author: LAVERY, J.

text:
    JOSEPHINE GAIDA ET AL. v. PLANNING AND ZONING COMMISSION OF THE CITY OF SHELTON
    (AC 28421)
    Flynn, C. J., and Lavery and West, Js.

      Argued November 13, 2007
    officially released May 27, 2008

      Ian Angus Cole, for the appellants (plaintiffs).

      Thomas J. Welch, with whom, on the brief, was John H. Welch, Jr., for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiffs, Josephine Gaida and Jack Gaida, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the planning and zoning commission of the city of Shelton (commission), approving an amendment to the zoning map that changed the zone of the plaintiffs’ property from a primarily light industrial zone (LA-2) with a small portion in a residential zone (R-l) to an entirely residential zone. On appeal, the plaintiffs claim that the court improperly concluded that (1) notice of the rescheduled public hearing was not required to conform to the provisions of General Statutes § 8-7d (a) and (2) the alteration of the zoning scheme did not constitute impermissible spot zoning. We conclude that notice was proper but that the map amendment was indeed spot zoning and, accordingly, reverse the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiffs own real property in Shelton designated as 405 Long Hill Avenue. The property is located between Route 8 and Long Hill Avenue, two roads that run approximately parallel to each other. The overall zoning scheme of the area is a mixture of commercial, light industrial and residential. Until April, 2004, the R-1 zone was set at a distance of about 200 feet west of, and parallel to, Long Hill Avenue, without regard for property lines. From this boundary line to Route 8, the area was zoned IA-2 light industrial. Most of the plaintiffs’ property lay in the IA-2 zone; however, the only road access available to the property was through a forty foot wide access strip in the R-l zoned area from Long Hill Avenue. The Shelton zoning regulations prevent a property owner from accessing his or her industrially zoned property by way of a residentially zoned property.

On February 13, 2003, the Shelton zoning enforcement officer served the plaintiffs with an order to cease and desist “any removal, filling, or grading of rock or dirt at 405 Long Hill Avenue” and to “remove all commercial related equipment” because “the entire property is located in a R-l zone.” The plaintiffs filed an application for a variance of the zoning regulations so that they could access their property for a use permitted in an IA-2 zone. At about the same time, the commission initiated proceedings to change the zone designation of the subject property so that it would he entirely within an R-l zone.

The commission scheduled a public hearing for January 27, 2004, to consider the proposed amendment to the zoning map. The commission published notice of the public hearing on January 15, 2004, and again on January 22, 2004, in the Connecticut Post. The meeting was cancelled due to inclement weather, and the hearing was rescheduled on January 27, 2004, for February 5, 2004. The commission published notice of this meeting in the Connecticut Post on January 29, 2004, and February 3,2004. The public hearing was held on February 5, 2004, and continued to February 10, 2004. On April 13, 2004, the commission adopted a resolution that approved the proposed zone change affecting the plaintiffs’ property. Notice of this decision was published on April 22, 2004.

The plaintiffs appealed from the commission’s decision to the Superior Court, which dismissed the appeal. The court first determined that notice of the public hearing on February 5, 2004, was proper and adequate, concluding that the commission was exempt from the notice requirements of § 8-7d (a) because the zoning change was a self-initiated action. The court then rejected the plaintiffs’ claims that the zone change was spot zoning. It found that the first prong of the test to identify spot zoning, namely, the size of the area of land affected by the zone change; see Campion v. Board of Aldermen, 85 Conn. App. 820, 849 n.21, 859 A.2d 586 (2004), rev’d on other grounds, 278 Conn. 500, 899 A.2d 542 (2006); was met, but it also found that substantial evidence in the record supported the commission’s decision that the zone change was in accordance with the zoning regulations and comprehensive plan. See id.

On August 2, 2005, the plaintiffs moved to open the judgment and to reargue. The motion to reargue was granted, but the motion to open was denied and the dismissal of the appeal was reaffirmed. The court was persuaded by the commission’s argument that notice was proper in this case pursuant to the plain language of General Statutes §§ 8-3 and 8-7d, which explicitly exempts the commission from the notice requirements. Following that decision, the plaintiffs filed the present appeal after this court granted their petition for certification to appeal. Additional facts will be set forth as necessary.

I

The plaintiffs claim that the court improperly held that the commission had satisfied the notice requirement pursuant to §§ 8-3 and 8-7d. The commission argues that § 8-7d (d) is plain and unambiguous. Although we agree with the court’s conclusion that the notice was adequate, we do so for different reasons.

“Whether the notice published by the commission complied with the statutory requirements is a mixed question of fact and law.” Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 72, 912 A.2d 1008 (2007). In the present case, there is no dispute as to the facts found by the court on this issue. Rather, the dispute arises from the court’s application of § 8-7d (d) to those facts. Accordingly, our review of this issue of law is plenary. See Bridgeport v. Plan & Zoning Commission, 277 Conn. 268, 275, 890 A.2d 540 (2006); see also Carr v. Planning & Zoning Commission, 273 Conn. 573, 588, 872 A.2d 385 (2005).

The following additional facts and procedural history are necessary to our resolution of the plaintiffs’ claim. The plaintiffs do not make a claim that notice was improper for the originally scheduled meeting on January 27, 2004. The plaintiffs also do not raise any claim in connection with the continuation of the meeting to February 10, 2004. The plaintiffs’ sole claim on this issue is addressed to the hearing held on February 5, 2004, because the publication of notice was not within the intervals prescribed by § 8-7d (a). The court ruled for the commission both in its original memorandum of decision and in its subsequent memorandum of decision on the plaintiffs’ motion to open and to reargue. On both occasions, the court relied on § 8-7d (d) for its conclusion that no notice is required when a zoning commission initiates its own action to amend the zoning map. Specifically, in the second memorandum of decision, the court focused on the plain language of § 8-7d (d).

