text:
    Planning and Zoning Commission of the Town of Lisbon et al. v. George N. Desrosier et al.
    (5447)
    Bieluch, Stoughton and Norcott, Js.

      Argued April 20—
    decision released August 16, 1988

      Mary E. Holzworth, with whom, on the brief, was John R. Fitzgerald, for the appellants (plaintiffs).

      George N. Desrosier, pro se, and Elizabeth A. Desrosier, pro se, the appellees (defendants), filed a brief.
   Stoughton, J.

This is an appeal by the plaintiffs from the judgment of the trial court in favor of the defendants on the second count of the plaintiffs’ complaint. We find error in part.

The defendants are the owners of premises at 16 Oak Drive and at 26 Oak Drive, both in the town of Lisbon. The plaintiffs, the town of Lisbon planning and zoning commission and Chris A. Hempstead, the town zoning enforcement officer, claim that the court erred (1) in concluding that 26 Oak Drive was in an R-40 zone when the evidence at trial clearly indicated that it was in an R-60 zone, (2) in its computation of the lot size requirement for a two-family dwelling at 26 Oak Drive, (3) in refusing to grant injunctive relief with respect to 26 Oak Drive when the evidence indicated a clear violation of the zoning regulations by the defendants, and (4) in refusing to grant the plaintiffs’ request for attorney’s fees when the evidence indicated a wilful violation of the zoning regulations.

In separate counts of their complaint, the plaintiffs sought to enjoin the defendants from interfering with the plaintiff Hempstead in the inspection of the interior of dwellings on the two premises and from utilizing them as two-family dwellings. The trial court granted the injunctive relief sought as to the first count- dealing with 16 Oak Drive, and no appeal has been taken from that judgment. The trial court found the issues for the defendants on the second count dealing with 26 Oak Drive. The plaintiffs’ claim for reasonable attorney’s fees was also denied.

Upon the trial of this case, the court found the following facts and reached the following conclusions which are relevant to this appeal. The defendants own two properties in the town of Lisbon, known as 16 Oak Drive and 26 Oak Drive, with a dwelling on each. The property at 26 Oak Drive is to the rear of 16 Oak Drive, with a right-of-way to Oak Drive. Construction at 26 Oak Drive was commenced in 1978 but, due to failure to obtain proper permits, was not completed until 1984. A certificate of use and occupancy for a single-family dwelling in an R-60 zone was issued on June 5, 1985. Although a special permit was required to build on “flag” or rear lots having less than the required street frontage, it was undisputed that the town had waived that requirement and the defendants could legally occupy the dwelling as a single-family home. It was also undisputed that the defendants had leased a portion of the dwelling and were using it as a two-family residence. A cease and desist order was issued on November 14, 1985, prohibiting such use.

The court found that under the Lisbon zoning regulations two-family residences are a permitted use in all residential zones, as long as the lot area is not less than 175 percent of the minimum lot area for a one-family dwelling. The requirements for a flag lot make no distinction between one or two-family residences, since both are permitted uses. There was some confusion over the zoning of the flag or rear property, because of a recent zone change and the fact that the property was in two zones, but the plaintiff Hempstead acknowledged that the defendants had been advised that the required lot size was 120,000 square feet which is three times the minimum lot required for a dwelling located in an R-40 zone.

The court further found that while the defendants were attempting to comply with the zoning requirements, members of the commission and the town government were actively seeking to prevent them from establishing a two-family residence in that neighborhood. It found that this opposition was not justified as to 26 Oak Drive because the defendants had filed a map showing more than adequate lot size and own a right-of-way sufficient to provide access, and because two-family residences are a permitted use in any residential zone on an oversized lot.

The court concluded that, although the defendants did not have a certificate of occupancy for a two-family house, that failure was due in large part to a very poor working relationship between the parties and to actions of town officials in attempting to prevent the defendants from obtaining necessary approvals. To the extent that a technical violation of the zoning regulations existed, it determined that it was not sufficiently grave or wilful to warrant the granting of injunctive relief.

I

The plaintiffs contend that because the certificate of occupancy issued for 26 Oak Drive notes that the location is in an R-60 zone, because the zoning enforcement officer testified that it was in an R-60 zone, and because only George Desrosier himself had testified that he believed that the property was in an R-40 zone, it was error for the trial court to conclude that the property was in an R-40 zone. The transcript discloses that the zoning enforcement officer was asked if he had an opinion as to what zone the property was in, and that he replied “R-60.” Although it is true that the certificate of occupancy showed that the location was in an R-60 zone, the building permit introduced as an exhibit showed the location as R-60 and R-40. In addition, the plaintiffs alleged in their complaint that the premises known as 26 Oak Drive “are situated partially in an R-40 zone and partially in an R-60 zone.” The trial court did not conclude that the property was in an R-40 zone, as the plaintiffs claim, but only that, in light of the testimony that the residence itself was in an R-40 zone, it would be unreasonable and contrary to the evidence to determine the lot size requirement by using the flag lot 300 percent requirement of an R-60 zone.

“This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Nulman’s Appeal from Probate, 13 Conn. App. 811, 812, 537 A.2d 495 (1988).” Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 136, 544 A.2d 655 (1988). The trial court did not specifically conclude that 26 Oak Drive was in an R-40 zone. The conclusion that it would be unreasonable and contrary to the evidence to determine the lot size requirement for 26 Oak Drive by reference to the flag lot requirements for an R-60 zone was not an unreasonable one in light of the testimony and the evidence presented to the trial court.

II

The plaintiffs also claim that the defendants did not establish that 26 Oak Drive extended to an existing street by a strip of land at least twenty-five feet wide, capable of accommodating a safe and convenient driveway for access to the main part of the lot, and thus did not qualify as a lot in Lisbon as defined in the planning and zoning regulations set forth in footnote 4, supra, because it failed to meet the requirements of § 9.8.1 of those regulations.

The defendants established that they had a right-of-way to their land, but its width was not determined. The trial court made no finding as to the right-of-way, although the defendants claimed that it was fifty feet wide and the plaintiffs produced evidence that there was a gravel road approximately ten to twelve feet wide giving access to 26 Oak Drive. The trial court found that, although a special permit was required for a flag lot, it was undisputed that the town had waived this requirement and that the defendants legally occupy the premises as a single-family dwelling. The plaintiffs have offered no authority for their position that even though they do not challenge the right of the defendants to use the dwelling as a single-family house despite the claim that it lacks a twenty-five foot strip to an existing road, they may challenge the right of the defendants to use it as a two-family house on that basis. Furthermore, the plaintiffs have not challenged the finding of the trial court that they waived the requirement in the zoning regulations for a special permit to use a flag lot.

