author: FLYNN, J.

text:
    CHRISTOPHER STEFANONI ET AL. v. DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT ET AL.
    (AC 34809)
    DiPentima, C. J., and Sheldon and Flynn, Js.

      Argued January 17
    officially released April 30, 2013

      Margaret Stefanoni, pro se, with whom was Christopher Stefanoni, pro se, the appellants (plaintiffs).

      Paul K. Pemerewski, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (named defendant et al.).

      John J. Louizos, with whom were John Wayne Fox and, on the brief, Patricia M. Gang, for the appellee (defendant town of Darien).
   Opinion

FLYNN, J.

Where a municipality has adopted the provisions of chapter 8 of the General Statutes, it may exercise the zoning powers granted by that chapter through the municipality’s zoning commissions, and any proposed use within the municipality must be in conformance with the municipality’s zoning regulations. Although General Statutes § 8-8 sets forth the general appeals procedure for zoning matters, our legislature implemented General Statutes § 8-30g to provide a distinct procedure for affordable housing land use appeals. If the municipality, however, satisfies the requirements set forth in § 8-30g (Z), the commissioner of economic and community development (commissioner) may issue a certificate of affordable housing completion (moratorium certificate), which suspends the affordable housing land use appeal process in the municipality.

The plaintiffs, Christopher Stefanoni and Margaret Stefanoni, appeal from the judgment of the trial court rendered after an evidentiary hearing, dismissing the plaintiffs’ action for a declaratory judgment because the plaintiffs lacked standing. The plaintiffs brought the trial court action, pursuant to General Statutes § 4-175, after the defendant, commissioner of the defendant department of economic and community development (department), denied the plaintiffs’ request for a declaratory ruling, made pursuant to General Statutes § 4-176. On appeal, the plaintiffs claim that the trial court erred in concluding that the plaintiffs were neither classically nor statutorily aggrieved and that they, therefore, lacked standing. We affirm the judgment of the trial court.

The following undisputed facts, as found by the trial court, and procedural history are relevant to this appeal.

The plaintiffs are affordable housing developers who previously have attempted to develop affordable housing in the defendant town of Darien (town). In May, 2010, the town applied to the department for a moratorium certificate pursuant to § 8-30g (l). The effect of this moratorium certificate is that it grants the town a four year moratorium, during which time the appeals process provided by § 8-30g will not be available to affordable housing applicants who claim to have been aggrieved by a ruling of the town planning and zoning commission. The department granted the application and issued the town the moratorium certificate, which effected the moratorium beginning on November 2, 2010.

On March 28, 2011, the plaintiffs submitted a petition to the department for a declaratory ruling, pursuant to § 4-176, challenging the grant of the moratorium certificate. On April 28, 2011, the commissioner, in a written decision, denied the petition.

Almost two months later, on June 22, 2011, the plaintiffs filed a complaint in the Superior Court seeking a declaratory judgment, under § 4-175, overturning the department’s decision to grant the moratorium certificate and ordering the department and commissioner to revoke it. The plaintiffs then filed an amended complaint on August 4, 2011. The plaintiffs’ complaint was amended to reflect their submission of their application to the town planning and zoning commission for the creation of an affordable housing floating zone (floating zone creation application) on August 4, 2011. The floating zone creation application states that the floating zone would “be applied to all properties in Darien including the [plaintiffs’] property at 149 Nearwater Lane.” On January 17, 2012, the town planning and zoning commission issued a resolution denying the plaintiffs’ floating zone creation application.

After an evidentiary hearing on April 4, 2012, the court, in its memorandum of decision, dated June 19, 2012, and in its corresponding judgment, dismissed the plaintiffs’ declaratory judgment action on the ground that the plaintiffs lacked standing to commence the action. This appeal by the plaintiffs followed.

On appeal, the plaintiffs claim that the court erroneously concluded that the plaintiffs were neither classically nor statutorily aggrieved and, therefore, lacked standing, rendering the court without subject matter jurisdiction to hear the action. We disagree.

We begin by setting forth our standard of review and the principles that guide our analysis. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. ... A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

I

We first address whether the plaintiffs were classically aggrieved. Classical aggrievement requires satisfaction of a two-pronged test. Prong one “requires a showing that the plaintiffs have a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest such as is the concern of the community as a whole” and prong two requires “that the plaintiffs were specially and injuriously affected in their property or other legal rights.” (Internal quotation marks omitted.) Schwartz v. Town Plan & Zoning Commission, 168 Conn. 20, 25, 357 A.2d 495 (1975). We conclude that the plaintiffs fail to satisfy both prongs of the test for classical aggrievement.

A

In order to satisfy the first prong of the test for classical aggrievement, the plaintiffs must show first that they have a specific, personal and legal interest in the subject matter of the declaratory judgment, not just a general interest that concerns the community as a whole. The plaintiffs rely on their floating zone creation application as establishing their specific, personal and legal interest in seeking a declaratory judgment regarding the moratorium. We agree with the trial court that this reliance, however, is misplaced.