We begin with a discussion of the court’s reasoning. Well established principles govern our construction of § 8-7d. “It is a basic tenet of statutory construction that the intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole. State v. Breton, 235 Conn. 206, 226, 663 A.2d 1026 (1995); see also Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn. 127, 136, 827 A.2d 659 (2003) (in ascertaining statutory meaning, we look to, inter alia, relationship of statute to other legislation); Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102 (2002) (statutes relating to same subject matter are construed so as to create rational, coherent and consistent body of law).” (Internal quotation marks omitted.) State v. Wilcox, 105 Conn. App. 24, 31, 936 A.2d 295 (2007), cert. denied, 286 Conn. 909, 944 A.2d 981 (2008). “[U]nder General Statutes § l-2z, we cannot look beyond the text of the statutory language if that language, as applied to the facts of the case, is plain and unambiguous and does not yield a bizarre or unworkable result.” (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 105 Conn. App. 124, 132, 936 A.2d 716 (2008). Further, “[w]hen changes have been introduced by amendment to a statute, the presumed change does not go any further than that which is expressly declared or necessarily implied. . . . We cannot impute to the legislature ... in the absence of an intent clearly expressed in the act, [an intent] to enact [a statute] which involves a departure from existing statutory law.” (Citation omitted; internal quotation marks omitted.) Iovieno v. Commissioner of Correction, 242 Conn. 689, 699-700, 699 A.2d 1003 (1997).

As discussed in Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), overruled in part by Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 446 n.7, 623 A.2d 1007 (1993), prior to 1977, “General Statutes § 8-7d did no more than provide that ‘in all matters wherein a formal application, request or approval must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals, the date of receipt of such application’ would be measured from the agency’s next regularly scheduled meeting or thirty-five days from the application date, whichever was sooner.” Id., 690; see Public Acts 1977, No. 77-450, § 4. With the passage of No. 77-450 of the 1977 Public Acts, § 8-7d (d) was added to the statute and provided an exception to the time limits of subsection (a). “This exception recognizes that, where a zoning agency is considering adoption of or change in a zoning regulation or boundary, it is acting in its legislative capacity and should not, therefore, be restricted by the mandatory time limits of General Statutes § 8-7d (a). This exception is in turn limited, however, to the situation in which the proposal for legislative adoption or change is ‘initiated by . . . [the] zoning or plan or zoning and planning commission.’ ” Carr v. Woolwich, supra, 698; see R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 2:3, p. 30.

Number 03-177 of the 2003 Public Acts, titled, “An Act Concerning Consistency in Municipal Land Use Administrative Review Processes,” altered the statutory scheme by placing the notice requirements that formerly had been part of § 8-3 (a) into § 8-7d (a). No changes were made, however, to § 8-7d (d). Representative Stephen Fontana asserted that the “bill standardizes the [time frames] that local land use boards and commissions must use to act upon applications and the notification requirements that they must follow for hearings that they hold to review those applications. This bill does not, however, change the substantive jurisdiction or responsibilities of any of these local agencies.” 46 H.R. Proc., Pt. 11, 2003 Sess., pp. 3588-89. There is further comment that the section in the public act relevant to § 8-7d “creates a standardized process itself.” Id., p. 3589.

There is no expressed intent in the 2003 act itself or the legislative history that there is a departure from then existing statutory law. See Iovieno v. Commissioner of Correction, supra, 242 Conn. 699-700. The application of this subsection to the entirety of § 8-7d (a) leads to a bizarre and unworkable result never anticipated by the legislature. Adopting the court’s interpretation results in a statutoiy scheme that creates overbroad powers in zoning boards and commissions, allowing them to alter the zoning maps without notice and thereby hindering any interested parties’ ability to be heard on the proposed changes. In reviewing chapter 124 of the General Statutes, which encompasses the zoning statutes, we are persuaded that the legislature intended that a public hearing be held that affords interested parties the opportunity to be heard on a proposed change. See General Statutes § 8-3 (a) and (b).

We are further convinced of this interpretation from our review of recent legislative history. In addressing Public Acts 2006, No. 06-80, which encompass the most recent alterations to § 8-7d, both the House of Representatives and the Senate discussed the increased notice requirements that were needed when a land use body initiates a zone change or subdivision regulation change. See 49 S. Proc., Pt. 8, 2006 Sess., pp. 2580-85; 49 H.R. Proc., Pt. 7, 2006 Sess., pp. 2206-15, 2257-88. In discussing increased notice, Representative Lewis J. Wallace, Jr., remarked that “when a municipality initiates a change in its land use regulations, and typically, that’s either done when a municipality implements a plan of conservation and development, or some citywide zoning change . . . [a\t this point, a municipality is only required to put a legal notice in the newspaper.” (Emphasis added.) 49 H.R. Proc., Pt. 7, 2006 Sess., p. 2207. He further commented that the new provisions in § 8-7d (g) are “secondary to the legal notice that the municipality has to print in the newspaper of general circulation . . . .” Id., p. 2263. The transcript of the proceedings from the Senate echoes this legislative view that notice was required in the form of a newspaper advertisement. Senator Eric D. Coleman, in making his argument for the increased notice, stated that “the current notice requirements, when changes are initiated by a land use body, which involve newspaper publication, do not constitute effective notice to many of the residents of the town . . . .” 49 S. Proc., Pt. 8, 2006 Sess., p. 2582. This clearly shows that it was never the intent of the legislature to dispense with the notice requirement on a land use body’s initiation of zoning changes but that instead it interpreted the statute as requiring notice in the form that the commission used in this case—through a newspaper advertisement. Therefore, the court’s interpretation of this statute would clearly lead to a bizarre and unintended result.

Nevertheless, albeit for different reasons, the court correctly concluded that the notice in this case was adequate. The holding in Roncari Industries, Inc., is controlling in this case. Our Supreme Court concluded that the language now encompassed in § 8-7d (a) “does not require the publication of additional notices when the public hearing is continued or rescheduled; the statute is silent with regard to notice when the hearing is postponed.” Roncari Industries, Inc. v. Planning & Zoning Commission, supra, 281 Conn. 73.

Our courts “repeatedly have held that the fundamental reason for the requirement of notice [in § 8-7d] is to advise all affected parties of the opportunity to be heard and to be apprised of the relief sought. . . . Adequate notice will enable parties having an interest to know what is projected and, thus, to have an opportunity to protest. . . . Furthermore, it is well recognized that [t]he propose of [the procedural requirements of § 8-7d (a)] is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing.” (Citations omitted, internal quotation marks omitted.) Id., 73-74.

Because it was undisputed that notice properly was published for the initial public hearing, those notices sufficiently apprised any interested party that a public hearing on the zoning amendment was to be held and enabled interested individuals to prepare for and be present at that meeting. Furthermore, the public hearing on this issue was rescheduled on the same day the original meeting was cancelled. The commission thereafter published notice in the Connecticut Post that it had rescheduled the public hearing until February 5, 2004. This was not required to alert interested parties of the rescheduling and was not defective under §§ 8-3 (a) or 8-7 (d).