We find no error as to the plaintiffs’ first two claims.

Ill

The third claim of error made by the plaintiffs is that the trial court erred in refusing injunctive relief in light of the clear violations of the zoning regulations by the defendants.

The defendant George N. Desrosier applied for a building permit in 1978 for a single-family residence on the subject property. He did not get a permit at that time. In 1983, he applied again for a building permit for a single-family residence on the property. On April 12,1983, a building permit was issued for a two-story one-family house on the property. The house was constructed and, on June 4, 1985, a certificate of use and occcupancy was issued approving for occupancy only the first floor of a single-family dwelling at 26 Oak Drive. No other permits have ever been sought by or issued to the defendants for 26 Oak Drive. The trial court found that it was undisputed that the defendants have leased out a portion of the premises and are using it as a two-family residence.

Although there was conflicting testimony about whether the defendants sought to comply with the zoning requirements, the trial court found that while the defendants sought to comply with the requirements as they understood them, members of the commission and the town government were actively seeking to prevent them from establishing a two-family residence in that neighborhood. The trial court was correct in finding that a two-family residence is a permitted use in any residential zone on an oversized lot. It failed to note, however, that the defendants had applied for and received permission to build a one-family dwelling and not a two-family house.

The defendants claim that the zoning enforcement officer or the town attorney told them that they could have an apartment on the second floor once they had obtained a map showing that they had sufficient lot size. They knew, however, that they had never obtained a permit to build a two-family house or a permit to convert the dwelling to a two-family house. Under the town planning and zoning regulations, no building may be structurally altered and no use may be established or changed without a zoning permit. General Statutes § 8-12 was enacted to provide local zoning enforcement officers with a means of enforcing their zoning regulations, and it provides that the zoning enforcement officer may seek injunctive relief to prevent unlawful use of a building. Johnson v. Murzyn, 1 Conn. App. 176, 179, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).

The general rule is that “a municipality cannot be estopped by the unauthorized acts of its officers or agents. Zoning Commission v. Lescynski, 188 Conn. 724, 733, 453 A.2d 1144 (1982); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 352, 365 A.2d 1093 (1976); Carini v. Zoning Board of Appeals, 164 Conn. 169, 174, 318 A.2d 390 (1972), cert. denied, 414 U.S. 831, 94 S. Ct. 64, 38 L. Ed. 2d 66 (1973); Hebb v. Zoning Board of Appeals, 150 Conn. 539, 542, 192 A.2d 206 (1963).” Greenwich v. Kristoff, 2 Conn. App 515, 522, 481 A.2d 77, cert. denied, 194 Conn. 807, 483 A.2d 275 (1984). A municipality can only be estopped by erroneous acts of its officers from enforcing its zoning ordinances, when those officers act within the scope of their authority. West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983). Estoppel may be invoked in municipal zoning cases “(1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations.” (Citations omitted.) Id. George Desrosier testified during the trial of this case that he is a builder and that he had obtained building permits on other occasions. He knew or should have known, therefore, of the zoning regulations and that a permit was required in order to alter a building or to change a use.

The defendants were served with an order directing them to cease and desist from using 26 Oak Drive as a two-family residence on November 19, 1985. The defendants have ignored this order. General Statutes § 8-12 authorizes the zoning enforcement officer to order in writing the remedy of any condition found to exist in violation of the zoning regulations. The defendants could have appealed the cease and desist order to the zoning board of appeals, but they did not do so. Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980). Because the defendants have failed to comply with a valid order which they did not challenge, the trial court should have granted the injunctive relief sought in the second count of the complaint.

IV

Finally, the plaintiffs claim that the trial court erred in refusing to grant their request for attorney’s fees pursuant to General Statutes § 8-13. That section provides, in part, that if the court renders judgment for the municipality and finds that the violation was wilful, the court shall allow such municipality its costs, together with reasonable attorney’s fees to be taxed by the court. The only finding made by the trial court on wilfulness was that the conduct of the defendants with respect to their failure to obtain a certificate of occupancy for 26 Oak Drive as a two-family home was not sufficiently grave or wilful to warrant the granting of injunctive relief.

What constitutes wilful misconduct is. a question of fact. Gonier v. Chase Companies, Inc., 97 Conn. 46, 57, 115 A. 677 (1921). Although the trial court might have found from the evidence that the conduct of the defendants was openly defiant of the zoning authorities, it was not required to do so. It is apparent that the trial court concluded that the violation was not wilful in that sense, but resulted from poor judgment on the part of the defendants. We cannot find that this conclusion was erroneous under the circumstances. There is no error as to this claim.

There is error in part, the judgment denying the injunctive relief sought in the second count of the complaint is set aside and the case is remanded with direction to grant that relief.

In this opinion the other judges concurred.

       The defendants did not appear for argument and agreed to have this court consider the case on their brief.

       The defendants, acting pro se, filed a “Counter Complaint” containing various factual allegations made for the recited purpose of showing that the town of Lisbon had discriminated against them. The “Counter Complaint” contained no prayer for relief and hence presented no issue for the trial court to decide. The defendants have made some reference to these allegations in their brief and appendix, but, since they did not file a preliminary statement of issues pursuant to Practice Book § 4013 (a) (1), any claim arising out of these allegations is not properly before us.

       In its memorandum of decision and judgment, the trial court erroneously referred to 16 Oak Drive as “40 Oak Drive.” The judgment was subsequently modified to reflect the correct address. See Martin v. Martin’s News Service, 9 Conn. App. 304, 306 n.2, 518 A.2d 951 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987).

