text:
    LOST TRAIL, LLC v. TOWN OF WESTON
    (AC 33881)
    Lavine, Beach and Alvord, Js.

      Argued September 12, 2012
    officially released January 15, 2013

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

      Thomas R. Gerarde, with whom were Patricia C. Sullivan and, on the brief, Kevin M. Tighe, for the appellee (defendant).
   Opinion

BEACH, J.

Approximately fifteen years ago, the plaintiff, Lost Trail, LLC (Lost Trail), purchased two adjacent parcels of land in the town of Weston (town). Lost Trail’s apparent intention was to divide the aggregated land into four lots suitable for building under the town’s zoning regulations. After Lost Trail reconfigured its property, consistent with this purpose, town officials informed Lost Trail that its actions had resulted in a subdivision, which required approval from the town planning and zoning commission (commission), and that building permits would not be issued until such approval was obtained. Lost Trail has spent the past seven years in federal and state court challenging the town’s position that its land had been subdivided. It declined, however, to go to the commission until seven of its eight counts had been dismissed for its failure to avail itself of administrative remedies. Because of this failure, we affirm the judgment of the trial court.

The following facts, and substantial procedural history, are relevant to the disposition of this appeal. In November, 1997, Lost Trail purchased two adjacent parcels of land abutting Georgetown Road in the town. The northerly lot was 6.79 acres in size and is depicted on town land records map # 516. The southerly 3.31 acre lot is indicated on land records map # 476. Both parcels existed before the enactment of zoning regulations in the town.

On July 17, 1998, Lost Trail recorded map # 3438 in the town land records, which purportedly adjusted the boundaries of the two lots. The property line was adjusted to move 2.117 acres from the northerly parcel to the southerly parcel and 0.588 acres from the southerly parcel to the northerly parcel. Consequently, the northerly parcel consisted of approximately 4.26 acres and the southerly parcel consisted of approximately 4.84 acres.

On August 18, 1998, Lost Trail recorded maps # 3440 and 3441. These maps respectively divided the northerly parcel into parcels 615A, containing 2.03 acres, and 516B, containing 2.12 acres, and the southerly parcel into parcels 476A, containing 2.54 acres, and 475B, containing 2.26 acres. Additional minor boundary line adjustments were made to the four parcels and recorded on maps # 3443 (for the northerly parcels) and # 3444 (for the southerly parcels). A1 of the resulting parcels consisted of more than two acres of land.

Prior to the recording of maps # 3438, 3440, 3441, 3443, and 3444, the maps were presented to the town zoning enforcement officer, E. Edward Hahne; town engineer, John Conte; and assistant town attorney, Christopher Jarboe. Hahne and Conte signed the maps and stamped them with the following text: “The Town Engineer and Code Enforcement Officer hereby attest to the fact that this plan is neither a subdivision nor a resubdivision as defined by the General Statutes of Connecticut and the Town of Weston and may be recorded without prior approval of the Weston Planning and Zoning Commission.” The stamped maps were then filed in the town land records. Lost Trail subsequently mortgaged the property to Wilton Bank on the understanding that it was effectively divided into four lots.

On February 14,2000, Barry Hawkins, special counsel for the town, sent a letter to counsel for Lost Trail. Hawkins stated that, under Connecticut law and the town’s planning and zoning regulations and subdivision bylaws, Lost Trail had needed to obtain subdivision approval from the commission to divide the Georgetown Road property as it had. In Hawkins’ view, Lost Trail’s “extensive and aggressive lot line adjustments” were an obvious attempt to “circumvent compliance with [the town’s] Subdivision By-Laws.” Because Hawkins opined that the attempted division of the two original parcels into four lots was invalid, he further informed Lost Trail that he had advised the town’s zoning enforcement and building officials not to issue zoning or building permits to Lost Trail, should it attempt to develop the lots. Hawkins concluded by recommending that Lost Trail apply to the commission for subdivision approval if it wished to divide or to redivide its lots. He stated that “[t]he [commission] is willing to work with [Lost Trail] to accomplish reasonably the safe and proper development of [its] properties in accordance with applicable subdivision statutes and regulations.” Hawkins additionally noted that if, despite his admonition, Lost Trail applied for building permits and was denied, such denial could be appealed.

Hawkins’ position was reiterated in a subsequent letter to the town tax assessor, dated March 22, 2000, which stated that the lot line adjustments reflected in the recorded maps did not create additional building lots. Therefore, Hawkins counseled that Lost Trail should be taxed as if it owned only a single parcel of land. In May, 2000, the town tax assessor revised the tax assessment map so that Lost Trail’s Georgetown Road property was a single lot.

Lost Trail did not pursue subdivision approval from the commission, as Hawkins had suggested. Instead, counsel for Lost Trail requested that town attorney G. Kenneth Bernhard reconsider the position, articulated by Hawkins, that the division of the lots created a subdivision. Lost Trail asserted that its division of the Georgetown Road parcels did not constitute a subdivision under General Statutes § 8-18, a position claimed to be validated by this court’s opinion in Goodridge v. Zoning Board of Appeals, 58 Conn. App. 760, 755 A.2d 329, cert. denied, 254 Conn. 930, 761 A.2d 753 (2000). Bernhard apparently was not persuaded.

In December, 2005, Lost Trail commenced this action by way of an eight count complaint asserting federal and state law claims. As to the federal claims, brought under 42 U.S.C. § 1983, Lost Trail alleged that the town had deprived it of equal protection of the law, substantive and procedural due process and had committed an inverse condemnation or regulatory taking without just compensation. As to the state law claims, Lost Trail: asserted a claim of inverse condemnation or regulatory taking under article first, § 11, of the Connecticut constitution; sought a declaratory judgment that a subdivision had not occurred, that the boundary lines of the two original parcels lawfully could be adjusted and then divided into two lots without subdivision approval, and that zoning and building permits should be issued for any of the lots that complied with zoning regulations; and claimed that the town should be estopped from requiring Lost Trail to obtain subdivision approval and should be compelled to issue building permits for the lots.

The case was removed to the United States District Court for the District of Connecticut. The town filed a motion to dismiss Lost Trail’s amended complaint, and the District Court dismissed the five federal causes of action for lack of ripeness. See Lost Trail, LLC v. Weston, 485 F. Sup. 2d 59, 60, 66 (D. Conn. 2007). The District Court held that, “Lost Trail has failed to seek any relief from the Zoning Board of Appeals, which will typically be the venue from which a final, definitive decision will emanate. . . . Until this variance and appeals process is exhausted and a final, definitive decision from local zoning authorities is rendered, this dispute remains a matter of unique local import over which we lack jurisdiction.” (Citation omitted; internal quotation marks omitted.) Id., 66. The District Court consequently declined to exercise supplemental jurisdiction over Lost Trail’s state law claims. Id. The United States Court of Appeals for the Second Circuit affirmed the judgment of the District Court by summary order. See Lost Trail, LLC v. Weston, 289 Fed. Appx. 443 (2d Cir. 2008).

On remand to state court, the town moved to dismiss the three remaining state law claims in two separate motions. The trial court, Pavia, J., dismissed the inverse condemnation claim and request for declaratory relief. The court held that the takings claim was not ripe for adjudication because there had not been a final decision rendered by the commission. The declaratory judgment claim was dismissed because Lost Trail had failed to exhaust available administrative remedies.

