reform the administrator’s deed. In its July 22, 2010 articulation, the court articulated the basis of its findings regarding the administrator’s deed and the subsequent use of the disputed parcel. With respect to the administrator’s deed, the court explained that it had credited the testimony of the plaintiffs’ expert title examiner, Harvey, in finding that the disputed parcel was included within the property that the plaintiffs’ father had acquired by way of the administrator’s deed. The court also credited the defendant’s testimony that he did not claim to hold title to the disputed parcel. With respect to the use of the disputed parcel following the execution of the administrator’s deed, the court articulated that a request by the plaintiffs’ father to work on the logging operation was not an admission that he did not hold title to the disputed parcel. Rather, the court had determined that his request was nothing more than an effort to earn income from a source that was readily available to him. The court also explained that its finding that the plaintiffs’ father was unsure as to the precise boundaries of his property was premised on its finding that the administrator’s deed, as well as the two prior deeds, did not contain a metes and bounds property description.

As a preliminary matter, we set forth the standard of review and legal principles that guide our analysis. The party seeking the reformation of a deed must establish the asserted ground for reformation by clear and convincing proof. Lopinto v. Haines, 185 Conn. 527, 533-35, 441 A.2d 151 (1981). “Clear and convincing proof is a demanding standard denoting] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. ... On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Blackwell v. Mahmood, 120 Conn. App. 690, 700-701, 992 A.2d 1219 (2010).

“A cause of action for reformation of a deed rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other. . . . Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties.” (Citation omitted; internal quotation marks omitted.) Blow v. Konetchy, 107 Conn. App. 777, 792, 946 A.2d 943 (2008). “The remedy of reformation is appropriate in cases of mutual mistake—that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction. ... In short, the mistake, being common to both parties, effects a result which neither intended.” (Citations omitted; internal quotation marks omitted.) Lopinto v. Haines, supra, 185 Conn. 532.

Upon our review of the record, we conclude that the court’s determination that the facts in the present case did not merit reformation of the administrator’s deed was not clearly erroneous. Indeed, the record contains ample evidence to support the court’s determination that reformation of the administrator’s deed was not warranted on the ground of mutual mistake. The record contains the testimony of the plaintiffs’ expert title examiner, Harvey, who testified that the disputed parcel is included within the boundaries of the property that the plaintiffs’ father had acquired under the terms of the administrator’s deed. The record also contains Harvey’s testimony regarding the four mortgage deeds that the plaintiffs’ father had executed on that property. As previously mentioned herein, Harvey testified that three of the four mortgage deeds, including the mortgage deed that the plaintiffs’ father granted to Carrie Roode contemporaneously with their execution of the administrator’s deed, encumbered title to the disputed parcel.

Our review of the record also leads us to conclude that the court carefully considered the evidence adduced by the defendant. We note that the court determined that the plaintiffs’ father had requested to partake in a logging operation on the disputed parcel following the execution of the administrator’s deed. The court, in its articulation, explained that it had considered the foregoing and determined that, at most, it indicated that the plaintiffs’ father was unsure as to the precise boundaries of his property. We cannot conclude that the court’s determination is clearly erroneous in light of our standard of review and other relevant evidence in the record. Finally, and perhaps most importantly, we note that the record contains the defendant’s testimony that he did not claim to hold title to the disputed parcel as of the trial date. On the basis of the foregoing analysis, we conclude that the court’s finding that the administrator’s deed was not affected by a mutual mistake was not clearly erroneous and that the court properly denied the defendant’s request for reformation of the deed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The adult children of the plaintiffs’ deceased brother, Julian Czeczotka, were named as codefendants in the plaintiffs’ original complaint. Although these adult children, Maureen Poitras, Jan Czeczotka and Gary Czeczotka, (codefendants) actively participated in the trial, they are not parties to the present appeal. We therefore refer in this opinion to Donald J. Roode, Jr., as the defendant.

       The defendant also raised a claim of adverse possession in his preliminary statement of the issues. The defendant, however, has failed to advance any substantive analysis or discussion of precedent related to this claim, thereby rendering it inadequately briefed. It is well established that “[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F] or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) State v. Claudio C., 125 Conn. App. 588, 600, 11 A.3d 1086 (2010), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011). Accordingly, we decline to review this claim.

