author: BEAR, J. GRUENDEL, J.,

text:
    VICTOR ANATRA ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF MADISON
    (AC 31499)
    Gruendel, Lavine and Bear, Js.

      Argued September 17, 2010
    officially released March 8, 2011

      Benson A. Snaider, with whom was Glenn E. Coe, for the appellants (plaintiffs).

      Michael A. Zizka, with whom, on the brief, was Loni S. Gardner, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiffs, Victor Anatra and Heather Anatra, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the zoning board of appeals (board) of the town of Madison (town). The board had upheld the decision of the town’s zoning enforcement officer (zoning officer), denying the plaintiffs’ application for a certificate of zoning compliance, which was necessary to secure a building permit to construct an uncovered deck on their property located at 71 Oak Avenue in Madison. On appeal, the plaintiffs claim that the court improperly dismissed their appeal after concluding that they were not entitled to the certificate of zoning compliance because they needed a variance modification to build the deck. We reverse the judgment of the trial court.

The court found the following facts, which are uncontested and relevant to our discussion of the plaintiffs’ appeal. “On October 5, 2001, the [plaintiffs] applied for a variance to the [board] to replace the then-existing house on the footprint of that prior structure. The prior structure was a much aged cottage. The proposed structure was a modem, multistory home. The [plaintiffs’] application requested variances for front yard and side yard setbacks, additional maximum building coverage, and [c]riticai [c]oastal [r]esource setback. Detailed plans were submitted with the application. The application stipulated, immediately above the signature line, that 'THE PLANS SUBMITTED WITH THE BUILDING APPLICATION MUST BE THE SAME AS THOSE SUBMITTED AND APPROVED WITH YOUR VARIANCE APPLICATION.’ (Emphasis in original.)

“On January 4,2002, the [board] considered the application. The [plaintiffs’] architect, Robert Mangino, presented a floor plan and a model of the proposed house to the [board]. The minutes of the meeting state that Mangino ‘referred to the model and said the house will not change from the model, although there may be a change in the windows.’ Neither the application nor the model included a deck extending beyond the footprint of the house. The [board] approved the application. The [plaintiffs] subsequently built anew stmcture, conforming with the submitted plans and model, on the site.

“On July 27,2006, [t]he [plaintiffs] filed an application for ‘variance modification’ to ‘add [nine feet] to existing balcony in rear of house — [nine feet by twenty feet].’ The existing balcony — which appears to be within the footprint of the existing structure — was stated to be ‘[three feet by twenty-two feet].’ The proposed addition extended beyond that footprint. On September 5, 2006, the [board] denied the application. The [plaintiffs] did not appeal [that] decision.

“On December 19, 2007, the [plaintiffs] decided to try again. This time, instead of requesting another ‘variance modification,’ they submitted an application for a building permit to the [zoning officer]. A drawing attached to the application shows a ‘proposed deck’ [thirty-two] feet long and [seven] feet wide for [twenty] feet of the total length, expanding to [ten] feet wide in the last [twelve] feet of length. A ‘privacy wall’ was to be built at the narrow end of the deck. The ‘proposed deck’ and ‘privacy wall’ extend beyond the footprint of the existing structure.

“On January 3, 2008, the [zoning officer] denied the application. His denial states that, ‘[p]rior variances for this building were granted by the [board] based on specific plans and representations for the building. The variances are effective for that building only. Any modification to the building must be approved by the [board].’

“On January 11, 2008, the [plaintiffs] appealed the decision of the [zoning officer] to the [board]. The appeal describes the [plaintiffs’] application as one ‘for zoning approval for building permit to construct extension to existing balcony in the rear of home. Proposed extension is an uncovered deck in accordance with [Madison Zoning Regs. §] 19.5.1, [seven feet] wide for [twenty feet] then [ten feet] wide for [twelve feet], set entirely within the side and rear yard setbacks.’ On March 4, 2008, the [board] voted to uphold the decision of the [zoning officer]. On March 25,2008 the [plaintiffs] commenced [an] appeal to the Superior Court .... The appeal [to the Superior Court] was heard on May 12, 2009.”

Following the May 12, 2009 hearing, the court dismissed the plaintiffs’ appeal, concluding that the board had acted properly in upholding the decision of the zoning officer, which denied to the plaintiffs a certificate of zoning compliance to enable them to secure a building permit to construct the proposed uncovered deck. This appeal followed.

On appeal, the plaintiffs claim that the court improperly dismissed their appeal, thereby affirming the board’s decision to uphold the zoning officer’s decision not to issue a certificate of zoning compliance on the ground that the plaintiffs needed to modify their variance to build an uncovered deck on their property. Specifically, the plaintiffs argue that the proposed uncovered deck fully complies with the zoning regulations and that it does not intrude into any setback area. They further argue that the proposed uncovered deck does not increase the coverage area of their building because an uncovered deck specifically is excluded from the calculation of building coverage area pursuant to § 19.5.1 of the Madison zoning regulations. We agree.

As a preliminary matter, we set forth the relevant legal principles and our standard of review, which guide us in our resolution of the plaintiffs’ appeal. “Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.” (Internal quotation marks omitted.) Goulet v. Zoning Board of Appeals, 117 Conn. App. 333, 343, 978 A.2d 1160, cert, denied, 294 Conn. 909, 982 A.2d 1082 (2009). Our Supreme Court has explained that “[a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Heim v. Zoning Board of Appeals, 289 Conn. 709, 715, 960 A.2d 1018 (2008).

The plaintiffs argue that the proposed uncovered deck fully complies with the town’s zoning regulations, that it does not intrude into any setback area and that it does not increase the coverage area of their building. They explain that pursuant to § 19.5.1, the proposed uncovered deck specifically is excluded when calculating building coverage area under the zoning regulations and, therefore, that they should have been given their certificate of zoning compliance. They also argue that the board did not have the authority to “monitor and approve modifications to the structure [that] did not affect aspects of the structure for which variances had been granted.” The defendant does not contest that the plaintiffs’ proposed deck would comply fully with the regulations. The defendant argues, however, that “the plaintiffs were bound by their variance application representations and plans and the conditions of approval contained in the 2001 certificate of variance.” We conclude that the plaintiffs did not need a new or modified variance to build their proposed deck, which fully complied with the zoning regulations and was not prohibited by any condition attached to the certificates of variances previously granted.

The following additional facts are relevant to our discussion. The plaintiffs applied to the board for a variance to enable them to tear down and to reconstruct their nonconforming cottage. The cottage, which had existed before the zoning regulations were enacted, was located on an undersized lot, and it did not conform to side yard or front yard setbacks, nor did it meet the regulations regarding maximum permissible area coverage. The board granted the plaintiffs’ application and issued a certificate of variance on December 4, 2001. The certificate of variance stated in relevant part that it “certifiefd] that on [December 4, 2001] a variance was granted to [the plaintiffs] ... by the [board] to vary the application of [ § § ] 2.1.7 and 3.6 (d & f) of the [z] oning [Regulations . . . .” The certificate also set forth the exact nature of the variance granted: “To allow 10.9% area coverage, 35.1 ft. front yard and 10.5 ft. side yard variances to permit existing structure to be replaced in the same location within 50 ft. of the critical coastal resources as presented at the hearing and as shown on the plans and the survey submitted. The [c]oastal [s]ite [p]lan [r]eview was approved with the following condition: [ 1 ] that all construction be in conformance with the construction standards put forth by FEMA [the Federal Emergency Management Agency]; and [2] that the proposed harvesting and replanting of beach grass be scheduled for early spring to ensure the shortest period of plant storage and the best possible conditions for the re-establishment of the beach grass; careful watering of the replanted grass through the first growing season (typically from early spring through October) is recommended to aid its successful re-establishment within the disturbed area.” The certificate also contained a preprinted standard clause at the bottom of the page that provides: “This variance shall not become effective until a copy of this [certificate of [v]ariance, certified by the [z]oning [b]oard of [a]ppeals, is recorded in the land records of the [t]own of Madison at the expense of the record owner.”