The municipal estoppel claim was dismissed by the court, Hon. Alfred J. Jennings, Jr., judge trial referee, on June 9, 2011. By that time, Sovereign Bank had acquired title to parcel 515A as a result of a foreclosure proceeding, leaving Lost Trail as the owner of only three of the four putative lots. Additionally, Lost Trail had finally obtained a determination from the commission that its lot line adjustments had not resulted in the creation of a subdivision or resubdivision. Because of these developments, the town asserted that the municipal estoppel claim was moot. The court disagreed that the claims were moot because even though the town had agreed that Lost Trail’s reorganization of the property did not constitute a subdivision or resubdivision, it had not considered the issue of whether building permits would be issued to Lost Trail. Thus, the court concluded that, “at least part of the claim and prayer for relief is not moot . . . .” The court also held that the loss of only one of the four lots to foreclosure did not render Lost Trail’s claims moot.

The court nonetheless dismissed Lost Trail’s final claim for lack of ripeness, as it had failed to seek building permits from the town, and, therefore, its claimed injuries were merely speculative. Lost Trail’s motion to reargue, to reconsider and to alter the judgment was subsequently denied. This appeal followed.

I

Lost Trail first claims that the court erred by dismissing its regulatory takings claim for failure to obtain a final administrative decision. Lost Trail essentially contends that its division of the Georgetown Road property plainly did not constitute a subdivision under § 8-18; thus, as a matter of law, the commission had no jurisdiction over the matter. In Lost Trail’s view, “ [tjhere was nothing for the . . . [cjommission to decide as to either (1) whether subdivision approval was necessary for the property ... or (2) to review and approve (or deny) a subdivision application.” Because this issue was beyond the commission’s purview, Lost Trail asserts that the finality requirement is simply beside the point.

Lost Trail additionally argues that, even if it was required to seek the commission’s consent, the town effectively approved the division of the two preexisting parcels into four separate lots in August, 1998, when the final maps were stamped and signed by town officials and recorded in the town land records. Lost Trail characterizes the town’s subsequent actions as a revocation of this apparent approval, which revocation inflicted an immediate injury ripe for adjudication.

The town, on the other hand, asserts that it contested in good faith Lost Trail’s position that its division of the subject property did not create a subdivision under § 8-18. The town argues that whether Lost Trail’s adjustments of its property lines resulted in a subdivision under § 8-18 was an issue to be resolved by the commission; it was not Lost Trail’s prerogative to determine on its own whether the commission had jurisdiction over the issue in the first place.

The town additionally takes issue with Lost Trail’s contention that the stamps applied to the maps filed in the town land records operated as municipal approval of the division of the property. The town asserts that the stamp “does not state that the property on those maps is exempt from subdivision regulations. The stamp simply sets forth that the property depicted on the maps is not a subdivision (because the purported divisions have not been reviewed and approved by the . . . [c]ommission) . . . .” Moreover, the town argues that the officials who signed the stamp — the zoning enforcement officer and the town engineer — were not vested with the authority to determine whether division of land created a subdivision. Such a determination, the town contends, could be made only by the commission, pursuant to General Statutes § 8-26.

We begin by setting forth our standard of review. “In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary.” (Internal quotation marks omitted.) Greco Construction v. Edelman, 137 Conn. App. 514, 516-17, 49 A.3d 256 (2012).

“An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding. . . . [W]hether a claim that a particular governmental regulation or action taken thereon has deprived a claimant of his property without just compensation is an essentially ad hoc factual inquirfy]. . . . Short of regulation which finally restricts the use of property for any reasonable purpose resulting in a practical confiscation, the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner.” (Citations omitted; internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 298-99, 947 A.2d 944 (2008).

“It follows from the nature of a regulatory taking claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes. . . . Until a property owner has ‘obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,’ ‘it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed.’ ”Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 600, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S. Ct. 64, 116 L. Ed. 2d 39 (1991). A final decision has been rendered when “the initial decision-maker [has] arrived at a definitive position on the issue that inflict[ed] an actual, concrete injury . . . .” (Internal quotation marks omitted.) Id., 601. “If a property owner has not obtained a final decision from the administrative agency applying the regulation, the reviewing court lacks jurisdiction to rule on a taking claim. The jurisdictional nature of finality derives from its similarity to ripeness.” (Internal quotation marks omitted.) Id., 604.

“Cogent reasons of policy dictate that [courts] defer definitive resolution of . . . plaintiffs’ claims for compensation to await a local administrative response to their development plans. . . . Because what constitutes a taking is difficult to define and what amount is just compensation is difficult to calculate, a court, in the proper circumstances, is well advised to stay its hand to allow for political choices and settlements . . . .” (Citations omitted.) Luf v. Southbury, 188 Conn. 336, 353, 449 A.2d 1001 (1982).

The rationale for requiring a final and authoritative determination from local administrators as a prerequisite to asserting a regulatory takings claim is well illustrated here. Although Hawkins suggested that, in his opinion, Lost Trail’s division of the Georgetown Road property created a subdivision, he did not have the authority to speak for or to bind the commission. Indeed, he recommended that Lost Trail apply for subdivision approval and stated that the commission was willing to work with Lost Trail to ensure the safe and proper development of the Georgetown Road property. This correspondence cannot be considered a “ ‘definitive position on the issue’ ” from an authoritative “ ‘initial decision-maker.’ ” See Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 601; see also Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 213, 719 A.2d 465 (1998) (“preliminary regulatory activity may not work a taking in the same way as a final regulatory decision” [emphasis in original]). Lost Trail could only speculate if the commission would have agreed with Hawkins or if it would have permitted development on all, none or some of its four lots on Georgetown Road. Without such a baseline, a court cannot determine if a taking has occurred, and, if so, what amount of compensation is due to the property owner.

Lost Trail tries to circumvent the finality requirement by arguing that its use of the subject property so obviously did not constitute a subdivision that the commission’s involvement was gratuitous. Strength of unilateral conviction is not, however, a substitute for a final administrative decision. As the town correctly points out, property owners cannot be their own arbiters of whether the commission has the authority to act. In similar contexts, our Supreme Court has held that administrative agencies should decide in the first instance whether a challenged action falls within their statutory purviews. See Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 626-27, 577 A.2d 1017 (1990) (rejecting landowners’ attempt to bypass exhaustion of administrative remedies on ground that their activities were outside of department of environmental protection’s jurisdiction). Moreover, even if Lost Trail had been correct in its assertion that its division of the Georgetown Road property did not create a subdivision — an issue which we need not decide — judicial review, in the event of an adverse administrative decision, undoubtedly would have benefited from the factual record developed by the commission and the application of its expertise. See id., 625.

Furthermore, by refusing to engage the commission in the zoning approval process, Lost Trail eliminated the possibility that this matter could be resolved by local political choices and settlements. See Luf v. Southbury, supra, 188 Conn. 353. Lost Trail’s prediction of futility turned out to be wrong — in January, 2011, the commission agreed with Lost Trail and disavowed Hawkins’ position. In a carefully reasoned opinion, the commission acknowledged that there was disagreement as to the impact of significant lot line adjustments on the subdivision analysis. In the absence of clear guidance on this issue, the commission concluded that it ought not attempt to determine on an ad hoc basis what sorts of boundary line adjustments created subdivisions. Thus, it applied the plain language of § 8-18, which defines subdivision as the division of a parcel of land into three or more parts, and concluded that Lost Trail’s configuration of its property did not result in a subdivision or resubdivision and, accordingly, did not require commission approval.