       The administrator’s deed, which is common to both parties’ chains of title, describes the conveyed property as follows: “A certain tract or parcel of land with the dwelling house, bam and other buildings thereon, situate[d] on the easterly and westerly sides of the highway leading from Pachaug to the highway leading from Norwich to Voluntown, within the Town of Gris-wold, and containing about seventy acres, more or less, and being the same premises which were conveyed to Albert F. Burton by two separate deeds, one dated April 4th, 1866, recorded in [the] . . . Griswold Land Records . . . and the other dated April 4, 1866, recorded in the said Griswold Land Records ... to which deeds reference may be had for a more particular description . . . .”

       The first mortgage deed, which was executed contemporaneously with the administrator’s deed and recorded in the Griswold land records on September 7, 1939, contains the following description of the property that it purports to encumber: “[A] certain tract or parcel of land with the dwelling house, bam and other buildings thereon, situatefd] on the easterly and westerly sides of the highway leading from Pachaug to the highway leading from Norwich to Voluntown, within the Town of Griswold, and being same premises referred to Certificate of Descent as of record will appear from the estate of Albert F. Burton to Bessie H. Burton, et al., and by deed of even date herewith from the Estate of Bessie H. Burton to [the plaintiffs’ father], to be recorded in Griswold Land Records concurrently with this mortgage deed.”

       The latter mortgage deed, which was recorded in the town land records on August 18, 1948, purports to encumber two distinct parcels. The first parcel is described as containing approximately sixty-five acres, while the second parcel is described as containing approximately five acres.

       See footnote 1 of this opinion.

       Irene Hlastava, whose maiden name was Czeczotka, died testate on February 25, 2001.

       The certificate of descent purports to convey the following real property to the plaintiffs and their now deceased siblings: “ ‘All that certain tract or parcel of land with the buildings thereon, situate[d] on the easterly and westerly sides of the highway leading from Pachaug to the highway leading from Norwich to Voluntown, within the Town of Griswold, being the same premises contained in [the administrator’s deed] . . . excepting therefrom such portion of said premises as was sold to Eugene L. and Patricia Ann Jackman as appears of record in the Griswold Land Records.’ ”

       In his original counterclaim, the defendant had alleged that the codefendants also held a title interest in the disputed parcel. See footnote 1 of this opinion.

       The record reveals the following exchange between counsel for the codefendants and the defendant during cross-examination:
      “[Counsel for the Codefendants]: Okay. You do not claim ownership by title to the [disputed parcel], do you?
      “[The Defendant]: No.”

       The record reveals the following exchange between counsel for the codefendants and the defendant herein during recross-examination:
      “[Counsel for the Codefendants]: Do you claim as you sit here today that you have title to [the disputed parcel]?
      “[The Defendant]: I do not.”


author: DUPONT, J.

text:
    CAROL MITCHELL ET AL. v. TREVOR REDVERS, ADMINISTRATOR (ESTATE OF VALENTINE L. SPECYALSKI), ET AL.
    (AC 32793)
    Robinson, Bear and Dupont, Js.

      Argued April 14
    officially released July 12, 2011

      Michael F. Dowley, for the appellants (plaintiff Carol Mitchell et al.).

      William J. O'Sullivan, for the appellee (defendant Frank Koba).
   Opinion

DUPONT, J.

The overriding issue before this court is whether the Marketable Title Act (act), General Statutes § 47-33b et seq., extinguished the plaintiffs’ equitable claim to an interest in a family farm. The farm was originally owned by Louis Specyalski (Louis) who died intestate in 1962. Louis’ nine children agreed in writing to convey their interests in the farm to one of their siblings, Valentine Specyalski (Valentine). Valentine, now deceased, devised his interest in the farm by his will to the defendant Frank Koba, his nephew. The plaintiffs claim that an oral agreement or understanding existed among Louis’ children that the written agreement really conveyed only a life use, not a fee interest, to Valentine, and that they, as the heirs of Louis’ other children, are the equitable owners of the farm. The plaintiffs commenced this action asking the court to impose a constructive trust in their favor and seeking a declaratory judgment regarding the respective rights of the parties to the farm. The defendant Frank Koba filed a motion for summary judgment, which was granted by the trial court. The trial court concluded that the act rendered the plaintiffs’ claimed equitable interests void and that, because their action was wholly premised on the enforceability and validity of those alleged interests, the defendant was entitled to summary judgment as a matter of law. On appeal, the plaintiffs claim that the trial court erred in determining that the application of the act resolved the legal and factual issues in this case. We conclude that the act applies and that it renders void any equitable claim to a constructive trust in the farm as alleged by the plaintiffs and negates the plaintiffs’ claim for a declaratory judgment. We, therefore, affirm the judgment.