On September 2, 2003, the plaintiffs were issued another certificate of variance to enable them to install new stairs and an air conditioning unit on the outside of their new home. This certificate provides: “This certifies that on [September 2, 2003] a variance was granted to Victor Anatra ... by the [board] to vary the application of [§§] 2.1.7, 3.6 (d & f) and 12.6 of the [z]oning [regulations . . . .” The certificate also set forth the exact nature of the variance granted: “To allow an increase in coverage from 10.9% to 11.1% and side variances of 19.5 ft. to new west side stairs, 16 ft. to air conditioning unit on west side and 2 ft. to new deck on the south side and front yard variances of 27 ft. to new stairway on the east side, 21 ft. to new deck on the east side and 36 ft. to new stairway on the west side and to allow the generator and air conditioning units in the critical coastal resource area as presented at the hearing subject to the condition that the air conditioning units be 18 SEER [seasonal energy efficiency ratio] or better.” The certificate also contained the same preprinted standard clause at the bottom of the page, providing: “This variance shall not become effective until a copy of this [certificate of [v]ariance, certified by the [z]oning [b]oard of [a]ppea!s, is recorded in the land records of the [t]own of Madison at the expense of the record owner.”

General Statutes § 8-3d provides in relevant part: “No variance . . . granted pursuant to this chapter, chapter 126 or any special act . . . shall be effective until a copy thereof, certified by a . . . zoning board of appeals, containing a description of the premises to which it relates and specifying the nature of such variance . . . including the zoning bylaw, ordinance or regulation which is varied in its application . . . and stating the name of the owner of record, is recorded in the land records of the town in which such premises are located. The town clerk shall index the same in the grantor’s index under the name of the then record owner and the record owner shall pay for such recording.”

Clearly, under our law, the board had the authority to attach reasonable conditions to the certificates of variance issued to the plaintiffs. See Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975); see also Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 161, 763 A.2d 1011 (2001) (Sullivan, J., dissenting). “The right to attach reasonable conditions to the grant of a variance is not dependent upon express authorization from the lawmaking body. . . . Were this not so, the board, for lack of such right, might be forced, at times, to deny a variance and thus to perpetuate an owner’s plight crying for relief. Since variances allow uses forbidden by the regulations, the attachment of conditions to the granting of a variance alleviates the harm which might otherwise result. . . . Were it not for the conditions imposed by a board of appeals, variances might not be supportable as being in harmony with the general purpose and intent of the zoning ordinance. . . . Thus the variance and the attached conditions are inextricably linked, the viability of the variance being contingent upon the satisfaction of the conditions.” (Citations omitted; internal quotation marks omitted.) Burlington v. Jencik, supra, 509-10. “The zoning board of appeals [however] cannot require as a condition of a variance that the applicant obtain a permit which the regulations specifically do not require under the circumstances. Nor can a variance condition violate a statutory allocation of power to make certain decisions.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 142-43.

“[Our] Supreme Court has said that one way of bridging the apparent conflict between the obligation of a variance to be in harmony with the comprehensive plan even while permitting an exception to its provisions, is to attach conditions to the variance. Hence despite the lack of specific statutory authority to do so, the zoning board of appeals is free to attach conditions to variances it grants — and it may even be required to do so by the ‘harmony’ phrase in the statute. Conditions that are impossible to satisfy ‘are patently unreasonable,’ however, and will be voided on appeal.” Id., p. 142.

In the present case, the language contained in the first certificate of variance issued to the plaintiffs clearly expresses the explicit conditions attached to that variance: “that all construction be in conformance with the construction standards put forth by FEMA; and . . . that the proposed harvesting and replanting of beach grass be scheduled for early spring . . . .” The explicit condition attached to the second variance mandated that the “air conditioning units be 18 SEER or better.” The actual certificates, which were issued to the plaintiffs and recorded in the town’s land records, contained no other conditions.

A primary purpose for requiring certificates of variance to be recorded in the land records is because a variance runs with the land and is not specific to the individual applying for it. General Statutes § 8-6 (b); Reid v. Zoning Board of Appeals, 235 Conn. 850, 859, 670 A.2d 1271 (1996); Horace v. Zoning Board of Appeals, 85 Conn. App. 162, 167-68, 855 A.2d 1044 (2004). “Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance.” General Statutes § 8-6 (b). “Conditions may be imposed relative to the proposed use of the property, to the duration of the variance, or both. . . . Essentially, the conditions must relate to the amelioration of any adverse impacts of the land use. The board is without authority to impose conditions that are not rationally related to minimizing the adverse impacts of granting a variance. The board must clearly state any conditions in its decision so that all interested parties are fully aware of the nature and extent of the conditions.” 2 P. Salkin, American Law of Zoning (5th Ed. 2010) § 13:36, pp. 13-103 through 13-104.

“Conditions imposed by a zoning board of appeals must be expressed with sufficient clarity to inform the applicant of the limitations upon the use of the land, and to protect nearby owners. Thus, conditions have been held to be ineffectively expressed where they limited use in terms of the applicant’s verbal statements to the board. Conditions that are too vague, or not clearly articulated are found to be void. To be enforceable, conditions must be expressed in sufficiently definite terms to enable the permit holder, adjacent landowners, and all interested parties to know what is required of the permit holder.” Id., § 13:37, pp. 13-104 through 13-105.

“A condition may not be imposed merely because it is believed to be beneficial to the community when the condition does not relate to the parcel or land, or the specific portion of land [for which] the variance is requested.” Id., § 13:39, p. 13-109 n.6, citing Russell v. Smokerise Bath & Racquet Club, Inc., 243 Ga. 724, 256 S.E.2d 457 (1979) (holding that lighting condition for tennis court variance could not be extended to original tennis courts that were not subject of variance application).

Our decision further is guided by Dodson Boatyard, LLC v. Planning & Zoning Commission, 77 Conn. App. 334, 823 A.2d 371, cert, denied, 265 Conn. 908, 831 A.2d 248 (2003). In Dodson Boatyard, LLC, the defendant planning and zoning commission (commission) had appealed to this court from the judgment of the trial court sustaining the plaintiffs appeal from the commission’s denial of the plaintiffs application to modify a special use permit to reduce the rear yard setback from fifty feet to eight feet to allow the plaintiff to install storage sheds in the rear yard of a marina. Id., 337. On appeal, the trial court had concluded that a modification of the special use permit was unnecessary because the plaintiffs predecessor in title had obtained a variance for the property in 1983 that had reduced the rear yard setback line to six feet; id., 335-36; and, thus, the commission’s determination that the sheds would violate the rear yard setback requirements was unsupported by the evidence. Id., 337. On appeal to this court, the commission had argued, in part, that the trial court improperly had determined that the 1983 variance had reduced the entire rear yard setback to six feet. Id., 338. We explained that “[t]he commission argue[d] that the 1983 variance was granted so that the plaintiffs predecessor in title could erect one building only and never was intended to reduce the entire rear yard setback .... In support of that claim, the commission direct[ed] our attention to the site plan that was filed with the variance application in 1983, showing one proposed boat storage building. The commission . . . assert[ed] that the court [had] failed to consider the entire record and that it [was] clear that the variance was for one particular boat storage building. We disagree^].” Id., 338-39.

A review of the record of the board meeting in Dodson Boatyard, LLC, disclosed that “the application [had] sought a variance to permit a reduction in the rear yard setback to six feet and an increase in the floor area ratio to 0.41 for the property . . . .” Id., 339. This application was approved by the board, and the record of decision noted that the “[b]uilding is needed to store and repair boats in the winter time.” (Internal quotation marks omitted.) Id. The board then issued a certificate of variance, which was recorded in the land records, certifying that “a variance was granted for the premises ‘to permit a reduction in rear yard setback to [six] feet and increase the floor area ratio to 0.41,’ and that no limitations were imposed.” Id. We further explained that although it was clear that “the reason for the application was to erect a boat storage building within the fifty yard setback . . . [t]here [was] nothing in the certificate of variance as granted that limit[ed] it to one building or to the proposed building shown on the site plan or to a particular part of the premises.” Id. Accordingly, we agreed with the Superior Court that “the 1983 variance reduced the rear yard setback line ... to six feet and that the record [did] not support the conclusion by the commission that the [sheds] were within the required setback.” Id.