II

The plaintiffs next claim that the zoning map change initiated by the commission was spot zoning and therefore violated the police powers of the town and the uniformity requirements of General Statutes § 8-2. The commission argues that the court correctly ruled that there was substantial evidence in the record to support its position that the zone change was in accord with the comprehensive town zoning plan. We agree with the plaintiffs.

“The standard of review according to which courts must analyze challenges to legislative decisions of local zoning authorities is well settled. In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the [zoning authority] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. ” (Citations omitted; internal quotation marks omitted.) Konigsberg v. Board of Aldermen, 283 Conn. 553, 582, 930 A.2d 1 (2007).

Spot zoning is “impermissible in this state.” Campion v. Board of Aldermen, supra, 85 Conn. App. 849-50, 859; see also Momingside Assn. v. Planning & Zoning Board, 162 Conn. 154, 161, 292 A.2d 893 (1972). Spot zoning had been defined as “the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood. . . . Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. . . . The vice of spot zoning lies in the fact that it singles out for special treatment a lot or a small area in a way that does not further such a [comprehensive] plan.” (Citation omitted; internal quotation marks omitted.) Campion v. Board of Aldermen, supra, 849 n.21. “A ‘comprehensive plan’ means a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into districts according to the present and potential use of the properties. . . . Action by a zoning authority which gives to a single lot or a small area privileges which are not extended to other land in the vicinity is in general against sound public policy and obnoxious to the law.” (Citations omitted.) Bartram v. Zoning Commission, 136 Conn. 89, 93, 68 A.2d 308 (1949). “The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike . . . .” (Internal quotation marks omitted.) Bartsch v. Planning & Zoning Commission, 6 Conn. App. 686, 689, 506 A.2d 1093 (1986). “Although we recognize that not every extension of an existing district is, ipso facto, a compliance with a comprehensive plan and consequently not spot zoning . . . [t]he ultimate test is whether, upon the facts and circumstances before the zoning authority, the extension is, primarily, an orderly development of an existing district which serves a public need in a reasonable way or whether it is an attempt to accommodate an individual property owner.” (Internal quotation marks omitted.) Konigsberg v. Board of Aldermen, supra, 283 Conn. 592-93, quoting Wade v. Town Plan & Zoning, 145 Conn. 592, 596, 145 A.2d 597 (1958).

Using this two-pronged test, the court concluded that the first prong “is arguably met” but that substantial evidence in the record supported the commission’s decision that this zone change was in accord with the comprehensive plan. The first prong, that the area must be small in size, is more than arguably met through admissions by the commission and the facts on the record. The planning and zoning administrator twice stated that this area was “small” but an area that needed to be addressed after it had been recognized by his staff that the zoning boundaries and the property lines did not conform. Further, the record shows that this area consisted of six lots, one that was the lot in issue, two of the lots backed up to the industrial portion of the plaintiffs’ land, and the remaining three lots were bisected by the zoning boundary. The plaintiffs’ lot was uniquely situated because the primary portion of their lot was in the IA-2 zone, having only a throughway through the residential zone.

The record also reveals that this zoning amendment was initiated by the town at about the time that the plaintiffs filed their appeal challenging the cease and desist order because even though the order claimed that the property was within the R-l zone, it actually was primarily within the IA-2 zone. Further, the planning and zoning administrator noted in his presentation of the proposed change that, on the plaintiffs’ property, the town “had some legal billing” because the plaintiffs claimed that they had a nonresidentiai use on their land, which the planning and zoning department believed they did not. The commission stated that its reason for approving the zone change was to have the zoning scheme in line with property boundaries. There was a comment by the planning and zoning administrator that when the zoning maps were first drawn forty years ago, no one knew where the property lines were, so the lines were set parallel to the streets. He stated that had it been known where the property lines fell, the lines would have been put along the property’s boundaries.

A review of the record, however, shows that the stated rationale for the amendment is not legally supported. The record clearly shows that the zone change leaves more properties in that area unchanged than changed. These unchanged properties are similarly situated, in that part of the property is in the residential zone and the rest is in the light industrial zone. The properties left unaffected also are along Long Hill Avenue directly to the northeast and south of the property affected by the zoning amendment. A similar zoning scheme exists in a number of the other areas shown on the zoning map, where the zoning boundaries and the property lines do not match up, which the commission did not seek to alter when it was altering this zoning scheme. There also was no policy or evidence presented that there would be an effort undertaken by the commission so that all of the zoning boundaries would conform to property lines or that there was a public need for the change. This goes against the policy of uniformity and § 8-2. Further, because the overall zoning scheme of the area is a mixture of commercial, light industrial and residential properties, removing the light industrial zone from this portion of the area is not advancing the zoning scheme. The record does not reasonably support the actions of the commission, and the amendment constituted spot zoning and was, therefore, illegal.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal.

In this opinion the other judges concurred.

       General Statutes § 8-7d provides in relevant part: “(a) In all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission . . . [njotice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing. . . .
      “(d) The provisions of subsection (a) of this section shall not apply to any action initiated by any zoning commission, planning commission or planning and zoning commission regarding adoption or change of any zoning regulation or boundary or any subdivision regulation. . . .”

       General Statutes § 8-3 (a) provides in relevant part: “Such zoning commission shall provide for the manner in which regulations under section 8-2 or 8-2j and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto, held by a majority of the members of the zoning commission or a committee thereof appointed for that purpose consisting of at least five members. Such hearing shall be held in accordance with the provisions of section 8-7d. . . .”

       Public Acts 2006, No. 06-80, amended the notice provisions of § 8-7(d) to provide in relevant part: “(g) (1) Any zoning commission, planning commission or planning and zoning commission initiating any action regarding adoption or change of any zoning regulation or boundary or any subdivision regulation or regarding the preparation or amendment of the plan of conservation and development shall provide notice of such action in accordance with this subsection in addition to any other notice required under any provision of the general statutes.
      “(2) A zoning commission, planning commission or planning and zoning commission shall establish a public notice registry of landowners, electors and nonprofit organizations qualified as tax-exempt organizations under the provisions of Section 501 (c) of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, requesting notice under this subsection. Each municipality shall notify residents of such registry and the process for registering for notice under this subsection. The zoning commission, planning commission or planning and zoning commission shall place on such registry the names and addresses of any such landowner, elector or organization upon written request of such landowner, elector or organization. A landowner, elector or organization may request such notice be sent by mail or by electronic mail. The name and address of a landowner, elector or organization who requests to be placed on the public notice registry shall remain on such registry for a period of three years after the establishment of such registry. Thereafter any land owner, elector or organization may request to be placed on such registry for additional periods of three years.
      “(3) Any notice under this subsection shall be mailed to all landowners, electors and organizations in the public notice registry not later than seven days prior to the commencement of the public hearing on such action, if feasible. Such notice may be mailed by electronic mail if the zoning commission, planning commission or planning and zoning commission or the municipality has an electronic mail service provider.
      “(4) No zoning commission, planning commission or planning and zoning commission shall be civilly liable to any landowner, elector or nonprofit organization requesting notice under this subsection with respect to any act done or omitted in good faith or through a bona fide error that occurred despite reasonable procedures maintained by the zoning commission, planning commission or planning and zoning commission to prevent such errors in complying with the provisions of this section.”