The following facts are undisputed. Louis died intestate on December 13, 1962. His heirs were his nine children, all of whom signed an agreement dated October 21,1963 (agreement), giving their respective shares in the farm to Valentine. The agreement provided further that should Valentine wish to sell the property, the remaining children and their survivors retained a right of first refusal. The remaining children also retained the right to recoup any windfall obtained by Valentine should he sell the farm for an amount greater than the appraised value of the farm at the time of the conveyance, which was $10,000. The agreement was accepted by the Middletown Probate Court and the farm was distributed to Valentine pursuant to the probate of Louis’ estate in November, 1963. All of Louis’ children, the parties to the agreement, are now deceased. Valentine executed a will in October, 2002, and died in August, 2008, leaving the farm to the defendant.

The plaintifFs allege in their complaint that the interest conveyed to Valentine pursuant to the agreement was only a life estate, not a fee interest, and that the conveyance of the farm to the defendant harmed them. In count one, they allege that they are the equitable owners of the farm and that the court should impose a constructive trust for their benefit. In count two, they seek a declaratory judgment concerning the respective rights of the parties to the farm. Appended to the complaint was a copy of the agreement.

The defendant filed an answer and alleged ten special defenses. In the ninth special defense, the defendant alleges: “On or about November 19, 1963, a certificate from the Middletown Probate Court was filed in the Middletown land records confirming that all of the heirs of [Louis], deceased, had executed a division of the estate of [Louis], and that the property described in the plaintiffs’ complaint was set over therein to [Valentine]. This certificate constitutes a root of title pursuant to [General Statutes] § 47-33b. There thus exists an unbroken chain of title in the land described in [the] plaintifFs’ complaint for [forty] years or more, as required by [General Statutes] § 47-33c. Any interest claimed by the plaintiffs is void pursuant to the authority of [General Statutes] § 47-33e.” On March 29, 2010, the defendant filed a motion for summary judgment on the plaintiffs’ complaint on the ground that judgment should enter as a matter of law on his ninth special defense. He argued that “[Valentine] held marketable record title in the farm for more than forty years, and his fee interest is therefore unencumbered by the plaintiffs’ alleged reversionary interest, which was never documented in his chain of title.”

In support of his motion, the defendant filed his own affidavit and the affidavit of his attorney, to which was attached a number of exhibits. The plaintiffs filed a memorandum of law in opposition to the defendant’s motion for summary judgment and filed affidavits by four of the plaintiffs. They argued that issues of material fact exist concerning the agreement. They also argued that the act does not apply because they did not seek to “undo the deed” which transferred the property to Valentine in 1963; rather, they sought to “uphold the part of the understanding and agreement . . . that [Valentine’s] interest was only to be a life use interest, and that after [his] death, the property would be shared by all the family.” In its memorandum of decision, the court rejected the plaintiffs’ arguments and rendered judgment for the defendant.

In order to determine whether the court properly granted the defendant’s motion for summary judgment we must discuss the application of the act, whether a finding of a constructive trust could override the act in this case and the principles that govern an entitlement to summary judgment.

We set forth our standard of review. “Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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 under Practice Book § [17-45]. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

On appeal, the plaintiffs claim that summary judgment should not have been rendered because (1) a triable factual dispute exists concerning the agreement and (2) the application of the act does not resolve the legal and factual issues in this case. We reject both of these claims.

