author: MIHALAKOS, J.

text:
    HENDEL’S INVESTORS COMPANY v. ZONING BOARD OF APPEALS OF THE TOWN OF MONTVILLE ET AL.
    (AC 19467)
    (AC 19667)
    Mihalakos, Zarella and Hennessy, Js.

      Argued October 18, 2000
    officially released March 13, 2001

      Francis J. Pavetti, for the appellant (plaintiff).

      Harry B. Heller, for the appellee (defendant Christy’s Market, Inc.).
   Opinion

MIHALAKOS, J.

In this consolidated appeal, the plaintiff, Hendel’s Investors Company, appeals from the judgment of the Superior Court dismissing its administrative appeal from the decision of the defendant zoning board of appeals of the town of Montville (board). At issue is the board’s decision to grant the defendant Christy’s Market, Inc. (Christy’s), a certificate of approval for the location of a gasoline station. On appeal, the plaintiff raises the following two part claim: (1) the court improperly concluded that the plaintiff failed to prove aggrievement; and (2) an examination of the record discloses that the board’s decision was not supported by substantial evidence. In response, the defendants argue, inter alia, that the plaintiff failed to plead aggrievement properly and that the court, consequently, did not have subject matter jurisdiction to hear the administrative appeal. We affirm the judgment of the trial court on that ground.

The record discloses the following facts and procedural history. On April 30, 1997, Christy’s, seeking to construct a gasoline station in Montville, filed an application with the board for a certificate of location approval, as required under General Statutes § 14-321. The proposed location, 2191 and 2205 Norwich-New London Turnpike, was diagonally across the street from the plaintiffs property on which there is an operating gasoline station.

On July 9, 1997, the board conducted a hearing on Christy’s application. Scott F. Hesketh of F. A. Hesketh & Associates, Inc., a civil and traffic engineering firm, testified on behalf of Christy’s and presented a study he had conducted concerning traffic patterns near the proposed site. The study concluded that “there [were] no serious traffic concerns which must be addressed or which require mitigation in planning for the introduction of the . . . Texaco-Christy’s Market at [the proposed] location.” The attorney for Christy’s also testified in support of the application.

The plaintiff, through its attorney, cross-examined Hesketh regarding department of transportation data indicating that there had been nineteen traffic accidents during the past three years in the vicinity of the proposed site. Hesketh testified that the accidents were not indicative of a problem, given the low volume of traffic, and that he had not included the data in his study because the department of transportation had not identified the area as being a “problem area.”

The plaintiffs attorney also submitted an assessor’s map (map 103) delineating a “jog” in the Norwich-New London Turnpike near the proposed site. The plaintiff did not provide any other evidence.

Thomas Sanders, Montville’s zoning enforcement officer, recommended that the board approve the application. Sanders’ report indicated that the department of transportation had reviewed the proposal, the plans and the traffic study, and had not expressed any specific concerns regarding the location. His report also indicated that, at one time, there had been three gasoline stations in the area and that two of them had since been converted to auto repair facilities. Sanders’ report also stated: “It appears that since the opening of Mohegan Sun Resorts, the need for gasoline stations has increased.”

Approximately one month after the board’s hearing, on August 6,1997, the board, finding that the proposed location was appropriate for the sale of gasoline, approved Christy’s application. The board expressly discounted the plaintiffs concerns regarding the jog depicted on map 103. In so doing, the board relied on the map’s notation, “Not to be used for conveyances.”

On August 25,1997, the plaintiff appealed to the Superior Court from the board’s decision, as permitted under General Statutes § 14-324. On September 24, 1998, the court conducted a hearing to determine whether the plaintiff was aggrieved, and on March 24, 1999, the court, finding that the plaintiff had failed to meet its burden of proving aggrievement, dismissed the appeal for lack of subject matter jurisdiction.

On April 7, 1999, the plaintiff filed an appeal in this court, along with a petition for certification to appeal, which was granted on May 19,1999. Thereafter, on June 3, 1999, the plaintiff filed a second appeal, which was identical to its first appeal. On July 16,1999, we consolidated the appeals, pursuant to Practice Book § 61-7 (b) (3), and ordered the parties to brief the issue of whether the plaintiff was required to petition this court for certification to appeal pursuant to General Statutes (Rev. to 1997) § 8-8 (o), now (n). Additional facts and procedural histoiy will be provided as necessary.

I

The parties complied with our July 16, 1999 order and maintain that the granting by this court of certification to appeal pursuant to § 8-8 (o), now (n), was not required. We agree.

The plaintiff is challenging an action taken by a zoning board of appeals pursuant to § 14-321. Section 14-324, which references § 14-321, provides in relevant part: “Any person aggrieved by the performance of any act provided for in sections 14-319 to 14-322, inclusive, by the local authority may take an appeal therefrom to the superior court for the judicial district within which such town or city is situated, or in accordance with the provisions of section 4-183 . . . .” (Emphasis added.)

General Statutes § 4-183 is contained in chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (UAPA). Section 4-183 creates a right to appeal from a decision of an administrative agency to the Superior Court. The next section of the UAPA, General Statutes § 4-184, provides: “An aggrieved party may obtain a review of any final judgment of the Superior Court under this chapter. The appeal shall be taken in accordance with section 51-197b.” (Emphasis added.)

General Statutes § 51-197b (d) provides: “Except as provided in sections 8-8, 8-9 and 22a-43, there shall be a right to further review to the Appellate Court under such rules as the judges of the Appellate Court shall adopt.” (Emphasis added.) Regarding administrative appeals, § 51-197b establishes a right of direct appeal to the Appellate Court from a judgment of the Superior Court. Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 263, 715 A.2d 701 (1998). That right is qualified, however, by General Statutes §§ 8-8, 8-9 and 22a-43. Our analysis reveals that those three statutes do not apply to the present case.

Sections 8-8 and 8-9 are contained in chapter 124 of the General Statutes. Section 8-9 provides: “Appeals from zoning commissions and planning and zoning commissions may be taken to the Superior Court and, upon certification for review, to the Appellate Court in the manner provided in section 8-8.” (Emphasis added.) Section 8-9 merely establishes a conditional right of appeal to this court from the Superior Court; however, it applies only when an action taken by a zoning board pursuant to chapter 124 ultimately is challenged. See Berigow v. Davis, 116 Conn. 553, 556,165 A. 790 (1933). In the present case, the board acted pursuant to § 14-321, which is contained in chapter 250, not chapter 124. Consequently, § 8-8 and § 8-9 do not apply.

Section 22a-43 is contained in chapter 440 of the General Statutes, the Inland Wetlands and Watercourses Act, and applies only when a “regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45” is challenged. In the present case, only an action taken pursuant to § 14-321 is challenged. Therefore, § 22a-43 does not apply to the present case.

Thus, for the foregoing reasons, we conclude that the legislature created a right of direct appeal to this court from the Superior Court when an action taken by a zoning board pursuant to § 14-321 ultimately is challenged. Accordingly, the plaintiff was not required to obtain from this court certification to appeal pursuant to § 8-8 (o), now (n).

II

Notwithstanding the plaintiffs invitation to consider its two part claim, we turn to the defendants’ argument that the plaintiff failed to plead aggrievement properly. That issue is dispositive of this appeal.

The defendants claim that the facts alleged in the plaintiffs complaint, even if proven, do not constitute aggrievement as a matter of law. Therefore, the defendants assert, the plaintiffs administrative appeal properly was dismissed for lack of subject matter jurisdiction. That claim, which was raised in the trial court by the defendants and denied by that court, presents a question of law. Consequently, our review is plenary. See Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 177, 740 A.2d 813 (1999).

Prior to examining the defendants’ claim, it is necessary to set forth the relevant legal principles that govern our analysis. “In determining the suitability of a proposed location for a gasoline station and [consequently] whether [to] issue a certificate of approval, the zoning board of appeals [acts] as a special statutory agent of the state under §§ 14-321 and 14-322 of the General Statutes.” (Internal quotation marks omitted.) New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540, 542, 227 A.2d 427 (1967). Appeals to the courts from determinations rendered by entities acting as agents of the state exist only under statutory authority. Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995). There is a statutory right to appeal from determinations by zoning boards concerning certificates of approval for locations of gasoline stations. That right is set forth in § 14-324. That section is restrictive, however, in that it allows appeals to be taken only by “aggrieved” persons. General Statutes § 14-324.

“It is well settled that the question of aggrievement is a jurisdictional one . . . .” (Internal quotation marks omitted.) Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). The question of aggrievement is also “a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal . . . .” (Internal quotation marks omitted.) Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). “Pleading and proof of facts that constitute aggrievement are essential prerequisites to the trial court’s subject matter jurisdiction over an administrative appeal.” New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 120, 627 A.2d 1257 (1993). “The trial court must be satisfied, first, that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law . . . .” Beckish v. Manafort, supra, 419; accord New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 122. If the plaintiff fails to allege such facts, the appeal must be dismissed for lack of subject matter jurisdiction. New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 121.