The commission also considered the effect of the stamps that were affixed on the maps filed in the town’s land records. The commission noted that the town, in recognition of the fact that “the existing stamp was ambiguous at best or, at worst, stated the precise opposite of the intention to which it was being placed,” revised the stamp’s text in an attempt to clarify its meaning. While acknowledging the confusion created by the old text and the apparent authority of the town officials who had signed it, the commission determined that under Connecticut law, it was the sole entity that could assess whether property was a subdivision and that such authority was not delegable. Thus, the commission declined to be bound by the alleged import of the old stamps, which the commission had not endorsed.

“[N]otions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. . . . [I]t is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.” (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 625. If Lost Trail had sought the opinion of the commission when Hawkins first suggested that Lost Trail’s use of its property created a subdivision, these issues could have been settled — that is, the commission would have been given the opportunity to adopt or to correct Hawkins’ position. If the commission, as constituted twelve years ago, had decided these issues favorably to Lost Trail, Lost Trail could have then sought building permits and zoning certification. Had it decided the issue adverse to Lost Trial, Lost Trail presumably could have appealed years ago. Having failed to do so, it cannot now challenge the town’s actions in court as an unconstitutional taking.

II

Lost Trail alternatively claims that its failure to obtain a final and authoritative administrative decision is excused by the futility of pursuing such a course. See Murphy v. New Milford Zoning Commission, 402 F.3d 342, 349 (2d Cir. 2005) (“[a] property owner . . . will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile”). This position is also unavailing.

The crux of Lost Trail’s futility argument is that once Hawkins informed zoning and building officials that, in his opinion, Lost Trail had illegally subdivided its property, it was pointless to apply for zoning certificates and building permits from those officials because § 8-3 (f) precludes a building official from issuing a building permit in the absence of a zoning permit or certificate in writing from the zoning enforcement official that the proposal is consistent with zoning regulations. Lost Trail additionally contends that an application for zoning permits, without first engaging the commission in the zoning approval process, would have been futile because the town did not recognize the attempted division of its property into four lots.

Having already rejected Lost Trail’s reasons for opting out of the planning and zoning review process, we hold that its futility argument must also fail. Although a property owner need not pursue “patently fruitless measures” to satisfy the finality doctrine; (internal quotation marks omitted) Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 607; it cannot claim futility by setting up its own obstacles. Put simply, Lost Trail claims that it would have been futile to pursue step two of an administrative process, applying for zoning and building permits, because it refused to engage in step one, pursuing the opinion of the commission as to whether a subdivision had been created. Lost Trail essentially concedes this point when it states that applications for zoning and building permits “were futile at least until the [commission] confirmed in January, 2011, that the four lots were not a subdivision and did not require subdivision approval.” This is exactly why Lost Trail should have gone to the commission before initiating this litigation.

Moreover, “[i]t is futile to seek a[n] [administrative] remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.” (Emphasis in original; internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 259, 851 A.2d 1165 (2004). It is clear that the commission could have determined that Lost Trail had not created a subdivision — as it later did — or approved an application to subdivide its property, clearing the way for zoning and building permits to be issued. Thus, we reject Lost Trail’s attempt to bootstrap its way to futility.

Ill

Lost Trail next claims that the court erred in dismissing the count seeking a declaratory judgment for failure to exhaust administrative remedies. Under that count, Lost Trail sought a declaration that its adjustments of the Georgetown Road property lines did not create a subdivision, that the two parcels that existed prior to the enactment of subdivision regulations could lawfully be divided into two lots without subdivision approval, and that zoning and building permits must be issued for any lots that comply with zoning regulations.

Lost Trail’s request for declaratory relief is essentially a repackaging of its regulatory takings claim. It asserts that it was not required to exhaust administrative remedies because its division of land did not create a subdivision and, “[w]here a division of land is not a subdivision it does not have to be submitted to the . . . commission for review.” Thus, Lost Trail again attempts to define this dispute as beyond the commission’s purview; but “[e]xhaustion is required even in cases where the agency’s jurisdiction over the proposed activity has been challenged.” (Internal quotation marks omitted.) River Bend Associates, Inc. v. Water Pollution Control Authority, 262 Conn. 84, 103, 809 A.2d 492 (2002).

We are not persuaded by this alternative attempt to maneuver around the commission. A declaratory judgment action is “not intended to circumvent the well established principles of exhaustion.” Id., 106. More importantly, these claims have been rendered moot by the loss of the remaining three Georgetown Road properties .to foreclosure. Although acceptance of Lost Trail’s regulatory takings claim would potentially entitle it to damages, the loss of ownership leads to the conclusion that the relief requested under the count seeking a declaratory judgment can no longer be granted.

IV

Lost Trail finally claims that the court erred in dismissing its municipal estoppel claim on ripeness grounds. Under the estoppel count, Lost Trail requested an order that zoning and building permits should be issued for lots that complied with town zoning regulations, and that the town should be estopped from requiring Lost Trail to seek subdivision review from the commission. In its reply brief, Lost Trail conceded that it is no longer entitled to obtain zoning and building permits and that the request for such permits under the estoppel count is now moot. It maintains, however, that its claim for money damages pursuant to its estoppel claim is still viable.

We agree with the court that the estoppel claim is not ripe for adjudication. Lost Trail essentially argues that the town should be estopped from denying the purported approval of the division of its property that assertedly occurred when the maps were stamped and signed by town officials. Because Lost Trail eventually did obtain a determination from the commission that it had not created a subdivision, its estoppel claim seems to be that Hawkins’ communications to Lost Trail were a repudiation of the earlier actions of town officers, which repudiation caused financial injury.

Lost Trail, however, cannot demonstrate that the town ever actually repudiated this apparent approval because Lost Trail did not engage in the zoning approval process. An essential element of a municipal estoppel claim is a showing that the town has attempted to “ ‘negate the acts of its agents.’ ” O’Connor v. Waterbury, 286 Conn. 732, 758, 945 A.2d 936 (2008). Lost Trail’s claim fails because it is based on mere speculation that the commission would enforce the Hawkins position and abandon the alleged subdivision approval. As such, Lost Trail is attempting to estop a change in position that never occurred in any final or authoritative way. It is axiomatic that a claim is not ripe for adjudication when an injury is hypothetical, or a “claim [is] contingent upon some event that has not and indeed may never transpire.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86-87, 952 A.2d 1 (2008).

Our conclusion is consistent with the general rule that “equitable estoppel is available only for protection and cannot be used as a weapon . . . .” (Internal quotation marks omitted.) Dickau v. Glastonbury, 156 Conn. 437, 442, 242 A.2d 777 (1968). Because Lost Trail’s only interaction with the commission resulted in a favorable disposition, there is nothing to protect against.

The judgment is affirmed.

In this opinion the other judges concurred.

       The three counts at issue in this appeal were dismissed by the court’s granting of two separate motions to dismiss.

       The Georgetown Road property is located in an area of the town with zoning regulations that require a minimum lot size of two acres.

       The letter also dealt with similar issues regarding the development of lots Lost Trail owned on Ladder Hill Road, which are not at issue in this case.

       Lost Trail alleged that Hawkins’ actions were part of a larger effort by the town to frustrate or “ ‘shut down’ ” the real estate development activities of Lost Trail principal Robert Walpuck.

       During the course of this dispute, Wilton Bank released one of the four lots from its mortgage. Lost Trail subsequently mortgaged this released lot to Sovereign Bank.

       The commission addressed only the legal effect of the shifting of the boundary lines and subsequent division of the two parcels; it was not asked to approve a subdivision or to determine whether the existing lots comported with zoning requirements.