I

The plaintiffs first claim that a triable factual dispute exists concerning the agreement. The issue on appeal is whether the trial court properly concluded that no genuine issues of material fact exist. Although there may be facts in dispute as to whether a parol understanding existed among Louis’ children when they executed the agreement, such facts are not material to whether Valentine held marketable record title in fee at the time of his death. We conclude that there are no material facts in dispute.

The following additional facts are relevant to the resolution of this claim. The defendant submitted evidence in support of his motion for summary judgment, including true and accurate copies of certain documents from the probate proceedings pertaining to Louis’ estate. These included a document that the Probate Court referred to as the mutual distribution, an allowance of account, ascertainment of heirs and order of distribution, and the probate certificate.

In the agreement, executed October 21, 1963, Louis’ children agreed to give their respective shares in the farm to Valentine, reserving certain limited rights previously enumerated. The mutual distribution, also executed on October 21, 1963, and accepted as part of the Probate Court file, stated in relevant part that Valentine “shall take and have” the farm in addition to his equal share of the cash distributed from the estate. The remaining siblings took their cash share only. The allowance of account, ascertainment of heirs and order of distribution similarly provides in relevant part: “Ordered . . . that a probate certificate, showing the title of the said [Valentine] to the real property of [Louis] be issued from this [c]ourt to the [l]and [r]ecords of the said [t]own of Middletown . . . .” Finally, the probate certificate, executed by the court on November 6,1963, provides in relevant part: “That in said [division, styled also a [m]utual [distribution, the real estate of which said deceased died, seized and possessed, the same remaining intact upon the settlement, has been set forth to [Valentine], son of [Louis], such real estate being declared in such division . . . .” The probate certificate was recorded in the Middletown land records on November 19, 1963.

We must ascertain in this case what is meant by “marketable record title” and what are the purposes of the act. “ ‘Marketable record title’ means a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title . . . .” General Statutes § 47-33b (a). “[T]he ultimate purpose of [the act] is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction. . . . [The act is] designed to decrease the costs of title assurance by limiting the period of time that must be covered by a title search. . . .

“Pursuant to the act, any person who has an unbroken record chain of title to an interest in land for a period of forty years, plus any additional period of time necessary to trace the title back to the latest connecting title instrument of earlier record (which is the root of title under the act) has a marketable record title subject only to those pre-root of title matters that are excepted under the statute or are caused to reappear in the latest forty year record chain of title. . . . The act declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land’s chain of title.” (Citation omitted; internal quotation marks omitted.) Johnson v. Sourignamath, 90 Conn. App. 388, 394-95, 877 A.2d 891 (2005).

The plaintiffs do not dispute that the language in the relevant written documents, including the agreement and the mutual distribution, was sufficient to convey to Valentine a fee interest in the farm. Rather, the plaintiffs claim that a parol agreement existed among Louis’ children that Valentine received only a life estate. The probate certificate, recorded in the land records on November 19, 1963, was necessary to perfect Valentine’s marketable title; Santa Fuel, Inc. v. Varga, 77 Conn. App. 474, 487, 823 A.2d 1249, cert. denied, 265 Conn. 907, 831 A.2d 251 (2003); and we treat November 19, 1963, as the effective date of Valentine’s root of title. See footnote 14 of this opinion. The defendant presented uncontroverted evidence that no instrument making any claim against the farm had been recorded in the Middletown land records subsequent to that date, nor had any instrument been recorded that purported to divest Valentine of his fee interest in the farm. Thus, the defendant presented uncontroverted evidence that Valentine had an unbroken record chain of title to his fee interest in the farm for a period of over forty years.

On the basis of our review of this evidence, we conclude, as did the trial court, that the defendant carried his burden of demonstrating that no material facts are in dispute concerning whether Valentine had marketable record title in fee when he devised the property to the defendant.

II

The plaintiffs claim that the application of the act does not resolve the legal and factual issues in this case. They argue that because they have alleged the existence of a constructive trust, they should be permitted to present evidence to prove that there was an understanding among Louis’ children that, despite the plain language of the documents, Valentine had only a life use of the farm and that, after Valentine’s death, the farm was to be shared by the entire family. The plaintiffs maintain that the imposition of a constructive trust would not violate the act. We disagree.