“[T]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole.” (Internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 158-59, 699 A.2d 142 (1997). “The second prong of the aggrievement test requires the plaintiff to demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law.” (Emphasis added; internal quotation marks omitted.) Id., 159. In considering whether a plaintiffs interest has been injuriously affected by an administrative decision, our Supreme Court considers “whether the injury [the plaintiff] complains of . . . falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for [its] complaint.” (Internal quotation marks omitted.) Id. A plaintiff claiming aggrievement is required to allege facts that, if proven, would satisfy both prongs of this fundamental test. See New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 226 Conn. 120-22; Beckish v. Manafort, supra, 175 Conn. 419.

In the present case, paragraph six of the plaintiffs complaint, which contains its attempt to allege aggrievement, states: “6. Plaintiff is aggrieved by the decision of the Defendant ZBA in one or more of the following respects:

“a. The Plaintiff is the owner of land which is within a radius of 100 feet of the land for which the Certificate of Approval was granted by the Defendant ZBA upon the Application of the Defendant Christy’s.

“b. The Plaintiff has a specific personal and legal property interest which was specifically and injuriously affected by the action of the Defendant ZBA.

“c. The Plaintiffs property has been adversely effected [sic] and has been depreciated in value by virtue of the action of the Defendant ZBA.”

Our examination of paragraph six of the plaintiffs complaint discloses that the plaintiff failed to allege facts that, if proven, would satisfy the second prong of the aggrievement test. Specifically, the plaintiff failed to allege an injury that falls within the zone of interests protected by the statutory provisions that comprise the legal basis for the complaint.

When the plaintiff appealed to the Superior Court from the board’s decision granting Christy’s a certificate of approval, it was challenging an action taken by the board pursuant to General Statutes §§ 14-321 and 14-322. The sole function of a zoning board of appeals in passing on such applications is to determine whether the site in question is suitable according to specific statutory criteria contained in §§ 14-321 and 14-322, which are designed to promote and protect public safety. Helfant v. Zoning Board of Appeals, 153 Conn. 93, 95,214 A.2d 371 (1965). “The determinative question [is] whether the location [is] suitable, ‘due consideration being given to the proximity of schools, churches, theatres or playhouses or other places of public gatherings, intersecting streets, traffic conditions, width of highway and effect of public travel,’ and whether the proposed use would imperil the safety of the public.” Esso Standard Oil Co. v. Zoning Board of Appeals, 148 Conn. 507, 508, 172 A.2d 607 (1961), quoting General Statutes (Rev. to 1958) § 14-322. Accordingly, a plaintiff claiming aggrievement by an action taken pursuant to §§ 14-321 and 14-322 must allege an injury that falls within the zone of interests of those statutes. Specifically, the plaintiff must allege that the action was undertaken absent, or in contravention of, a proper determination as to whether a gasoline station on the proposed site would unduly imperil the safety of the public.

Our examination of the factual allegations contained in paragraph six of the plaintiffs complaint discloses that the claim of injury does not fall within the zone of interests of §§ 14-321 and 14-322. Only two facts were alleged by the plaintiff: (1) it owns real estate that is within 100 feet of the site approved for Christy’s gasoline station; and (2) that real estate has been adversely affected and has depreciated in value. The plaintiff does not challenge the board’s determination that the proposed site at 2191 and 2205 Norwich-New London Turnpike was a safe location for Christy’s gasoline station. Instead, the plaintiff merely claims that the site approved for Christy’s gasoline station is close to the plaintiffs property and, consequently, the plaintiff’s property has lost value. Sections 14-321 and 14-322, however, do not require the board to consider the effect a new gasoline station would have on property values, regardless of the proximity of the proposed site to other properties. Accordingly, those factual allegations do not give rise to a claim falling within the zone of interests of §§ 14-321 and 14-322, and, consequently, they do not satisfy the second prong of the aggrievement test.

Finally, the conclusory statements contained in paragraph six of the plaintiffs complaint, i.e., the “[pjlaintiff is aggrieved by the decision of the [defendant,” and “[t]he [p]laintiff has a specific personal and legal property interest which was specifically and injuriously affected by the action of the [defendant,” are of little import to our analysis. Those conclusory statements, which purport to allege aggrievement, are insufficient because adequate factual allegations do not accompany them. See Beckish v. Manafort, supra, 175 Conn. 419. Accordingly, we conclude that the plaintiff failed to allege facts that, if proven, would constitute aggrievement as a matter of law. The court properly dismissed the plaintiffs appeal for lack of subject matter jurisdiction, and there is no need to consider the plaintiffs claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The board adopted the brief filed by Christy’s.

       General Statutes § 14-321 provides in relevant part: “Any person who desires to obtain a license for the sale of gasoline or any other product, under the provisions of section 14-319, shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired. The certificate of approval shall be obtained from the local authority of the town, city or borough where the station or pump is located or is proposed to be located. ...”

       “Jog,” as used here, is defined as “a brief abrupt change in direction.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

       General Statutes § 14-324 provides in relevant part: “Any person aggrieved by the performance of any act provided for in sections 14-319 to 14-322, inclusive, by the local authority may take an appeal therefrom to the superior court for the judicial district within which such town or city is situated . . . .”

       Practice Book § 61-7 (b) (3) provides: “The appellate court, on motion of any party or on its own motion, may order that appeals pending in the appellate court be consolidated.”

       See footnote 2.

       General Statutes § 22a-43 provides in relevant part: “The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8 from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. . . .”

       See footnote 4.

       As noted in the court’s memorandum of decision, the plaintiff abandoned that claim of statutory aggrievement.

       See footnote 2.

       General Statutes § 14-322 (a) provides in relevant part: “No certificate of approval shall be issued unless the local authority finds that the location is suitable for the sale of gasoline and the other products referred to in section 14-319, due consideration being given to the proximity of schools, churches, theaters or playhouses or other places of public gatherings, intersecting streets, traffic conditions, width of highway and effect of public travel, and that such use of the proposed location will not imperil the safety of the public.”

       It is important to note that ‘‘[ojbtaining a certificate of approval pursuant to General Statutes §§ 14-321 and 14-322 is not a zoning matter, and the use of premises for a gasoline station in a zone in which such a use is prohibited or under conditions or circumstances which would be in violation of the zoning regulations would not be ‘suitable’ under § 14-322, even though other criteria specified in the statute were met.” Clark Heating Oils, Inc. v. Zoning Board of Appeals, 159 Conn. 234, 239, 268 A.2d 381 (1970).


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    MARTIN P. HEISE v. BRUCE R. ROSOW
    (AC 19596)
    Foti, Zarella and Peters, Js.
    Argued September 19, 2000
    officially released March 13, 2001

      Robert A. Ziegler, with whom, on the brief, were Leslee B. Hill and Edward B. Bradley, for the appellant (plaintiff).

      Richard P. Weinstein, with whom were Nathan A. Schatz and, on the brief, Kerry M. Wisser, for the appellee (defendant).
   Opinion

ZARELLA, J.

The plaintiff, Martin P. Heise, appeals from the judgment of the trial court rendered after the granting of the motion to set aside the judgment filed by the defendant, Bruce R. Rosow. On appeal, Heise contends that the court improperly concluded that (1) the assignment of a Florida judgment to Heise, the trustee of the judgment codebtors, extinguished the judgment and (2) Heise’s payment for the assignment was equivalent to a payment by a judgment debtor, which, coupled with the payments of the other judgment codebtors, constituted payment in full and, thus, extinguished the judgment. We reverse the judgment of the trial court.

The motion to set aside the judgment was submitted to the court on a stipulation of facts. Those facts are summarized as follows. On June 8, 1992, the Circuit Court for Polk County, Florida rendered judgment in favor of the First Union National Bank of Florida (bank) in the principal amount of $339,440.65, with interest to accrue on the unpaid amount at 12 percent per annum. The defendants in that action and against whom judgment was rendered were Louis Amodio, John Amodio, Gerald Benson, Louis Brunette, Michael D’Addabbo, Terry Fletcher, Bruce R. Rosow, Donald Griggs, Edwar d Mauro and H. McMurry.

On July 27, 1992, the bank sent a certified letter to each of the defendants in the Florida action, demanding that they pay their pro rata share of the debt. Rosow received the letter, but failed to pay the judgment.

On August 18,1992, the bank released Louis Amodio, John Amodio, Gerald Benson and Edward Mauro (settling parties) from any liability in exchange for a payment of $129,991.20, which left an outstanding balance on the Florida judgment of $217,373.05 plus interest. Also on August 18, 1992, the settling parties created a trust and designated Heise as the trustee. Each of the settling parties contributed $48,746.71 to the trust for a total of $194,986.84. Heise paid that amount to the bank in exchange for an assignment of the Florida judgment. The clerk of the Circuit Court of Polk County then “filed, recorded, and record verified” the assignment.

Heise later filed a certified copy of the Florida judgment in Connecticut pursuant to the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq. Heise notified Griggs, one of the original Florida defendants who had not settled the claim, of the filing and his intent to enforce the judgment. On March 3, 1997, Heise executed a satisfaction of judgment as to Griggs in exchange for Griggs’ payment of $55,301.81, which represented his pro rata share of the judgment.