The moratorium suspends the affordable housing appeals procedure for affordable housing applications filed with the commission during the moratorium period. In order for the plaintiffs to have a specific, personal and legal interest in seeking a declaratory judgment regarding the moratorium, they would need to have an affordable housing application filed with the commission that would not be subject to the appeals procedure due to the moratorium. The only application that the plaintiffs filed after the moratorium’s effective date of November 2,2010, was the floating zone creation application. This floating zone creation application must qualify as an “affordable housing application” under § 8-30g in order to be affected by the moratorium. Section 8-30g (a) (2) provides: “ ‘Affordable housing application’ means any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing . . . An “ ‘[a]ffordable housing development’ ” is defined under § 8-30g (a) (1) as: “(A) assisted housing, or (B) a set-aside development >>

Our Supreme Court in West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 509, 636 A.2d 1342 (1994), construed the definition of an affordable housing application to include “every type of application filed with a commission in connection with an affordable housing proposal.” Our Supreme Court further elucidated this standard in Kaufman v. Zoning Commission, 232 Conn. 122, 141, 653 A.2d 798 (1995), when it held “that § 8-30g does not independently require an affordable housing developer to submit to the commission, at the time of his initial application in connection with an affordable housing development, any more detailed ‘plans’ than an applicant who requests a zone change for a purpose other than affordable housing.” The Kaufman court quoted State Senator Richard Blumenthal on the Senate floor, who remarked that “it is important to understand that these decisions involve specific projects on particular pieces of land and do not provide for any kind of general zoning override.” (Emphasis added; internal quotation marks omitted.) Id., 138.

The plaintiffs’ floating zone creation application proposed an amendment to the town zoning regulations for the creation of an affordable housing floating zone that “[could] be applied to all properties in Darien including the [plaintiffs’] property at 149 Nearwater Lane.” In addition to the proposed regulation text, the plaintiffs attached a single page “conceptual site plan” to this application, featuring their property, 149 Near-water Lane “per [s]ection 1112.4 [of the Darien zoning regulations].”

In order to determine whether the plaintiffs’ floating zone creation application qualified as an “affordable housing application” under § 8-30g, the plaintiffs’ floating zone creation application would have to be “in connection with an affordable housing proposal.” The application in West Hartford Interfaith Coalition, Inc., requested “(1) a zone change from an R-13 single-family zone to an RM-4 multifamily zone; and (2) a special development district designation” for an undeveloped property at 2561 Albany Avenue, West Hartford. West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 503. The application, designed to meet the affordability requirements of § 8-30g for an “affordable housing development,” sought approval for ten affordable housing units on the property. Id., 500. Kaufman involved an application where the plaintiff “sought to change the zoning of 27.4 acres of his Dan-bury property to an ‘RA-8’ classification . . . .” Kaufman v. Zoning Commission, supra, 232 Conn. 127. Both of these applications clearly were in connection with an affordable housing development proposed by the plaintiffs in those cases because they both were filed in connection with the specific property that was to be developed and were found to meet the affordability requirement. See id., 139 (Kaufman court concluded that developer proposed affordable housing and that this “proposal [was] a specific project on a particular piece of land”); see also id., 144-47; West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 512-13, 523-25.

In contrast, the plaintiffs’ floating zone creation application was for the creation of an affordable housing floating zone over the entire town. “By definition, a floating zone does not apply to a specifically described parcel of land. ... A floating zone differs from the traditional Euclidean zone [which has definite bounds] in that it has no defined boundaries and is said to float over the entire area where it may eventually be established.” (Citation omitted; internal quotation marks omitted.) Douglas v. Planning & Zoning Commission, 127 Conn. App. 87, 94, 13 A.3d 669 (2011). The plaintiffs’ application was for the creation of a floating zone for the whole town, not a zone change for a specific parcel, as were the applications in West Hartford Interfaith Coalition, Inc., and Kaufman.

The plaintiffs’ addition of a single page “conceptual site plan,” featuring their property, 149 Nearwater Lane “per [s]ection 1112.4” is not enough to transform the floating zone creation application into an affordable housing application. In order for the floating zone creation application to be an affordable housing application, it must, in accordance with § 8-30g (a) (2), be in connection with an affordable housing development as defined by § 8-30g (a) (1), either assisted housing or a set-aside development. “To satisfy the definition of ‘assisted housing,’ § 8-30g (a) (3) merely required the plaintiff to demonstrate that either it received or it would be receiving financial assistance under any governmental program for the construction of its affordable housing development.” West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 523. In West Hartford Interfaith Coalition, Inc., our Supreme Court also held that indication of intent to use language, restrictions and covenants, running with the land, similar to a declaration of cooperative that the Interfaith plaintiff supplied to the trial court was sufficient to satisfy the definition of an “affordable housing development” under § 8-30g (a) (1). Id., 524-25.

In the present case, the plaintiffs’ floating zone creation application and its accompanying single page conceptual site plan fail to satisfy either definitional requirement to be considered an “ ‘affordable housing development’ ” under § 8-30g (a) (2). The plaintiffs’ conceptual site plan failed to demonstrate that it received or should be receiving financial assistance under any governmental program for its development. Additionally, the plaintiffs’ conceptual site plan did not indicate an intention to restrict the deed language for this parcel in accordance with the definitional language in § 8-30g (a) (6). Although the plaintiffs’ floating zone creation application vaguely references such definitional requirements by requiring compliance with § 8-30g, the application never evinces how the 149 Nearwater Lane conceptual site plan satisfies the alternative definitions required by § 8-30g (a), namely a governmental subsidy or deed restricted sales or rental prices, such that the floating zone creation application would be in connection with an affordable housing development.