       See also Representative Wallace’s statement that “the municipality is still required to put the legal notice in the newspaper.” (Emphasis added.) 49 H.R. Proc., Pt. 7, 2006 Sess., p. 2214.

       The public hearing at issue in Roncari Industries, Inc., was scheduled for 2001, prior to Public Acts 2003, No. 03-177, which deleted the notice requirement in § 8-3 (a) and placed a substantially similar notice requirement in § 8-7d (a).

       The defendant’s notice of cancellation and notice of special meeting were both dated January 27, 2004, as evidenced in exhibits N and O of the second supplemental return of record, filed December 9, 2004.

       Our Supreme Court has reviewed land use body initiated zoning changes for spot zoning in Pierrepont v. Zoning Commission, 154 Conn. 463, 226 A.2d 659 (1967), Metropolitan Homes, Inc. v. Town Plan & Zoning Commission, 152 Conn. 7, 202 A.2d 241 (1964), and Village Builders, Inc. v. Town Plan & Zoning Commission, 145 Conn. 218, 140 A.2d 477 (1958). Although spot zoning was not found in these cases, the case law does not preclude a finding of spot zoning when a land use body rather than an individual applicant initiates the zone change. Other jurisdictions have found an impropriety to exist in situations in which the rezoning of a small parcel of land disadvantages the owner of that land. See Caputo v. Board of Appeals, 331 Mass. 547, 120 N.E.2d 753 (1954); Lowe v. Missoula, 165 Mont. 38, 525 P.2d 551 (1974).

       General Statutes § 8-2 (a) provides in relevant part: “The zoning commission of each city, town or borough . . . may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and in adopting such regulations the commission shall consider the plan of conservation and development prepared under section 8-23. Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. ...”


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    BOARD OF EDUCATION OF THE TOWN OF PLAINFIELD v. LOCAL R1-126, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
    (AC 28804)
    Bishop, Beach and Berdon, Js.

      Argued March 17
    officially released May 27, 2008

      William R. Connon, with whom, on the brief, was Brooke H. Sherer, for the appellant (plaintiff).

      Scott C. Jelescheff regional counsel, with whom, on the brief, was Michael J. Brady, staff attorney, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, the board of education of the town of Plainfield (board), appeals from the judgment of the trial court denying its application to vacate an arbitration award in favor of the defendant, Local Rl126, National Association of Government Employees (union). The board claims that the court improperly denied its application to vacate the arbitration award because the arbitrators had exceeded their powers or so imperfectly executed them that (1) a mutual, definite and final award on the subject matter was not made and (2) an award was issued that modified the provisions of the agreement. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our discussion. The union is the exclusive bargaining representative of the custodial and maintenance employees of the board. The board and the union were parties to a collective bargaining agreement covering the period from July 1, 2005, to June 30, 2008. Article XXI, paragraphs five and six, of that agreement provide: “Absences of up to four (4) weeks, to the extent the Board elects to fill in for the absent employee, will be offered to full time bargaining unit members on an overtime basis. If, after four (4) weeks, the employer decides to hire a new bargaining unit employee, once the individual on the extended absence returns to work, the individual hired as a fill-in will be the junior employee for purposes of promotion or layoff. Nothing herein shall prevent the Board from assigning a part time employee to do work at a location that has an absent full time employee.”

In August, 2004, the board’s director of buildings and grounds issued a directive to lead custodians to use part-time employees to cover the shifts of absent full-time employees. Following the directive, open shifts of absent full-time employees were assigned to part-time employees on a straight time basis. The union filed a grievance on October 13, 2004, alleging a violation of article XXI of the collective bargaining agreement. After intial steps in the grievance procedure provided for in the agreement were unsuccessful in resolving the dispute, the union requested arbitration. The arbitrators framed the following issue for arbitration: “Did [the board] violate [a]rticle XXI of the collective bargaining agreement when it assigned part-time employees to perform work at schools which would have been performed by absent full-time employees without first offering that work on an overtime basis to full-time employees? If so, what shall the remedy be?”

A hearing was held on August 31, 2006. On December 28, 2006, the arbitrators issued an award finding that the board had violated article XXI. As a remedy, the award provided that “[t]he [b]oard . . . shall apply the language of [a]rticle XXI pertinent to filling positions on an overtime basis to determine the [moneys] to be given bargaining unit members who were wrongfully denied the right to fill the absences of full-time employees up to a term of four (4) weeks. The period of time for the purpose of damages shall be from the filing of the grievance until a successor contract to the July 1, 2002 to June 30,2005 contract was signed by the parties. The [moneys] shall be paid by the [b]oard in each instance of wrongful absentee coverage by part-time employees for four (4) hours at the applicable rates ... as the part-time employees only filled in for four (4) hours for the absent full-time employees.”

The board filed in Superior Court an application to vacate the award dated January 26, 2007, pursuant to General Statutes § 52-418. The board alleged that the award both impermissibly modified the agreement and was executed imperfectly such that it was not mutual, final and definite. The court held a hearing on March 26,2007, at which the board called Mary Conway, superintendent of the Plainfield school district, as a witness. On April 25, 2007, the court issued a memorandum of decision denying the board’s application. The court stated that the board has claimed that it does “not have the information necessary to implement the award. ... If this information is indeed unavailable, and the superintendent so testified at the hearing, then there may be future disputes about the payments due. This is a far different matter from an arbitration which orders future negotiation. This arbitration award is final.” (Citation omitted.) This appeal followed.

Before reaching the claims on appeal, we acknowledge that “the policy behind arbitration compels a deferential standard of review of arbitration awards. [T]he law in this state takes a strongly affirmative view of consensual arbitration. . . . Arbitration is a favored method to prevent litigation, promote tranquility and expedite the equitable settlement of disputes. ... As a consequence of our approval of arbitral proceedings, our courts generally have deferred to the award that the arbitrator found to be appropriate. . . . The scope of review for arbitration awards is exceedingly narrow. . . . Additionally, every reasonable inference is to be made in favor of the arbitral award and of the arbitrator’s decisions. . . .