Heise similarly notified Rosow of his intent to enforce the Florida judgment. Rosow refused to pay and, in response, filed a motion to set aside the judgment, claiming that “the plaintiff-assignee of the underlying Florida judgment is an agent of certain other cojudgment debtors of the defendants and, therefore, is not entitled to enforce the judgment against the defendant. Under these circumstances, the judgment is deemed extinguished and the plaintiff is instead limited to a separate action for contribution with regard to only a portion of the subject judgment.” (Emphasis added.) Rosow further claimed that he did not owe any amount on the Florida judgment. The court accepted the stipulation of the parties and, after oral argument, granted the motion.

On May 19, 1999, Heise appealed from the court’s judgment. On August 2,1999, Heise filed a motion for an articulation of the court’s basis for finding that Heise’s payment to the bank was the equivalent of a payment by a judgment codebtor and not a payment in Heise’s capacity as trustee. On August 6,1999, the court denied the motion. Heise subsequently filed a motion seeking review of the court’s decision. In an order dated October 6, 1999, this court granted the motion for review, but denied the relief requested.

We note that because the parties have stipulated to the facts, we review the parties’ claims de novo. “[T]he legal inferences properly to be drawn from the parties’ definitive stipulation of facts raise questions of law rather than of fact.” (Internal quotation marks omitted.) Steelcase, Inc. v. Crystal, 238 Conn. 571, 577, 680 A.2d 289 (1996). “When an issue on appeal concerns a question of law, as does the one before us, this court reviews that claim de novo.” State v. Coughlin, 61 Conn. App. 90, 97, 762 A.2d 1 (2000), cert, denied, 255 Conn. 934, 767 A.2d 105 (2001).

I

We initially address Rosow’s assertion that the claims raised by Heise on appeal are not reviewable. Rosow contends that Heise’s arguments are based on factual and legal claims that were not raised in the trial court and, thus, should not be afforded review pursuant to Practice Book § 60-5. Rosow specifically claims that Heise is challenging for the first time on appeal Rosow’s assertion that Heise was an agent of the judgment codebtors. We disagree.

We begin our discussion by noting that Rosow’s motion to set aside the judgment alleged that Heise was an agent of the judgment codebtors. By alleging that Heise was an agent, Rosow placed the issue before the court and assumed the burden of proving that fact. “The burden of proving agency is on the party asserting its existence.” (Emphasis added.) Housatonic Valley Publishing Co. v. Citytrust, 4 Conn. App. 12, 16, 492 A.2d 203 (1985). “It is fundamental in our law that the party asserting a fact has the obligation of proving it. . . . [WJhenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such party to show the existence of such fact.” (Citation omitted; internal quotation marks omitted.) Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 124, 492 A.2d 536 (1985).

At oral argument on his motion, Rosow argued that the judgment had been satisfied and, therefore, Heise was precluded from enforcing it. Rosow further argued that Heise’s payments should not be construed as consideration for the assignment of the judgment. Rather, they should be credited, along with other payments, toward the underlying judgment. The foregoing argument was consistent with Rosow’s allegation in his motion that Heise was an agent for the judgment codebtors. By contrast, Heise argued that his payments were to procure the assignment of the judgment and were not to be credited toward the underlying judgment. Accordingly, the issues of the nature of the payments and the capacity in which Heise made them were before the court. As a consequence, the court was required to determine the capacity in which Heise made the payment to the bank.

In its memorandum of decision, the court determined that “[i]n the absence of contradictory statutory or decisional law I see no reason why the general rule prohibiting a judgment codebtor from assuming a judgment against the other judgment codebtors should not be the rule recognized in Connecticut.” The court then concluded that the payment by the four judgment codebtors to the bank together with the trustee’s payment and Griggs’ payment were sufficient to discharge the outstanding debt. Implicit in the court’s decision was the determination that Heise was acting, as alleged by Rosow, as an agent of the four judgment codebtors who created and funded the trust, rather than as an independent trustee, when he procured the assignment of the judgment.

Under the circumstances of this case, in which the defendant has the burden of proving that the trustee was acting in the capacity of an agent and where the court’s conclusions necessarily required a determination that the trustee was an agent, we conclude that review is appropriate.

II

Having determined that review is warranted, we now turn to the issues raised on appeal. Heise first claims that the court improperly concluded that the assignment of the Florida judgment to a judgment codebtor extinguished the judgment. Heise also claims that the court improperly determined that his payment, coupled with the payments of the other judgment codebtors, constituted payment of the judgment in full and, thus, extinguished the judgment. Both of those issues turn on the determination of the capacity in which Heise acted and the nature of the payment he made to acquire the judgment.

We begin our analysis by noting that “[a] formal stipulation of facts by the parties constitutes a judicial admission and should usually be adopted by the court deciding the case. . . . An admission concedes the truth of some fact so that no evidence need be offered to prove it.” (Citation omitted.) State v. Phidd, 42 Conn. App. 17, 31, 681 A.2d 310, cert, denied, 238 Conn. 907, 679 A.2d 2 (1996), cert, denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997).

In the present case, the parties stipulated to the fact that “[o]n or about August 18,1992, those . . . [settling parties] entered into a Memorandum of Trust under which said defendants appointed Martin P. Heise to act as their trustee and to purchase the Florida judgment from the Bank and to hold the Florida judgment as their trustee.” A copy of the trust agreement was attached to the stipulation of facts, which the court later adopted.

In his brief, Rosow points out that the trust agreement provides “[t]hat the purpose of the Trust is a ‘dry or passive’ Trust and that Heise may not act . . . without the unanimous written consent of all Beneficiaries.” According to that language, Rosow claims, “the Memorandum of Trust does not imbue the plaintiff with the usual powers of a trustee,” and “the Memorandum of Trust appoints the plaintiff as the mere agent of [the settling parties] ... to act in regard to the judgment exclusively at their direction and only with their consent.” (Emphasis in original.) We disagree.

It is a well established legal principle that “[a] trustee is not an agent. An agent represents and acts for his principal, who may be either a natural or artificial person. A trustee may be defined generally as a person in whom some estate, interest, or power in or affecting property is vested for the benefit of another.” Taylor v. Davis, 110 U.S. 330, 334-35, 4 S. Ct. 147, 28 L. Ed. 163 (1884). Section 8 of the Restatement (Second) Trusts, comment (b) (1959), also endorses the principle that a trustee is distinct from an agent. “An agent undertakes to act on behalf of his principal and subject to his control ... a trustee as such is not subject to the control of the beneficiary, except that he is under a duty to deal with the trust property for his benefit in accordance with the terms of the trust and can be compelled ... to perform this duty.” Id., pp. 23-24.

In the present case, the stipulation of facts provides that Heise is a trustee. The capacity in which Heise acted is not subject to question in light of the stipulated facts. There is no language in the stipulation regarding Heise’s acting as an agent or a “purported trustee.” Specifically, the stipulation states that the settling parties “entered into a Memorandum of Trust under which said defendants appointed Martin P. Heise to act as their trustee and to purchase the Florida judgment . . . and to hold the Florida judgment as their trustee.” (Emphasis added.) Moreover, there are no stipulated facts that would allow the court reasonably to infer that the trustee was acting in any capacity other than in his stated capacity as a trustee. Paragraph six of the trust agreement states that “[t]he Settlors hereby authorize Martin P. Heise, Trustee, to retain legal counsel to collect on the above referenced Judgment.” The beneficiaries are precluded from directing the trustee unless there is unanimous consent and the direction is received in writing. Contrary to the defendant’s contentions, Heise is not “stripped of all discretion and independent authority over the ‘trust’ property,” and does not owe a duty of obedience to the settling parties, as is typical in an agency relationship, but rather, owes a duty to conform to the terms of the trust. All decisions regarding collection of the judgment are to be made by Heise subject only to the unanimous written direction by the settlors.

Having determined that the evidence was insufficient for the court to find that Heise acted as an agent rather than as a trustee, we conclude that the assignment of the judgment to Heise did not extinguish the judgment. In addition, the court improperly construed the payment by Heise as a payment by a judgment codebtor toward the outstanding debt rather than as a payment by a third party for an assignment of the judgment. Accordingly, we conclude that the court improperly barred the enforcement of the Florida judgment in Connecticut.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff shall be referred to as Heise or the trustee throughout this opinion.

       The memorandum of trust, states in relevant part: “That the purpose of the Trust, is a ‘dry or passive’ Trust and that Heise may not act nor may the Trust be amended without the unanimous written consent of all Beneficiaries. Heise shall not be liable to the Settlors or Beneficiaries for any and all actions that he takes as a result of written instructions from the Beneficiaries and the Beneficiaries, jointly and severally agree to indemnify, hold harmless, and defend Heise from and against any and all claims that may be asserted by third parties against Heise [an/or] [sic] any losses or damages that Heise may suffer by reason of acting as Trustee herein.”

       General Statutes § 52-604 provides in relevantpart: “ ‘[F]oreign judgment’ means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance or by confession of judgment.”

       Rosow maintains that the only remedy available to the judgment codebtors in this situation is an action for contribution.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       In regard to the judgment, the plaintiff argued: “It clearly hasn’t been satisfied, and it hasn’t been satisfied even in full or for the purchase price because if four debtors paid $129,000 to provide a release, the judgment that was certified into this court reflects that happening. Then one hundred and ninety-four [thousand dollars] came in through the dry trust. It hasn’t been satisfied.”