The attachment of the “conceptual site plan” in connection with the proposed creation of an affordable housing floating zone does not transform the plaintiffs’ floating zone creation application into an affordable housing application made in connection with an affordable housing development because the supposed connection is too attenuated. Cf. West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 506 (affordable housing application consisted of “two distinct but interdependent actions,” namely zone change and special development district designation). In the present case, the plaintiffs do not need a town-wide affordable housing floating zone created and descended in order to build affordable housing on their property. Section 8-30g already empowers any property owner, including the plaintiffs, to come before the commission with an application for an affordable housing project to be built on their land. Even if the proposed affordable housing floating zone were approved by the commission, the attachment of a single page conceptual site plan would not be enough to cause such a floating zone to descend onto the plaintiffs’ land. The proposed floating zone in the plaintiffs’ floating zone creation application requires that “[a]ffordable housing which fully satisfies the requirements of . . . [§] 8-30g must be part of any housing proposal submitted for approval within this zone,” and, as discussed previously, this site plan fails to satisfy the alternative definitions of an affordable housing development. Thus, the attachment of a one page conceptual site plan regarding the plaintiffs’ property, in satisfaction of an inapplicable zoning section, is not enough to connect this floating zone creation application with an affordable housing development. The plaintiffs’ floating zone creation application is not an affordable housing application, and as such, § 8-30g, including the challenged moratorium, which affects only affordable housing applications, does not apply. The plaintiffs, therefore, do not have a specific, personal and legal interest in a declaratory judgment regarding the moratorium.

In short, the plaintiffs have not met the first prong of the classical aggrievement test because their floating zone creation application applies to all properties within the town, not just to the plaintiffs’ property. The plaintiffs, therefore, lack the specific, personal and legal interest in the subject matter distinct from all other properties within the town. Their attachment of a conceptual site plan regarding their property to their floating zone application does not place them in any better position. This is so because they did not set forth that this site would be either assisted housing receiving financial assistance from a governmental program, in accordance with the § 8-30g (a) (3) definition, or a set-aside development containing deed restrictions as to allowable affordable sales or rental prices, as set forth in § 8-30g (a) (6). The plaintiffs, therefore, do not satisfy the first prong of classical aggrievement.

B

The plaintiffs also fail to satisfy the second prong of the test for classical aggrievement. The second prong requires “that the plaintiffs were specially and injuriously affected in their property or other legal rights.” (Internal quotation marks omitted.) Schwartz v. Town Plan & Zoning Commission, supra, 168 Conn. 25. In the present case, the second prong would be satisfied if the plaintiffs suffered a specific injury to their rights from the moratorium suspending the affordable housing appeals procedure under § 8-30g.

For the reasons stated in the discussion of the first prong of classical aggrievement, the plaintiffs’ zone creation for a floating zone over the whole town is not an affordable housing application within the purview of § 8-30g. Consequently, any action taken on the floating zone creation application by the town planning and zoning commission would not be subject to the affordable housing appeals procedure under § 8-30g. Because the floating zone creation application would not be subject to the § 8-30g appeals procedure that was suspended by the moratorium, the plaintiffs were not specifically and injuriously affected in their rights by the moratorium. The plaintiffs are currently appealing the denial of their floating zone creation application in Superior Court, but not under § 8-30g. See Stefanoni v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-5013828-S (filed February 23, 2012). The plaintiffs, therefore, were not specifically and injuriously affected in their rights by the moratorium, as is required under prong two of the test for classical aggrievement. Because the plaintiffs failed to satisfy both prongs of the classical aggrievement test, we conclude the court did not err in concluding that the plaintiffs were not classically aggrieved.

II

We next address whether the plaintiffs proved that they were statutorily aggrieved. “[W]here a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case.” (Internal quotation marks omitted.) Pinchbeck v. Dept. of Public Health, 65 Conn. App. 201, 206, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). “Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 288, 933 A.2d 256 (2007). “It is settled that the existence of statutory standing depends on ‘whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute . . . Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432, 829 A.2d 801 (2003).

The plaintiffs sought a declaratory judgment from the court pursuant to § 4-175. Section 4-175 provides in relevant part: “(a) If aprovision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action. ...” Section 4-175 (a) can be read to contain two requirements for the plaintiffs to be statutorily aggrieved.

First, we address the second requirement of statutory aggrievement under § 4-175 (a), namely, whether the agency satisfied § 4-175 (a) (1), (2) or (3) sufficiently for the plaintiffs to meet that requirement of statutory aggrievement. We conclude that the department and its commissioner did fulfill the requirement of § 4-175 (a) (2). The plaintiffs, pursuant to § 4-176, submitted their petition for a declaratory ruling to the department challenging the grant of the moratorium certificate, which was subsequently denied by the commissioner. Specifically, the commissioner declined to issue a declaratory ruling because the commissioner “believe[d] that neither statement requested by the [plaintiffs was] appropriate for a declaratory ruling under ... § 4-176 or [Regulations of Connecticut State Agencies] § 8-203-5 (e) and therefore the [commissioner decline [d] to issue a declaratory ruling in this matter.” This declination was in conformance with § 4-176 (e) (5) because the department decided not to issue a declaratory ruling and stated the reasons for its action. The department and its commissioner’s actions, therefore, satisfied the statutory requirement under § 4-175 (a) (2) that permits a plaintiff to seek a Superior Court ruling as to the application of § 8-30g (l).

Next, we address whether the plaintiffs fulfilled the first requirement of statutory aggrievement under § 4-175 (a), namely, whether § 8-30g “interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff [s].” We conclude that the plaintiffs failed to satisfy this requirement for statutory aggrievement.