“A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. ... A constructive trust arises . . . when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. . . . The issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched.” (Citation omitted; internal quotation marks omitted.) Stornawaye Properties, Inc. v. O’Brien, 94 Conn. App. 170, 175-76, 891 A.2d 123 (2006).

By the very nature of the claim, evidence to support a claim for a constructive trust of real property often will be at odds with what is recorded in the land records, and often will involve evidence of parol agreements. “Although it is well settled that, in general, real property absolutely conveyed cannot be shown to be subject to an express trust created by parol agreement . . . exceptions to this rule have been recognized where an injustice, sufficient to raise an equitable trust, would otherwise result. ... In such cases, a trust does not arise so much by reason of the parol agreement of the parties but by operation of law.” (Citations omitted.) Cohen v. Cohen, 182 Conn. 193, 202, 438 A.2d 55 (1980).

Our appellate courts have upheld the imposition of a constructive trust on a defendant’s interest in real property when, although the written documentation indicated that a defendant held an interest in real property, the facts and circumstances adduced by the evidence presented demonstrated that the defendant was under an equitable duty to relinquish that interest. See id., 197-98 (constructive trust imposed on son’s half interest in property because mother purchased property and paid all expenses and son previously had agreed to reconvey his interest to mother); Schmaling v. Schmaling, 48 Conn. App. 1, 4, 17-19, 707 A.2d 339 (constructive trust imposed on son’s interest in parent’s property when interest was conveyed only to secure construction financing), cert. denied, 244 Conn. 929, 711 A.2d 727 (1998); Gulack v. Gulack, 30 Conn. App. 305, 313-14, 620 A.2d 181 (1993) (constructive trust imposed on property in favor of intended beneficiaries when property held by defendant widow, who took title on death of her husband, and husband had held title for beneficiaries’ benefit). In none of those cases did the party claiming ownership raise the act as a special defense; in addition, in each case the interest in the property was challenged long before the expiration of the forty year period prescribed by the act.

The act declares null and void “all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title. . . .” General Statutes § 47-33e. This is true “however [such claims are] denominated, whether legal or equitable, present or future . . . .” General Statutes § 47-33e.

In the present case, we already have concluded that Valentine had an unbroken record chain of title to the farm and that the effective date of Valentine’s root of title is November 19, 1963. The plaintiffs commenced this suit in 2009, forty-six years after the effective date of Valentine’s root of title. In their complaint, the plaintiffs refer to the alleged parol understanding among Louis’ children as the “complete agreement” among them and allege that the “complete [October 21,1963] agreement was not revoked, amended or modified by [Louis’ children] on or before November 5,1963, or any date thereafter.” By their pleadings, it is clear that any parol understanding or agreement among Louis’ children concerning whether Valentine received only a life use of the farm arose prior to the effective date of Valentine’s root of title. Applying the plain language of the act to these facts, the plaintiffs’ equitable claim is null and void. To hold otherwise would undermine the purposes of the act. Because the plaintiffs’ action seeking a constructive trust and declaratory judgment was wholly premised on the enforceability and validity of this equitable claim, the trial court properly concluded that the defendant was entitled to summary judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-33b provides in relevant part: “(a) ‘Marketable record title’ means a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title, as are stated in section 47-33e . . .

       Louis owned a parcel of land referred to as Specyalski farm (farm), located at 323 Boston Road in Middletown. He died intestate on December 13, 1962. He had no surviving spouse and the distribution of his estate to his children was governed by General Statutes § 45-274 (now § 45a-438).

       Louis’ children, all of whom are now deceased, were: Edmund Specyalski, Joseph Specyalski, Teofil Specyalski, Lottie Rebot, Adolph Specyalski, Leon Specyalski, Mary Koba, Frances Zimnewicz and Valentine. Valentine never married and had no children and was the last surviving child of Louis.

       The original plaintiffs to this action were Carol Mitchell, Steve Zimnewicz, Irene Arabek, Lorraine Cieneva, David Specyalski, Marty Specyalski, Doreen Zawacki and Annette McMahon, all of whom are first cousins and are Louis’ grandchildren. Donald Koba, Jr., the nephew of the plaintiffs and Louis’ great grandchild, was cited in as an additional plaintiff in March, 2010. The only plaintiff who is not a party to this appeal is Arabek.