       Pertinent parts of the planning & zoning regulations of the town of Lisbon are as follows:
      “[Section] 2.2 Zoning Permit. No building shall be erected, moved or structurally altered and no use shall be established or changed without a zoning permit from the Zoning Enforcement Officer, issued in conformance with the provisions of these Regulations.”
      “[Section] 4.1 Permitted Uses. The following uses are permitted by right in R-80, R-60 and R-40 districts, provided the dimensional requirements of these Regulations are met.”
      “[Section] 4.1.2 Two-family dwellings not to exceed one such dwelling per lot. The minimum lot area per dwelling shall be not less than 175% of the required minimum lot area for one-family dwellings.”
      “[Section] 4.2 Special Permits. The following uses are permitted by special permit in R-80, R-60 and R-40 Districts, provided the dimensional requirements of Section 7 and the special conditions of Section 9 are met. . . .
      “[Section] 4.2.7 Flag lots.”
      “[Section] 7.1 Minimum lots sizes.
      R-80 - 80,000 sq.ft.
      R-60 - 60,000 sq. ft.
      R-40 - 40,000 sq. ft.
      B-l - 40,000 sq. ft.
      IP-1 - 200,000 sq. ft.”
      “[Section] 7.2 Minimum Street Frontage.
      R-80 - 175 feet
      R-60 - 150 feet
      R-40 - 125 feet
      B-l - 125 feet
      IP-1 - 400 feet”

        “[Section] 7.2.2 Flag lots, or rear lots, having less than the required street frontage may be permitted by the Commission as a Special Permit under the provisions of Section 9 of these Regulations.”
      “[Section] 9.8 Flag lots. In order to provide for the development of property remote from existing roads, the Commission may permit the street frontage requirements to be reduced for such rear lots, provided the following conditions are met.
      “[Section] 9.8.1 Part of such lot extends to an existing street in the form of a strip of land at least 25 feet wide capable of accommodating a safe and convenient driveway for access to the main part of the lot.
      ■ “[Section] 9.8.2 The size of the lot shall be three times the minimum lot size required for the district.
      “[Section] 9.8.3 The access strip shall not exceed 1000 feet in length and shall not serve more than one lot.
      “[Section] 9.8.4 The access strip shall not be located closer than 300 feet to a similar access strip on the same side of the street.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    SSM Associates Limited Partnership et al. v. Plan and Zoning Commission of the Town of Fairfield et al.
    (6032)
    Dupont, C. J., Borden and Spallone, Js.
    Argued April 5—
    decision released August 16, 1988

      Roy H. Ervin, town attorney, with whom was Roy H. Ervin, Jr., for the appellants (defendants).

      James R. Fogarty, for the appellees (plaintiffs).
   Borden, J.

The defendants appeal from the judgment of the trial court issuing a writ of mandamus requiring them to issue a certificate of zoning compliance to the plaintiffs for construction of an office building. The dispositive issue involves the meaning of the term “site plan” as used in General Statutes § 8-3 (g). We find no error.

The parties stipulated to the following facts. The named plaintiff had an agreement to purchase from the other plaintiff the property in question, consisting of approximately 4.25 acres located in a designated research district (DRD) established pursuant to the Fairfield zoning regulations. On March 11, 1986, the plaintiffs filed with the named defendant (commission) a complete application for approval of the construction of an office building on the property. The proposed building is a permitted use in a DRD, and requires a special permit from the commission. The application included submission of a site plan which is inseparable from the requirement of a special permit. Zoning regulations require that the plaintiffs’ application be referred to the commission for approval. The plaintiffs’ application was supported by plans, maps, and drawings of the site improvements, site topography, architecture, floor designs, planting and lighting, elevations and other data showing the proposed five-story office building encompassing 92,565 square feet of office space, with a “footprint” of 18,975 square feet, to be constructed on approximately 10 percent of the land area of the property, together with surface and garage parking for 316 vehicles.

The parties further stipulated that the commission’s first regular meeting following receipt of the application was on March 25, 1986. Although a hearing was not required, on April 22,1986, the commission scheduled a public hearing on the application to be held on June 10, 1986. At an executive session on June 17, 1986, the commission denied the application. The commission’s decision was published on June 21, 1986.

The parties further stipulated that, by letter of June 19, 1986, the plaintiffs requested a certificate of zoning compliance from the defendant zoning enforcement officer, based on the fact that no action had been taken by the commission within sixty-five days of March 25, 1986. The defendants did not respond to this request, and have not issued the requested certificate. The plaintiffs did not consent to any extensions of time limitations pursuant to General Statutes § 8-7d. The decision of the commission was rendered eighty-four days after March 25,1986, the date of the commission’s first regular meeting after receipt of the plaintiffs’ application. The trial court held that the case was controlled by our decision in Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), and rendered judgment issuing the writ of mandamus. This appeal followed.

The defendants raise several related claims of error, all of which concern whether Carr v. Woolwich, supra, controls this case. Although Carr is factually distinguishable from this case, our determination of an issue which Carr left unresolved leads to the conclusion that the trial court did not err.

In Carr, we noted “that there is an inconsistency in the use of the term, ‘site plan,’ between the first and third sentences of [General Statutes § 8-3 (g)]. The first sentence connotes that the site plan is but a part of the application approval process, namely, as an aid in determining whether a proposed use conforms to the regulations. The third sentence contemplates automatic approval of a site plan by the passage of time, as if approval of the site plan carries with it approval of the entire application with respect to which, under the first sentence, the site plan is simply an aid to determine the conformity of the proposed use with the regulations.” Id., 699-700.

In Carr, however, we found it unnecessary to resolve the inconsistency “because in [Carr] we view[ed] the plaintiff’s site development plan as inseparable from, and part and parcel of, its accompanying documents. The regulation pursuant to which the site development plan was filed required that the plan ‘show all applicable data required.’ The application, the site plan itself and the accompanying two page document, taken together, purported to show all such data required by the regulations. Thus, for purposes of General Statutes § 8-3 (g), the plaintiff’s site plan included his application and two page document.” Id., 700.

In Carr, therefore, a coalescence of factors made it unnecessary to resolve the statutory inconsistency in § 8-3 (g). First, the regulations required that the site plan itself show all applicable data required by the regulations. Furthermore, the applicant’s site plan was “a detailed site development plan”; id., 685; accompanied by a two page document which supplemented it by containing necessary information not shown on the site plan document. It also was accompanied by an application for a zoning permit. Id. All three documents, of which the site development plan was dominant and was required to show all applicable required data, purported to show all the data required by the regulations. Id., 700. Under those circumstances, we concluded that “for purposes of General Statutes § 8-3 (g), the plaintiff’s site plan included his application and two page document”; id.; and that automatic approval of the site plan was presumed to include approval of the accompanying documents. Id.

In this case, however, the regulations do not require that the site plan itself “show all applicable data required,” as provided by the Bridgewater regulation. Id. Section 25.2 of the Fairfield zoning regulations requires that an application for a special permit be accompanied by a “written statement describing the proposed use”; § 25.2.1; “a site plan as defined in section 31.0”; § 25.2.2; “[architectural plans as defined in section 31.0”; §25.2.3; and “such additional information that the commission may deem necessary to make a reasonable decision on the application.” § 25.2.4.

The “site plan” required by the Fairfield regulations, therefore, does not carry with it the same degree of dominance in the application process as it did in the Bridgewater regulations at issue in Carr. Under these circumstances, therefore, we deem it necessary to resolve the inconsistency in § 8-3 (g) which we noted in Carr.