“An action for a declaratory judgment, valuable as it has become in modem practice, is not a procedural panacea for use on all occasions. ... In providing statutory authority for courts to grant declaratory relief, the legislature did not intend to broaden their function so as to include issues which would not be such as could be determined by the courts in ordinary actions. . . . The declaratory judgment procedure consequently may be employed only to resolve a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement. ... A party pursuing declaratory relief must therefore demonstrate, as in ordinary actions, a justiciable right in the controversy sought to be resolved, that is, contract, property or personal rights ... as such will be affected by the [court’s] decision .... A party without a justiciable right in the matter sought to be adjudicated lacks standing to raise the matter in a declaratory judgment action.” (Citations omitted; internal quotation marks omitted.) Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 218 Conn. 335, 347-48, 589 A.2d 356 (1991).

The plaintiffs’ action is for a declaratory judgment, but there still must be a justiciable controversy between adverse interests. The interests sought to be protected by the plaintiffs must be within the zone of interests protected by the declaratory judgment statute, § 4-176. The plaintiffs, therefore, must, have a right that will be affected by the court’s decision. As discussed in part I A of this opinion, the plaintiffs do not have a specific, personal and legal interest in the moratorium because they did not have a pending affordable housing application that would have been affected by the moratorium. Additionally, the only pending application that the plaintiffs had in place, the floating zone creation application, was for the creation of an affordable housing floating zone that would have affected the community as a whole, not the plaintiffs specifically, and the denial of which they have appealed under § 8-8. The plaintiffs, therefore, have not established an interest distinguishable from the general public interest, enabling them to bring an action for declaratory judgment.

Our Supreme Court has held “that a party who was simply a member of the general public who has not demonstrated how she was harmed in a unique fashion by the conduct she had challenged in a declaratory judgment action had failed to establish a colorable claim of direct injury, and accordingly lacked standing to maintain the action. . . . [N] either the plaintiffs in this case nor their members have an interest in [the] decisions . . . that is distinguishable from that of the general public. Consequently, the plaintiffs lacked standing to challenge the decisions in a declaratory judgment action, and the action was properly dismissed.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 348. Just as in Connecticut Business & Industry Assn., Inc., the plaintiffs here do not have a direct injury that would allow them to maintain this action. See part I B of this opinion. The plaintiffs have not shown a direct, unique injury resulting from the moratorium that they challenged in their declaratory judgment action.

In Pinchbeck v. Dept. of Public Health, supra, 65 Conn. App. 201, this court affirmed the judgment of the trial court, which dismissed the plaintiffs’ action for a declaratory judgment, pursuant to § 4-175, because the plaintiff lacked standing to bring a declaratory judgment action under that statute. Id., 202-203. The plaintiff sought a declaratory judgment after the department of public health denied her request for intervenor status in the department of public health’s evaluation and approval of a proposed sewage disposal system. Id. The plaintiff owned real property abutting the real property that belonged to the parties who proposed the sewage disposal system to the department of public health, but the plaintiff failed to show that her real property, and by extension she, was aggrieved by the department of public health’s action. Id., 203-204, 209.

This court stated: “The issue then is whether the plaintiff is entitled to seek the relief authorized by the statute. Standing is not conferred upon a plaintiff merely by virtue of the fact that the complaint recites the provisions of the statute under which it is brought. . . . Rather, a complaint brought pursuant to § 4-175 must set forth facts to support an inference that a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff.” (Internal quotation marks omitted.) Id., 206. The plaintiff in Pinch-beck, just as the plaintiffs in the present case, failed to allege “that any statute, regulation or final decision of the agency, or its threatened application, has interfered with or impaired, or threatens to interfere with or impair, the legal rights of the plaintiff.” (Internal quotation marks omitted.) Id. As discussed previously in this opinion, the moratorium in the present case does not interfere with the plaintiffs’ legal rights because the denial of the floating zone creation application did not fall under the § 8-30g appeals process. Even if the appeals process did apply, the plaintiffs had no more legal right to seek a declaratory judgment under § 4-176 based on the denial of the creation of a floating zone over the whole town than the Pinchbeck plaintiff did in seeking to challenge a department of public health decision regarding that plaintiffs neighbors’ real property because they both failed to show an individualized interest or injury. The plaintiffs, therefore, failed to fulfill the first requirement of statutory aggrievement under § 4-175 (a), because § 8-30g does not interfere with or impair, or threaten to interfere with or impair the legal rights or privileges of the plaintiffs.

The plaintiffs, not being classically or statutorily aggrieved, therefore, did not have standing to bring their request for a declaratory ruling. Accordingly, the court properly dismissed their case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-8 provides in relevant part: “(b) . . . any person aggrieved by any decision of a board . . . may take an appeal to the superior court . . . .”

       General Statutes § 8-30g (Í) provides in relevant part: “(4) (A) The commissioner shall issue a certificate of affordable housing project completion for the purposes of this subsection upon finding that there has been completed within the municipality one or more affordable housing developments which create housing unit-equivalent points equal to the greater of two per cent of all dwelling units in the municipality, as reported in the most recent United States decennial census, or seventy-five housing unit-equivalent points. ...”

       General Statutes § 8-30g (l) provides in relevant part: “(1) Notwithstanding the provisions of subsections (a) to 0), inclusive, of this section, the affordable housing appeals procedure established under this section shall not be applicable to an affordable housing application filed with a commission during a moratorium, which shall be the four-year period after (A) a certification of affordable housing project completion issued by the commissioner is published in the Connecticut Law Journal, or (B) after notice of a provisional approval is published pursuant to subdivision (4) of this subsection. . . .”

       General Statutes § 4-175 provides in relevant part: “(a) If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action. . . .”

       The plaintiffs also named the town of Darien as a defendant, which is also a party to this appeal.