“Despite the wide berth given to arbitrators and their powers of dispute resolution, courts recognize three grounds for vacating arbitration awards. ... As a routine matter, courts review de novo the question of whether any of those exceptions apply to a given award. . . . The first ground for vacating an award is when the arbitrator has ruled on the constitutionality of a statute. . . . The second acknowledged ground is when the award violates clear public policy. . . . Those grounds for vacatur are denominated as common-law grounds and are deemed to be independent sources of the power of judicial review. . . . The third recognized ground for vacating an arbitration award is that the award contravenes one or more of the statutory proscriptions of ... § 52-418.” (Internal quotation marks omitted.) International Brotherhood of Police Officers, Local 361 v. New Milford, 81 Conn. App. 726, 729-30, 841 A.2d 706 (2004).

In this case, the board applied to vacate the award pursuant to § 52-418 (a), which provides in relevant part that “[u]pon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made.” General Statutes § 52-418 (a) (4).

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . . Furthermore, in applying this general rule of deference to an arbitrator’s award, [ejvery reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings.” (Citation omitted; internal quotation marks omitted.) Brantley v. New Haven, 100 Conn. App. 853, 864-65, 920 A.2d 331 (2007); see Rocky Hill Teachers’ Assn. v. Board of Education, 72 Conn. App. 274, 278, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002).

I

The board first claims that the court improperly denied its application to vacate the award because the award was not final and definite. Specifically, the board contends that the award is indefinite because the board does not have the information and records necessary to implement it, thereby rendering “the calculation of the award open to negotiation” and, further, that the time period for the purposes of damages stated in the award cannot be ascertained. We disagree.

“In assessing whether an arbitrator has exceeded his or her powers, the basic test has become the comparison of the award with the submission to determine whether the award conforms to the submission. . . . Conformity with § 52-418 also requires that the award meet the minimum requirements of being mutual, final and definite. [A]n award must be final as to the matters submitted so that the rights and obligations of the parties maybe definitely fixed.” (Citations omitted; internal quotation marks omitted.) Rocky Hill Teachers’ Assn. v. Board of Education, supra, 72 Conn. App. 280.

In support of its claim that the award is indefinite, the board cites State v. AFSCME, Council 4, Local 1565, 49 Conn. App. 33, 713 A.2d 869 (1998), aff'd, 249 Conn. 474, 732 A.2d 762 (1999), said Rocky Hill Teachers’Assn. v. Board of Education, supra, 72 Conn. App. 274, which hold that when future negotiations are required by an arbitration award, that award is indefinite and fails to conform to the requirements of § 52-418. In AFSCME, Council 4, Local 1565, the aggrieved party was a correction officer who wrongly had been dismissed from her job. The arbitration award ordered the grievant to be reinstated at either the Niantic correctional facility or at an alternate facility that would be agreeable to all parties. This court concluded that the language of the award was indefinite because it did not specify an exact location for placement and, thus, left the location for the placement “open to negotiation,” and, therefore, it “cannot be said to fix definitively the rights and obligations of the parties.” State v. AFSCME, Council 4, Local 1565, supra, 37.

In Rocky Hill Teachers’Assn., the issue was the calculation of employee contributions for health and dental care premiums. In the award, the arbitrator ordered the parties “to negotiate the issue of whether to include the dental costs within the formula to determine teacher contributions toward medical/health premiums. In the event that said negotiations do not result in an agreement between the parties within thirty (30) days, I order the parties to submit this issue to binding arbitration . . . .” (Citation omitted; internal quotation marks omitted.) Rocky Hill Teachers’Assn. v. Board of Education, supra, 72 Conn. App. 277. This court concluded in that case, as in AFSCME, Council 4, Local 1565, that because the award similarly required further negotiation, it thereby failed to fix the rights and obligations of the parties and was not final under § 52-418. Id., 280-81.

The cases on which the board relies are distinguishable from the present circumstances. The board concedes that the language of the award in this case does not require the parties to engage in future negotiation, as was the situation in both AFSCME, Council 4, Local 1565, and Rocky Hill Teachers’Assn. Rather, the board argues that the award is “open to further negotiation” because the board does not possess the employment records required to determine payments under the award and because the damages period is unascertainable. In short, it argues that any payments that it would make to the bargaining unit employees pursuant to the award would be highly imprecise. As a result of its inability to calculate damages, the board contends that the award in this matter impermissibly leaves the remedy to the judgment of one of the parties and open to the possibility of further negotiation or litigation. We disagree with the board’s equating its case, which may involve further negotiation, with those two cases, in which further negotiation was impermissibly required as part and parcel of the awards rendered in those cases.

The circumstances of this case are more akin to those in State v. Connecticut Employees Union Independent, Inc., 46 Conn. App. 520, 699 A.2d 307, cert. denied, 243 Conn. 948, 704 A.2d 801 (1997), in which the arbitrator found that the state employer had violated its overtime equalization obligation under its collective bargaining agreement with the defendant employees union. Id., 521-22. The state applied to vacate the award alleging, inter alia, that “[t]he award orders the state to provide additional overtime opportunities ... to those employees who were given fewer overtime opportunities . . . but does not identify those employees or a means by which the state can determine who those individuals are.” (Internal quotation marks omitted.) Id., 522. In the course of concluding that the award was sufficiently final and definite, and that the trial court improperly had granted the state’s application to vacate, this court stated that “the trial court improperly substituted its judgment for that of the arbitrator because of a perceived lack of evidence and the imprecise nature of the award.” Id., 525. The decision also noted that an arbitrator is not necessarily required to present a detailed explanation as to how the grievant should be made whole; if he or she provides sufficient guidance for the parties to satisfy the award, it will be considered final and definite. Id., 524-25; see also State v. Connecticut Employees Union Independent, Inc., 33 Conn. App. 737, 739, 742, 638 A.2d 619 (1994) (holding that arbitration award stating that “[t]he [s]tate shall . . . make [the grievant] whole for any lost wages and benefits which he incurred as a result of his layoff,” although not detailed, provided sufficient guidance for parties to satisfy award).