       The present matter is the plaintiffs’ appeal from the trial court’s grant of Frank Koba’s motion for summary judgment. Frank Koba will be referred to subsequently herein as the defendant.
      The named defendant, Trevor Redvers, is the administrator of Valentine’s estate. Other defendants who entered appearances are Gene Specyalski, Joanne Nolan and Paul Rebot, who are the heirs or representatives of the estates of some of Louis’ children. Default judgments for failure to appear entered against other defendants denominated as “the representatives, creditors and heirs” of some of Louis’ children.
      Maryann Parker, who is the daughter of Lottie Rebot and is Louis’ granddaughter, was also named as a defendant. She filed a cross complaint against the other defendants alleging the same facts as are alleged in the plaintiffs’ complaint and seeking the same relief. The court also rendered summary judgment on her cross complaint. Parker did not appeal separately from the judgment. Reference herein to the plaintiffs includes Parker, the cross complaining plaintiff, unless otherwise noted.

       Because we conclude that the act has extinguished any claim alleged by the plaintiffs, we do not reach the plaintiffs’ claims concerning whether the trial court improperly failed to consider certain statements contained in the affidavits that they submitted to the court in opposition to the defendant’s motion for summary judgment, which the court concluded constituted inadmissible hearsay.

       The agreement among Louis’ children provides in relevant part that “it is mutually agreed as follows . . . [t]hat all of [Louis’ children] will give to [Valentine] their respective shares in the [farm] . . . .” Should Valentine wish to sell the farm, “he shall first offer it to the survivors of [the other children] for the same price and terms as he shall offer it to others, and the survivors of [the other children] shall have the right, individually and jointly, to purchase said property for the same price and under the same terms and conditions as it shall have been offered to prospective purchasers. ... In the event that the proceeds of the sale . . . shall amount to more than [$10,000] the difference between said proceeds . . . and [$10,000] shall be divided equally among the said survivors. . . .” Valentine was the last surviving child of Louis. He did not sell the entire acreage of the farm during his lifetime. See footnote 18 of this opinion. His interest in the farm passed to the defendant through his will.

       The special defenses included waiver by delay, laches, failure to state a claim because an independent cause of action for constructive trust does not exist, statutes of limitations, failure to state a claim for declaratory relief, express contract and release, personal contract, unclean hands and res judicata.
      The plaintiffs filed a reply denying the special defenses to the extent required and otherwise noting that the defenses contained legal conclusions and arguments to which the plaintiffs were not required to respond.

       General Statutes § 47-33c provides: “Any person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest, subject only to the matters stated in section 47-33d. A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction, of record not less than forty years at the time the marketability is to be determined, which conveyance or other title transaction purports to create such interest in land, or which contains language sufficient to transfer the interest, either in (1) the person claiming that interest, or (2) some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest; with nothing appearing of record, in either case, purporting to divest the claimant of the purported interest.”

       General Statutes § 47-33e provides: “Subject to the matters stated in section 47-33d, such marketable record title shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title. All such interests, claims or charges, however denominated, whether legal or equitable, present or future, whether those interests, claims or charges are asserted by a person sui juris or under a disability, whether that person is within or without the state, whether that person is natural or corporate, or is private or governmental, are hereby declared to be null and void.”

       The defendant also moved for summary judgment on his special defense of laches, which the trial court did not reach.

       The defendant also moved for summary judgment on Parker’s cross complaint. See footnote 5 of this opinion. Parker also opposed summary judgment by filing her own affidavit and making the “additional argument that the act is inapplicable in the present action because the probate certificate, which implements the [agreement], cannot serve as [Valentine’s] ‘root of title’ under the act.”
      Parker did not appeal separately from the judgment and the plaintiffs, in their appeal, do not raise this issue. We conclude that the trial court properly concluded that the probate certificate, in conjunction with the documents attendant to the probate of Louis’ estate, served as Valentine’s “ ‘root of title.’ ” See footnote 14 of this opinion.