       General Statutes § 4-176 provides in relevant part: “(a) Any person may petition an agency, or an agency may on its own motion initiate aproceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of aprovision of the general statutes, aregulation, or a final decision on a matter within the jurisdiction of the agency. . . .”

       The defendants on appeal also raised an alternate ground upon which the court’s judgment could be affirmed, namely that the plaintiffs’ claim was not ripe for adjudication.

       The only change between the plaintiffs’ original complaint and the plaintiffs’ amended complaint was in paragraph eight. The original paragraph eight read as follows: “The [p]laintiffs presently own additional property in the [town] and will be submitting within the next few weeks an application to the Darien [planning and [z]oning [cjommission for a zone change for their property and an amendment to the Darien [zjoning [regulations to allow the construction of affordable housing as defined by [§] 8-30g on the site. The current moratorium interferes with and impairs the legal rights and privileges of the [plaintiffs as it prevents the [pjlaintiffs from availing themselves of the appeals procedure afforded by [§] 8-30g for their affordable housing application.”
      The amended paragraph eight read as follows: “On August 4, 2011, the [pjlaintiffs submitted an application to the Darien [p]lanning and [zjoning [c]ommission to amend the [zjoning [regulations to allow for a floating affordable housing zone that will be applicable to all lots in the [town] to allow the construction of affordable housing as defined by and in accordance with [§] 8-30g. As the zone applies to all lots in Darien, it includes the [plaintiffs’ property at 149 Nearwater Lane. The current moratorium interferes with and impairs the legal rights and privileges of the [p]laintiffs as it prevents the [plaintiffs from availing themselves of the appeals procedure afforded by [§] 8-30g.”

       The plaintiffs have appealed this denial and that appeal is pending before the trial court. See Stefanoni v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-5013828-S (filed February 23, 2012).

       General Statutes § 8-30g (a) (3) defines “ ‘[assisted housing’ ” as “housing which is receiving, or will receive, financial assistance under any governmental program for the construction or substantial rehabilitation of low and moderate income housing, and any housing occupied by persons receiving rental assistance . . .

       General Statutes § 8-30g (a) (6) provides in relevant part: “ ‘Set-aside development’ means a development in which not less than thirty per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that, for at least forty years after the initial occupation of the proposed development, such dwelling units shall be sold or rented at, or below, prices which will preserve the units as housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to eighty per cent of the median income. ...”

       Section 1112 of the Darien zoning regulations addresses applications for amendments to the zoning regulations or the zoning map. Specifically § 1112.2 of the Darien zoning regulations details the application for amendments to the zoning regulations and provides in relevant part: “All proceedings to amend these [Regulations, including any change in punctuation or wording, shall be instituted by written application, in [ten] copies, to the [Commission setting forth the specific provisions to be amended and the proposed language thereof. Applications shall be signed by the party proposing the amendment or by the agent for such party. Reasons for the proposed amendment shall also be stated in the application.”

       Darien zoning regulation, § 1112.4, which the plaintiffs cite as their reason for attaching their “conceptual site plan,” states in relevant part: “If an amendment of the [z]oning [m]ap and/or [regulations is proposed to accommodate a specific development or type of development on a single parcel, or small group of parcels or area of less than [five] acres, then, the applicant shall provide with the application to the [commission, sufficient and detailed information ... to illustrate how the likely development will be workable and safe, in the manner and in the location as proposed in the amendment application.”

       General Statutes § 4-175 (a) provides in relevant part: “If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency . . . (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176 . . . .”

       General Statutes § 4-176 (e) provides in relevant part: “Within sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall ... (5) decide not to issue a declaratory ruling, stating the reasons for its action.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STEVEN D. CORREIA v. COMMISSIONER OF CORRECTION
    (AC 34147)
    DiPentima, C. J., and Robinson and Bear, Js.

      Argued February 14
    officially released April 30, 2013

      Sarah F. Summons, assigned counsel, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Sean P. McGuinness, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Steven D. Correia, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly rejected his claims that his counsel provided ineffective assistance by failing (1) to adequately challenge the victim’s in-court identification of the petitioner and (2) to recuse himself from representing the petitioner in a prior habeas proceeding due to a conflict of interest. We are not persuaded and affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s claims. The petitioner carjacked two women at gunpoint in a parking lot at night, forcing one into the trunk of the vehicle and later robbing and sexually assaulting the other. See State v. Correia, 33 Conn. App. 457, 458-59, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994). After they were released by the petitioner, the women went to a local hospital where the police were contacted. Id., 460. The following morning, the sexual assault victim was unable to identify anyone from photographs that were shown to her by the police. Five years later, however, the police contacted her and asked her to review a photographic array, from which she immediately identified the petitioner as her assailant. Id. Following a jury trial at which the sexual assault victim again identified the petitioner in court as the perpetrator, the petitioner was convicted of sexual assault in the first degree in violation of General Statutes (Rev. to 1981) § 53a-70 (a), two counts of kidnapping in the first degree in violation of General Statutes (Rev. to 1981) § 53a-92 (a) (2) (A) and (B), and robbery in the first degree with a firearm in violation of General Statutes § 53a-134 (a) (4). Id., 458, 464. His conviction was affirmed on appeal. Id., 457. The petitioner next unsuccessfully petitioned for a writ of habeas corpus, first in federal District Court and then in state court; both judgments were later affirmed on appeal. See Correia v. Meachum, 201 F.3d 430 (2d Cir. 1999), cert. denied, 529 U.S. 1111, 120 S. Ct. 1965, 146 L. Ed. 2d 797 (2000); Correia v. Rowland, 263 Conn. 453, 820 A.2d 1009 (2003).