We resolve that inconsistency by concluding that the term “site plan,” as used in § 8-3 (g), is a general term which is used in a functional sense to denote a plan for the proposed use of a particular site, purporting to indicate all the information required by the regulations for that use. As such, it includes the entire package of documents submitted to a zoning “commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such [zoning] regulations.” General Statutes § 8-3 (g). Several considerations lead us to this conclusion.

First, the term “site plan” is not defined by the statute, and this record does not disclose to us the extent to which the town of Fairfield has defined it in its zoning regulations. Although the term has been used in our zoning cases where approval of a site plan was involved in the litigation, those cases did not define it. See, e.g., Goldberg v. Zoning Commission, 173 Conn. 23, 376 A.2d 385 (1977); East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 290 A.2d 348 (1971). Nor can we say that the term has acquired such a fixed meaning in zoning parlance that it must be read in § 8-3 (g) as a term of art. The zoning treatises define it broadly, in a fashion not inconsistent with our reading of its use in General Statutes § 8-3 (g). “A ‘site plan’ is a physical plan showing the layout and design of the site of a proposed use, prepared by the builder or developer. It generally should indicate the proposed location of all structures, parking areas and open spaces on the plot and their relation to adjacent roadways and uses. Specifically, items such as grade elevation levels, drainage plans, means of access, landscaping, screening, architectural features, building dimensions and other elements relevant to the community welfare are properly included in a site plan. . . .” (Emphasis added.) 8 P. Rohan, Zoning and Land Use Controls, § 53.06 n.l. “A site plan is a plan required to be submitted by the builder, showing the proposed location of the buildings, parking areas, and other installations on the plot, and their relation to existing conditions, such as roads, neighboring land uses, natural features, public facilities, ingress and egress roads, interior roads, and similar features.” 2 A. & D. Rathkopf, The Law of Zoning and Planning § 30.04 [1].

It is axiomatic that statutes are to be read so as to make sense and to avoid bizarre results. State v. Scott, 11 Conn. App. 102, 119, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1154 (1987). Under § 8-3 (g), approval, disapproval or modification of a site plan triggers certain consequences. Approval of a site plan by lapse of time entitles “the applicant” to a certificate of approval. If the zoning agency denies or modifies “a site plan,” it must “set forth the reasons” for its action. General Statutes § 8-3 (g). It must also timely send by certified mail a copy of its decision to “the person who submitted such plan,” publish notice of approval or denial of site plans in a newspaper, and it may require a bond as a condition of approval of any modified site plan. Id.

Unless the term “site plan” is read to mean, not only the particular document showing the location of the building and certain other improvements on the property, but the entire application package, these consequences of action on a “site plan” would make little sense and would lead to bizarre results. In the case of approval by lapse of time, for example, it would make little sense and be a strange result to require a certificate of approval for a site plan which is somehow disembodied from the application of which it is an integral part. Similarly, the other requirements which follow approval, denial or modification of a site plan must, in order to make sense of them, be read to refer to the application process of which the site plan is an integral part.

Finally, it is apparent that the municipalities in this state are free to draft their zoning regulations so as to define the meaning and function of “site plans” in different ways. Under such circumstances, the meaning of § 8-3 (g) could vary from town to town. The virtue of our reading of the term as used in § 8-3 (g) is that of uniformity; the meaning of the statute will remain the same as it is applied from town to town.

Applying this broad, functional definition of the term “site plan” to the facts of this case, we conclude that the trial court did not err in deciding that the plaintiffs’ application for a special permit was approved by lapse of time. The parties stipulated that the application included a site plan which is inseparable from the requirement of a special permit. The application package purported to include all the information required by the regulations for the commission’s decision on the application. The commission did not act on the application package within the mandated time limit. Accordingly, the plaintiffs’ application was approved by lapse of time pursuant to General Statutes § 8-3 (g).

There is no error.

In this opinion the other judges concurred.

       The defendants are the town of Fairfield plan and zoning commission, the zoning enforcement officer, and the planning and zoning director.

       The named plaintiff is the contract purchaser of the real property in question from the other plaintiff, Herbert H. Moorin, trustee.

       General Statutes § 8-3 (g) provides: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired. A decision to deny or modify a site plan shall set forth the reasons for such denial or modification. A copy of any decision shall be sent by certified mail to the person who submitted such plan within fifteen days after such decision is rendered. The zoning commission may, as a condition of approval of any modified site plan, require a bond in an amount and with surety and conditions satisfactory to it, securing that any modifications of such site plan are made. The commission shall publish notice of the approval or denial of site plans in a newspaper having a general circulation in the municipality.”

       Neither the trial court record nor the appellate record contains a copy of § 31.0, defining the required contents of a site plan. Section 25.5.2 of the regulations, however, requires that an application for a special permit be approved only if it conforms to the following additional requirement, inter alia: “The site plan, including the location and arrangement of buildings, other structures, signs and outdoor illumination and the contours, streets, driveways, off-street parking and loading spaces, sidewalks, storm drainage, sewage disposal facilities and landscaping, shall be of such a character as to harmonize with the neighborhood, to accomplish a transition in character between areas of unlike character, to protect property values in the neighborhood, to preserve and enhance the appearance and beauty of the community and to avoid undue traffic congestion.”


text:
    Michael Ierardi v. Commission on Human Rights and Opportunities et al.
    (4973)
    Borden, Bieluch and Foti, Js.
    Argued January 19—
    decision released August 23, 1988

      JeanM. Stawicki, with whom, on the brief, were John L. Stawicki and Russell W. Sims, for the appellant (plaintiff).

      Thomas J. Ring, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (named defendant).

      George E. Finlay son, Jr., for the appellee (defendant Marlin Rockwell Corporation).
   Borden, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from a decision of the defendant commission on human rights and opportunities (commission). The commission determined that there was no reasonable cause to believe that a discriminatory practice had been committed, and dismissed the plaintiffs complaint without a hearing. The principal issue involves the meaning of the term “reasonable cause” as used in General Statutes § 46a-83 (a), which governs the investigation of complaints of discriminatory practices.

In 1979, the plaintiff was terminated from his employment as a foreman with the defendant, Marlin Rockwell Corporation, a Division of TRW, Inc. (company). The plaintiff filed a complaint with the commission alleging age discrimination and a retaliatory firing. After an investigation, the commission dismissed the complaint on March 25,1982, for lack of sufficient evidence to support a finding of reasonable cause that he was terminated for the reasons alleged. In a letter dated and postmarked April 2, 1982, the plaintiff requested reconsideration by the commission of the dismissal of his complaint pursuant to § 31-125-12 of the Regulations of Connecticut State Agencies. The application for reconsideration was received by the commission on April 8, 1982. On August 26, 1982, the commission denied the plaintiffs application for reconsideration as untimely.