       As a preliminary matter, the town asserts that Lost Trail’s claims are moot because the three remaining Georgetown Road lots were lost to foreclosure some time after the June 9, 2011 judgment dismissing Lost Trail’s municipal estoppel claim. A decision that accepted Lost Trail’s argument that it need not have engaged the commission in the zoning approval process would preserve its claim for damages; therefore, we have jurisdiction to hear this appeal in order to evaluate the merits of Lost Trail’s position.

       Under Connecticut law, for the division of land to be considered a subdivision, “[t]he division of land must occur subsequent to the adoption of subdivision regulations by the planning commission. The division must be made into three or more parts or lots. Accordingly, any divisions of the land prior to the adoption of subdivision regulations don’t count, and the first division thereafter, namely into two lots, is exempt as a so-called ‘free cut.’ ” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 10:9, p. 290.
      The town’s position, which was articulated in the Hawkins letter of February 14, 2000, was that Lost Trail had created a subdivision through its significant lot line adjustments and the subsequent division of each of the resulting parcels into two lots. The town stated that Goodridge v. Zoning Board of Appeals, supra, 58 Conn. App. 760, which involved a minor boundary line revision of 0.005 acres, was distinguishable from the more substantial boundary shifting that occurred here. We need not evaluate the merits of the town’s limiting interpretation of Goodridge.

       Although Lost Trail unsuccessfully applied for a special permit to build a baseball field in 2002 and for a zoning permit on Lot # 515B in 2007, Lost Trail did not take the preliminary step of applying to the commission for a determination of whether or not subdivision approval was required to divide its property into four lots. Ultimately, the commission, pursuant to its authority under § 8-26, found that Lost Trail’s lot line adjustments did not create a subdivision or resubdivision. Lost Trail sought such a determination and does not contest that the commission possessed the authority to determine whether land division results in a subdivision.

       The modified text states in relevant part: “The existence of this stamp does not sanction, and should not be interpreted as sanctioning, any development of the property shown on the map or any individual parcels that may be depicted thereon. This stamp does not represent an approval of any kind with regard to the status of the parcel as a building lot or its suitability for division by first cut, subdivision or resubdivision.”

       In its reply brief, Lost Trail advances its futility argument by delineating its interactions with several town officials regarding the status of its Georgetown Road property: the town attorney, the zoning enforcement officer, and the tax assessor. None of these officials was a substitute for the commission.

       Lost Trail cites Peninsula Corp. v. Planning & Zoning Commission, 151 Conn. 450, 199 A.2d 1 (1964), in support of its position that declaratory judgment is a proper method for obtaining a judicial determination of whether a division of land created a subdivision under § 8-18. That case, along with Dooley v. Town Plan & Zoning Commission, 151 Conn. 151, 195 A.2d 432 (1963), held that town planning and zoning commissions did not have jurisdiction to invalidate a prior illegal subdivision that had not been submitted to the commission for review. These cases, however, were superseded by revisions to § 8-26, which provided that planning commissions “shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision . . . (Emphasis added.) Public Acts 1973, No. 73-550.

       The town asserts that monetary damages are not recoverable pursuant to a municipal estoppel claim, and Lost Trail has not provided any authority to the contrary. Because of our determination that Lost Trail’s municipal estoppel claim is not ripe for judicial review, we need not resolve this issue.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    FORT TRUMBULL CONSERVANCY, LLC v. ANTONIO H. ALVES ET AL.
    (AC 33627)
    Beach, Robinson and Peters, Js.

      Argued October 25, 2012
    officially released January 15, 2013

      Scott W. Sawyer, with whom was Loma Dicker, for the appellant (plaintiff.

      Edward B. O’Connell, with whom, on the brief, was Mark S. Zamarka, for the appellee (defendant New London Development Corporation).

      Jeffrey T. Londregan, for the appellee (defendant city of New London).
   Opinion

PETERS, J.

The plaintiff, a limited liability company formed to preserve and protect the continuity, historic importance and environmental status of the Fort Trumbull area of the city of New London, has engaged in extensive challenges to the implementation of the city’s redevelopment plan, which requires the condemnation and demolition of buildings located in Fort Trumbull. Although General Statutes § 22a-16 gives the plaintiff standing to pursue its present claims that the demolition of these buildings was illegal; Fort Trumbull Conservancy, LLC v. New London, 282 Conn 791, 805, 925 A.2d 292 (2007); the trial court found that the plaintiff had failed to present sufficient evidence to establish the merits of its claims. The plaintiff appeals from the court’s subsequent judgment in favor of the defendants. We affirm the judgment of the court.

On May 16, 2008, the plaintiff, Fort Trumbull Conservancy, LLC, filed a second revised two count complaint for a declaratory judgment and equitable relief, in which it alleged that the defendant New London Development Corporation acting pursuant to its plan for the redevelopment of Fort Trumbull on behalf of the defendant, the city of New London (city), had violated (1) General Statutes § 22a-16 by the destruction and demolition of Fort Trumbull properties and (2) General Statutes § 22a-220 (f) by failing to meet established recycling and source reduction goals and by overburdening the state’s solid waste disposal facilities. The plaintiff sought injunctive, declaratory and monetary relief. The defendants denied their liability and filed numerous special defenses. After an evidentiary hearing, the trial court held that the plaintiff had failed to prove its case and rendered judgment in favor of the defendants on both counts of the plaintiffs complaint. The plaintiff has appealed.

In addition to numerous exhibits, the plaintiff presented the following evidence at trial that is relevant to this appeal. Sarah Steffian, the vice president of the plaintiffs organization, described its function, membership and the geographical features of Fort Trumbull, before and after implementation of the city’s municipal redevelopment plan. She testified that, in her view, the demolition process undertaken by the defendants had caused unreasonable harm to the environment.

John F. Brooks, a consultant to the New London Development Corporation, testified about the formulation of the municipal redevelopment plan for Fort Trumbull and the environmental implementation evaluation that accompanied the plan. He described the demolition process for buildings that stood in the way of implementation of the municipal redevelopment plan. That process envisaged having demolition contractors separate out and resell materials that could be recycled, as well as having them utilize dust suppression procedures at the demolition site.

Kathleen Mitchell and Michael Christofaro testified to observing the demolition of Fort Trumbull buildings. They stated that they had observed no recycling and no dust amelioration procedures.

Robert DeSanto, a consulting ecologist, testified as an expert witness on environmental impact evaluations. In his view, the environmental impact planning process for Fort Trumbull should have more intensively considered alternatives to demolition such as recycling and reuse. Although DeSanto had conducted no tests of any kind at any Fort Trumbull demolition site, he opined that the demolition that had occurred and was continuing to occur was causing unreasonable harm to Connecticut natural resources.

Finally, Kevin H. Gardner, a professor of civil engineering and a director of the Recycled Materials Resource Center, testified on environmental impacts associated with different waste management options. Although he had not visited the Fort Trumbull site until the day before his court appearance, his review of the environmental impact evaluation for Fort Trumbull and the municipal redevelopment plan relating thereto persuaded him that the defendants had failed to consider adequately alternatives to demolition and had not given sufficient weight to adverse environmental consequences associated with demolitions. Gardner assumed that Connecticut landfills had been burdened by the construction debris associated with the demolitions at Fort Trumbull. He acknowledged that he could not offer an opinion about the amount of pollutants that the Fort Trumbull demolitions actually had deposited into the environment. His critical assessment relied in part on environmental standards that had been articulated in studies that were published subsequent to the formulation of the environmental impact evaluation plan for Fort Trumbull.