Similarly in the present case, the variances granted to the plaintiffs very clearly set forth the conditions attached to them. There was no condition placed on the certificates that would give anyone knowledge that the plaintiffs or the future owners of this property forever would be precluded from modifying the property in any manner that was inconsistent with the plans submitted at the time that the plaintiffs’ variances were granted, even if such modifications fully complied with the zoning regulations. We see no meaningful distinction between the case at bar and our holding in Dodson Boatyard, LLC. A variance runs with the land and is not personal to the parties applying for it; see General Statutes § 8-6 (b); and, if all interested parties, including subsequent purchasers of this property or neighboring property owners, are to have knowledge of the conditions placed on the property benefited by the variance, such conditions must be stated explicitly on the certificate of variance recorded in the land records. See General Statutes § 8-3d; Dodson Boatyard, LLC v. Planning & Zoning Commission, supra, 77 Conn. App. 338-39; P. Salkin, supra, § 13:36, pp. 13-103 through 13-104, and § 13:37, pp. 13-104 through 13-105.

On appeal, the board also raises two alternate grounds for affirming the judgment of the trial court dismissing the plaintiffs’ appeal. First, it argues that the decision can be affirmed on the ground that the plaintiffs failed to appeal from the conditions placed on the 2001 variance and a subsequent denial, in 2006, of another variance request to build a similar uncovered deck. Second, it argues that “the plaintiffs waived their claims by admitting in the 2006 variance application that they were bound by the conditions of the 2001 certificate of variance.” We are not persuaded by these alternate arguments. As we stated previously, a careful review of the variance certificates reveals that there were no conditions placed on the granting of the variances beyond “all construction be in conformance with the construction standards put forth by FEMA . . . that the proposed harvesting and replanting of beach grass be scheduled for early spring” and “that the air conditioning units be 18 SEER or better.” The fact that the plaintiffs did not appeal from the attachment of these conditions to their variances or that they allegedly conceded that they were bound by such conditions does not prove the point that they are not permitted to modify their home as permitted by the regulations. The conditions did not restrict the plaintiffs from seeking to construct an uncovered deck within the scope of the regulations. As to the defendant’s argument that the plaintiffs are bound by their failure to appeal from the denial of the 2006 variance request to build a similar deck, we conclude that the plaintiffs would not need a variance to build something that was permitted under the regulations unless there was some condition placed on the property in the prior variances, which we already have concluded there was not. Accordingly, the plaintiffs’ failure to appeal from the denial of a variance request that they were not required to obtain cannot provide the basis for refusing to consider the merits of this appeal. See generally Dodson Boatyard, LLC v. Planning & Zoning Commission, supra, 77 Conn. App. 338-39.

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

In this opinion LAVINE, J., concurred.

GRUENDEL, J.,

concurring. I concur with the well reasoned majority opinion. When a zoning board of appeals elects to enumerate specific conditions in granting a variance, those conditions must be set forth with clarity. I write separately to address the line of precedent relied on by the defendant in this appeal, the zoning board of appeals of the town of Madison, and the trial court in the proceeding below, regarding the import of the variance application in ascertaining the scope of a granted variance.

The precedent of our appellate courts instructs that, at times, a review of the variance application is of use in determining the proper scope of a variance granted by a zoning board of appeals. In Raymond v. Zoning Board of Appeals, 164 Conn. 85, 87, 318 A.2d 119 (1972), at issue was the plaintiffs ability to engage in the repair of motor vehicles on the property in question, which “[f]or many years prior to the plaintiffs application . . . had been used for a gasoline service station as a nonconforming use.” On appeal, the plaintiff claimed, inter alia, that the Ridgefield zoning board of appeals years earlier had granted a variance permitting that activity on the property. Id., 86. In rejecting his claim, our Supreme Court looked to the plain language of the variance application. It stated: “On May 17, 1967, Else C. Jensen applied to the defendant board for a variance to permit the improvement, reconstruction and partial relocation of a gasoline station building located at 93 Wilton Road West, together with the improvement of appurtenant facilities to permit the applicant to continue operation of a gasoline station as a nonconforming use. The intended use to be made of the premises was stated as follows: ‘Sale of gasoline and related products and general business uses ordinarily coincidental with the operation of a gasoline station.’ On June 14, 1967, the defendant board granted the application for the variance.” Id., 87. Utilizing that application to determine the scope of the variance granted, the court concluded that “[t]he variance granted in 1967 was not an extension of the nonconforming use to permit repairs. The application was for a variance to permit the applicant to continue operation of a gasoline station as a nonconforming use for the ‘[s]ale of gasoline and related products and general uses ordinarily coincidental with the operation of a gasoline station.’ This language contains no suggestion that the applicant was then seeking permission to engage in the repair of motor vehicles . . . .” Id., 87-88.

Similarly, this court in L & G Associates, Inc. v. Zoning Board of Appeals, 40 Conn. App. 784, 787, 673 A.2d 1146 (1996), addressed a claim that the trial court “improperly considered the entire public record, rather than considering solely the plain language of the variance certificate” to ascertain the scope of a granted variance. We began our analysis by noting that “[o]ur Supreme Court, in determining the use of property that a variance allows, has considered not only the language of the variance certificate, but also the specific use of the property proposed by the applicant, as set forth in the variance application. S ee Raymond v. Zoning Board of Appeals, [supra, 164 Conn. 87-88]. Courts in other states have also looked to both the variance application and the legal description of the property as it is set forth in the variance certificate to determine the uses that the variance allows.” L & G Associates, Inc. v. Zoning Board of Appeals, supra, 787. In articulating our disagreement with the argument advanced by the appellant, we explained that “[t]he proposition that the scope of a variance is determined by examining the specific use proposed in the variance application and approved by the zoning board of appeals is a necessary corollaiy of the limited nature of variances.” Id., 787-88. Thus, whereas the appellant insisted that the trial court improperly considered the variance application and the entire public record in determining the scope of the granted variance, this court concluded that “[t]he trial court would have been remiss had it failed to do so.” Id., 788; see also Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 564, 736 A.2d 167 (1999) (relying in part on variance application to discern scope of granted variance), rev’d on other grounds, 255 Conn. 143, 763 A.2d 1011 (2001).

That precedent is grounded in practical and compelling considerations. First, it recognizes that a variance is no insignificant matter, as it runs with the land in perpetuity; see General Statutes § 8-6 (b); and constitutes “authority extended to the owner to use his property in a manner forbidden by the zoning enactment.” Burlington v. Jencik, 168 Conn. 506, 508, 362 A.2d 1338 (1975). Because the granting of a variance “affords relief from the literal enforcement of a zoning ordinance, it will be strictly construed to limit relief to the minimum variance which is sufficient to relieve the hardship.” (Emphasis added; internal quotation marks omitted.) L & G Associates, Inc. v. Zoning Board of Appeals, supra, 40 Conn. App. 788; see also 3 E. Yokley, Zoning Law and Practice (4th Ed. MacGregor 2010) § 20-13, p. 20-64 (variance granted “must be the minimum one sufficient to relieve the hardship complained of’); R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 9:8, p. 263 (strict construction of variance ensures that “minimum variance to relieve the hardship” granted); 8 E. McQuillin, Municipal Corporations (3d Ed. Rev. 2000) § 25.162 (variances “should be strictly construed”). That strict construction effectuates the “essential purpose of aboard of appeals” to furnish “elasticity in the application of regulatory measures so that they do not operate in an arbitrary or confiscatory, and consequently unconstitutional, manner”; Florentine v. Darien, 142 Conn. 415, 425, 115 A.2d 328 (1955); accord 4 P. Salkin, American Law of Zoning (5th Ed. 2010) § 39:7, p. 39-26 (zoning board of appeals “created to interpret, to perfect, and to insure the validity of zoning”); while at the same time adhering to the well established principle that the variance power should be carefully exercised in limited fashion. See, e.g., Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996) (power to grant variance should be sparingly exercised); Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 271, 588 A.2d 1372 (1991) (power to authorize variance only granted for relief in specific and exceptional instances); Baccante v. Zoning Board of Appeals, 153 Conn. 44, 47, 212 A.2d 411 (1965) (power to grant variance exercised “only to avoid an unnecessary hardship”). Permitting a reviewing court in certain circumstances to look to the variance application helps ensure that its interpretation of the scope of a granted variance is limited to the minimum necessary to relieve the hardship demonstrated by the applicant.