We conclude that this court’s reasoning in State v. Connecticut Employees Union Independent, Inc., supra, 46 Conn. App. 520, applies to the present circumstances. The award in the case at hand orders the board to pay full-time employees for missed overtime opportunities during a certain period of time; it thereby fixes the board’s obligation in relation to the union and provides the board sufficient guidance in how to fulfill that obligation. The board’s suggestion that the award is somehow indefinite and impermissibly “open to negotiation” because it claims it is unable to calculate damages misses the point. A party’s putative inability to implement an award does not necessarily compel the conclusion that the award in question either is indefinite or somehow fails to fix definitively the rights and obligations of the parties. The two issues are not necessarily related. Because, pursuant to § 52-418 (a) (4), this court has the power to order that an award be vacated only when the second of those issues is implicated, the trial court properly denied the board’s application to vacate the award.

II

The board next claims that the court improperly denied its application to vacate the award because the arbitrators exceeded their power by issuing an award that modified the provisions of the agreement. Specifically, the board argues that the award was inherently inconsistent with the underlying agreement in that it essentially deleted article XXI, paragraph six, from the agreement. That paragraph states that “[n]othing herein shall prevent the Board from assigning a part time employee to do work at a location that has an absent full time employee.” We disagree with the board’s assessment of the award.

“An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission. . . . [A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. . . .

“Merely because an arbitral decision is not based on the express terms of a collective bargaining agreement does not mean that it is not properly derived from the agreement. An arbitrator is entitled to take cognizance of contract principles and draw on them for guidance in construing an agreement. . . . Neither a misapplication of principles of contractual interpretation nor an erroneous interpretation of the agreement in question constitutes grounds for vacatur.” (Citations omitted; internal quotation marks omitted.) Local 391, Council 4, AFSCME v. Dept. of Correction, 76 Conn. App. 15, 18-19, 817 A.2d 1279 (2003).

The board argues that the arbitrators exceeded the scope of their powers when they ignored article XXI, paragraph six, of the collective bargaining agreement, and, instead, interpreted it in such a way as to prohibit part-time employees from performing their duties at a location that has an absent full-time employee. The board further argues that the implementation of the award as it stands will be inconsistent with the provisions of article XXI, paragraph six, and, further, will place the board “in the irrational position of being unable to assign custodial work to part-time employees in buildings where they are most needed.”

“Arbitration awards, however, are not to be invalidated merely because they rest on an allegedly erroneous interpretation or application of the relevant collective bargaining agreement.” Local 391, Council 4, AFSCME v. Dept. of Correction, supra, 76 Conn. App. 20. Our review of the record reveals that the arbitrators did not ignore article XXI, paragraph six, of the agreement, but rather offered a detailed interpretation of that paragraph within the context of the entire agreement, the grievance and the bargaining history between the parties as to that article. Specifically, the arbitrators noted that “it is not reasonable or logical to interpret the language of paragraph six of article XXI to take away all rights of the full-time employees to be assigned, during the first four (4) weeks of an absence, to do work of the absent full-time employee. Moreover, the language of paragraph five is specific, as it pertains to the absences of full-time employees and who is to perform their work during the first four (4) weeks of the absence. The language relied on in paragraph six by the board is of an all encompassing general nature. It cannot nullify the aforementioned specific language of paragraph five.”

In its memorandum of decision, the court found that the board’s “claim that article XXI was deleted and modified or was interpreted in an inherently inconsistent way is no more than a disagreement with the contract interpretation arrived at by the arbitration panel.” We agree. As we already have observed, “[n]either a misapplication of principles of contractual interpretation nor an erroneous interpretation of the agreement in question constitutes grounds for vacatur.” (Internal quotation marks omitted.) Local 391, Council 4, AFSCME v. Dept. of Correction, supra, 76 Conn. App. 19; see also New Haven v. AFSCME, Council 15, Local 530, 106 Conn. App. 691, 700-701, 943 A.2d 494 (2008). The court properly denied the board’s application to vacate the award.

The judgment is affirmed.

In this opinion the other judges concurred.

       The union requests in its appellate brief, among other things, that we grant it costs and attorney’s fees. We decline to review the union’s claim because it failed to file a cross appeal. See Practice Book § 61-8; Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 82 Conn. App. 18, 19 n.1, 842 A.2d 601 (2004).

       General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       A submission is restricted if the agreement conferring the arbitrator’s authority over the dispute limits the breadth of issues to be resolved, reserves explicit rights or conditions the award on court review. In the absence of any such restraints, it is unrestricted. Rocky Hill Teachers’ Assn. v. Board of Education, 72 Conn. App. 274, 278 n.6, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002). The board does not claim that the submission was restricted or that the award did not conform to the submission.

       The award requires damages to be calculated for the time period between October 31, 2004, and the date when “a successor contract to the July 1, 2002, to June 20, 2005 contract was signed by the parties.” The successor contract was signed on two different dates by the parties, April 12 and June 3, 2006, and, by its terms, was retroactive to July 1, 2005. This portion of the board’s claim, however, is not properly before us. The court, in its memorandum of decision, did not address any claim of ambiguity as to the damages period, and the board did not file a motion for articulation asking the court to rule on that issue. The board has failed to provide a record that is a proper predicate for appellate review. See Practice Book §§ 60-5 and 61-10; Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 82 n.9, 912 A.2d 1008 (2007). We therefore decline to review this portion of the board’s claim.


author: DiPENTIMA, J.

text:
    PETER H. ERTEL v. ARTHUR J. ROCQUE, JR., COMMISSIONER OF ENVIRONMENTAL PROTECTION, ET AL.
    (AC 27488)
    DiPentima, Gruendel and Robinson, Js.
    Argued January 15
    officially released May 27, 2008

      Peter H. Ertel, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      Robert J. Deichert, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

DiPENTIMA, J.

The plaintiff, Peter H. Ertel, appeals from the judgment of the trial court dismissing his action against the defendants, Arthur J. Rocque, Jr., commissioner of environmental protection; David K. Leff, deputy commissioner of environmental protection; and Rachel R. Towbin, an employee of the department of environmental protection (department), in their official and individual capacities. The plaintiff claims that the court (1) impermissibly relied on agency determinations in rendering its decision and (2) improperly held that he had no property interest in either the permit the defendants revoked or the dock the defendants ordered him to remove. We affirm the judgment of the trial court.

The following facts, spanning more than twenty-five years, underlie the present action. In 1981, the plaintiff applied to the department for a permit to extend a dock on property that he had purchased a short time earlier. The department issued the requested permit in June, 1982, and required the plaintiff to complete modification of the dock by June, 1985. In August, 1985, counsel for a neighboring landowner notified the department that the plaintiff had failed to comply with the terms of the permit. An employee of the department inspected the plaintiffs dock and found that it did not conform to the permit. The department objected to the change and, in a letter dated December 30,1985, gave the plaintiff until April 15, 1986, to make changes to the dock in order to avoid suspension or revocation of the permit. In March, 1986, the plaintiff applied for a new permit that contained modified construction plans, but one year later he withdrew the application. The plaintiff submitted an amended application for expanding his dock in November, 1987.