For the defendants, in addition to their documentary evidence, three witnesses, Charles Barberi, Charles Mercier and Gail Balavender, testified about their companies’ business practices in performing demolitions at Fort Trumbull. Those practices routinely included a predemolition inspection of the property to remove recyclables and a sorting out of recyclables for reuse after completion of the demolition. Each witness also described his or her company’s regular use of dust suppression techniques. In addition, Barberi testified that demolition debris routinely was brought to sites outside of Connecticut, and thus was not overburdening Connecticut landfills.

Jeanine Gouin, a civil engineer, testified as the project manager of the company that authored the environmental impact evaluation statement that related to Fort Trumbull. In her view, demolition of some of the existing structures in the Fort Trumbull area was necessary to create the large tracts contemplated by the municipal redevelopment plan.

William Watkins, the solid waste and fleet manager for the city,- testified about the city’s policies and procedures with respect to waste collection at the city’s transfer station. Although the city maintains garbage pickup tracks that collect garbage and municipal solid waste that they bring to the transfer station, in 2008 and 2009, no construction or demolition debris was ever brought there.

Diane Duva, the assistant director of the waste engineering and enforcement division of the department of environmental protection, testified about the filing of reports relating to municipal solid wastes other than construction and demolition waste. In that respect, the city had not initially filed timely reports, but had done so by the time of her testimony. As a matter of policy, she agreed with the plaintiff that solid waste management plans should encourage reuse and recycling in preference to disposal.

At the conclusion of the evidentiary hearing, the parties submitted briefs describing their claims of law as they related to the factual record before the court. After oral argument, the court rendered its decision in favor of the defendants on both counts of the plaintiffs complaint. Although the court concluded that it had jurisdiction because the defendants were still engaged in the implementation of the municipal redevelopment plan, it held that, “factually speaking, the plaintiff has failed to prove not only the substantive harm which will result in the defendants’ judgment on the first count but has failed to even prove the technical violation as alleged in count two.”

More specifically, with respect to the plaintiffs first count alleging environmental harm from the demolition of buildings at Fort Trumbull, the court found that the plaintiff “has simply failed to meet its burden of proof. . . . Gardner’s report and his testimony [are] among the worst that this jurist has heard in his long career on the bench. His testimony [this] court does not credit. His leaping to conclusions from partial and inaccurate filings with [the department of environmental protection] and his lack of care in presentation I think was best described by Attorney [Edward B.] O’Connell’s one size fits all description of . . . Gardner’s report.”

Summarizing its legal conclusion, the court held that “the plaintiff has failed to prove either in fact unreasonable harm or any reasonable likelihood of unreasonable harm in the past during the demolition process and also has failed to prove any reasonable likelihood of unreasonable harm in the future.” Accordingly, it rendered judgment in favor of the defendants. Subsequently, the court denied the plaintiffs motions to open the judgment, for reconsideration and for articulation of the reasons for its judgment.

I

The plaintiffs appeal raises three issues with respect to the court’s adverse ruling on count one of its complaint. The plaintiff maintains that the court’s adverse findings of fact were clearly erroneous because (1) the court failed to consider all the relevant evidence and (2) the court improperly required the plaintiff to present persuasive expert evidence. Furthermore, the plaintiff maintains that the court’s adverse factual findings were improper as a matter of law because the court mistakenly had required the plaintiff to prove that the defendants’ conduct had caused “any reasonable likelihood of unreasonable harm in the past during the demolition process . . . [or] in the future.” We disagree.

“In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004); see also Fort Trumbull Conservancy, LLC v. New London, 135 Conn. App. 167, 178, 43 A.3d 679, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012). Contrary to the plaintiffs representation, there is no evidence of record that the court faulted the plaintiff for failing to present more expert testimony or, indeed, required the plaintiff to present any expert testimony at all. The court simply found, as was its prerogative, that the evidence that the plaintiff did present was unpersuasive.

The propriety of the legal standard of proof to which the court held the plaintiff in this case has recently been reaffirmed by this court. In Fort Trumbull Conservancy, LLC v. New London, supra, 135 Conn. App. 179-82, we explained that General Statutes § 22a-17, which describes the burden of proof for claimants under § 22a-16, requires the plaintiff to prove causation, which is essential to such a claim, by establishing that “the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state . . . .” (Emphasis in original; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 550, 800 A.2d 1102 (2002). To establish a prima facie case under [§ 22a-16], the plaintiff must prove that the defendant’s conduct was causing something more than a de minimis impairment of the environment. See, e.g., Fort Trumbull Conservancy, LLC v. New London, supra, 135 Conn. App. 181-82.

The plaintiff in this case, therefore, as the court held, was required to prove that the conduct of the defendants, alone or in combination with others, very likely caused not merely a de minimis pollution, impairment or destruction of a natural resource, but an unreasonable one. The court reasonably found that the plaintiff had failed to satisfy this demanding standard.

II

In the second count of its second revised complaint, the plaintiff alleged that the city had violated § 22a-220 by (1) creating and implementing a municipal redevelopment plan that authorized demolition of Fort Trumbull properties without adequately considering the undesirable environmental consequences of demolitions, (2) failing fully to comply with statutory filing requirements, (3) failing to comply with statutory recycling goals and requirements and (4) failing to manage the city’s solid waste stream to avoid unreasonable harm to the environment. The city denied its liability. The court held that “there is no per se violation as a matter of law” and that the plaintiff had “failed to even prove the technical violation as alleged in count two [of its complaint].”

Preliminarily, the plaintiff reiterates its claim that the city improperly implemented a municipal redevelopment plan that, in the plaintiffs view, failed to consider its adverse environmental consequences. As we have held in part I of this opinion, the plaintiff has failed to prove this claim.

The plaintiffs contention that the city’s failure to comply with certain specific mandates of § 22a-220 automatically established a violation of § 22a-16 rests on a statement of our Supreme Court in Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 502, 815 A.2d 1188 (2003). The court there stated that “[w]e express no opinion in this case as to the scope of the city’s responsibilities for disposal of the demolition debris under § 22a-220 [governing disposal of solid waste] or whether proof of a violation of that statute would establish a per se violation of [§ 22a-16].” Id.

The city disputes the plaintiffs representation of the applicable legal principle and of the relevant facts. As the city notes, our Supreme Corut has given further guidance on the relationship between §§ 22a-16 and 22a-220. Clarifying the statement on which the plaintiff relies, the Supreme Court, in 2008, held that “the mere allegation that a defendant has failed to comply with certain technical or procedural requirements of a statute imposing environmental standards does not, in and of itself, give rise to a colorable claim of unreasonable pollution under [§ 22a-16].” Fort Trumbull Conservancy, LLC v. New London, supra, 282 Conn. 808.

There are, therefore, two issues we must consider on appeal with respect to count two: (1) whether the court properly concluded, as a matter of law, that the applicable mandates of § 22a-220 imposed only “technical or procedural requirements” and their violation, therefore, could not support a finding of unreasonable pollution, and (2) whether the court properly concluded that the plaintiff failed to prove that the city had violated those provisions of § 22a-220 that were not merely technical or procedural.

The plaintiff alleged that the city had violated § 22a-220 (h) by its failure to comply with the statute’s reporting requirements. The plaintiff has not, however, provided a reasoned argument for characterizing the failure to file reports in a timely fashion as anything other than “technical or procedural.” Accordingly, as the court correctly held, these violations of the statute do not support the plaintiffs claim of a violation of § 22a-16.