       Louis’ children each signed the mutual distribution before a commissioner of the Superior Court. On that page to which each signer affixed his or her signature is the following significant statement: “To Have and to Hold, to each of the parties hereto, and his or her heirs and assigns forever, the property, real and personal, hereinbefore assigned to said parties respectively, so that neither of us, nor any one claiming under either of us shall hereafter have any claim, right or title, in or to the premises or property or any part hereof hereinbefore assigned to the others, but each of us is from the premises so assigned to the others, forever barred and secluded.”

       “It is fundamental jurisprudence that title to real estate vests immediately at death in a deceased’s heirs, or in devisees upon the admission of the will to probate. . . . The recording of a probate certificate of devise or descent is necessary only to perfect marketable title. That certificate furnishes evidence that the heir’s or devisee’s title is no longer in danger of being cut off by a probate sale to pay debts of the estate and also because it furnishes a record of who received the title.” (Citations omitted; internal quotation marks omitted.) Santa Fuel, Inc. v. Varga, 77 Conn. App. 474, 487, 823 A.2d 1249, cert. denied, 265 Conn. 907, 831 A.2d 251 (2003). “Such a probate certificate is not a muniment of title, however, but merely a guide or pointer for clarification of the record.” Cardillo v. Cardillo, 27 Conn. App. 208, 212, 605 A.2d 576 (1992). The act provides that “[t]he effective date of the root of title is the date on which it is recorded . . . .” General Statutes § 47-33b (e).
      In the present case, the probate certificate stated that Louis’ heirs “set forth” the farm to Valentine through the mutual distribution, which was “in writing, by them made, executed and acknowledged like deeds of land, which [division . . . becomes a valid distribution of [Louis’] estate.” Although the probate certificate itself is not a muniment of title, it guides the searcher to the probate record through which Valentine received title. We consider the date that the probate certificate was recorded, which is November 19, 1963, to be the effective date of Valentine’s root of title.

       General Statutes § 47-33c. See footnote 9 of this opinion.

       General Statutes § 47-33b (e) provides in relevant part: “ ‘Root of title’ means that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined. ...”

       General Statutes § 47-33e. See footnote 10 of this opinion.

       The land records reveal that when the plaintiffs commenced the present action, they recorded a lis pendens. During Valentine’s lifetime, he conveyed a portion of the farm. Neither of these recordings is relevant to the issues in the present appeal.

       The plaintiffs do not argue that their claim arises out of any interest or defect outlined in General Statutes § 47-33d.

       The trial court treated November 6, 1963, as the effective date of the root of title. It is immaterial to the analysis under these facts whether November 6,1963, or November 19,1963, is the effective date of Valentine’s root of title because it is clear from the pleadings that the alleged parol understanding or “complete agreement” arose prior to the probate proceedings that vested title to the property in Valentine.


author: LAVINE, J.

text:
    JP MORGAN CHASE BANK, N.A. v. ANN C. ZUBRETSKY ET AL.
    (AC 31573)
    Lavine, Robinson and West, Js.

      Argued March 23
    officially released July 12, 2011

      Gary J. Greene, with whom was S. Zaid Hassan, for the appellant (defendant).

      Michael G. Albano, for the appellee (defendant The Cadle Company).
   Opinion

LAVINE, J.

In this foreclosure action, the defendant Ann C. Zubretsky appeals from the judgment of the trial court denying her homestead exemption claim in which she sought to exempt $75,000 of the net proceeds from the voluntary sale of her home. On appeal, the defendant claims that the court erred in (1) not conducting an evidentiary hearing on her homestead exemption claim and (2) concluding that the homestead exemption is not available to protect the proceeds of a voluntary sale from a judgment hen creditor. We conclude that the trial court lacked subject matter jurisdiction to act on the defendant’s homestead exemption claim and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant mortgaged to the plaintiff, JP Morgan Chase Bank, N.A., real property located at 16 Chapman Drive in Westbrook (property). On April 24, 2009, the plaintiff initiated a foreclosure action on the property, claiming that the mortgage was in default. The plaintiff also named The Cadle Company (Cadle) as a defendant, alleging that Cadle could claim a subsequent interest in the property by virtue of two judgment hens on the property in the amounts of $33,333.13 and $120,175.25.