On September 25, 1982, the plaintiff delivered this petition for an administrative appeal to a sheriff for service upon the defendants. The petition was served on the defendants and filed in the Superior Court soon thereafter. The defendants moved to dismiss the appeal on the ground that the court lacked subject matter jurisdiction because the plaintiff failed to serve the appeal upon the parties within the time period fixed by General Statutes (Rev. to 1981) § 4-183 (b). The court denied the motion to dismiss. On the merits of the plaintiff’s appeal, the trial court concluded that the record supported the investigator’s finding, adopted by the commission, that there was no reasonable cause to believe that the claimed discriminatory practices had occurred. The trial court therefore dismissed the plaintiffs administrative appeal. This appeal followed.

The plaintiff claims that the trial court erred (1) in finding that the plaintiff had not met his burden of proof before the commission, (2) in rejecting his requests to supplement the trial court record or to remand the matter to the commission for further evidence, and (3) in rejecting his claim that his request to the commission for reconsideration was timely. He also claims that the commission’s conduct was so procedurally flawed that it denied him due process of law. The defendants claim, as an alternative ground upon which to sustain the judgment, that the trial court lacked subject matter jurisdiction because the plaintiffs appeal was untimely filed.

I

The defendants claim that the trial court lacked subject matter jurisdiction. They contend that the plaintiff’s request for reconsideration was untimely, and therefore did not extend the time to appeal until after the denial of the request for reconsideration on August 26, 1982. They argue that the appeal had to be timely served and filed in relation to the March 25 dismissal of the complaint by the commission in order for the court to have jurisdiction. This claim is intertwined with the plaintiff’s claim that his request for reconsideration was timely. We therefore turn first to the issue of whether the plaintiff’s request for reconsideration was timely.

A

The plaintiff claims that the trial court erred in finding that the commission properly denied his request for reconsideration as untimely, and therefore that the trial court should have sustained his appeal and remanded the case to the commission on the merits of his application for reconsideration. We disagree.

The commission regulations state that an application for reconsideration of the dismissal of a complaint must be “filed within seven days from the date of the notice of dismissal in the office of the commission.” Regs., Conn. State Agencies § 31-125-12; see footnote 2, supra. The trial court found that the plaintiffs application for reconsideration was not filed until it was received by the commission on April 8,1982, and that it was therefore untimely under § 31-125-12. The plaintiff does not challenge the validity of this regulation. He argues that his application for reconsideration was timely filed because an application for reconsideration must be considered to be “filed” upon mailing in order to make mailing a practical alternative.

Generally, in the absence of provisions to the contrary, fulfillment of a filing requirement is not accomplished upon mailing but “requires actual delivery.” Piscitello v. Boscarello, 113 Conn. 128, 131, 154 A. 168 (1931). Moreover, the provision in issue here specifically requires that the reconsideration request be timely filed “in the office of the commission.” The plaintiffs interpretation of § 31-125-12 would render meaningless this requirement of that provision. Reading the provision to give meaning to all of its parts; see Eagle Hill Corporation v. Commission on Hospitals & Health Care, 2 Conn. 68, 75, 477 A.2d 660 (1984); we conclude that it contemplates that the filing of an application for reconsideration is effective only upon actual delivery to the commission. Although, as the plaintiff asserts, other regulations authorize filing “by personal delivery or registered mail” in the case of complaints; Regs., Conn. State Agencies § 31-125-7; and in the case of answers; Regs., Conn. State Agencies § 31-125-20; these provisions do not aid in our interpretation of § 31-125-12 because only the latter provision plainly specifies that filing must occur within a specified time and at a specified location, regardless of the method used. In reaching our conclusion here, we are mindful that an agency’s construction of its own duly adopted regulations should be afforded great deference by the courts. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496-97, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 91 L. Ed. 2d 819 (1986). Accordingly, the agency properly refused to address the merits of the plaintiff’s request for reconsideration.

B

We turn, therefore, to the defendants’ jurisdictional claim, namely, that the plaintiff’s appeal to the court was untimely. Their argument hinges on the contention that the plaintiff’s request for reconsideration did not toll the running of the appeal period because it was not timely filed with the commission. We disagree. We conclude that, although the plaintiff’s request was untimely within the strictures of the commission’s regulation, it did postpone the running of the appeal period because it was filed with the commission within the statutory appeal period.

“The failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it.” (Citations omitted.) Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985); Hanson v. Department of Income Maintenance, 10 Conn. App. 14, 16, 581 A.2d 208 (1987). This administrative appeal was filed within the time set by statute.

The right to judicial review of the commission’s action is created by General Statutes § 46a-95 (j), which provides that “any complainant aggrieved by the-dismissal of his complaint by the commission may appeal therefrom in accordance with section 4-183.” General Statutes (Rev. to 1981) § 4-183 (b), which governed the plaintiffs administrative appeal under the Uniform Administrative Procedure Act (UAPA), provides, in pertinent part, that “[proceedings for such [an] appeal shall be instituted by filing a petition in superior court . . . within forty-five days after the mailing of the notice of final decision of the agency or, if a rehearing is requested, within forty-five days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after the decision thereon.”

Although the commission was entitled to regard the request as untimely pursuant to § 31-125-12 of its regulations, and therefore to decline to consider the substance of the requested reconsideration, that did not determine its untimeliness for purposes of a rehearing request contemplated by General Statutes § 4-183 (b), which governs the time frame for taking of administrative appeals. A request for reconsideration postpones the running of the appeal period under § 4-183 (b) until “the decision thereon”; General Statutes § 4-183 (b); so long as the request is filed with the agency within the period for the commencement of an administrative appeal by service upon the proper parties thereto. Con necticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 3 n.3, 467 A.2d 679 (1983); Boulevard Dodge Sales, Inc. v. Kozlowski, 31 Conn. Sup. 455, 457-58, 334 A.2d 235 (1974).

This conclusion ensures both consistency and fairness in an area of our law where the slightest misstep by a party seeking judicial review of agency action can deprive the trial court of subject matter jurisdiction. Consistency is maintained because state agencies can adopt differing internal rules governing the time period during which each will entertain requests for reconsideration, while reconsideration requests filed with all agencies within the initial appeal period established by § 4-183 (b) will have the effect of postponing the running of the statutory appeal period. Fairness will be fostered where, as here, a plaintiff attempts to file his application for reconsideration in a timely manner, only to be informed long after the appeal period otherwise would have expired, that he is out of luck. We do not believe that the UAPA contemplates such a harsh result.