Alternatively, the plaintiff alleged that the city’s demolition practices violated § 22a-220 (f) by failing to meet the statute’s recycling goals for the disposal “of the solid waste generated in each municipality . . . .” (Internal quotation marks omitted.) The city disputes the applicability of this statute under the circumstances of this case. Presumably, the plaintiffs claim must arise out of its disagreement with the propriety of the city’s disposal of demolition debris. The city notes, however, that the definition of “municipal solid waste” in General Statutes § 22a-207 (23) expressly excludes “demolition debris.” The plaintiff fails to address this question of statutory interpretation, for which our review is plenary; see Lamar v. Boehringer Ingelheim Corp., 138 Conn. App. 826, 832-33, 54 A.3d 1040 (2012); either in its principal brief on appeal or in its reply brief. Accordingly, we agree with the court’s conclusion that the plaintiff has failed to establish even a technical violation of § 22a-220.

Ill

After the conclusion of the trial and the court’s judgment in favor of the defendants, the plaintiff filed motions to open the judgment, for reconsideration and for articulation, all of which the court denied without opinion. The plaintiff alleges that each of these adverse rulings was an abuse of the court’s discretion. We agree with the plaintiff that the proper resolution of the plaintiffs motions for reconsideration and to open the judgment required the exercise of the court’s discretion. See, e.g., Shore v. Haverson Architecture & Design, P.C., 92 Conn. App. 469, 479, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006); Ryan v. Vera, 135 Conn. App. 864, 868, 43 A.3d 221 (2012). We disagree, however, with the plaintiffs contention that it has established any impropriety in the court’s rulings. For the same reasons we have discussed in parts I and II of this opinion, the court did not abuse its discretion in denying the plaintiffs postjudgment motions.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Fort Trumbull Conservancy, LLC v. Alves, 286 Conn. 264, 943 A.2d 420 (2008); Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 925 A.2d 292 (2007); Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, 266 Conn. 338, 832 A.2d 611 (2003); Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 829 A.2d 801 (2003); Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 815 A.2d 1188 (2003).

       General Statutes § 22a-16 entitled “Action for declaratory and equitable relief against unreasonable pollution,” provides in relevant part: “The Attorney General . . . [or] any instrumentality or agency of the state . . . may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business ... for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .”

       The complaint also cited Antonio H. Alves, the city’s building official, as a defendant, but the complaint against him has been dismissed. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003). We therefore refer to the New London Development Corporation and the city as the defendants and individually by name where appropriate.

       General Statutes § 22a-220 (f) provides in relevant part: “On and after January 1, 1991, each municipality shall, consistent with the requirements of section 22a-241b, make provisions for the separation, collection, processing and marketing of items generated within its boundaries as solid waste and designated for recycling by the commissioner [of environmental protection] pursuant to subsection (a) of section 22a-241b. . . .”

       New London Development Corporation points out in its appellate brief that “[a]lthough . . . DeSanto prepared a written report, the plaintiff failed to offer the report into evidence.”

       General Statutes § 22a-17 provides in relevant part: “When the plaintiff in any such action has made a prima facie showing that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also prove, by way of an affirmative defense, that, considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant’s conduct and that such conduct is consistent with the reasonable requirements of the public health, safety and welfare. . . .”

       General Statutes § 22a-220 (h) provides in relevant part: “On or before September 30, 2010, and annually thereafter, each municipality, or its designated regional agent, shall provide a report to the Commissioner of Environmental Protection describing the measures taken during the preceding year to meet its obligations under this section. . . . Such report shall include, but not be limited to, (1) a description of the efforts made by the municipality to promote recycling, (2) a description of its efforts to ensure compliance with separation requirements, (3) an identification of the first destinations that received solid waste, including recyclable material generated in the municipality’s borders, and (4) the actual or estimated amount of such disposed solid waste and recyclable material that has been delivered to a first destination that is out of state or a Connecticut end user. . . .”

       General Statutes § 22a-207 (23) provides: “ ‘Municipal solid waste’ means solid waste from residential, commercial and industrial sources, excluding solid waste consisting of significant quantities of hazardous waste as defined in section 22a-115, land-clearing debris, demolition debris, biomedical waste, sewage sludge and scrap metal.”

       This court denied the plaintiffs request that we order the trial court to respond to the motion for articulation. We granted the plaintiffs motion for review, but denied the relief requested therein.


author: ROBINSON, J.

text:
    LAUREN CIMA v. ERIC SCIARETTA ET AL.
    (AC 33919)
    Lavine, Robinson and Espinosa, Js.

      Argued October 15, 2012
    officially released January 15, 2013

      Michael J. O'Sullivan, with whom, on the brief, was Dean E. Weddall, for the appellant (defendant Nicholas Sciaretta, Jr.).

      Hugh D. Hughes, with whom, on the brief, was William F. Gallagher, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

In this personal injury action arising out of a motor vehicle accident, the defendant Nicholas Sciaretta, Jr., appeals from the judgment of the trial court rendered in accordance with a jury’s verdict in favor of the plaintiff, Lauren Cima, in the amount of $11,068.66 in economic damages and $246,000 in non-economic damages. The defendant claims that the court improperly (1) admitted certain evidence at trial, (2) failed to direct a verdict in favor of him and (3) charged the jury with respect to application of the family car doctrine. We affirm the judgment of the trial court.

The following facts, which the jury either found in response to special interrogatories or reasonably could have found, and procedural history are relevant to our resolution of the issues on appeal. On July 16, 2007, the plaintiff was a passenger in a vehicle that was struck by a vehicle owned by the defendant. The defendant had purchased the vehicle for the use of his son, Eric Sciaretta, who was the vehicle’s primary driver and the person responsible for the vehicle’s general upkeep and maintenance. The defendant gave his son general authority, without restrictions, to use the vehicle for the son’s pleasure and convenience. At the time of the accident in question, the defendant’s vehicle was being operated by his son’s friend, Stephen Sorbo. The defendant’s son had permitted Sorbo to drive the vehicle and was riding in the vehicle as a passenger at the time of the accident. Sorbo failed to stop the vehicle completely at a stop sign and proceeded into the intersection, striking broadside the vehicle occupied by the plaintiff. As a result of the accident, the plaintiff suffered injuries to her back, left knee and left hand.

In July, 2009, the plaintiff filed the present action seeking monetary damages. Count one of the complaint alleged that the defendant’s son was negligent either as the operator of the vehicle that caused the accident or as the person who “caused [the vehicle] to be operated by an unknown individual with his permission.” Count two alleged that the defendant was vicariously liable for the plaintiffs injuries as the owner of the vehicle that was negligently operated or caused to be operated by his son, citing General Statutes § 52-182. Finally, count three alleged that the defendant was ha-ble under a theory of negligent entrustment. The defendant and his son filed a joint answer in which they denied all allegations of negligence.

Prior to trial, the defendant filed a motion in limine asking the court to preclude the admission at trial of any testimony or other evidence showing that his son had granted Sorbo permission to use the defendant’s vehicle, claiming that such evidence was not relevant to the issues in the case because “[o]ne who is not the owner of the car cannot by permitting another to use a car create an agency relationship between the driver and the owner.” The plaintiff objected. She argued, citing this court’s decision in Chen v. Bernadel, 101 Conn. App. 658, 922 A.2d 1142 (2007), that if the son had general authority from the defendant to drive the vehicle, the negligence of a third person to whom the son entrusted the vehicle, in this case Sorbo, could be imputed to the defendant. The court briefly heard arguments on July 19, 2011, following which it denied the motion in limine.