In 2007, the petitioner commenced the present habeas action. The petitioner filed the operative second amended petition for a writ of habeas corpus in May, 2010, alleging ineffective assistance of his counsel, attorney Francis Mandanici, who had acted as his trial counsel, appellate counsel, habeas counsel, and appellate habeas counsel. The petitioner claimed, inter alia, that Mandanici was ineffective during the criminal trial because he failed to request that any identification of the petitioner by the victim in court be conducted by means of a lineup or some other less suggestive procedure than a one-on-one identification. The petitioner also claimed that Mandanici was ineffective as habeas counsel because, inter alia, he had a conflict of interest as a result of representing the petitioner during the criminal trial, and he failed to recuse himself on that ground. Following a trial, the habeas court issued a memorandum of decision denying the petition for a writ of habeas corpus.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Morris v. Commissioner of Correction, 131 Conn. App. 839, 842, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment.” (Internal quotation marks omitted.) Gooden v. Commissioner of Correction, 127 Conn. App. 662, 668, 14 A.3d 1066, cert. denied, 301 Conn. 913, 19 A.3d 1259 (2011). “In Strickland [v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court held that judicial scrutiny of counsel’s performance must be highly deferential. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [CJounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 71-72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001).

“To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . With respect to the prejudice component, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . A court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Internal quotation marks omitted.) Gooden v. Commissioner of Correction, supra, 127 Conn. App. 668.

Finally, in those cases in which a habeas coipus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest, our Supreme Court has stated that, “to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) Day v. Commissioner of Correction, 118 Conn. App. 130, 137, 983 A.2d 869 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1055 (2010).

Turning to the claims of ineffective assistance raised in the present appeal, the habeas court found that although a review of the trial transcript revealed that Mandanici misunderstood the procedure for obtaining an in-court identification by lineup, even erroneously suggesting that the prosecution rather than the defense had the burden of moving for such a lineup; see State v. Tatum, 219 Conn. 721, 729, 595 A.2d 322 (1991); Mandanici nevertheless “zealously advocated for the petitioner, trying to have him absent from the courtroom or identified by lineup.” Further, even assuming deficient performance on the part of Mandanici, the habeas court found that the petitioner’s claim of ineffective assistance failed because the petitioner had not produced any evidence that the sexual assault victim would not have been able to identify the petitioner if an in-court lineup had been ordered or that the outcome of the criminal trial would have been different if Man-danici properly had moved for an in-court identification of the petitioner by lineup.

The habeas court further rejected the claim that Man-danici provided ineffective assistance by acting as the petitioner’s counsel in the first habeas proceeding or by failing to recuse himself on the basis of a conflict of interest. The habeas court noted that although it often would be better practice for someone other than trial counsel to represent a petitioner in a subsequent habeas action, there is no authority prohibiting trial counsel from also assuming the role of habeas counsel. The habeas court also found that the petitioner failed to demonstrate that, by acting as his habeas counsel, Mandanici either “actively represented conflicting interests” or that “an actual conflict of interest adversely affected . . . Mandanici’s performance.” See Day v. Commissioner of Correction, supra, 118 Conn. App. 137. The court reasoned that the first habeas trial did not involve any claims of ineffective assistance of counsel, which would have raised a potential conflict, but “consisted solely of a legal issue, and the record demonstrates that . . . Mandanici zealously litigated the claim.”

After carefully reviewing the record and all applicable law, we conclude that none of the findings supporting the habeas court’s denial of the petition for a writ of habeas corpus were clearly erroneous, nor do we find error with the court’s legal conclusions. On the basis of our plenary review, we conclude that the habeas court properly denied the petitioner’s second amended petition for a writ of habeas corpus.

The judgment is affirmed.

       An allegation of actual innocence was withdrawn on the first day of the habeas trial.


author: BORDEN, J.

text:
    NEIGHBORHOOD BUILDERS, INC., ET AL. v. TOWN OF MADISON
    (AC 34191)
    DiPentima, C. J., and Beach and Borden, Js.

      Argued February 20
    officially released April 30, 2013

      William Andrew Lichtenfels, with whom, on the brief, were Ann Grunbeck Monaghan and Matthew M. Hausman, for the appellants (named plaintiff et al.).

      Robert M. Langer, with whom, on the brief, were Thomas R. Gerarde and Emily E. Cosentino, for the appellee (defendant).
   Opinion

BORDEN, J.

The sole question of this appeal is whether the defendant, the town of Madison, may be sued under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., for allegedly overcharging for building permit fees. We answer the question in the negative and, accordingly, affirm the trial court’s summary judgment in favor of the defendant.

The plaintiffs, Neighborhood Builders, Inc., Peter Smith Building Co., LLC, The Dowler Group, LLC, MJM Builders, Inc., and Richard Gentile Building Co., LLC, brought this action in 2004 against the defendant alleging, inter alia, that the defendant was in violation of CUTPA by virtue of its system of charging for and using the revenues from building permit fees. More specifically, the gist of the plaintiffs’ allegations, insofar as they involve CUTPA, is that the revenues derived by the defendant from the building permit fees significantly exceed the cost to the town of regulating building activity, and that the town unlawfully uses the fees to fund social programs and other activities that bear no relation to the regulation of building activity. Subsequently, the defendant and the plaintiffs filed motions for summary judgment. The trial court granted the defendant’s motion for summary judgment on the ground that, under General Statutes § 42-110c (a) (l), CUTPA does not apply to the defendant in its activity of charging building permit fees, and denied the plaintiffs’ motion for summary judgment. This appeal by the plaintiffs followed.