       General Statutes (Rev. to 1997) § 34-508 (a) provides in relevant part: “A statutory trust shall have the power to sue and be sued in its own name. In furtherance of the foregoing, a statutory trust may be sued for debts and other obligations or liabilities contracted or incurred by the trustees . . . [and] [t]he property of a statutory trust shall be subject to . . . execution as if it were a domestic corporation. . . .”


author: DUPONT, J.

text:
    PERRY LEWIS, TRUSTEE, ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF RIDGEFIELD
    (AC 19865)
    Lavery, C. J., and Schaller and Dupont, Js.
    Argued November 2, 2000
    officially released March 13, 2001

      Robert A. Fuller, for the appellant (plaintiff).

      Thomas W. Beecher, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiffs, Perry Lewis, Basha Szymanska and Downington Manufacturing Company (Downington), appeal from the judgment of the trial court dismissing their administrative appeal from the decision of the defendant planning and zoning commission of the town of Ridgefield (commission) to amend two sections of the Ridgefield subdivision regulations. The plaintiffs claim that the court improperly found that the amendments neither classically nor statutorily aggrieved them and, therefore, improperly concluded that they lacked standing to maintain the appeal. We agree with the plaintiffs and reverse the judgment of the trial court.

The parties do not dispute the following facts. On September 8, 1998, after several public hearings, the commission adopted certain amendments to §§ 2-31 and 4-39 of the subdivision regulations of the town of Ridgefield (town) governing lot area calculations. The revision to § 2-31 expanded the definition of “lot area,” whereas the § 4-39 amendment added anew description of the method for calculating lot area. The amendments provided that the calculation of total horizontal area of a lot shall exclude land underneath lakes and ponds. Moreover, they provided that the total lot calculation shall only include 20 percent of land having slopes of 25 percent or greater. The court noted that “[t]he effect of the amendments upon property not yet subdivided is to require individual lots to have an area greater than the two acres required by the zoning regulations if ponds, lakes or slopes meeting the criteria are included within a proposed lot. ... In this way, the number of subdivision lots created from an undeveloped parcel is reduced.” The amendments became effective on September 18, 1998. The commission adhered to statutory requirements and published notice of the decision, and the plaintiffs filed a timely appeal.

The plaintiffs collectively own 277 acres of the town’s 4121 acres of subdividable land, which land the amendments affect. As owners of at least 6 or 7 percent of the land affected by the amended regulations, the plaintiffs appealed from the enactment of the amendments. On May 21, 1999, following an aggrievement hearing, the court dismissed the appeal for lack of aggrievement. The court also determined that since the plaintiffs lacked standing, the appropriate vehicle to challenge the regulations was a declaratory judgment action rather than a direct appeal from the administrative decision. The court noted that if the plaintiffs had actually applied to subdivide their property, an adverse action by the administrative agency would constitute aggrievement and allow them to appeal from that action as well as the denial of any challenge to the validity of the regulations. This appeal followed. We will provide additional facts where the subsequent discussion necessitates.

The primary issue of this appeal is whether the plaintiffs are entitled to appeal from the enactment of the regulations as aggrieved parties. If they are aggrieved, they are entitled to bring an administrative appeal rather than a declaratory judgment action. See Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582, 715 A.2d 46 (1998).

In reviewing a finding of aggrievement, our standard of review is well settled. Aggrievement presents a question of fact for the trial court. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). We do not, therefore, disturb such a finding on appeal unless the subordinate facts do not support it or it is inconsistent with the law. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 496, 400 A.2d 726 (1978). “We will reverse the trial court only if its conclusions are clearly erroneous and violate law, logic, or reason or are inconsistent with the subordinate facts.” Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 301, 605 A.2d 885 (1992). Thus, if the court’s conclusion that aggrievement exists violates law, reversal is appropriate even if the subordinate facts are correct. See Davis v. Westport, 61 Conn. App. 834, 843, 767 A.2d 1237 (2001). With those basic principles in mind, we turn now to the issues presented.

The plaintiffs claim that the court incorrectly determined that the amendments to the regulations did not aggrieve them. We agree.

As a jurisdictional matter, an appellant must demonstrate aggrievement to maintain an administrative appeal. Aggrievement is essentially a question of standing; without it, a court must dismiss an action for want of jurisdiction. DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 373, 588 A.2d 244, cert, denied, 219 Conn. 903, 593 A.2d 129 (1991). Two broad yet distinct categories of aggrievement exist, classical and statutory. In re Shaquanna M., 61 Conn. App. 592, 597, 767 A.2d 155 (2001).

Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). Second, the party must also show that the agency’s decision has specially and injuriously affected that specific personal or legal interest. Id. Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest. New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 103, 717 A.2d 1276 (1998).

Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. Cole v. Planning & Zoning Commission, 30 Conn. App. 511, 514-15, 620 A.2d 1324 (1993).

On appeal, the plaintiffs maintain that the commission’s action aggrieved them both classically and statutorily. We first consider whether classical aggrievement exists.

I

The plaintiffs argue that they established classical aggrievement because, unlike a zoning amendment, which is of general townwide application, a change to subdivision regulations only affects subdividable property. They note that subdividable property in the town constitutes only a small fraction of the town’s total land. As such, they argue, their interest is particular and specific to them. The plaintiffs concede that general amendments to land use regulations do not traditionally satisfy the first part of the classical aggrievement test, but assert instead that “a change of regulations applying only to a particular zone covering a small area of the municipality [namely, subdividable property] is appeal-able by an owner of land within the zone . . . .”

The defendant responds that the amendments at issue in this case have the same practical effect as general amendments to land use regulations and, therefore, the plaintiffs must attack the amendments by way of a declaratory judgment rather than a zoning appeal. The defendant argues that the changes apply to all parcels that have the potential of subdivision and, consequently, the amendments affect the plaintiffs’ property in the same way as they affect all other tracts of potentially subdividable land in the town. Although we agree with the defendant that the amendments treat all potentially subdividable land similarly, we disagree with its ultimate conclusion that such treatment precludes a finding of classical aggrievement.

The following additional facts are necessary to our discussion of classical aggrievement. Neither party disputes the basic figures. A generous estimate suggests that the amendments affect only 20 percent of the land in the town, leaving 80 percent of the town’s acres unaffected. The commission’s planning director, Oswald Inglese, suggested at several public hearings that the total area affected by the amendments would likely be far less than 20 percent and estimated that the number may be closer to 5 percent or 7 percent. John McCoy, a licensed professional engineer, investigated the status of properties and the effect the amendments would have on the land in the town. At the aggrievement hearing, he testified that the amendments would affect a maximum of 20 percent of the land.

McCoy also testified as to the specific effect the amendments would have on the plaintiffs’ property. According to McCoy, the Lewis-Szymanska property would yield thirty-nine lots under the unamended regulations. The amendments’ new method for lot calculation would decrease the total number of lots to thirty-one. McCoy also testified that the amendments would cause the Downington parcel to lose three lots, reducing the total from fifty-seven to fifty-four. The plaintiffs would collectively lose, therefore, eleven lots as a result of the amendments. McCoy then testified that, on the basis of his knowledge, a lot in a two acre zone of the town sells for between $250,000 and $350,000.

A

As previously noted, classical aggrievement requires an identifiable legal interest that a decision adversely affects. The defendant suggests that if the action affects other property owners similarly, the first part of the classical aggrievement test remains unsatisfied. We disagree with such a narrow, bright line rule.

In Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 610 A.2d 617 (1992), the plaintiffs appealed from an administrative decision to increase lot size in a particular zone from 40,000 square feet to 80,000 square feet. Our Supreme Court noted that “[a]s owners of land in zone B [the zone affected by the amendments], the plaintiffs are aggrieved parties. See General Statutes § 8-8 (b) [providing that an aggrieved party may appeal]; Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502-503, 264 A.2d 566 (1969).” Timber Trails Corp. v. Planning & Zoning Commission, supra, 376 n.3. Although our Supreme Court did not offer an analysis of its aggrievement conclusion, it concluded that the plaintiffs, as landowners in the affected zone, were aggrieved. We find that conclusion dispositive of the plaintiffs’ claim in the present case.

We see no practical difference between an amendment that affects a particular zone, as in Timber Trails Corp., and an amendment that affects a very limited amount of property in a town, as in this case. In both situations, in which the total area is sufficiently restricted, affected property owners constitute aggrieved parties.

We also find support for our conclusion in Summ v. Zoning Commission, 150 Conn. 79,186 A.2d 160 (1962). In Summ, a town adopted a certain regulation that authorized the zoning commission, “subject to specified standards and conditions, to issue a special use permit for the use of land for research and development laboratories in any zone in the town.” Id., 82. The authority to issue a permit, however, was limited to a total of 240 acres in the entire town. Id., 83. In that case, the amount of affected land was sufficiently restricted so that the plaintiffs, owners of residential property in the town, satisfied the first prong of classical aggrievement. The court held that the plaintiffs could be adversely affected by the adoption of the regulation and were entitled to appeal. Summ applies equally to the facts of this case. The plaintiffs here have demonstrated a specific interest affected by the amendments, the first prong of classical aggrievement, because those amendments apply only to tracts of land in the town capable of subdivision, which land covers only a small area of the town’s total acreage.