The matter was tried before a jury beginning on July 20, 2011. At the close of the plaintiffs case-in-chief, the defendant’s counsel orally moved for a directed verdict as to both the defendant and the defendant’s son. The court granted the motion as to the son and rendered judgment on count one in his favor. The court denied the motion as to the defendant. Later, at the beginning of the charging conference, the court directed a verdict in favor of the defendant on count three, the negligent entrustment count, in accordance with the parties’ agreement that no evidence had been offered with regard to that count.

The remaining negligence count against the defendant was submitted to the jury along with a set of special interrogatories. Following deliberation, the jury returned a verdict against the defendant and in favor of the plaintiff, awarding economic damages of $11,068.56 and noneconomic damages of $245,000. The jury responded in the affirmative to special interrogatories that asked whether the defendant had given general authority without restrictions to his son to use the family vehicle for his son’s pleasure and convenience and whether the defendant’s son had given Sorbo permission to operate the family car. The defendant filed post-verdict motions to set aside the verdict and for remittitur, both of which the court denied. The court granted the defendant’s motion for a collateral source reduction. See footnote 2 of this opinion. This appeal followed.

I

The defendant first claims that the court improperly permitted the plaintiff to present evidence to the jury that the defendant’s son had given Sorbo permission to use the defendant’s vehicle. According to the defendant, any evidence of permission by the defendant’s son to Sorbo to drive the defendant’s vehicle was immaterial to establishing that an agency relationship existed between the defendant, the owner of the tortfeasing vehicle, and Sorbo, the driver, which relationship the plaintiff insisted was necessary to impute Sorbo’s liability onto the defendant. We disagree.

“Generally, evidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” (Citation omitted; internal quotation marks omitted.) Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 378, 805 A.2d 130 (2002). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 128, 956 A.2d 1145 (2008).

Here, in denying the defendant’s motion in limine, and thereby permitting the plaintiff to introduce evidence that the defendant’s son had permitted Sorbo to drive the defendant’s vehicle at the time of the collision with the plaintiff, the court stated that it was relying on this court’s decision in Chen v. Bernadel, supra, 101 Conn. App. 658, which cited our Supreme Court’s decision in Dibble v. Wolff, 135 Conn. 428, 65 A.2d 479 (1949). Accordingly, we look to those cases to see if they provide a sound basis for the court’s decision.

In Dibble, while on a shopping trip, a daughter and her mother were involved in a motor vehicle accident due to the daughter’s negligence. Id., 431-32. The defendant father was the owner of the vehicle driven by the daughter, who was married and no longer resided with her parents. Id., 432. Our Supreme Court framed the issue before it as follows: “The ultimate question is . . . whether under the circumstances shown . . . the fact that the defendant’s daughter was not a member of [the defendant’s] household renders the family car doctrine inapplicable. . . . Assuming for the purposes of this decision that the defendant could not be held liable on the theory that his daughter was a member of the family within the family car doctrine, it does not necessarily follow that no recovery can be had. The question decisive of this appeal is whether on this record the daughter’s negligence was that of her mother within the doctrine.” (Citations omitted; internal quotation marks omitted.) Id., 433-34. Stated more generally, the issue before the court was whether the negligence of a nonfamily member operator could be imputed to a family member passenger for the purpose of applying the family car doctrine.

The court concluded that the fact that the mother was a member of the defendant father’s household was sufficient to invoke the family car doctrine because, by his intent that the vehicle be used for the mother’s pleasure and convenience, the defendant father necessarily gave the mother, who herself could not drive, general authority to delegate the responsibility of operating the vehicle to a third party. Id., 434-35. The court noted that the vehicle was being used at the time of the accident for the very purpose intended by the defendant, serving the pleasure and convenience of the mother, and that “it was being driven for her by their daughter under his wife’s immediate direction and with his approval and consent. Under the familiar legal maxim ‘qui facit per alium facit per se,’ the daughter’s act became that of her mother and this rendered the family car doctrine operative to charge the defendant with liability.” Id., 435.

In Chen, the plaintiff was injured at a toll booth in New York when he got out of his vehicle to inspect his vehicle’s muffler and was struck by a vehicle owned by the defendant. Chen v. Bernadel, supra, 101 Conn. App. 660. As in the present appeal, at the time of the accident, the defendant’s vehicle was being operated by a friend of the defendant’s son, and the son was a passenger in the vehicle. Id. The friend was driving the vehicle at the son’s request. Id. The plaintiff filed a personal injury action alleging that the accident was the result of the negligence of the son’s friend and that the defendant, as the registered owner of the vehicle, was vicariously hable. Id. The defendant appealed to this court from the trial court’s granting of an application for a prejudgment remedy filed by the plaintiff. Id., 660-61.

On appeal, the defendant claimed that the court improperly determined that he could be held liable under the family car doctrine for the negligence of an unrelated third party operator. Id., 666. This court, citing our Supreme Court’s decision in Dibble v. Wolff, supra, 135 Conn. 428, determined that the family car doctrine was applicable under the circumstances presented because the defendant had granted his son general authority to use the vehicle for his own pleasure and convenience, and, although the son’s friend was not a member of the defendant’s household, the defendant’s son had authorized the friend to use the vehicle, and therefore “[the friend’s] negligence could be considered that of the defendant s son under the family car doctrine.” Chen v. Bernadel, supra, 101 Conn. App. 667.

In the present case, the plaintiff was attempting to establish vicarious liability of the defendant for the negligent actions of Sorbo. In accordance with Dibble and Chen, in order successfully to impute liability to the defendant under the family car doctrine, the plaintiff needed to show that the defendant had granted general authority to his son to use the defendant’s vehicle for the son’s own pleasure and convenience, and also that, in furtherance of that grant of authority, the son authorized Sorbo to operate the vehicle at the time of the accident. Accordingly, whether the son granted Sorbo permission to drive the vehicle clearly was a material fact that was relevant to the cause of action alleged by the plaintiff, and, contrary to the defendant’s claim, it was not an abuse of the court’s discretion to have allowed the plaintiff to introduce evidence of such permissive use.

II

The defendant next claims that the court improperly failed to render a directed verdict in his favor despite having directed a verdict in favor of the defendant’s son. The defendant appears to be claiming that it was inconsistent or impermissible as a matter of law for the court to have directed a verdict for his son on the ground that he lacked personal liability for the plaintiffs injuries, while permitting the matter of the defendant’s vicarious liability under the family car doctrine to be presented to the jury. We do not agree.

“[0]ur review of a trial court’s refusal to direct a verdict . . . takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. ... To the extent that the defendant’s claims on appeal present questions of law, our review is plenary.” (Citation omitted; internal quotation marks omitted.) Tomick v. United Parcel Service, Inc., 135 Conn. App. 589, 603, 43 A.3d 722, cert. denied, 305 Conn. 920, 47 A.3d 389 (2012).

The plaintiffs theory of recovery against the defendant was that of vicarious liability pursuant to the family car doctrine. Because Sorbo was not a close family member of the defendant as provided for in § 52-182, the family car doctrine could not be directly applied in this case. As discussed in part I of this opinion, however, the courts in Dibble and Chen held that the liability of a vehicle owner under the family car doctrine encompasses liability for the negligent operation of a family car by a nonfamily member third party operator if a covered family member with general, unrestricted authority to use the vehicle for his or her own pleasure and convenience was a passenger in the vehicle and the third party was operating the family car with the consent of that family member. In such cases, the negligent third party steps into the shoes of the family member for the purpose of applying the family car doctrine to the owner of the vehicle. See Dibble v. Wolff, supra, 135 Conn. 434.