The plaintiffs claim that the court improperly determined that CUTPA does not apply to the defendant in the present case. We disagree.

At the outset, we note our standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant [the defendant’s] motion for summary judgment is plenary. . . . Issues of statutory construction . . . are also matters of law subject to our plenary review.” (Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010).

Chapter 735a of the General Statutes, which is titled “Unfair Trade Practices,” consists of CUTPA. Section 42-110c provides in relevant part: “(a) Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state . . . ,” This provision has been construed by our Supreme Court in two cases that control the present case.

In Danbury v. Dana Investment Corp., 249 Conn. 1, 18, 730 A.2d 1128 (1999), our Supreme Court held that the governmental exemption from CUTPA provided by § 42-110c (a) (1) applied to the allegations that the city of Danbury had violated CUTPA by overassessing real properties and bringing 111 tax foreclosure actions, rather than one action, “thus engendering needless costs and fees.” The court held that the exemption applied because the process of real estate assessment by a municipality is authorized and regulated by statute, and because there is no case in which CUTPA had been applied to a municipality acting in its statutory function of collecting unpaid taxes by foreclosing on previously unchallenged tax hens. Id., 20.

Similarly, in Connelly v. Housing Authority, 213 Conn. 354, 357-58, 365, 567 A.2d 1212 (1990), the court held that the same governmental exemption applied to the allegations that the New Haven Housing Authority had violated CUTPA by failing to provide adequate heat and hot water to its tenants. This was because the transactions at issue, namely, the renting of subsidized apartments to low income tenants, were authorized and regulated by both the state department of housing and the federal Department of Housing and Urban Development; id., 361; and because, referring to the Federal Trade Commission Act (FTCA) as the “lodestar for determining the scope of CUTPA”; id., 363; there was no instance in which the FTCA had been applied to “any act or practice of a local public agency . . . .” Id., 364.

We can discern nothing that would distinguish the reasoning of these two cases from the present case. As the defendant points out, the entire system of issuing building permits and collecting fees followed by the defendant is authorized and regulated by state statute and regulation. The defendant’s building official is appointed pursuant to General Statutes § 29-260. As such, the building official is authorized to enforce the state building code, which applies to all municipalities. See Regs., Conn. State Agencies § 29-252-ld. Furthermore, the building official is authorized to issue building permits to applicants who meet the requirements of the building code—in addition to the requirements of other applicable local regulations, such as zoning, inland wetlands, fire, floodplain management and health—and who pay the applicable fees. See Regs., Conn. State Agencies § 29-252-ld. In addition, the state building code specifically authorizes each municipality to establish a schedule of fees for building permits. See State Building Code § 108.2 (2005 Sup.); Regs., Conn. State Agencies § 29-252-ld. The set of fees established by the defendant pursuant to this statutory authorization is precisely what the plaintiffs challenge in the present case. Finally, as in both Danbury and Connelly, the plaintiffs have not pointed to any case in which the lodestar FTCA has been applied to the act or practice of a local public agency.

We fully have considered all of the arguments of the plaintiffs—namely, that the defendant does not have an express exemption from CUTPA for “overcharging for building permit fees,” that the trial court improperly enlarged § 42-110c “to encompass the actions of the [defendant] and shield [it] from CUTPA application,” and that the “sole avenue of recovery for damages in this matter has been foreclosed by the trial court’s decision”—and find them unavailing. In addition, the principal case on which the plaintiffs rely for application of CUTPA to the defendant’s actions in setting building permit fees, namely, Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006), is readily distinguishable. That case involved the applicability of governmental immunity pursuant to General Statutes § 52-557n (a) (1) (B) to the operation of a municipal golf course. Id., 833-34, 844-45. It in no way informs the question of the inapplicability of CUTPA to the setting and collecting of local building permit fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paul Coady Construction, LLC, was a plaintiff but subsequently withdrew from the action and is not involved in this appeal. The Dowler Group, LLC, and Bichard Gentile Building Co., LLC, are also not parties to this appeal. Therefore, we refer in this opinion to Neighborhood Builders, Inc., Peter Smith Building Co., LLC, and MJM Builders, Inc., as the plaintiffs.

       The initial complaint was pleaded in five counts, the last of which involved the CUTPA claim. Thereafter, the plaintiffs moved for class certification, which the trial court granted on October 12, 2007, certifying a class consisting of “entities that directly paid to the defendant the allegedly excessive building permit fees during the period of April 1, 2003, to the present.” The defendant appealed to this court from the grant of class certification, and the Supreme Court transferred the appeal to itself. Thereafter, while that appeal was pending, the defendant moved to dismiss all the counts of the complaint. The trial court granted that motion as to the first four counts, but denied it as to the CUTPA count. See Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 656, 986 A.2d 278 (2010). Thereafter, our Supreme Court affirmed the judgment granting class certification, but did not address the ruling on the CUTPA count because of the lack of a final judgment. See id., 660-61. The case then returned to the trial court for consideration of the CUTPA count. The plaintiffs have not sought to revive the court’s dismissal of the first four counts of their complaint. Thus, the only count before us is the CUTPA count.

       General Statutes § 42-110c states in relevant part: “(a) Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States . . . . (b) The burden of proving exemption, as provided in this section, from the provisions of this chapter shall be upon the person claiming the exemption.”

       See footnote 3 of this opinion.