On a more basic level, the aforementioned precedent embodies principles of fundamental fairness, in that— absent an indication to the contrary by the zoning board of appeals — the scope of a granted variance should not be interpreted to extend beyond that requested by the applicant and considered by the board. By way of example, consider the property owner with a relatively straightforward variance application seeking to construct a ten foot by ten foot shed on the westerly side of the applicant’s five acre property. Because of the unique nature of the parcel and the local setback requirements, the applicant requests a twenty foot side yard variance. Throughout the variance application, the accompanying documentation and the representations of the applicant at the public hearing, the zoning board of appeals repeatedly is assured that the scope of the variance requested is simply to permit the construction of a ten foot by ten foot shed within the side yard setback. Accordingly, the board grants the variance requested, stating simply that the applicant’s request for a twenty foot side yard setback is approved. On appeal, should the scope of that variance be interpreted as if a twenty foot variance has been granted to run the full length of the westerly side yard setback of this five acre property? Raymond and L & G Associates, Inc., answer that query in the negative, instructing that a reviewing court may instead look to what precise relief the applicants requested from the board in pursuing a variance from the local zoning regulations.

Ideally, the zoning board of appeals in such instances carefully and precisely would articulate the parameters of the variance granted, whether through the imposition of specific conditions or the use of limiting language. We do not live in an ideal world, nor one where attorneys, architects and engineers alone populate local land use agencies. Rather, they are comprised of citizens from all walks of life, serving their communities on a voluntary basis. As our Supreme Court observed more than one half century ago, “[i]t must be borne in mind . . . that we are dealing with a group of laymen who may not always express themselves with the nicety of a Philadelphia lawyer. Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards . . . .” Couch v. Zoning Commission, 141 Conn. 349, 358, 106 A.2d 173 (1954). Property owners requesting a slight variance from the local zoning regulations should not reap the windfall of a significantly vaster grant due to technical imprecision or inadvertence on the part of their fellow citizens in acting on the application as members of the zoning board of appeals. Raymond and L & G Associates, Inc., recognize this reality by permitting a reviewing court to consider the proposed use presented to the board in the variance application in ascertaining the proper scope of a granted variance.

That is not to say that a reviewing court in every instance must consider the variance application. In both Raymond v. Zoning Board of Appeals, supra, 164 Conn. 87, and L & G Associates, Inc. v. Zoning Board of Appeals, supra, 40 Conn. App. 787, no conditions or limiting language were attached to the variances at issue. In such instances, a reviewing court is left to speculation and conjecture as to whether the respective boards considered the scope of the variances granted, which plainly “have no place in appellate review.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009). By contrast, the board in the present case was careful to enumerate specific conditions to the granted variance, and none prohibited the activity proposed in the plaintiffs’ 2007 building permit request. The present case, thus, is distinguishable from the precedent relied on by the defendant in this appeal.

In my view, when a board elects to attach specific conditions to a variance, which “are inextricably linked, the viability of the variance being contingent upon the satisfaction of the conditions”; Burlington v. Jencik, supra, 168 Conn. 510; the canon expressio unius est exclusio aiteiius — the expression of one thing is the exclusion of another — should apply. In such instances, in which the board expressly evinces an intent to limit the scope of the variance granted, an inference that other conditions not mentioned were excluded by deliberate choice is warranted. See generally Sastrom v. Psychiatric Security Review Board, 291 Conn. 307, 319 n. 15, 968 A.2d 396 (2009). Thus, in the absence of clearly articulated conditions, the representations contained in the variance application can be of use in defining the scope of the variance. However, when a board specifically enumerates conditions attached thereto, I believe the variance application should not be used to impose one that the board has declined to set forth in its specified conditions. That view accommodates both the liberal discretion afforded to local land use agencies; see, e.g., Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408-409, 920 A.2d 1000 (2007); and the policy of employing a strict construction of variances “to limit relief to the minimum variance which is sufficient to relieve the hardship.” (Internal quotation marks omitted.) L & G Associates, Inc. v. Zoning Board of Appeals, supra, 40 Conn. App. 788.

Furthermore, even in those instances such as Raymond and L & G Associates, Inc., in which the board has not imposed any conditions on the variance, resort to the variance application is not dispositive of the issue of its proper scope. Many times, the variance application may be ambiguous or imprecise as to what is being requested. That is the case here, as a review of the October 5,2001 variance application by the plaintiffs, Victor Anatra and Heather Anatra, sheds little light on whether the activity proposed in the 2007 building permit request was contrary to the representations contained in the 2001 variance application. That application concerned only the construction of a residential building on the same footprint of an existing nonconforming structure. In that application, the plaintiffs represented that the “ [residential use [of the building] will remain the same without expanding the footprint of the building.” They did not represent that no other buildings, which under the Madison zoning regulations included the proposed deck at issue here; see Madison Zoning Regs., § 19.4; would be constructed in the future, particularly ones in full compliance with the setback requirements contained in those regulations. As such, the variance application is, at best, ambiguous and, at worst, irrelevant to a consideration of the proper scope of the granted variance. Yet Raymond and L & G Associates, Inc., do not stand for the proposition that resort to a variance application is mandatory or determinative in such instances; rather, such review is but one tool for a reviewing court in certain circumstances to ascertain the proper scope of a granted variance. That tool has no use in the present case.

The precedent of Raymond and L & G Associates, Inc., instructs that in determining the proper scope of a granted variance, a reviewing court at times may consider “not only the language of the variance certificate, but also the specific use of the property proposed by the applicant, as set forth in the variance application.” L & G Associates, Inc. v. Zoning Board of Appeals, supra, 40 Conn. App. 787. Although such resort is not warranted in the present case, our decision today should not be read to contravene, let alone overrule, that precedent.

       Following oral argument in this case, we ordered supplemental briefs from the parties, addressing the relevance, if any, of § 12 of the Madison zoning regulations concerning nonconforming buildings and uses, Moon v. Zoning Board of Appeals, 291 Conn. 16, 966 A.2d 722 (2009), and Fleet National Bank v. Zoning Board of Appeals, 54 Conn. App. 135, 734 A.2d 592, cert, denied, 250 Conn. 930, 738 A.2d 656 (1999). We agree with the board that the cases and § 12 of the regulations are not relevant substantively to the case at bar because the plaintiffs’ property is now subject to two variances.

       Section 19.5 of the regulations provides: “BUILDING AREA: The ground area covered by all buildings, including chimneys, together with the area of all covered porches and other roofed portions (excluding the two feet allowed in Section 2.8 of these regulations, and decks without roofs, and trellises).”
      Section 19.5.1 of the regulations provides: “BUILDING COVERAGE: The building area not to include uncovered decks, swimxning pools, tennis courts, trellises, or projections outlined in Section 2.8, 2.8.1 and 2.8.3, divided by the area of the lot.”

       In light of this precedent, the trial court in the present case understandably stated in its memorandum of decision that our “courts are not restricted to the four comers of the variance certificate in determining the effect of a variance.”

       Just as “[i]t is axiomatic that an appellate decision stands only for those issues presented to, and considered by, the court in that particular appeal”; Dept. of Public Safety v. Freedom of Information Commission, 103 Conn. App. 571, 582 n.10, 930 A.2d 739, cert, denied, 284 Conn. 930, 934 A.2d 245 (2007); I believe variances must be interpreted to grant no more relief than that requested by an applicant and that which is demonstrated to be necessary to alleviate the hardship.