In its discussion of classical aggrievement, the court in this case did not address our Supreme Court’s conclusion in Timber Trails Corp. It relied instead on several Superior Court decisions and concluded: “Here, while the plaintiffs own substantial property, other landowners are also affected by the subdivision amendments. The first prong of the classical aggrievement test is therefore unsatisfied.” The court intimated that absent evidence that the regulations did not affect any other properties in the town, an individual could not establish classical aggrievement. Classical aggrievement does not require, however, that a plaintiff be the only person affected by the adverse decision or even that the plaintiff be among a small group of affected persons. Like the plaintiffs in Timber Trails Corp., the plaintiffs in the present case own property affected by certain amendments, which amendments only apply to a limited number of acres in the town. We find that the plaintiffs have adequately demonstrated an identifiable legal interest that the community as a whole does not share and have, thus, satisfied the first prong of the classical aggrievement test.

B

We turn now to the second prong of the classical aggrievement test, namely, whether the commission’s decision has specially and injuriously affected the plaintiffs’ property interest. The plaintiffs argue that McCoy’s undisputed testimony satisfies the second prong. The plaintiffs note that the defendant did not offer any evidence to contradict or discredit McCoy’s conclusion that the amendments reduce the number of lots into which the plaintiffs can now subdivide their property.

The defendant appears to argue, as the court also implied, that the plaintiffs’ injury is too speculative to satisfy the second requirement for classical aggrievement. According to that argument, the plaintiffs cannot demonstrate a special and injurious effect until they actually file a subdivision application. We disagree.

The suggestion that the plaintiffs in the present case must first file a subdivision application is similar to one we considered and rejected in Cioffoletti v. Planning & Zoning Commission, 24 Conn. App. 5, 7-8, 584 A.2d 1200 (1991). In that case, a town adopted a regulation that limited the time that excavation activities would be allowed. The plaintiffs, sand and gravel business operators, challenged the regulation, arguing that it would force them to cease use of their property before they otherwise would do so. The defendant in Cioffoletti argued that the plaintiffs’ action was premature until such time as they were actually denied a permit. This court disagreed that “an appealable issue [did] not exist until the plaintiffs [were] actually denied a permit upon reapplication at the end of four years.” Id., 7.

Although Cioffoletti is not an aggrievement case, we held that the law did not require a property owner to defer a challenge to a regulation’s validity until an administrative agency denied an application for a permit. We recognize that the plaintiffs in Cioffoletti had a personal and legal interest in an existing business that the challenged regulation would undoubtedly affect after a set period of time. That distinction notwithstanding, we believe that the reasoning in Cioffoletti similarly applies to the present case. The law does not require that the plaintiffs here file a subdivision application and await an adverse decision from the commission when they have demonstrated unequivocally that the amendments have diminished the value of their property. The plaintiffs own property that if they divided today would yield eleven fewer lots than if they had divided it in 1997, lots which sell for a minimum of $250,000.

We find further support for our conclusion in both Bombero v. Planning & Zoning Commission, 40 Conn. App. 75, 669 A.2d 598 (1996), and Timber Trails Corp. v. Planning & Zoning Commission, supra, 222 Conn. 374. In Bombero, a plaintiff landowner brought a declaratory judgment action challenging the constitutionality of a certain subdivision ordinance. The trial court in that case denied relief because the plaintiff had failed to file a subdivision application or express any intention to do so. The trial court determined that this failure precluded a showing of any adverse impact on the property. We reversed the judgment of the trial court and stated that “[t]he fact the plaintiff has not applied to subdivide his property is not determinative of whether the plaintiff has been adversely affected by the adoption of the regulation.” Bombero v. Planning & Zoning Commission, supra, 87. A plaintiff is entitled to ascertain, with reasonable certainty, whether a certain regulation is valid and that regulation’s effect on her rights as a property owner. See id., 88.

Moreover, in Timber Trails Corp., discussed in part IA of this opinion, our Supreme Court, without analysis, determined that the plaintiffs in that case were aggrieved. The court did not discuss whether the plaintiffs’ interest was too speculative to satisfy the second prong of classical aggrievement, yet the court found that the plaintiffs there were aggrieved. As previously noted, the plaintiffs in Timber Trails Corp. owned property in a zone that the disputed regulation affected. Their status alone as owners of property in the affected zone, the extent of their legal and personal interest, satisfied the test of classical aggrievement. The plaintiffs’ interest in Timber Trails Corp. is no less speculative than the plaintiffs’ interest in the present case. We see, therefore, no reason to find that the plaintiffs in the present case have fallen short in demonstrating aggrievement.

The defendant here argues that Timber Trails Corp. is distinguishable from the present case in that the amendment in Timber Trails Corp. immediately affected the property. We believe that the challenged amendments in this case also have an immediate impact on the plaintiffs’ property. The amendments instantly affect the value of the property. Irrespective of whether the plaintiffs subdivide today or in five years, the fact remains that the amendments have reduced the number of lots that the plaintiffs’ properties contain. That reduction constitutes an immediate economic impact, and we see no logical reason to require that the plaintiffs actually file a subdivision application before allowing them to institute an action as aggrieved persons. like the landowner in Bombero, the plaintiffs here are entitled to ascertain with reasonable certainty whether the amendments are valid and, therefore, the effect of the amendments on their property. We conclude that the plaintiffs in the present case have satisfied the second prong of classical aggrievement and that the court improperly determined that the plaintiffs were not classically aggrieved. As classically aggrieved parties, the plaintiffs were entitled to bring a direct appeal and need not have brought a declaratory judgment action. See Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 582.

II

We turn now to the issue of statutory aggrievement. The plaintiffs also argue that, pursuant to § 8-8 (a) (1), the amendments statutorily aggrieved them. We agree on the basis of our decision in Cole v. Planning & Zoning Commission, supra, 30 Conn. App. 514-15.

The plaintiffs argue that the law concerning statutory aggrievement applies not only when nearby property owners or a specific parcel of land is involved, but also in those situations in which general amendments to zoning regulations specifically affect a landowner’s property. The defendant counters that a property owner is not statutorily aggrieved when the decision affects no particular piece of property. We agree with the plaintiff.

Section 8-8 (a) (1) provides in relevant part that an aggrieved person “includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” In Cole, certain amendments permitted the establishment of commercial sawmills in two residential zones. The plaintiffs owned property in those zones and appealed from the adoption of the amendments. We determined that the plaintiffs were statutorily aggrieved by virtue of § 8-8 (a) (1) as owners of land within the affected zones. Id., 514. “The plaintiffs, however, as owners of land within either the R-3 zone or the R-5 zone, the zones to which the amendment pertains, are aggrieved parties by virtue of General Statutes § 8-8 (a) (1). . . . [W]e determine that the plaintiffs were aggrieved parties by virtue of their ownership of land within the zone to which the amendment pertained . . . .” (Citations omitted.) Cole v. Planning & Zoning Commission, supra, 30 Conn. App. 514-15.

The defendant attempts to distinguish Cole by arguing that the zone change in Cole instantly and specifically affected the property owners, whereas the amendments in the present case do not have an immediate impact on the property. We find that argument unavailing for two reasons. First, the question of whether there has been an immediate impact pertains to the issue of whether a party has sufficiently established an injury, which constitutes an element of classical aggrievement, not statutory aggrievement. A statutorily aggrieved person need not have sustained any injury. See Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 671, 560 A.2d 975 (1989) (Shea, J., dissenting). Second, even if the distinction identified by the defendant had any bearing on the issue of statutory aggrievement, we reiterate the conclusion we reached in part I B of this opinion, that the plaintiffs have shown an instant economic impact on their property independent of the filing of a subdivision application. We read Cole to stand for the proposition that the plaintiffs, as owners of land within the affected zone, are statutorily aggrieved.

Because we conclude that the plaintiffs are aggrieved parties, both classically and statutorily, they need not have brought an action for a declaratory judgment.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       Szymanska is a plaintiff in this action both individually and as trustee. She is the named trustee of certain acres held in trust for her and for Lewis, her husband.

       The commission amended § 2-31 of the regulations by adding the following language: “Lot area. The total horizontal area of the lot lying within the lot lines, provided that no area of land lying within any street line shall be deemed a portion of any lot area. In calculating the minimum required lot area, ponds and lakes shall be excluded. In addition, not more than twenty percent (20%) of land area having slopes of twenty-five percent (25%) or greater as measured in ten-foot contour mapping and consisting of contiguous areas totaling three-thousand (3,000) square feet or more, shall be included.”

       The commission amended § 4-39 by inserting the following subsection in its entirety: “Lot area calculations. In calculating the minimum required lot area, the area of ponds and lakes shall be excluded. In addition, not more than twenty percent (20%) of land area having slopes of twenty-five percent (25%) or greater as measured in ten-loot contour mapping and consisting of contiguous areas totaling three-thousand (3,000) square feet, or more, shall be included.”