If Sorbo’s negligent operation of the defendant’s vehicle was attributable to the defendant’s son because Sorbo was transporting the son in furtherance of the son’s use of the vehicle for his general pleasure and convenience, the family car doctrine may be applied indirectly to find the defendant liable for Sorbo’s negligent actions. Contrary to the defendant’s assertion, such an indirect application of the family car doctrine does not require a contemporaneous finding of actual liability on the part of the family member passenger, and the defendant has not provided us with, nor have we found, any law suggesting otherwise. Because the trial court was not required, as a matter of law, to direct a verdict for the defendant solely on the basis of its determination that the defendant’s son was entitled to a direct judgment in his favor on count one of the complaint, the defendant’s claim fails.

Ill

Finally, the defendant claims error in the court’s charge to the jury. The defendant limits his claim of instructional error to a portion of the court’s charge fifteen, addressing a driver’s legal duty to keep a reasonable lookout for persons and traffic that the driver is likely to encounter. Specifically, the defendant takes issue with the following language in that charge: “If you find that [the defendant] gave general authority without restrictions to drive the vehicle to Eric Sciaretta to drive the vehicle for his own pleasure and convenience and Eric Sciaretta gave authorization to [Sorbo] to drive the car, and Sorbo failed to keep a proper lookout as defined above, then you must find that the [defendant] is negligent.” The defendant argues that the challenged instruction improperly equated permission or consent to use the family car by his son as establishing an agency relationship between Sorbo and the defendant. In response to the defendant’s claim, the plaintiff argues that the defendant waived his claim of instructional error because he did not raise it at trial and that, absent waiver, the defendant is incorrect on the merits of his claim.

We conclude that the defendant failed to preserve the instructional error he raises on appeal. Further, even if he had preserved his claim, he would not be entitled to relief on appeal by operation of the general verdict rule and the fact that he did not challenge nearly identical language in the court’s instructions on negligence in general, on the duty to keep proper control of a vehicle and statutory negligence for failing to obey a traffic control sign in violation of General Statutes § 14-299, any of which could have formed the basis for the jury’s determination of negligence in this matter. For both reasons, we decline to review the defendant’s claim.

“To preserve an exception to a jury instruction for further review under Practice Book § 16-20, a party must either submit a written request to charge or state distinctly the matter objected to and the ground of objection. ... It is our long-standing position that [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Socci v. Pasiak, 137 Conn. App. 562, 572, 49 A.3d 287, cert. denied, 307 Conn. 919, 54 A.3d 563 (2012).

Our review of the record in the present case reveals that, prior to instructing the jury, the court provided counsel with a draft copy of the jury instructions and invited comment from counsel. The defendant requested some minor changes, which the court accepted. He did not request on the record that the court change the language he now challenges. After instructing the jury, and outside the jury’s presence, the court asked counsel if they had any exceptions to the charges given. At that time, the defendant took exception to charge eleven, the charge on negligence in general, arguing that the instruction improperly expanded the family car doctrine beyond what was contemplated under § 52-182, that the family car doctrine did not apply in this case and that the court should have charged with regard to General Statutes § 52-183. The defendant also took exception to charges eighteen through twenty regarding calculating damages. The defendant did not take exception to charge fifteen, the instruction now challenged on appeal.

Furthermore, even if we were to construe the arguments made by the defendant following the charge as having preserved the arguably related claim raised on appeal, the claim would fail as a result of the general verdict rule and the defendant’s failure to challenge nearly identical language used throughout the court’s instructions. “The general verdict rule provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. ... In circumstances in which a party has requested interrogatories that fail to flesh out the basis of the jury’s verdict, this court has noted that the general verdict rule is still applicable because [i]t is not the mere submission of interrogatories that enables [the reviewing court] to make that determination; rather, it is the submission of properly framed interrogatories that discloses the grounds for the jury’s decision. . . . [I]n a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . .

“On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated.” (Internal quotation marks omitted.) Malaguit v. Ski Sundown, Inc., 136 Conn. App. 381, 385-86, 44 A.3d 901, cert. denied, 307 Conn. 902, 53 A.3d 218 (2012).

In the present case, the defendant challenges the court’s jury instructions only as to the charge on duty to keep a proper lookout. A breach of that duty was not, however, the sole theory on which the jury could have found negligence in this case. The jury was also instructed on a driver’s duty to keep proper control of his or her vehicle and on statutory negligence for failing to obey a traffic control sign. Although interrogatories were submitted to the jury in this case, there was no interrogatory asking the jury to identify the theory on which it had determined that Sorbo breached his duty of care in operating the defendant’s vehicle. Thus, even if the defendant successfully could have convinced us that there was instructional error as to the proper lookout charge, absent a challenge to the other charges identified, there remained an error free path on which the jury could have reached its verdict. In sum, because the defendant failed to preserve his claim of instructional error, and because the general verdict rule would preclude the relief sought even if the claim were proven, we decline to engage in further examination of the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the named defendant, Eric Sciaretta, is not aparfy to this appeal, we will refer in this opinion to the other party against whom this action was brought, Nicholas Sciaretta, Jr., as the defendant. The court directed a verdict in favor of Eric Sciaretta, and the plaintiff initially filed a cross appeal challenging that judgment. She withdrew the cross appeal, however, on June 5, 2012.

       The court later determined that the defendant was entitled to a collateral source reduction of $1450.58, reducing the economic damages award to $9607.98.

       “The family car doctrine is a common-law rule providing that, when a motor-car is maintained by the paterfamilias for the general use and convenience of his family, he is liable for the negligence of a member of the family having general authority to drive it, while the car is being used as a family car . . . .” (Internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 9, 882 A.2d 597 (2005).

       General Statutes § 52-182 provides: “Proof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.”

       We note that the defendant’s counsel did not object when the plaintiff elicited evidence of permissive use at trial during the direct examination of the defendant’s son. The defendant nevertheless preserved his evidentiary claim for appellate review by filing his pretrial motion in limine to preclude the introduction of such evidence on relevance grounds. See Practice Book § 60-5; West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 311 n.2, 541 A.2d 858 (1988).

       “Qui facit per alium facit per se. A person who acts through another acts himself. The acts of an agent are considered the acts of the principal.” Black’s Law Dictionary (9th Ed. 2009).

       In making his argument, the defendant references our Supreme Court’s decision in Koops v. Gregg, 130 Conn. 185, 32 A.2d 653 (1943), but fails to provide analysis that explains how that opinion supports his claim that the court was obliged to direct a verdict for the defendant on the count alleging vicarious liability pursuant to the family car doctrine when it directed a verdict on the negligence count brought against the defendant’s son. The Koops decision does not involve an application of the family car doctrine; id., 187; but rather a consideration of what is now General Statutes § 52-183, which provides that, in an action brought against a vehicle owner for the negligent or reckless operation of the vehicle by a third party, a rebuttable presumption is created that the third party is the agent of the owner and was operating the owner’s vehicle in the course of his or her employment. Id., 188-89. The plaintiff in the present action was not relying on § 52-183 to establish the vicarious liability of the defendant, and, therefore, Koops is inapposite to our consideration of the defendant’s claim.

       We note that the copy of the jury charge included in the defendant’s appendix differs from the charge actually delivered to the jury. The differences with respect to the portion of the charge challenged by the defendant do not appear materially to alter the charge for the puipose of our review. We nevertheless quote the language as it was delivered orally by the court to the jury.

       Practice Book § 16-20 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. The exception shall be taken out of the hearing of the jury.”