       In Dodson Boatyard, LLC v. Planning & Zoning Commission, 77 Conn. App. 334, 338-39, 823 A.2d 371, cert, denied, 265 Conn. 908, 831 A.2d 248 (2003), this court rejected the defendant’s reliance on L & G Associates, Inc., for its contention that the trial court had failed to consider the entire record in determining the scope of the granted variance. In its one paragraph analysis of the issue, this court did not discuss or distinguish that precedent, nor did it cite to any authority to support that analysis. See id., 339. As such, it cannot be said that Dodson Boatyard, LLC, overruled sub silentio L & G Associates, Inc., particularly in light of the established policy of this court dictating that “one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc.” (Internal quotation marks omitted.) First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 759, 966 A.2d 239 (2009). Since its publication in 2003, no appellate decision addressing a similar issue has cited to or relied on Dodson Boatyard, LLC. To the extent that Dodson Boatyard, LLC, contravenes the established precedent of our Supreme Court permitting a reviewing court to consider the variance application; Raymond v. Zoning Board of Appeals, supra, 164 Conn. 87-88; proper regard for our role as an intermediate appellate tribunal bound by the precedent of our Supreme Court precludes our reliance on that decision. See DePietro v. Dept. of Public Safety, 126 Conn. App. 414, 422 n.3, 11 A.3d 1149 (2011) (adhering to “the bedrock principle that, as an intermediate appellate body, we are not at liberty to discard, modify, reconsider, reevaluate or overrule the precedent of our Supreme Court”).

       For example, regarding the hypothetical set forth above, a board could grant a twenty foot side yard setback variance not to exceed a width of ten feet or a height of twelve feet and to be located within eighty feet of the rear property marker on the westerly side.

       In that respect, resort to review of a variance application is akin to the “exception” contained within our clearly erroneous standard of review. See generally Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 613, 931 A.2d 319, cert, denied, 284 Conn. 929, 934 A.2d 244 (2007). Though for the most part highly deferential to the determination of the body below, the clearly erroneous standard nevertheless permits reversal when a reviewing court possesses a definite and firm conviction that a mistake has been committed. See, e.g., Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 544, 893 A.2d 389 (2006). That, in essence, is what the courts confronted in reviewing the plaintiffs claim and the plain language of the variance certificate in Raymond and L & G Associates, Inc.

       “In hearing the plaintiffs appeal from the decision of the zoning board of appeals, the Superior Court acts as an appellate body.” Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 603 n.1, 942 A.2d 511, cert, denied, 289 Conn. 901, 957 A.2d 871 (2008).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    KENNETH W. CLARK v. MARY ANN CLARK
    (AC 31527)
    Bishop, Beach and Flynn, Js.

      Argued October 21, 2010
    officially released March 8, 2011

      Mary Ann Clark, pro se, the appellant (defendant).

      Kenneth W. Clark, pro se, the appellee (plaintiff).

      Sandra P. Lax, for the minor children.
   Opinion

BISHOP, J.

The defendant, Mary Ann Clark, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Kenneth W. Clark, and entering related financial orders. On appeal, the defendant claims that the court (1) should have ordered that the minor child with special needs continue to receive treatment in the New York City area or, in the alternative, that the court should have awarded her the Florida home so that the child could receive more affordable treatment in Florida, (2) failed to allocate expenses for the special needs child in abrogation of the child support guidelines, (3) should have ordered that the plaintiff pay 90 percent of the fees incurred for the guardian ad litem and the attorney for the minor children, and (4) failed to include or to address arrearages found by the court, pendente lite. We affirm in part and reverse in part the judgment of the trial court.

The plaintiff commenced this marital dissolution action in June, 2006. Following a trial, the court, by memorandum of decision filed August 18, 2009, dissolved the parties’ marriage. The parties have two minor children, one of whom has special needs. The court awarded sole custody of the parties’ two children to the defendant and ordered the plaintiff to pay the defendant unallocated alimony and child support in the amount of $5000 per month. The court ordered, inter alia, that the plaintiff maintain health insurance for the children at his expense so long as it was available through his employer and that a qualified domestic relations order (QDRO) be prepared so that the defendant would be reimbursed directly by the insurance provider for medical expenses incurred on behalf of the children. The court also ordered the parties to list for sale their marital home in Greenwich and another property they owned in Boca Raton, Florida, no later than August 30, 2009. The net proceeds of the sales, if any, were to be divided 65 percent to the defendant and 35 percent to the plaintiff. The court stated that “[t]he net proceeds shall be determined after the following distributions from the sale price of each property: broker’s commissions, reasonable attorney’s fees, governmental fees (to include any conveyance taxes), customary closing costs and adjustments, any capital gains arising out of sale (held in escrow, if necessary), payment of the outstanding existing mortgages on said properties.” The court ordered that the parties would share equally the obligation to pay the fees of the attorney for the minor children in the amount of $175,691.24, and the fees of the guardian ad litem in the amount of $8800, to be paid from the proceeds of the sale of the parties’ real estate prior to the parties receiving their respective shares. The plaintiffs attorney, the defendant’s former attorney and the attorney for the minor child each hold mortgages on one or both of the properties to secure payment of their fees. The court ordered that the parties would “be responsible solely for the debts set forth on their respective financial affidavits” and “their own counsel fees.” Further, the court ordered that the defendant keep her own pension plan but that the plaintiffs pension plans be divided equally between the parties. The court ordered that a QDRO be prepared to effectuate its order. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth our well established standard of review. “[T]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Utz v. Utz, 112 Conn. App. 631, 634, 963 A.2d 1049, cert, denied, 291 Conn. 908, 969 A.2d 173 (2009). With this in mind, we turn to the defendant’s claims on appeal.

I

The defendant contends that the court should have ordered that the minor child with special needs continue to receive treatment in the New York City area or, in the alternative, that the court should have awarded the Florida home to her so that she could return there with the children where the special needs child could receive more affordable services. One of the major issues in the dissolution proceedings was whether the child would continue to attend the Eagle Hill School where, as the trial court pointed out, he has “flourished.” The trial court ordered that the child would remain at that school until June, 2010. Although not explicit in the court’s decision, we can infer, based on the fact that the court, in a colloquy with counsel, commented that there was an outstanding arrearage due to the school at the time of the dissolution judgment, that the court determined that the parties could no longer afford to send the child to that school. Such an inference is supported by the record. Additionally, the court’s order that the Florida property be sold reflects the court’s determination that such a sale was necessary to effectuate a reasonable and equitable division of the parties’ assets. The defendant has not cited anything in the record to the contrary. Accordingly, we cannot conclude that the court abused its discretion in this regard.

II

The defendant also claims that the court failed to allocate expenses for the special needs child in violation of the child support guidelines. In its memorandum of decision, the court explicitly stated that it considered General Statutes § 46b-l et seq., in rendering its judgment. The court also stated: “The [defendant], as physical custodian of the minor children and with one child who requires additional care will require a significant expenditure of funds.” On that basis, the court issued its unallocated alimony and support order. Because the court specifically cited the special needs of one of the children when it fashioned its support order, the defendant’s claim that it failed to consider that factor is without merit.

Ill

The defendant also claims that the court improperly ordered the parties to share equally the fees incurred by the guardian ad litem and the attorney for their minor children. The defendant asserts that the court should have ordered the plaintiff to pay 90 percent of those fees because his bizarre and litigious behavior was the cause of the bulk of the fees charged. We are not persuaded.

“The statutory authority for the award of counsel fees is found in General Statutes § 46b-62. Section 46b-62 provides in relevant part: If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney. . . . The court may order either party to pay the fees . . . pursuant to ... § 46b-62, and how such expenses will be paid is within the court’s discretion. ... An abuse of discretion in granting . . . fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did. . . .