In 1988, after concluding that the plaintiff had violated General Statutes §§ 22a-359 through 22a-363 by, inter alia, continuously exceeding the scope of the permit and knowingly and wilfully failing to remove unauthorized structures in a regulated area, the department revoked his permit and ordered him to remove the existing structures. After a public hearing requested by the plaintiff, an adjudicator for the commissioner issued a final decision and order that affirmed the revocation notice.* The plaintiff appealed from the final decision to the Superior Court, which dismissed the appeal for lack of subject matter jurisdiction. The Appellate Court affirmed that decision. Ertel v. Carothers, 34 Conn. App. 18, 639 A.2d 1055 (1994).

After exhausting his appeals, the plaintiff brought a declaratory judgment action in the Superior Court seeking a clarification of the adjudicator’s final decision. The court granted the plaintiffs request because it concluded that there might be a conflict between two parts of the final decision. On May 8, 2000, the department issued a clarification ruling in which it concluded that there was no conflict in the decision, and it ordered the plaintiff to comply with the final decision.

In February, 2003, the plaintiff brought the subject action against the defendants in their official and individual capacities, seeking injunctive relief based on violations of his state and federal rights to equal protection, freedom of speech, freedom to petition for the redress of grievances and procedural and substantive due process, and of his right against the taking of his property without just compensation. On August 27, 2003, the court granted the department’s motion to dismiss the claims against Leff pursuant to the doctrine of judicial immunity. On January 21, 2005, the court granted the motion to dismiss as to the remaining defendants pursuant to the doctrine of sovereign immunity. This appeal followed.

We begin with the standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

I

The plaintiff claims that the court improperly took judicial notice of findings on which it granted the motion to dismiss. We disagree.

“A trial court’s determination as to whether to take judicial notice is essentially an evidentiary ruling, subject to an abuse of discretion standard of review. . . . Trial courts have broad discretion in determining the relevancy and admissibility of evidence.” (Internal quotation marks omitted.) Simes v. Simes, 95 Conn. App. 39, 51, 895 A.2d 852 (2006). An appellate court “is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly.” (Internal quotation marks omitted.) Daley v. McClintock, 267 Conn. 399, 404, 838 A.2d 972 (2004).

After a careful review of the record, we conclude that the plaintiff waived this claim because he did not object to the defendants’ request that the court take judicial notice. On June 14, 2004, Rocque and Towbin filed their motion to dismiss and their memorandum of law in support of the motion, which requested that the court take judicial notice of the findings made and decisions rendered in the extensive litigation between the parties. In their memorandum, Rocque and Towbin used those findings in both the recitation of the facts and in the analysis, and they attached the court and agency decisions to their memorandum as exhibits. The plaintiff filed a memorandum of law in opposition to the motion on July 20,2004, and did not raise an objection to the request for judicial notice. Rocque and Towbin filed their reply memorandum on August 30, 2004, more than four months before the court rendered its decision on the motion; in that memorandum, Rocque and Towbin drew attention to the fact that the plaintiff had not objected to their request. In its memorandum of decision on the motion to dismiss, the court noted that the plaintiff had not objected to the request. Moreover, at oral argument before this court, the plaintiff conceded that he had not objected to the request that the trial court take judicial notice of the decisions rendered by the courts. Therefore, given his notice of this evidentiary issue and his failure to object, the plaintiff cannot prevail on this claim.

II

The plaintiff also claims that the court improperly held that he had no property interest in either the permit the defendants revoked or the dock the defendants ordered him to remove. We disagree.

“[T]he doctrine of sovereign immunity is not available to the state as a defense to claims for just compensation arising under article first, § 11, of the Connecticut constitution. ... To survive a motion to dismiss on the ground of sovereign immunity, [however] a complaint must allege sufficient facts to support a finding of a taking of land in a constitutional sense.” (Citations omitted; internal quotation marks omitted.) Tamm v. Burns, 222 Conn. 280, 283-84, 610 A.2d 590 (1992). “As an analytic matter, before a court can review a landowner’s claim that he has been deprived of his property without just compensation, the court must first define the property interest that has allegedly been taken.” (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 253, 662 A.2d 1179 (1995).

In his complaint, the plaintiff attempted to assert a takings claim by alleging that “the defendants took [his] property without just compensation . . . .” The court concluded that “the plaintiff cannot have a property right in the dock that he was ordered to remove because the dock that the plaintiff constructed did not at any time conform to the permit.” The court then dismissed the claim because “[t]he plaintiff [had] not alleged that the property, minus the nonconforming dock, lack[ed] any economic value, nor [had] he alleged that he cannot apply for a new permit to build a dock that would conform to the current department criteria.”

On appeal, the plaintiff has not argued that his dock conformed to the permit. Instead, the plaintiff argues that the right to build a dock is a riparian right; Orange v. Resnick, 94 Conn. 573,109 A. 864 (1920); that riparian rights are property; Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S. Ct. 64, 116 L. Ed. 2d 39 (1991); and that docks are considered realty. Vallerie v. Stonington, 253 Conn. 371, 751 A.2d 829 (2000). He has not been denied, however, the right to build a dock; on the contrary, he was granted a permit to build a dock. The plaintiff simply chose to build a dock that did not conform to the permit, and he has not presented any authority that holds that a person has a property interest in a structure that was built in violation of a permit. We conclude that the plaintiffs takings claim cannot be maintained because he has not been able to demonstrate that a property interest was involved. Therefore, the defendants’ motion to dismiss on the ground of sovereign immunity was granted properly.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff raised three additional claims on appeal: (1) the court, improperly dismissed his selective enforcement claims; (2) the court improperly held that the complaint failed to make the requisite allegations for awarding a nonmonetary prospective injunction; and (3) the court improperly dismissed the claims against Leff. These claims were not briefed adequately because the plaintiff failed to analyze the cases he cited and the facts of the present case. Thus, we decline to review these additional claims. See Hartney v. Hartney, 83 Conn. App. 553, 566, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004).

       Under General Statutes § 22a-6 (e), any person aggrieved by an order of the commissioner of the department may request a hearing before the commissioner, which will be conducted in accordance with the procedures provided by chapter 54 of the General Statutes. Under General Statutes § 22a-2, the commissioner has the authority to designate an agent to exercise his authority for the administration or enforcement of any applicable statute, regulation, permit or order.