       Szymanska and Lewis, wife and husband, own a twelve acre parcel of subdividable land as individuals. Szymanska holds one ninety acre parcel of subdividable land in trust for herself and Lewis. Downington owns a 183.5 acre parcel, the deed to which exempts eight acres as owned by the president of the company, thereby leaving a 175 acre parcel capable of subdivision.

       The regulations technically affect 4436 acres in the town, but the Silver Springs Country Club, containing 315 acres, is excluded from the subdividable land total.

       The plaintiff in Stafford Higgins Industries, Inc., was clearly aggrieved and aggrievement, therefore, was not the issue in that case. That case, however, established that a general challenge to the validity of legislation may lie in an administrative action. “[W]e abandon the Cioffoletti [v. Planning & Zoning Commission, 209 Conn. 544, 563, 552 A.2d 796 (1989)] rule requiring that general attacks on the validity of legislation be brought in the form of declaratory judgment actions instead of substantive appeals.” Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 582.

       At the June 2, 1998 public hearing, Inglese stated: “I don’t think you are looking at more than 5 percent to 7 percent [of the town’s undeveloped residential land that the amendments will affect].” At the September 1,1998 public hearing, James McChesney, a planning and zoning commissioner, stated: “I think we are going to find [that the impact of the amendments] is quite insignificant. I think all the lake areas have already been subdivided, so we are not going to have any lakes or ponds. It is probably only the steep slope portion that is probably left to us.” Later at that same public hearing, Inglese stated that he believed that the overall impact on the town was going to be “very limited.” At the aggrievement hearing, counsel for the defendant also referred to Inglese’s “estimation of 5 [percent] to 7 percent of the open space.”

       The plaintiffs rely on Timber Trails Corp. as authority for claiming statutory aggrievement. We read that case, instead, as establishing classical aggrievement for parties such as the plaintiffs. We base that reading on the Fletcher case cited by our Supreme Court in Timber Trails Corp. as support for the court’s conclusion that the plaintiffs were aggrieved in Timber Trails Corp. Fletcher is a classical aggrievement case that, in fact, predates the statutory aggrievement provision of § 8-8 (a) (1), which the legislature adopted in 1977.

       The defendant argues that Summ has been overruled. Summ has been overruled, however, only to the extent that it relied on Mills v. Town Plan & Zoning Commission, 145 Conn. 237, 140 A.2d 871 (1958). See Sheridan v. Planning Board, 159 Conn. 1, 12-13, 266 A.2d 396 (1969). In Summ, our Supreme Court relied on Mills only for the proposition that a change in the comprehensive plan of zoning automatically results in aggrievement. That proposition of automatic aggrievement was overruled in Mott’s Realty Corp. v. Town Plan & Zoning Commission, 152 Conn. 535, 540, 209 A.2d 179 (1965) (“[s]o far as the second Mills case holds that a change in the comprehensive plan of zoning necessarily creates an aggrievement, ipso facto, it is overruled”).

       A declaratory judgment action provides the setting for a lesser interest sufficient to establish classical aggrievement, but is, nevertheless, authority for our conclusion.


text:
    HOBART D. VAN DEUSEN ET AL. v. TOWN OF WATERTOWN ET AL.
    (AC 19965)
    Spear, Mihalakos and Zarella, Js.
    Argued December 1, 2000
    officially released March 13, 2001

      M. Leonard Caine III, for the appellants (intervening defendants).

      Thomas G. Parisot, with whom, on the brief, was John H. Cassidy, Jr., for the appellees (plaintiffs).

      Franklin G. Pilicy, for the appellees (defendants).
   Opinion

ZARELLA, J.

This case arises from the action of the Watertown town council (council) approving an ordinance for the establishment of an historic district in the town of Watertown (town). On appeal, the dispositive issue is whether § 309 of the charter of the town of Watertown applies to the adoption of an ordinance establishing an historic district pursuant to General Statutes § 7-147a et seq. We conclude that § 309 of the charter is not applicable and, therefore, affirm the judgment of the trial court.

The relevant facts and procedural history are as follows. In 1996, the council of the defendant town of Watertown appointed an historic district study committee (committee) that investigated the creation of an historic district. The committee generated a report, which it disseminated to the town’s planning and zoning commission, the fire district and the Connecticut historical commission. Each of those agencies approved the creation of the historic district. The committee then held a public hearing after which it submitted the report to the council and the town clerk. All of the previously mentioned steps were taken in accordance with General Statutes § 7-147b (a) through (f).

Pursuant to § 7-147b (g), the town clerk then mailed ballots on the question of establishing the historic district to each real property owner of record in the proposed district. Seventy-two percent of those owners approved of establishing the proposed district. On January 6, 1997, the council approved, by a vote of six to three, the historic district ordinance in accordance with § 7-147b (i).

Following the approval of the ordinance, the town received a petition seeking the repeal of the ordinance pursuant to § 309 of the charter. The defendants scheduled a referendum for March 13, 1997, in which all of the registered voters in Watertown would be allowed to vote on the repeal. The plaintiffs, all of whom are residents, taxpayers and voters of Watertown, responded by bringing an action seeking a declaratory judgment and injunctive relief. At trial, they argued that § 309 of the town charter is inapplicable to an ordinance establishing an historic district pursuant to § 7-147a et seq. They sought an injunction prohibiting the defendants from proceeding with the referendum. On March 10, 1997, the court, Kulawiz, J., entered a temporary injunction restraining the defendants from holding the referendum on the ordinance’s repeal.

On October 7,1997, the intervenors, Linda Lane Merriman and M. Heminway Merriman II, separately filed motions to intervene, which the court, Gill, J., granted on December 1, 1997. The case went to trial before Judge Kulawiz on October 22,1997. Prior to the rendering of judgment, the intervenors and the defendants filed separate motions for a new trial pursuant to General Statutes § 51-183b. The court, Vertefeuille, J., granted their respective motions on November 23,1998. The second trial commenced on January 7, 1999, and Judge Vertefeuille rendered judgment in a memorandum of decision dated July 22, 1999.

The court determined that the referendum provision of § 309 of the charter is inapplicable to the adoption of the historic district ordinance because (1) § 7-147a et seq. provides a detailed and comprehensive statutory scheme for establishing historic districts, and (2) that statute, as written, evidences the legislature’s clear indication that “it intends to occupy the entire field of regulation of establishment of historic districts.” For those reasons, the court enjoined the defendants from holding a referendum on the repeal of the ordinance. The intervenors thereafter appealed from the judgment.

On appeal, the intervenors and the town argue that the Home Rule Act, General Statutes §§ 7-187 through 7-201, and General Statutes § 7-157 (a) authorize the use of the referendum to repeal an ordinance that the legislative body of the town approved and, therefore, § 309 of the charter applies to the historic district ordinance. The plaintiffs argue that the statutory scheme prescribed in § 7-147a et seq. requires a majority vote of the council, the town’s legislative body, as the final act for establishing an historic district and, therefore, the statutory scheme does not allow for a referendum pursuant to § 309 on the council’s action.

The determination of whether the charter’s referendum provision applies to an ordinance passed pursuant to § 7-147a et seq. is “a question of statutory interpretation over which our review is plenary.” Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 690, 755 A.2d 850 (2000). Section 7-147a et seq. provides a comprehensive, detailed scheme by which a municipality may establish an historic district within its borders. One of the last steps of the lengthy process requires the town clerk to “mail ballots to each owner of record of real property to be included in the proposed district or districts on the question of creation of an historic district or districts . . . .” General Statutes § 7-147b (g). Following the affirmative vote of at least two-thirds of all real property owners casting votes, “the legislative body of the municipality shall by majority vote take one of the following steps: (1) Accept the report of the committee and enact an ordinance or ordinances to create and provide for the operation of an historic district or districts in accordance with the provisions of [General Statutes §§ 7-147a through 7-147k]; (2) reject the report of the committee, stating its reasons for such rejection; (3) return the report to the historic district study committee with such amendments and revisions thereto as it may deem advisable, for consideration by the committee. . . .” General Statutes § 7-147b (i). Section 309 of the charter provides in relevant part that “[t]he electors shall have the power to approve or reject at a referendum, any ordinance . . . passed by the Council . . . .”

The parties do not dispute that the town properly followed all of the procedures set forth in § 7-147a et seq. Rather, the intervenors and the town argue that § 309 of the charter requires the town to take an additional step not included in the statutory scheme before an historic district may be established in Watertown. We disagree.

We first note that § 7-147a et seq. preceded the adoption of § 309 of the town charter. Then Governor John Dempsey signed into law Public Acts 1961, No. 430, codified as § 7-147a et seq., on June 14, 1961. Water-town’s first charter was adopted on July 6,1961. Consequently, when the General Assembly established the statutory scheme now at issue, it would not have been aware of § 309 of the charter because the charter had yet to be adopted. We therefore do not presume that the legislature was cognizant of the referendum provision of § 309 when it enacted the statutory scheme.

Moreover, the legislature provided that the final act in establishing an historic district shall be the affirmative majority vote of the legislative body of the municipality. See General Statutes § 7-147b (i). Various sections of the General Statutes define the term “legislative body,” as applied to a municipality, as “the board of aldermen, council or other body charged with the duty of making annual appropriations . . . .” (Emphasis added.) General Statutes § 1-1 (m); see also General Statutes §§ 3-76c (a), 7-193 (a) (1), 7-370c, 7-425 (3), 7-482 (g) and 8-187 (2), and General Statutes (Rev. to 1997) § 32-222 (x), now (y).