“The order for payment of . . . fees under . . . § 46b-62 requires consideration of the financial resources of both parties and the criteria set forth in ... § 46b-82. . . . Section 46b-82 instructs the court to consider, inter alia, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. . . . Although the trial court is not required to find expressly on each of the § 46b-82 factors, it must have sufficient evidence to support each factor.” (Citation omitted; internal quotation marks omitted.) Utz v. Utz, supra, 112 Conn. App. 640-41.

Here, the defendant was awarded sole custody of the minor children, presumably due to the plaintiffs poor relationship with his children, which may have led to the incurrence of counsel fees for the children. The court was not, however, restricted to that factor in considering the allocation of responsibility for those fees. The record provides ample evidence of the parties’ financial circumstances to support an equal division of those fees. Accordingly, we cannot conclude that the court abused its discretion in this regard.

IV

The defendant also claims that the court improperly failed to incorporate the pendente lite support arrearage in its final judgment of dissolution. Specifically, the defendant contends that the court should have incorporated into the dissolution judgment the pendente lite support arrearage of $7500 found by the court on October 22, 2008. We agree.

“[L]ike unpaid installments of an alimony award entered at the time of dissolution, accrued and unpaid installments of alimony [or child support] pendente lite are, in effect, debts which have become vested rights of property which the court cannot take away. . . . [W]here a final decree of divorce has been rendered, any orders regarding pendente lite alimony are merged in the final decree and thereafter, no independent action for contempt based on the temporary alimony order can be properly brought. Review may be made, however, of that part of a final order which fails to . . . incorporate an accumulated arrearage of pendente lite alimony. . . . Indeed, it would be error for a trial court ... to fail to incorporate an accumulated arrearage of pen-dente lite alimony in a final order granting dissolution. . . .

“[A] trial court’s order, entered at the time of dissolution, forgiving a previously determined arrearage of pendente lite alimony [or child support], constitute[s] a retroactive modification of the pendente lite order. . . . [S]uch a modification, when made at the time of dissolution, is impermissible pursuant to General Statutes § 46b-86, which permits retroactive modification of alimony and support orders only during the predissolution period and only pursuant to a pending motion to modify. . . . [T]he purpose of alimony pendente lite is to provide a party with support during the pendency of the dissolution action. . . . Allowing a court to modify an award of alimony pendente lite retroactively at the time the dissolution is granted would frustrate that purpose because it would encourage spouses to delay making their alimony payments until the time of dissolution, hoping that the order for alimony pendente lite would be forgiven or changed at that time.” (Citations omitted; internal quotation marks omitted.) Evans v. Taylor, 67 Conn. App. 108, 116-17, 786 A.2d 525 (2001).

Here, as in Evans, “although the court did not expressly forgive the arrearage of pendente lite support, it failed to include the arrearage in its judgment dissolving the marriage. . . . [T]hat failure to include an arrearage in a final order of dissolution has the same effect on the party entitled to the pendente lite arrearage as it would have had if the court had expressly modified or forgiven the pendente lite order at the time of dissolution; it strips that party of a vested property right and constitutes an impermissible retroactive modification of the pendente lite orders in violation of § 46b-86. Even if it is assumed that the defendant was not stripped of a vested property right because she could again return to court and seek a judgment in the amount of the arrearage in an independent separate action, judicial economy concerns should prevail. It was improper for the court to omit the pendente lite arrearage in its final judgment of dissolution even though the defendant may not have specifically requested that in her claims for relief.” Id., 117-18. Thus, the matter must be remanded for a determination of the amount of the pendente lite arrearage to be included in the judgment, along with an appropriate order for its payment.

“We previously have characterized the financial orders in dissolution proceedings as resembling a mosaic, in which all the various financial components are carefully interwoven with one another. . . . Accordingly, when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders. . . . We also have stated, however, that [e]very improper order . . . does not necessarily merit a reconsideration of all of the trial court’s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors. ... In other words, an order is severable if its impropriety does not place the correctness of the other orders in question.” (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 389-90, 999 A.2d 721 (2010).

We conclude that any order regarding support arrear-ages owed by the plaintiff does not relate to the other financial orders issued by the court, nor is it interdependent with those orders. Because such an order is unrelated to the other financial orders issued by the court, any determination of such an arrearage will not necessitate reconsideration of all of the court’s financial orders.

The judgment is reversed only insofar as it fails to include the arrearage of pendente lite support and the case is remanded for further proceedings to determine the amount of pendente lite support arrearage to be included in the judgment. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also claims that the court should have issued an order regarding the payment of the parties’ joint liabilities. In her brief, however, the defendant fails to enumerate those liabilities. In this regard, the defendant’s brief is inadequate. Accordingly, we decline to review this claim. See Thompson v. Rhodes, 125 Conn. App. 649, 651, 10 A.3d 537 (2010).

       “A QDRO is the exclusive means by which to assign to a nonemployee spouse all or any portion of pension benefits provided by a plan that is governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.” (Internal quotation marks omitted.) Cifaldi v. Cifaldi, 118 Conn. App. 325, 327 n.1, 983 A.2d 293 (2009).

       The defendant claims that the court abused its discretion in failing to invoke the provisions of General Statutes § 46b-84 (e) in regard to insurance reimbursement for services provided to the parties’ children. Subsequent to oral argument, we asked the trial court the following pertinent question: “Did the court intend for the provisions of General Statutes § 46b-84 (e) to apply with regards to reimbursement from the children’s health insurance provider for medical expenses paid by the parties?” On December 2, 2010, the court responded: “Yes, the provisions of General Statutes § 46b-84 (e) apply with regard to any reimbursement from the children’s health insurance provider for medical expenses paid by the parties.” Because the court’s judgment has been clarified to address the defendant’s concern regarding this issue, we need not address this claim on appeal.

       The defendant claims that the court should have “clarified and/or articulated orders concerning payment of counsel fees and orders concerning payment of closing expenses to effectuate proper compliance with the court’s intended judgment . . . We agree. In light of the significant amount of counsel fees billed by the parties’ attorneys and the confusion surrounding the court’s decision regarding the payment of these fees, we ordered the court to articulate: “With regard to the division of real property, and specifically concerning the court’s division of equity with the plaintiff to receive 35 [percent] and the defendant 65 [percent], did the court intend for the encumbrances placed on the land records by each parties’ respective attorneys, as well as the encumbrance filed by the attorney for the minor children, to be paid first from the gross proceeds of sale of each property or did the court intend that only the plaintiffs share of the equity resulting from the judgment should be available to satisfy his separate attorney’s fees and only the defendant’s share of the equity resulting from the judgment should be available to satisfy her separate attorney’s fees. As to fees for counsel for the minor children and for the children’s guardian ad litem, did the court make any finding as to the reasonableness of the fees assessed by either counsel or the guardian? If so, what amounts did the court determine to be fair and reasonable?”
      On December 2, 2010, the court responded: “To the extent any encumbrance was filed by the parties’ respective attorney, each party’s attorney [is] to be paid from each party’s respective interest [in the real property]. Thus, the plaintiffs attomey(s) is/are to be paid from the plaintiffs 35 [percent] share of the equity and the defendant’s attomey(s) is/are to be paid from the defendant’s 65 [percent] share of the equity in both properties. The guardian ad litem and the attorney for the children are to be paid equally by both of the parties and these fees shall be paid first from the gross proceeds of each property. No title search or listing of encumbrances on either the Connecticut property or the Florida property was either submitted as evidence or testimony offered.
      “The court makes a finding that the children’s guardian ad litem’s fees and the attorney for the minor children’s fees were reasonable. Those fees were for guardian ad litem $175,691.2[4] as of June 23, 2009 and for the attorney for the minor children $8800 as of June 25, 2009.” We note that it appears that the court mistakenly juxtaposed the amounts incurred by the guardian ad litem and the attorney for the minor child; the attorney for the minor children billed fees in the amount of $175,691.24, and the guardian ad litem’s fees were $8800.
      The defendant claims that her share of the proceeds from the sale of the real properties should not be reduced by the plaintiffs counsel fees. Because the court clarified its judgment to confirm that the plaintiffs counsel fees shall be paid from his share of the proceeds, we need not address the plaintiffs claim further.