       We note that although the memorandum was titled “brief in opposition to motion for summary judgment,” the plaintiff discussed the merits of the defendants’ motion to dismiss. See State v. Taylor, 91 Conn. App. 788, 791-92, 882 A.2d 682 (court will look to substance of motion rather than form or label), cert. denied, 276 Conn. 928, 889 A.2d 819 (2005).

         Furthermore, we note that “[t]he trial court has the power to take judicial notice of court files of other actions between the same parties.” In re Mark C., 28 Conn. App. 247, 253, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992).

       The plaintiff did not assert that he had a property interest in the permit for the dock until this appeal, and, thus, we decline to address that claim. See In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949 C‘[W]e will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” [Internal quotation marks omitted.]), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).


text:
    MONICA ERVIN v. PASQUALE AVALLONE
    (AC 28515)
    Bishop, Beach and Berdon, Js.
    Argued March 17
    officially released May 27, 2008

      Monica Ervin, pro se, the appellant (plaintiff).

      Ralph S. Keen III, with whom, on the brief, was Scott H. Matney, for the appellee (defendant).
   Opinion

BEACH, J.

The pro se plaintiff, Monica Ervin, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Pasquale Avallone. The court found in favor of the defendant on the plaintiffs complaint and awarded the defendant damages on his counterclaim for the plaintiffs failure to pay rent. On appeal, the plaintiff claims that the court improperly found her liable to the defendant for past due “rent” because (1) the defendant lost his summary process action against the plaintiff concerning the same residential property lease and (2) the court erroneously found that she rented the premises at a different address. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. After receiving a notice to quit possession of 58 Mills Street, Bristol, the plaintiff tenant brought this action against the defendant landlord, alleging, inter alia, breach of contract, invasion of privacy, negligence, harassment and defamation of character. The defendant filed a counterclaim against the plaintiff seeking unpaid rent and payment for use and occupancy. A trial to the court was held on December 20 and 21, 2006, at which the court heard both this case and the summary process action that the defendant had brought against the plaintiff. On January 3, 2007, the court rendered judgment in favor of the defendant as to both the plaintiffs complaint and the defendant’s counterclaim, and ordered that the plaintiff pay the defendant $8000 in past due rent. The court noted that it “has carefully reviewed the allegations of the plaintiffs complaint and considered the evidence with regard thereto and assessed the credibility of the witnesses. The court concludes that the plaintiff has not sustained her burden of proof with regard to any of the causes of action alleged in the counts of her complaint.” As to the summary process action brought by the defendant, the court ruled in favor of the plaintiff, finding that she was excused from her obligation to pay rent during the time period at issue because the defendant had failed to install smoke detectors at the premises. The plaintiff thereafter appealed from the judgment in this action only.

The plaintiff first challenges the court’s conclusion that she owes the defendant rent, despite the fact that the defendant lost a summary process action against her. The court found, however, that the plaintiff resided at the premises in question and did not pay rent during the ten months following the summary process action. Moreover, we fail to see how the disposition of the defendant’s summary process action bars success on his counterclaim. The court found, on the basis of the evidence, that the summary process action was defeated by the absence of a smoke detector at the time the notice to quit was served. The smoke detector was replaced, however, and remained in place during the ten month time period for which the court found the plaintiff liable for use and occupancy payments.

The plaintiff also asserts that the court erroneously found that she had rented the premises at a different address. We examine a trial court’s factual findings under the clearly erroneous standard of review. See Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 727, 941 A.2d 309 (2008). The record reveals that the plaintiff alleged that she lived in premises at 58 Mills Street. The defendant admitted this allegation in his answer, but in his counterclaim he sought payment for, inter alia, use and occupancy of 60 Mills Street. The record shows that the building was known as 58-60 Mills Street. Although greater precision may be required in the summary process context, we find no prejudicial confusion as to this case. The court’s factual findings as to the description of the premises were not clearly erroneous and are supported by the record.

The plaintiff additionally argues that the court improperly ruled in the defendant’s favor on her complaint against him. After thoroughly examining the record and considering the briefs and oral arguments of the parties, we conclude that the court’s findings regarding her failure to sustain her burden of proof were not clearly erroneous. The court’s findings are amply supported by the record.

The judgment is affirmed.

In this opinion BISHOP, J., concurred.

BERDON, J., concurring. I would affirm the judgment of the trial court.

       In her brief and at oral argument, the plaintiff also argued that she filed several motions at the trial court that were never heard. This claim, however, was not raised as an issue before this court, and the record reveals no action by the trial court on any interlocutory motions. We therefore decline to address this issue because the record before us is inadequate. See Bebry v. Zanauskas, 81 Conn. App. 586, 594, 841 A.2d 282 (2004). In reaching that conclusion, we are mindful of the plaintiffs pro se status. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Nonetheless, [although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Citation omitted; internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2005).
      We also note that the plaintiff enumerates four issues in her brief, namely, “(1) whether the trial court was correct in dismissing the plaintiffs civil court case; (2) whether the trial court was correct in granting the defendant counterplaintiff rent payment due to the fact that the defendant counterplaintiff lost his nonpayment of rent case for January, 2006; (3) whether the trial court was correct in granting rent payments for months [that] the defendant never filed for in the eviction case; and (4) whether the trial court was correct in granting rent payment to the defendant counterplaintiff due to the fact that the plaintiff never rented 60 Mills Street [in Bristol].” We have consolidated the plaintiffs issues on appeal for ease of organization.

       We note that in its January 3, 2007 judgment, the court characterized the money damages awarded as “past due rent” rather than as payment for use and occupancy. See Housing Authority v. Hird, 13 Conn. App. 150, 157-58, 535 A.2d 377 (“The statutory obligations of the landlord and tenant continue even when there is no longer a rental agreement between them. Termination of the lease does not terminate the tenancy since, upon service of a notice to quit possession, a tenancy at sufferance is created. . . . Even though a tenant at sufferance is excused from a duty to pay the stipulated rent under the lease, the obligation to pay a fair rental value for the use and occupancy of the dwelling unit remains. . . . Therefore, even if the defendant believed that the lease had ended and that she was relieved from a duty to pay a stipulated rent, her obligation to pay for her use and occupancy of the premises continued.” [Citations omitted.]), cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). Because neither party raised on appeal a potential discrepancy between contractual “rent” and the obligation to pay fair rental value, we decline to address that issue here.