The defendants’ reliance on Rogers v. Commission on Human Rights & Opportunities, supra, is misplaced. In Rogers, the plaintiff’s request for reconsideration was filed beyond the initial appeal period established by General Statutes § 4-183 (b), and therefore the reconsideration request could not toll the running of the appeal period. See Boulevard Dodge Sales, Inc. v. Kozlowski, supra, 457-58.

Accordingly, we conclude that the time for appeal in this case did not begin to run until the commission denied the plaintiff’s application for reconsideration on August 26,1982. Since the defendants do not dispute that the plaintiff’s appeal was timely served and filed in relation to that mailing, the trial court had jurisdiction to address the merits of the plaintiffs administrative appeal. This brings us to the plaintiffs remaining claims of error.

II

The plaintiff claims that the court erred in finding that the plaintiff had not met his burden of proof before the commission. The facts relevant to this claim of error are as follows.

The basis of the plaintiffs claim of age discrimination was that the company terminated his employment as a foreman one hundred days before his sixty-second birthday, when he could have retired with full pension rights. He claimed that this was done after forty-two years of faithful employment. He further claimed that the company, through supervisory personnel, changed his job classification, began a series of acts to make it difficult for him to achieve his production goals and, at the same time, improperly evaluated him. He contended that, after new management took over, there was a pattern of activity by management to terminate older employees, and because of it he had made a complaint to the commission in 1977. He asserted that after that complaint was dismissed in 1978, evaluations by the company were made unfairly and more frequently so as to make a record of sufficient cause for termination, in order to mask the real reasons, namely, his age and retaliation for filing the complaint in 1977.

The commission’s investigator obtained information from the company that the plaintiff had received poor job performance evaluations in 1976, 1978, and three times in 1979. The investigator contacted two of the witnesses whose names the plaintiff had supplied as having information to confirm his claim of age discrimination. One witness related to the investigator that he was told to “get rid” of the plaintiff because the plaintiff’s work performance was not good enough to meet the new management’s standards. The other stated that he had heard no remarks directed to the plaintiff’s age, and noted that the plaintiff had a personality conflict with two superiors. The investigator also determined that at the time of the complaint, twenty-four of the twenty-eight foremen employed by the company were over the age of forty, five being older than the plaintiff.

The investigator also found that the plaintiff “had serious performance problems and a personality conflict with [two supervisors]. Although [the plaintiff] was given numerous counseling sessions in specific problem areas and opportunities to improve his performance, he did not do so. [Company] records indicate that no other foreman had been given as many unsatisfactory evaluations and counseling sessions as [the plaintiff]. A younger foreman who received an unsatisfactory evaluation was able to improve his production through counseling. The allegations that [the plaintiff] was discriminated against because of his age and retaliated against for having filed a previous complaint are without support.” Thereafter, the investigator recommended that “the complaint be dismissed for lack of sufficient evidence to support the allegations.” The commission adopted this recommendation and dismissed the complaint for lack of sufficient evidence.

The plaintiff argues that it was his burden to establish a prima facie case of discrimination, that sufficient evidence existed in the record to cross that threshold, and that the commission therefore should not have dismissed his complaint. We disagree with his characterization of his burden, and, gauging the evidence in the record by the proper standard, we conclude that the commission was justified in dismissing his complaint.

General Statutes § 46a-83 (a) provides that after a discriminatory practice complaint is filed with the commission, it shall be assigned to an investigator whose role, among other things, is to determine “after the investigation [whether] there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint. ” (Emphasis added.) Only where such a finding of reasonable cause is made and the investigator cannot thereafter “eliminate the practice complained of by conference, conciliation and persuasion”; General Statutes § 46a-83 (a); is the complaint certified and a hearing examiner appointed to conduct a formal hearing on the matter. General Statutes § 46a-84.

The plaintiffs characterization of his initial burden at the investigatory phase amounts to a claim that establishment of a prima facie case is the same as the statutory phrase, “reasonable cause for believing that a discriminatory practice has been or is being committed.” General Statutes § 46a-83 (a). We do not read the two as synonymous.

The statute does not use the term “prima facie case,” and the plaintiff does not point us to any legislative history or judicial gloss equating that term with “reasonable cause to believe.” Moreover, the concept of a prima facie case, in the context of antidiscrimination legislation, applies to the complainant’s initial burden of production at an adjudicative hearing. See Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 359, 514 A.2d 749 (1986). It means that the “ ‘plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion.’ ” Id., 361, quoting International Brotherhood, of Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). Thus, under the plaintiff’s argument, if an investigation discloses enough evidence, viewed without regard to any potential frailties inherent in it or without regard to the quantity or quality of contrary evidence, to justify such an inference, a finding of reasonable cause would be required and he would be entitled to an adjudicative hearing. We acknowledge that in this case there was evidence which, so viewed, justified such an inference, at least regarding his claim of age discrimination.

The issue, therefore, is whether the statutory “reasonable cause” standard requires that the commission look only at the evidence favorable to the plaintiffs claim, viewed in its most favorable light, and determine whether it justifies an inference of discrimination, or whether the standard requires more. Although the question is a close one, we conclude that the standard requires more.

We view the term “reasonable cause” as used in the statute as synonymous with “probable cause.” Cf. State v. Wilson, 153 Conn. 39, 41, 212 A.2d 75 (1965) (“reasonable grounds to believe,” as used in General Statutes § 6-49 [now § 54-lf (b)] is to be equated with “probable cause.”) Probable cause “ ‘is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. ’ ” (Emphasis added.) Ledgebrook Condominium Assn. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977), quoting Wall v. Toomey, 52 Conn. 35, 36 (1884). “Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.” Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984). It deals with probabilities, and the “application of the factual and practical considerations of everyday life on which reasonable and prudent men act.” State v. Wilson, supra. This is consistent with the notion “that a purpose of the statute is to guard against subjecting a respondent to a hearing upon every complaint which might be made to the commission, however unfounded.” Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 235, 278 A.2d 771 (1971).