       The defendant also claims that the court’s order with respect to the parties’ pension plans is “impossibly unclear.” We agreed, and, pursuant to our inherent supervisory authority and Practice Book § 60-2 (1), ordered the court to answer the following questions regarding the pension plans:
      “[2] a. Did the court determine that the plaintiff has one or more defined benefit pension plans through his employer?
      “b. If so, please state whether the court’s judgment intends for the defendant to share one half the benefit to which the plaintiff is entitled pursuant to any such plan or plans. And, if so, please state whether the court’s judgment intends for the defendant to share one half of the amount of benefit that had accrued to the plaintiff at the time of the marital dissolution judgment or one half the benefit to which the plaintiff may be entitled upon his retirement or retirement eligibility.
      “c. Did the court determine that the plaintiff had one or more defined contribution plans through his employment?
      “d. If so, please state the date on which the defendant is entitled to realize her entitlement to her portion of that plan(s).
      “e. As to any such defined contribution plan(s) did the court intend to include the plaintiffs 401k plan as part of its pension plan award, and, if so, what amount did the court intend for the defendant to receive and what did the court intend to be the date of division of the plaintiffs?”
      On November 30, 2010, the court responded as follows:
      “2. [a] Based upon the only evidence provided, the plaintiffs financial affidavit, it was determined that there were two such plans.
      “[b] Yes, and the defendant is to share one half the value of such plans at the time of the dissolution of marriage and to receive such share at the earliest time it may be distributed under that plan.
      “[c] See (a) above.
      “[d] See (b) above.”
      In light of the court’s clarification of its pension order, there is no issue for us to address on appeal in this regard. We are aware of no impediment preventing either party from submitting an appropriate QDRO to the court for its approval and enforcement in accordance with the parameters articulated by the court in its clarified judgment.

       While many of the defendant’s claims arise from her concern that the court’s judgment did not ensure that the minor child would be able to complete his education at Eagle Hill School, the attorney for the minor child apparently did not share that concern as, in her brief to this court, she simply claimed that the defendant did not adequately brief her claims on appeal, and she raised no separate claims regarding the children’s needs.

       We note that the dissolution judgment does not preclude the defendant from relocating to seek more affordable services for the child.

       We note that the defendant does not make a separate claim regarding the patently extraordinary award of counsel fees in this matter. Because of the absence of any such claim, the propriety of the court’s award in this regard is not subject to our review.

       The defendant also contends that the court should have entered an order reinforcing the pendente lite order that the plaintiff return all items that he had removed from her safety deposit box. Because the defendant does not refer to the date of the pendente lite order at issue, and because she has not indicated which items have or have not been returned to her, we deem her brief inadequate in this regard and, accordingly, decline to review it.

       General Statutes § 46b-86 provides in relevant part: “(a) ... No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period dming which there is apending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party

       “The prohibition against retroactive modification of alimony or support orders applies with equal force to pendente lite orders.” Evans v. Taylor, 67 Conn. App. 108, 117 n.4, 786 A.2d 525 (2001).

       Although the dissolution judgment provided for $5000 per month, versus $7500 per month, as unallocated alimony and support, the dissolution judgment does not act as a retroactive modification of the pendente lite orders. See Evans v. Taylor, supra, 67 Conn. App. 118-19.


author: BEACH, J.

text:
    CADLE COMPANY v. MAUREEN A. CLARK ET AL.
    (AC 31890)
    Gruendel, Beach and Sullivan, Js.

      Argued November 19, 2010
    officially released March 8, 2011

      Maureen A. Clark, pro se, the appellant (named defendant).

      Jerome Pagter, with whom, on the brief, was Gregory T. Lattanzi, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant Maureen A. Clark appeals from the judgment of the trial court denying her motion to open the judgment of strict foreclosure rendered in favor of the plaintiff, the Cadle Company. On appeal, Maureen Clark claims that the court abused its discretion in denying her motion to open because (1) the plaintiff allegedly did not properly serve several of the parties cited in as defendants and (2) her property was incorrectly valued because of alleged misrepresentations made by the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of Maureen Clark’s appeal. The plaintiff commenced this action on March 27, 2007, to foreclose its judgment lien on property in Stonington in which Maureen Clark holds a one-half ownership interest. On May 28,2008, the plaintiff filed an amended complaint along with a motion to cite in five additional defendants.

The plaintiff allegedly experienced difficulty in attempting to locate and to contact some of the parties it sought to cite in as defendants and, thus, filed a motion for an order of notice by publication. On June 26, 2008, the court, Martin, J., granted the plaintiffs motion to cite in the additional defendants and ordered that the five parties listed in that motion be summoned as codefendants in the action. The court also granted the plaintiffs motion for an order of notice by publication. The court ordered that notice of the action be given to Eastlan Investment Corporation, First Trust Financial and Barbara E. Crowley, if living, and her widower and heirs if she is not living, by way of publication in a daily newspaper or by serving them in a manner prescribed by law. The court also ordered that John R. McGrail and Robert Clark be served in a manner prescribed by law. The court finally ordered that the five parties cited in as defendants appear “on or before the second day following July 29, 2008 . . . .” The plaintiff then served the cited in defendants by publishing notice of the action in the Westerly Sun and served copies of the materials on Maureen Clark at her residence.

On August 7, 2008, the plaintiff filed a motion for default for failure to appear because the five defendants cited in failed to appear on or before the second day following July 29, 2008, as ordered by the court. The motion was granted. The plaintiff thereafter filed a motion for summary judgment as against Maureen Clark as to the issue of liability, which the court granted on August 4, 2009.

The plaintiff then filed a motion for a judgment of strict foreclosure, and a hearing was held on November 2, 2009. At the hearing, the plaintiff presented evidence as to the value of Maureen Clark’s property and the amount of equity she held in the property. Maureen Clark did not attend the hearing, and, thus, she presented no evidence as to the value of the property or any equity she may have held in the property. On the basis of the evidence presented, the court, Devine, J., granted the plaintiffs motion for a judgment of strict foreclosure on November 2, 2009. The court set law days to begin on January 19, 2010, and to run through January 26, 2010. Maureen Clark filed a motion to open the judgment of strict foreclosure on January 21, 2010, and the court held a hearing on January 22, 2010. At the hearing, Maureen Clark argued that the judgment of strict foreclosure should be opened because the plaintiff failed to serve the parties cited in as defendants properly and that the plaintiff misrepresented information pertaining to the value of her property. The court denied Maureen Clark’s motion to open, and this appeal followed. Additional facts will be set forth as necessary.

I

Maureen Clark first claims that the court abused its discretion in denying her motion to open because the plaintiff allegedly did not properly serve several of the parties cited in as defendants. We disagree.

We begin by setting forth our standard of review. “The principles that govern motions to open or set aside a civil judgment are well established. A motion to open . . . a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 417, 948 A.2d 1009 (2008).

Maureen Clark claims that the plaintiff never properly served the parties cited in as defendants because they were not served personally. She alleges that it was improper for the plaintiff to serve them by publishing notice in the Westerly Sun and by sending the summons and amended complaint to her residence. It is her contention that, because she provided the plaintiff with an affidavit containing contact information for the defendants who were cited in, the plaintiff should have served them personally. Accordingly, Maureen Clark maintains that this alleged improper service of process is a ground for opening the judgment of strict foreclosure. The court, however, concluded that she suffered no harm as a result of the alleged improper service and, thus, denied her motion to open on this ground. We agree.

It is important to note that Maureen Clark does not allege that the plaintiff improperly served her. At the hearing on her motion to open, she explicitly stated several times that she was served properly. Therefore, our review is limited to whether the court abused its discretion in denying Maureen Clark’s motion to open because the defendants who were cited in were allegedly improperly served. We conclude that Maureen Clark failed to show that she was harmed by any alleged improper service of process, and, thus, her motion to open was denied properly.