Our Supreme Court has had the occasion to define the term “legislative body” in an analogous situation in Sadlowski v. Manchester, 206 Conn. 579, 538 A.2d 1052 (1988). In that case, the Manchester board of directors approved the issuance of tax increment bonds pursuant to General Statutes § 8-192. Although the statutory scheme merely required the legislative body of the municipality to approve the bonds before they were issued, a group of residents sought to have their issuance put to a referendum pursuant to § 5-25 of the charter of the town of Manchester. The court framed the issue as “how to reconcile this reference to ‘legislative body’ [in § 8-192 (a)] with the provisions of a local charter that stipulate that municipal bonds generally must be authorized by a two step process including not only the approval of the local board of directors but also the favorable action of the voters of the town.” Sadlowski v. Manchester, supra, 580-81.

The court concluded that § 5-25 of the Manchester town charter was inapplicable to tax increment bonds issued pursuant to § 8-192 because the charter provision applies to “general municipal obligation bonding that constitutes a charge on the town’s taxpayers”; id., 586; not to tax increment bonds, which are paid entirely by revenues from municipal development projects. Id., 586-87. The court further determined that the term “legislative body” does not encompass the legislative process of voters acting on a referendum. Id., 589.

Although Sadlowski is factually different from this case, the principles articulated in Sadlowski apply to the present case. As in Sadlowski, this case involves a statute that requires a majority vote of the legislative body of the municipality as the final act for approval of a statutory measure and a seemingly conflicting provision of a town charter that mandates an additional step, not prescribed in the statutory scheme, of putting the approved measure up for a referendum by the municipality’s voters. Under the authority of Sadlowski, the result must be the same in the present case. To reconcile the statutes and the charter, the Watertown town council must be the sole legislative body of Water-town for the puiposes of § 7-147a et seq. Because a referendum is not a “legislative body”; id., 593; § 309 of the charter of the town of Watertown has no place in the comprehensive, detailed statutory scheme of § 7-147a et seq. We conclude that § 309 of the charter is inapplicable to the adoption of the historic district ordinance pursuant to § 7-147a et seq.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 309 of the charter of the town of Watertown provides in relevant part: “The electors shall have the power to approve or reject at a referendum, any ordinance or other measure passed by the Council, except an ordinance or resolution appointing or removing officials, appropriating money, authorizing the levy of taxes or fixing the tax rate. . . . Within twenty (20) days after the publication of an ordinance or other measure which is subject to referendum, a petition may be submitted to the Town Clerk. Such petition shall be addressed to the Council and shall request that such ordinance or other measure shall be repealed by the Council or be submitted to a vote of the electors, and shall be signed in ink or indelible pencil by qualified electors of the town equal in number to at least five (5%) percent of the electors on the voting list. The Town Clerk shall proceed as prescribed by General Statutes as to referenda. If the number of qualified signatures, as certified by the Town Clerk, equals or exceeds five percent of the electors on the voting list and the Council fails or refuses to repeal such ordinance or other measure at its meeting next following the delivery of the petition to its clerk the question of repeal shall be submitted to a vote of the electors at a referendum which must be called by the Council to be held not less than ten (10) nor more than twenty (20) days after said meeting of the Council. Such referendum shall be held in conformity with the provisions of the General Statutes relating to referenda. Upon the submission of the petition to the Town Clerk as above provided, the ordinance or other measure shall remain without effect until either (a) the first meeting of the Council following delivery of the petition by the Town Clerk to the clerk of the Council with a certification showing that the number of signatures on the petition is insufficient which fact shall be recorded upon the minutes of the Council, or (b) the question of repeal has been decided in the negative by a vote of the electors at the referendum at which not less than twenty-five (25%) percent of the electors on the voting list shall have voted.”

       General Statutes § 7-147a (b) provides: “Any municipality may, by vote of its legislative body and in conformance with the standards and criteria formulated by the Connecticut Historical Commission, establish within its confines an historic district or districts to promote the educational, cultural, economic and general welfare of the public through the preservation and protection of the distinctive characteristics of buddings and places associated with the history of or indicative of a period or style of architecture of the municipality, of the state or of the nation.”

       Watertown town clerk Dolores LaRosa and Watertown registrars of voters Walter A. LeMay and Armand Madeux also are defendants in this appeal.

       General Statutes § 7-147b (g) provides in relevant part: “The clerk or his designee shall, not later than sixty-five days from receipt of such report, mail ballots to each owner of record of real property to be included in the proposed disi rict or districts on the question of creation of an historic district or districts, as provided for in sections 7-147a to 7-147k, inclusive . . .

       General Statutes § 7-147b (i) provides in relevant part: “If two-thirds of all property owners voting cast votes in the affirmative, the legislative body of the municipality shall by majority vote take one of the following steps: (1) Accept the report of the committee and enact an ordinance or ordinances to create and provide for the operation of an historic district or districts in accordance with the provisions of this part; (2) reject the report of the committee, stating its reasons for such rejection; (3) return the report to the historic district study committee with such amendments and revisions thereto as it may deem advisable, for consideration by the committee. . . .”

       The plaintiffs are Hobart D. Van Deusen, Nancy Van Deusen, Robert J. McCarthy, Iphigenia M. Rigopulos, William Piknosh, Ronald D. Mayne and Carol Gilbert.

       Linda Lane and M. Heminway Merriman II are the appellants in this appeal. We also note that they are taxpayers, voters and owners of real property located within the historic district in Watertown.

       General Statutes § 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       General Statutes § 7-157 (a) provides in relevant part: “Ordinances may be enacted by the legislative body of any town, city, borough or fire district. Any such ordinance so enacted . . . shall become effective thirty days after publication thereof in some newspaper having a circulation in the municipality in which it was enacted, provided, upon a petition of not less than fifteen per cent of the electors of such municipality filed with the town or borough clerk, as the case may be, within thirty days after the publication of such ordinance, asking that the same be submitted to the voters of such municipality at its next regular or special meeting, it shall be so submitted and in such event shall not become effective unless a majority of the voters voting at such meeting vote in favor thereof. . . . Cities and other municipalities whose charters provide for the manner in which they may enact ordinances may enact ordinances in such manner.”

       "Section 5-25 of the Manchester town charter provides in relevant part: BORROWING FOR CAPITAL IMPROVEMENTS. To finance all or any part of the expense of any capital project which the Town may lawfully construct or acquire, the Town may incur indebtedness by issuing its negotiable bonds . . . subject to the limitations of the General Statutes. Such bonds shall be authorized by a majority vote of all the members of the Board of Directors. No bonds . . . shall be issued, however, until the project for which the bonds . . . are to be issued has been favorably acted upon by the voters of the Town at any regular or special election duly warned for that purpose.” (Internal quotation marks omitted.) Sadlowski v. Manchester, supra, 206 Conn. 582 n.3.

       The court was responding to the trial court’s conclusion that the referendum process under § 5-25 of the Manchester town charter was equivalent to a town meeting under General Statutes § 7-193 (a) and, therefore, under subsection (a) (1) (D) of that statute, the legislative body for Manchester consisted of the board of directors and the referendum process. Sadlowski v. Manchester, supra, 206 Conn. 589.


author: FOTI, J.

text:
    IN RE ASHLEY E.

    (AC 20803)
    Lavery, C. J. and Foti and Dranginis, Js.
    Argued January 11
    officially released March 13, 2001

      Stuart M. Katz, with whom was Barbara M. Schellenberg, for the appellant (respondent).

      Jonathan D. Elliot, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interst therein and upon order of the Appellate Court

   Opinion

FOTI, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his daughter. On appeal, the respondent claims that the court improperly found that (1) he had abandoned the minor child and (2) termination of his parental rights was in the child’s best interest. The respondent also claims that the court improperly allowed the matter to be opened to allow for expert testimony. We affirm the judgment of the court.

The following facts and procedural history are relevant to the appeal. In 1993, the child’s mother filed a petition in the Probate Court to terminate the respondent’s parental rights. In 1995, the Probate Court terminated the respondent’s rights, finding that he had abandoned the child and had engaged in acts of omission or commission that denied the child the care, guidance or control necessary for her physical, educational, moral or emotional well-being. See General Statutes § 45a-717 (f). The respondent appealed from the Probate Court’s order to the Superior Court, which, after a trial de novo, found by clear and convincing evidence, pursuant to § 45a-717 (g) (2) (A), that the respondent had abandoned the child because he had failed to maintain a reasonable degree of interest, concern or responsibility as to her welfare. Because the respondent sought visitation rather than custody and because the record contained no evidence of whether it would be in the child’s best interest to establish a relationship with her father, the court deferred rendering an order of disposition. The court then ordered psychological examinations of the respondent and the child, who at that time was eleven years old. After receiving the reports, the court found that terminating the respondent’s parental rights would serve the child’s best interest.

The minor child was bom in 1988 and suffers from severe developmental delays. She has been labeled mentally retarded, attends a special education program and has only recently learned to write her name. The child is happy and affectionate and, since she was six weeks old, has lived in a safe and comfortable home with her mother and her maternal grandparents.