On May 23, 2009, the defendant entered into an agreement to sell the property for $585,000. On June 11, 2009, the defendant filed a homestead exemption claim seeking to exempt up to $75,000 of the balance of the proceeds from the sale of the property from Cache’s right of recovery. Cadle opposed the defendant’s homestead claim, arguing that the defendant, through a private sale, was seeking to invoke a safeguard afforded to a judgment debtor in a proceeding brought by a judgment creditor.

On July 2, 2009, the court denied the defendant’s homestead exemption claim. On July 14, 2009, the defendant filed a motion for articulation and reargument of the court’s July 2,2009 order. The court granted the defendant’s motion, and, on September 2, 2009, the court heard reargument on the defendant’s homestead exemption claim.

On September 9, 2009, the defendant sold the property and satisfied the two mortgages held by the plaintiff. To effectuate the sale of the property, Cadle agreed to release its two liens and entered into an escrow agreement with the defendant. After the defendant satisfied the mortgages, she had a balance of $85,522.91 from the proceeds of the sale, which was placed in escrow.

On September 16, 2009, the plaintiff withdrew the action as to all parties. On September 24, 2009, the court denied the defendant’s homestead exemption claim, concluding that the homestead exemption is inapplicable to voluntary sales and foreclosure of consensual liens. This appeal followed.

The defendant claims that the court erred in not conducting an evidentiary hearing on her homestead exemption claim and in concluding that the homestead exemption is not available to protect the proceeds of a voluntary sale from a judgment lien creditor. Before we address these issues on appeal, we must first determine whether the court had subject matter jurisdiction to address the defendant’s homestead exemption claim on September 24, 2009.

The parties failed to address the issue of subject matter jurisdiction in their initial briefs to this court. We, sua sponte, ordered the parties to submit supplemental briefs addressing whether the trial court had subject matter jurisdiction to issue its September 24, 2009 judgment denying the defendant’s homestead exemption claim. After reviewing the arguments presented by the parties, we conclude that the trial court lacked subject matter jurisdiction to address the defendant’s claim.

“We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction. . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006).

After the court denied the defendant’s homestead exemption claim on July 2, 2009, the defendant filed a motion for articulation and reargument. On July 30, 2009, the court granted the motion. The court heard reargument on the defendant’s claim but before it issued a decision, the plaintiff withdrew the action. “Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket. . . . The court unless [the action] is restored to the docket cannot proceed with it further . . . .” (Citation omitted; internal quotation marks omitted.) Travelers Property Casualty Co. of America v. Twine, 120 Conn. App. 823, 827, 993 A.2d 470 (2010). Once the plaintiff withdrew the action, the court no longer had subject matter jurisdiction to issue a decision as to the defendant’s claim.

The defendant argues that the court had subject matter jurisdiction on September 24, 2009, because, before the plaintiff withdrew the action, both she and Cadle requested that the court retain jurisdiction to rule on her homestead exemption claim. Even if motivated by a desire to resolve the dispute, the court did not have the authority to grant this request. “[T]he parties to an action cannot confer subject matter jurisdiction on the court by their consent, silence, waiver or private agreement.” (Internal quotation marks omitted.) Lowe v. Lowe, 47 Conn. App. 354, 358, 704 A.2d 236 (1997).

The judgment is reversed and the case is remanded with direction to dismiss the matter for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       Connecticut’s homestead exemption is codified at General Statutes § 52-352b (t). Section 52-352b identifies assets that are exempt from posljudgment procedures. Subsection (t) exempts “[t]he homestead of the exemptioner to the value of seventy-five thousand dollars, or, in the case of a money judgment arising out of services provided at a hospital, to the value of one hundred twenty-five thousand dollars, provided value shall be determined as the fair market value of the real property less the amount of any statutory or consensual lien which encumbers it. . . .” General Statutes § 52-352b (t).

       Specifically, the plaintiff claimed an interest in the property by virtue of a mortgage in the amount of $194,250, which was recorded on the West-brook land records on April 10, 2001, and a second mortgage in the amount of $261,500, which was recorded on June 24, 2004.