This conclusion is also consistent with the rest of the statutory scheme. The statute obviously contemplates that the investigator will secure records through voluntary disclosure, and that “the commission may issue subpoenas requiring the production of records and other documents relating to the complaint under investigation.” General Statutes § 46a-83 (c). It is equally obvious that this investigatory process may yield information both favorable and unfavorable to the claim of discrimination. We do not believe, however, as the plaintiffs argument would have it, that the same scheme requires the investigator to consider only the information favorable to the claim and to ignore any contrary information, no matter how strong.

We therefore consider whether application of these principles to this administrative record justifies the commission’s action in this case. We do so, moreover, constrained by our limited scope of review of administrative factual decisions.

The scope of judicial review of the decision of a commission under the UAPA is narrow. General Statutes § 4-183 (g); Neri v. Powers, 3 Conn. App. 531, 537-38, 490 A.2d 528, cert. denied, 196 Conn. 808, 494 A.2d 905 (1985). The determination of factual issues is a matter within the province of the agency, and if the agency’s decision is reasonably supported by the evidence in the record, it must be sustained. Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978).

In addition to the information favorable to the plaintiff’s claim of age discrimination and retaliation; see footnote 4, supra; the investigation yielded a significant amount of information which contradicted those claims. That contradictory information, noted above, was that the plaintiff had received a series of poor performance evaluations from 1976 through 1979, that two of the witnesses identified by the plaintiff did not support his claim, and that the statistics regarding the ages of the other foremen employed by the company were inconsistent with his claim of age discrimination. There was also information that the plaintiff had a personality conflict with two supervisors, did not improve his performance through counseling sessions, and that he had received more unsatisfactory evaluations and counseling sessions than any other foreman. Although arguably the commission could have reached a different determination regarding reasonable cause in this case, we cannot conclude that the decision was not supported by the evidence in the record. Put another way, on this record, we cannot conclude that as a matter of law the commission must have formed a bona fide belief in the validity of the plaintiffs claim which would satisfy a person of ordinary caution, prudence and judgment.

Ill

The plaintiff also claims that the return of the record was so flawed by irregularities that the court erred by neither allowing the record to be supplemented by exhibits and testimony nor remanding the matter to the commission for further proceedings. We disagree.

On four occasions in the proceedings before the trial court, the plaintiff attempted to add to the administrative record before the court through discovery techniques and through motions to add materials to the administrative record. Among the claimed irregularities of the commission were the following: failing to follow up and obtain information from additional witnesses, misplacing material that the plaintiff had allegedly provided to the agency, refusing to investigate certain allegations by the plaintiff and misplacing material submitted by the company.

The court was called upon to determine whether the commission rendered its decision in accordance with the UAPA, General Statutes §§ 4-166 through 4-189. “Several axioms of administrative law generally, and the UAPA in particular, bear repeating here .... The [trial] court’s essential function in such an appeal is to review the administrative proceedings to determine whether the action appealed from was legal. Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 329, 269 A.2d 276 (1970). The scope of judicial review under the UAPA is very restricted. Lawrence v. Kozlowski, 171 Conn. 705, 707, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). Except in the limited situation in which there is an allegation of procedural illegalities not shown in the record; General Statutes § 4-183 (f); that review is limited to the record and the court cannot hear evidence. Arterburn Convalescent Home v. Committee on State Payments to Hospitals, 176 Conn. 82, 86, 405 A.2d 48 (1978); cf. General Statutes § 4-183 (e) (court may, in limited circumstances, remand to agency for additional taking of evidence).” Neri v. Powers, supra, 537-38.

The taking of additional evidence, whether through discovery and presentation to the court, testimony by witnesses, or supplementation of the record, is controlled by General Statutes § 4-183 (f), which provides that “[i]n cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. ...” The opportunity to present evidence in addition to that contained in the record is reserved for extraordinary cases. Leib v. Board of Examiners for Nursing, 177 Conn. 78, 92, 411 A.2d 42 (1979). “The question whether additional testimony should be taken calls for an exercise of the court’s legal discretion. Tarasovic v. Zoning Commission, [147 Conn. 65, 69, 157 A.2d 103 (1959)]; Hlavati v. Board of Adjustment, 142 Conn. 659, 668, 116 A.2d 504 (1955). On the record before us, including the reasons claimed by the [plaintiff] for taking additional evidence, we cannot say that the court abused its discretion. The court also did not abuse its discretion in denying [the plaintiff’s] motion for discovery and production.” Leib v. Board of Examiners for Nursing, supra, 92-93.

IV

In his final claim of error, the plaintiff argues that the commission’s conduct in investigating and addressing his complaint was so procedurally flawed that he was denied due process of law as guaranteed by the fourteenth amendment to the United States constitution, and article first, § 10 of the Connecticut constitution. We will not review this claim of error, however, because it was not properly presented to the trial court. “If a party intends to raise any claim of law which may be a subject of an appeal, he must either state the same distinctly to the court before his argument is closed, or state it in a written trial brief. If this is not done, it will not be a duty of either the trial court or the appellate court to decide the claim.” (Emphasis added.) Practice Book § 285A. The plaintiff’s several references at oral argument before the trial court to the alleged lack of fairness and the absence of a hearing in the proceedings before the commission did not suffice to alert the trial court to this claim. Passing oral references to the rubric of a due process claim raised for the first time in a hearing on the merits of an administrative appeal, even if repeated often, are not an adequate substitute for a clearly and distinctly articulated claim of constitutional error. Nor did the plaintiff raise this issue in his trial brief in the Superior Court.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46a-83 (a) provides: “After the filing of any discriminatory practice complaint, the chairman of the commission shall refer the same to a commissioner or investigator to investigate and if the commissioner or investigator determines after the investigation that there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint, he shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion.”
      General Statutes § 46a-84 (a) provides: “In case of failure to eliminate a discriminatory practice complained of pursuant to section 46a-82, the investigator or investigating commissioner shall certify the complaint and the results of his investigation to the chairman of the commission and to the attorney general.”
      General Statutes § 46a-84 (b) provides in pertinent part: “Upon certification of the complaint, the chairman of the commission shall appoint a hearing examiner or one member of the commission to act as a hearing officer to hear the complaint . . . .”
      General Statutes § 46a-86 (a) provides, in general terms, that if the hearing officer determines upon all the evidence that the respondent has engaged in a discriminatory practice, he shall, inter alia, issue a cease and desist order, and order the respondent to take appropriate affirmative action. General Statutes § 46a-86 (e) provides, in general terms, that if the hearing officer finds that the respondent has not engaged in a discriminatory practice, he shall dismiss the complaint.