In 1987, while the mother was pregnant with the child and living with the respondent, the respondent used heroin and cocaine on almost a daily basis, stopped contributing toward rent and also used part of the mother’s income to buy dmgs. After losing his job in 1988, the respondent continued using dmgs, even at the hospital when the mother was in the maternity ward with the child. The parties were evicted from their apartment for nonpayment of rent. In May, 1988, the mother called the police because the respondent was dmnk and disorderly. He overdosed on dmgs and had to be hospitalized. On another occasion, the child began crying and the respondent refused to let the mother attend to the baby. Instead, he got out of bed, returned with a carving knife and stabbed the bedding in an effort to intimidate the mother from attending to the child. At another time, while they were still living together, the mother refused to give the respondent a ride in her car. He grabbed the child and ran away with her while she remained in her car seat. The police later found the baby at the home of the respondent’s parents, some two miles away.

When the child was about six weeks old, the mother moved in with her parents, and, on June 9, 1988, the respondent voluntarily stipulated to an order granting custody to the mother. On June 17, 1988, the mother obtained a restraining order against the respondent. Between September 7,1988, and February 29,1992, the respondent was incarcerated seven times, for a total of approximately twenty-seven months, because of his criminal behavior. The respondent has been incarcerated for all but approximately ten months of the child’s life and is presently serving a sentence with an earliest projected release date of 2007. While the respondent has been incarcerated, he has maintained written contact with the mother and has attempted to send cards to the child. He has not seen the child since 1991. Indeed, since the child’s early years, the respondent has seen her very sporadically, even when he was not incarcerated. The respondent never demonstrated a desire to visit the child while he was incarcerated.

The court, after making the mandatory factual findings as required by § 45a-717 (h), found, on November 23, 1999, by clear and convincing evidence, that the respondent had abandoned the child because he failed to maintain a reasonable degree of interest, concern or responsibility as to her welfare. General Statutes § 45a-717 (g) (2) (A). Thereafter, on April 27, 2000, the court found by clear and convincing evidence that it was in the child’s best interest to terminate the respondent’s parental rights. General Statutes § 45a-717 (g) (l). The court rendered judgment terminating the respondent’s parental rights and this appeal followed.

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214,223,660 A.2d863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991) .... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 222, 435 A.2d 24 (1980)]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert, denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. .. .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. ... In re Danuael D., 51 Conn. App. 829, 835-37, 724 A.2d 546 (1999); In re Roshawn R., 51 Conn. App. 44, 51-52, 720 A.2d 1112 (1998). It is thus possible for a court to find that a statutory ground for termination of parental rights exists but that it is not in the best interests of the child to terminate the parental relationship, although removal from the custody of the parent may be justified. In re Baby Girl B., 224 Conn. 263, 279-80, 618 A.2d 1 (1992).

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the parents’ parental rights is not in the best interests of the child.” (Internal quotation marks omitted.) In re Denzel A., 53 Conn. App. 827, 831-33, 733 A.2d 298 (1999).

I

The respondent first claims that the court improperly found in the adjudicatory phase of the hearing that he had abandoned the child. Specifically, the respondent claims that the court failed to find that any abandonment existed for a continuous period of time not less than one year. As a threshold matter, we note that the respondent correctly points out that the court improperly applied the current version of § 45a-717, which permits a court to terminate a parent’s rights without a finding of abandonment for a period of at least one year, rather than the statute that was in effect when the termination petition was filed in 1993, which required a finding of abandonment for such a period. The 1993 version of the statute also contained a provision that permitted waiver of the time period. The respondent alleges that the court failed to find either that the abandonment existed for a continuous period of time not less than one year or that the requirement was or should be waived. Further, the respondent claims that the evidence did not support a finding of abandonment.

At the time the petition for termination was filed, General Statutes (Rev. to 1993) § 45a-717 (f) provided in relevant part: “[T]he court may approve the petition terminating the parental rights ... if it finds, upon clear and convincing evidence that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time which, except as provided in subsection (g) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . .” (Emphasis added.)

In December, 1993, subsection (g) of § 45a-717 provided in pertinent part: “The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child.”

In 1998, the legislature amended § 45a-717 by striking the one year requirement from subsection (f) and deleting subsection (g). Public Acts 1998, No. 98-241, § 9. The parties agree, as do we, that the court should have applied the statute that was in effect when the petition was filed. We note that this issue was never raised at the trial court proceedings, and that the parties agreed to the applicability of the current statute and cited to it. We also note that the respondent never sought to raise as a defense that the alleged abandonment, if any, did not last for more than one year. Moreover, the respondent did not object or move for articulation or rectification on this issue. While we are aware that the court improperly applied the current version of the statute instead of the one that was in effect at the time the petition was filed, we conclude that the error was harmless because the court found, if not explicitly, at least implicitly, that the circumstances constituting abandonment existed for more than one year. The court’s findings regarding the respondent’s drug addiction, indifference to the child’s welfare, repeated absences, drunkenness and lack of support covered periods from 1988 through 1993. Since last seeing the child in 1991, the respondent failed to provide guidance in any fashion and demonstrated a total lack of concern, love, interest or responsibility for her. We conclude that the error was harmless and could not likely have affected the result reached.

The respondent also argues that the evidence did not support a finding of abandonment. “Abandonment focuses on the parent’s conduct. ... A lack of interest in the child is not the sole criterion in determining abandonment.” (Citations omitted.) In re Kezia M., 33 Conn. App. 12,17,632 A.2d 1122, cert, denied, 228 Conn. 915, 636 A.2d 847 (1993). General Statutes § 45a-717 (f) defines abandonment as “the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . .” “Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare.” (Citations omitted; internal quotation marks omitted.) In re Kezia M., supra, 17-18.

Section 45a-717 (f) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. See id., 18.

“The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.” (Citations omitted; internal quotation marks omitted.) Id., 18.

In the present case, the record supports the court’s decision that the respondent abandoned the child. The findings support the conclusion that the respondent manifested no reasonable degree of interest, concern or responsibility for the child, either when he was incarcerated or when he was not. As we have recently stated, “[w]hile the respondent’s imprisonment alone does not constitute abandonment, it does not excuse his failure to attempt either to contact or to visit with his children.” In re Deana E., 61 Conn App. 185, 194, 763 A.2d 37 (2000).

After reviewing the court’s decision and the record, we conclude that clear and convincing evidence supported the court’s conclusion that the respondent had abandoned the child and that the court’s findings were not clearly erroneous.

II

The respondent next claims that the court improperly determined that terminating his parental rights was in the best interests of the child. We disagree.

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child.” In re Tabitha P., supra, 39 Conn. App. 361-62. On appeal, we will disturb the findings of the trial court only if they are clearly erroneous. In re Tyscheicka H., 61 Conn. App. 19, 26, 762 A.2d 916 (2000).

The court continued the hearing for purposes of disposition, and appointed a psychologist to conduct a clinical evaluation of the child and the respondent to assist in determining whether termination was in the child’s best interest. Moreover, the court gave the parties a full opportunity to examine the psychologist.

Our function as an appellate court is to review and not retry the proceeding of the trial court. In re Quanitra M., 60 Conn. App. 96,106, 758 A.2d 863, cert, denied, 255 Conn. 903, 762 A.2d 909 (2000). The probative force of conflicting evidence is for the trier to determine. Id. The court-appointed psychologist testified as to numerous facts found. On the basis of those findings, he recommended that the court not give the respondent the opportunity to establish a relationship with the child as such a relationship would likely have a harmful effect on her.

The respondent argues that the court “completely ignored other evidence that strongly indicates termination is not in the child’s best interest.” We defer to the trier of fact’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony, and may accept part, all or none of the testimony. In re Hector L., 53 Conn. App. 359, 366, 730 A.2d 106 (1999). “Where, as here, the record reveals that the trial court’s ultimate conclusions are supported by clear and convincing evidence, we will not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding.” (Internal quotation marks omitted.) In re Christine F., supra, 6 Conn. App. 369-70.

III

The respondent’s last claim is that the court improperly opened the case to allow for expert testimony. He claims that the court, while having authority to order examinations of him and the child, abused its discretion and caused “substantial prejudice” to his case. We conclude that this claim is without merit.

The respondent does not demonstrate prejudice. He did not seek a continuance to obtain contradictory expert testimony. The respondent did not claim, nor can he demonstrate, that the expert was somehow influenced by knowing, if in fact the expert knew, that the court had already found abandonment. The respondent does not claim any bias that cross-examination could not have revealed. Therefore, we conclude that the respondent has not sustained his burden of demonstrating that the court abused it discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Many of the respondent’s letters during the early and mid-1990s were hostile toward the mother.

       General Statutes § 45a-717 (g) provides in relevant part: “[T]he court may approve a petition terminating parental rights ... if it finds, upon clear and convincing evidence that (1) the termination is in the best interest of the child, and (2) (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . .

       See footnote 2.

       The respondent asks that we give “plain error” review to this claim. While we note that the particular circumstances of this case lead us to conclude that error was present, that error cannot be classified as “plain error,” which by its very definition could never be “harmless” error.