In the present case, Maureen Clark’s reliance on defective service of process is misplaced. She has not analyzed how she suffered any harm as a result of the alleged improper service of process on the parties cited in as defendants. Nowhere does she claim that it adversely affected her interest in the present foreclosure action in any conceivable way. In fact, the only support she provided in favor of her argument at the January 22, 2010 hearing was an affidavit of Ed Zak, a “contact party” for “certain primary lien positions on the property,” claiming that those entities had never been personally served. Maureen Clark also attached a purported affidavit of Robert Clark to her appellate brief, along with an unsworn version of Zak’s affidavit. Robert Clark’s “affidavit” was neither notarized nor witnessed; it was merely a signed statement claiming that he had never been served. Additionally, Zak’s affidavit and Robert Clark’s unsworn statement did not show why any alleged improper service of process would have affected or prejudiced Maureen Clark in any way. Furthermore, Maureen Clark fully ignored the fact that the court authorized the plaintiff to serve three of the parties cited in as defendants by publication. She makes no argument claiming that the court erred in granting the plaintiffs motion for an order of notice by publication. Accordingly, we conclude that the court properly determined that Maureen Clark suffered no harm as a result of any alleged improper service of process.

II

Maureen Clark also claims that the court abused its discretion in denying her motion to open because the property was incorrectly valued as a result of alleged misrepresentations made by the plaintiff. Specifically, she claims that she presented evidence at the hearing on the motion to open, which proved that the property was worth significantly more than what the court determined it was worth at the foreclosure hearing, and that she held a substantial amount of equity in the property. We disagree.

The following additional facts are relevant to our resolution of Maureen Clark’s claim. At the November 2, 2009 hearing regarding the plaintiffs motion for a judgment of strict foreclosure, the plaintiff offered evidence as to the value of Maureen Clark’s property and the amount of equity she held in the property. The plaintiff provided the court with an appraisal that valued Maureen Clark’s interest in the property to be worth $340,000. The plaintiff also provided evidence that established that Maureen Clark was indebted to it in the amount of $160,115.19 and liable for $13,396 in attorney’s fees. The plaintiff further established that the property was subject to subsequent encumbrances exceeding $1 million. The court, therefore, acknowledged that Maureen Clark held no equity in the property. The plaintiff also argued that the property was subject to the one-half ownership interest of Robert Clark and was therefore less marketable. As was stated previously, Maureen Clark did not attend the hearing and, thus, presented no evidence to the contrary. On the basis of the evidence presented, the court ordered a strict foreclosure.

At the January 22, 2010 hearing regarding Maureen Clark’s motion to open, she claimed that the plaintiff misrepresented the value of the property and that it was worth substantially more than what the trial court determined. In support of this contention, she represented to the court that she had had an appraisal conducted on her property that estimated the value of the property to be $1.6 million. She also attached what she claimed to be an affidavit to her appellate brief. This supposed affidavit, however, was merely a statement signed by the plaintiff stating that she had had an appraisal conducted and that the property had been valued at $1.6 million. The supposed affidavit was not notarized, witnessed or signed by any other party, nor was it offered as evidence at the hearing. In denying the motion to open, the court stated: “If there was a challenge as to the value of the property, that should have been made at the time of judgment. Also, if the court were to consider a foreclosure by sale rather than a strict foreclosure, the court needed evaluation of the subject property at the time of the hearing as one factor in making its determination whether or not it would grant a motion for strict foreclosure or a motion for foreclosure by sale. The court did take into consideration the fact that there were [substantial] encumbrances listed on the foreclosure worksheet of over $1 million on the subject property. . . . The court, again, heard no argument or objection from [Maureen Clark], as she did not appear at the hearing. So, the court took that into consideration, determining that there was no equity in the subject property, and ruled in favor of a strict foreclosure on behalf of the plaintiff.”

A court’s denial of a motion to open a judgment is reviewed only for abuse of discretion. “[EJvery reasonable presumption will be made in favor of the correctness of the trial court’s actions. . . . [Furthermore], [w]e will disturb the trial court’s determination of valuation, therefore, only when it appears on the record before us that the court misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was [its] duty to regard.” (Citation omitted; internal quotation marks omitted.) Webster Trust v. Mardie Lane Homes, LLC, 93 Conn. App. 401, 407, 891 A.2d 5 (2006).

Maureen Clark argues that the plaintiff made misrepresentations regarding the value of her property and that it is worth substantially more than what the court determined, yet she provided no evidence credited by the court to support this proposition. The only evidence that she offered to support her contention that her property was worth more than the court determined were representations at the hearing on the motion to open during which she claimed that she had had an appraisal done and that the appraiser had determined that the property was worth $1.6 million. The plaintiff, on the other hand, provided the court with sufficient evidence at the foreclosure hearing for the court to determine that a strict foreclosure was proper. The plaintiff provided the court with an appraisal affidavit and an affidavit of debt, and argued that a one-half property interest is less marketable than an outright ownership interest. Accordingly, we conclude that the court’s valuation of the property was supported by the record, and, thus, the court did not abuse its discretion in denying Maureen Clark’s motion to open.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       In addition to Clark, as the named defendant, the plaintiff, the Cadle Company, later cited in five defendants: Eastlan Investment Corporation; John R. McGrail; Barbara E. Crowley, if living, and her widower and heirs if not living; First Trust Financial; and Robert Clark. The plaintiff included Robert Clark as a defendant because he owns a one-half interest in the property at issue and was in possession of the property at the time this action was initiated. The plaintiff also named several other entities as subsequent encumbrancers, including National Loan Investors, L.P., claiming that their interests in the property were inferior to the plaintiffs interest even though their mortgages on the property were recorded prior to the plaintiffs judgment lien. None of those entities are involved in this appeal. Maureen Clark is the only party appealing from the judgment of the trial court.

       On her appeal form, Maureen Clark indicated that she was appealing from the judgment of strict foreclosure. She, however, failed to file either an appeal from the underlying judgment or a motion to open within twenty days after the judgment was rendered. This court previously has stated: “Where an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Citations omitted; internal quotation marks omitted.) Stephen v. Hoerle, 39 Conn. App. 253, 256-57, 664 A.2d 817, cert, denied, 235 Conn. 928, 667 A.2d 555 (1995). Accordingly, Clark’s appeal is limited to the court’s denial of her motion to open the judgment of strict foreclosure.

       The lien had been assigned to the plaintiff by Fleet Bank, N.A., on May 9, 1995.

       The remaining one-half interest is owned by Robert Clark, who was cited in as a defendant. See footnote 1 of this opinion.

       See footnote 1 of this opinion.

       In its ruling, the court stated orally: “[A]s to the issue of the [cited in] defendants, it would appear to me that they would have been the ones that have proper standing to raise those particular claims as to the validity of [service of process].” The court did not proceed by discussing or analyzing any of the elements that are required for a party to have legal standing. It seems clear from the context of the court’s ruling that it did not intend to use the word “standing” for its narrow, technical definition. Rather, the court referred to “standing” as a means of stating that Maureen Clark was in no way harmed by the alleged improper service of process, though it may have been conceivable that a defendant who been cited in but had not been served could have been harmed. Thus, the court did not err in declining to grant the motion to open.

       Maureen Clark emphasized the alleged improper service of process on Robert Clark because of his one-half ownership interest in the property. In addition to finding that Maureen Clark lacked standing to raise this challenge, the court also determined that Robert Clark was served properly nonetheless. In any event, because the plaintiff was not foreclosing on Robert Clark’s one-half interest, the alleged improper service is of no consequence.

       The appraisal valued the whole property at $680,000. Because Maureen Clark holds only a one-half ownership interest in the property, however, the interest being foreclosed on was half of the total value of the property: $840,000.

       We are specifically not deciding the question of under what circumstances a trial court may revisit the issue of valuation in a hearing on a motion to open when such motion is filed more than twenty days after the judgment of foreclosure is rendered.