       “[Reg., Conn. State Agencies] Sec. 31-125-12. Application for reconsideration of dismissal of complaint. The complainant may apply for a reconsideration of such dismissal. The application shall be in writing, stating specifically the grounds upon which it is based, and shall be filed within seven days from the date of the notice of dismissal in the office of the commission. An application for reconsideration of a dismissal of a complaint prior to hearing may be granted or denied at the discretion of the chairman.” (Emphasis added.)

       In its present form, General Statutes (Rev. to 1987) § 4-183 (b) states: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       The evidence to which the plaintiff points regarding his claim of age discrimination consists of the timing of his termination after forty-two years of employment and one hundred days before his retirement benefit would fully vest, his transfer to another department without training after thirty-nine years in his previous department, and an affidavit of John Hitchner, his previous supervisor, stating that Hitchner quit because he was told to build a case against the plaintiff, although he found nothing wrong with the plaintiff’s work. The evidence to which the plaintiff points regarding his claim of a retaliatory firing consists of the timing of unsatisfactory performance reports; each, he claims, followed some identifiable agency action on the prior age discrimination complaint which he had filed.

       We do not imply that the investigator is free to act as an adjudicative tribunal by deciding which inferences are appropriately drawn and by resolving all material factual disputes. That role is reserved for the hearing officer. We believe that the statute does, however, give the investigator the authority to view all the evidence disclosed by the investigation, and to determine whether it produces a bona fide belief in the validity of the claim of discrimination which would satisfy a person of ordinary caution, prudence and judgment.

       The plaintiff also argues that, because the record shows that the investigator made attempts at conciliation between the plaintiff and the company regarding the substance of the complaint, the commission necessarily had, in fact, determined that reasonable cause existed for a finding of age discrimination. The plaintiffs argument relies on a misreading of General Statutes §§ 46a-83 (a) and 46a-84 (a). While those provisions require that conciliation efforts occur after a finding of reasonable cause is made, neither provision suggests that conciliation may not be attempted in the absence of a finding of reasonable cause, or that once conciliation is attempted the agency is bound to find reasonable cause. The trial court properly concluded that “[ajlthough Connecticut General Statutes § 46a-83 provides that the investigator ‘shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion' if reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint, these procedures should always be available to the parties, whether or not probable cause is determined.”

       The trial court’s decision regarding one attempt by the plaintiff to utilize discovery techniques for this purpose is reported in Ierardi v. Commission on Human Rights & Opportunities, 40 Conn. Sup. 293, 493 A.2d 925 (1985).

       The plaintiff also raises claims of “inconsistencies and procedural irregularities” by the commission. A review of these claims, however, shows that they are related to concerns other than procedural irregularities, such as claims relating to burden of proof, findings of fact, and statutory interpretation, which are encompassed by his other claims of error.


author: Daly, J.

text:
    State of Connecticut v. Ralph Vuley
    (6083)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued April 13—
    decision released August 23, 1988

      Donald D. Dakers, public defender, for the appellant (defendant).

      MitchellS. Brody, deputy assistant state’s attorney, with whom, on the brief, was Robert Devlin, former assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The defendant’s sole claim of error is that the evidence was insufficient to support his conviction of robbery in the first degree because the blunt object used in the course of the commission of the robbery did not constitute a dangerous instrument. We find no error.

The jury could reasonably have found the following facts. On June 21, 1986, at approximately 6:30 p.m., the defendant and an unidentified associate entered the Power Test gasoline station located on Kimberly Avenue in New Haven. The defendant approached the station attendant, Hector Colon, and asked to purchase a pack of cigarettes. As Colon headed to the storage room, his back was to the two males. Upon reaching the cigarette rack in the storage room, he was struck on the head several times by a “solid piece” or “pipe” and knocked to the floor. Colon could not see for several moments and when he rose from the floor, he discovered that he was locked in the storage room. From inside the storage room, Colon heard voices emanating from the office and he heard the noise of someone prying open the cash drawer. A customer arrived on the premises and summoned the police at the victim’s request.

Upon their arrival, the police broke open the storage room and released Colon. He was bleeding over his left eye and his face was covered with blood. Colon was ultimately taken to St. Raphael’s hospital where seven stitches were used to close his head laceration. A hospital physician noted that Colon had been hit with a “pipe” and diagnosed him as suffering from scalp lacerations and a hematoma. Approximately $250 in cash and five quarts of oil were taken from the station. Colon subsequently identified the defendant from a police photographic array and again at trial. From his conviction, the defendant appealed.

The sole issue on appeal is whether the state presented sufficient evidence to allow the jury to conclude that the blunt object used by the defendant constituted a dangerous instrument for purposes of proving robbery in the first degree. Although the defendant failed to preserve this claim for appeal, our Supreme Court has recently afforded review of similar claims under the bypass doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because the absence of sufficient evidence underlying the verdict would result in a due process violation implicating the fairness of the trial. State v. Pollitt, 205 Conn. 132, 150, 531 A.2d 125 (1987).

General Statutes § 53a-3 (7) defines a dangerous instrument as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury. ...” (Emphasis added.) “The question is whether the instrument possessed the potential for causing either death or serious physical injury under the circumstances in which it was used.” State v. Frazier, 7 Conn. App. 27, 39, 507 A.2d 509 (1986). There is sufficient evidence in the record to allow the jury to conclude that the blunt object in this case constituted a dangerous instrument for purposes of proof of first degree robbery. Construing the evidence in the light most favorable to sustaining the verdict; State v. D ’Ambrosio, 14 Conn. App. 309, 321, 541 A.2d 880 (1988); the jury could reasonably have found that the defendant struck Colon on the head several times with an instrument later described as feeling like a “solid piece” and a “pipe” and that, as a result of the severe blows, Colon lost his sight for several moments and suffered a hematoma and a lacerated scalp which required seven stitches.

The jury’s conclusion that the “solid piece” or “pipe” was a dangerous instrument is supported by findings in prior cases that the following instruments, under the circumstances of their use, exhibited a similar potential for causing serious physical injury: a key, which lacerated a neck and face; State v. Frazier, supra, 39-40; a portion of a hockey stick, which fractured a skull; State v. Killenger, 193 Conn. 48, 54, 475 A.2d 276 (1984); a garden hose with a metal nozzle which struck a head; State v. Levine, 39 Conn. Sup. 494, 497-98, 466 A.2d 814 (1983); a stick, which struck two victims on their heads and arms. State v. Ortiz, 14 Conn. App. 493, 504, 542 A.2d 734 (1988).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument.”

       The defendant’s second claim of error, relating to the court’s instructions as to the elements of the crime of robbery in the first degree and the state’s burden of proof was withdrawn at the time of presentation of argument.