       General Statutes § 29-260 (a) provides: “The chief executive officer of any town, city or borough, unless other means are already provided, shall appoint an officer to administer the code for a term of four years and until his successor qualifies and quadrennially thereafter shall so appoint a successor. Such officer shall be known as the building official. Two or more communities may combine in the appointment of a building official for the purpose of enforcing the provisions of the code in the same manner. The chief executive officer of any town, city or borough, upon the death, disability, dismissal, retirement or revocation of licensure of the building official, may appoint a licensed building official as the acting building official for a single period not to exceed one hundred eighty days.”

       Section 108.2 of the State Building Code provides: “Each municipality shall establish a schedule of fees for each construction document review, building permit, certificate of approval and certificate of occupancy. A schedule of adopted fees shall be posted for public view.”

       General Statutes § 52-557n (a) (1) provides in relevant part that “[ejxcept as otherwise provided by law, a political subdivision of the state shall be hable for damages to person or property caused by: . . . (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit . . . .”


author: SCHALLER, J. LAVINE, J.,

text:
    STATE OF CONNECTICUT v. ALI PEEPLES
    (AC 34403)
    Lavme, Robinson and Schaller, Js.
    Argued October 16, 2012
    officially released April 30, 2013

      Glenn W. Falk, assigned counsel, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne Mahoney, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Ali Peeples, appeals from the judgment of conviction, rendered following a jury trial, of one count sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that the trial court (1) improperly admitted testimony that he was watching pornography at the time he was arrested and (2) unfairly marshaled evidence in favor of the prosecution when it summarized in its jury instructions the testimony of an expert witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, S, began residing with her grandmother when she was six years old. When S was about nine years old, she would frequently visit her aunt, who was in a relationship with the defendant. While S visited her aunt’s home, several incidents of a sexual nature involving the defendant and S occurred. S specifically alleged that the defendant engaged in penile-vaginal intercourse with her on more than one occasion, and put his penis into her rectum once. S also stated that the defendant had her touch his penis and that he touched her vagina. S sought treatment for rectal bleeding and an inability to use the bathroom, but did not disclose the abuse to the medical staff during her hospital visits.

S first disclosed the abuse to a guidance counselor at her school in the fall of 2004. S eventually reported the abuse to her mother, a friend, her aunt and her grandmother when she was approximately eighteen years old. S testified that she waited to tell her grandmother about the abuse because the defendant told her not to tell anybody. After S disclosed the abuse to her family, law enforcement became involved, and in July, 2008, a therapist conducted a forensic interview of S regarding her allegations. The forensic interview was recorded, and the video recording was admitted as a full exhibit at trial and played for the jury.

The defendant was convicted following a jury trial and received a total effective sentence of eighteen years of incarceration, suspended after thirteen years, and ten years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first asserts that the court abused its discretion by denying his motion in limine. Specifically, the defendant argues that the court erred in admitting testimony that the defendant was watching pornography at the time of his arrest, as it was not relevant. We agree with the defendant and conclude that the testimony at issue was not relevant to establish that the police officers acted appropriately when arresting him. We further conclude, however, that the admission of this evidence constituted harmless error.

The following additional facts are relevant to our resolution of this issue. Prior to trial, the defendant filed a motion in limine to preclude the admission of testimony given during the hearing on the defendant’s motion. Eric Gauvin, a Hartford police detective, testified at the hearing that he went to the defendant’s residence in order to execute an arrest warrant. Gauvin stated that when the defendant opened the door to his residence, he informed the defendant of the arrest warrant and handcuffed him before proceeding into the home.

The defendant specifically sought to preclude Gau-vin’s testimony that a pornographic movie was playing on the defendant’s bedroom television when Gauvin arrested him on the grounds that such testimony was not probative, that the activity was legal and that the testimony was prejudicial. The state argued that the circumstances in the defendant’s home were relevant to determining whether or not Gauvin acted appropriately when arresting the defendant. The court denied the defendant’s motion and concluded that the testimony was relevant and that the probative value outweighed the prejudice.

At the defendant’s trial, Gauvin testified that he was assigned to investigate the allegations of sexual abuse made by S against the defendant. Gauvin stated that he went to the defendant’s home to arrest him, and the defendant answered the door wearing a towel with boxer shorts underneath. Gauvin explained that he and another detective entered the defendant’s bedroom with the defendant to assist him in getting dressed in order to ensure officer safety. Gauvin stated that upon entering the defendant’s bedroom “[he] noticed . . . next to the door there was a video playing . . . adult pornographic material.” Gauvin explained that he assisted the defendant with dressing and then took him to the Hartford police headquarters. Gauvin then testified about the details pertaining to the defendant’s interview and the substance of the defendant’s oral and written statements to the police. The circumstances of the defendant’s arrest and the video playing in his bedroom were not addressed in Gauvin’s subsequent testimony.

The defendant challenges the relevance of Gauvin’s testimony that a pornographic movie was playing on the television during the arrest. Specifically, the defendant asserts that the material playing on his television had no bearing on whether Gauvin’s arrest was performed properly. We agree that Gauvin’s reference to the pornographic movie was not relevant to show that the arrest was proper. We conclude, however, that the defendant has failed to meet his burden of establishing that it is more probable than not that the court’s decision to allow this statement into evidence affected the result of his trial.

We begin our analysis of this claim by setting forth the well settled standard of review that is applied to a trial court’s evidentiary rulings. “Although certain evi-dentiary rulings are subject to plenary review . . . the vast majority of such determinations are within the trial court’s discretion and will not be overturned in the absence of a manifest abuse of that discretion. 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. . . .

“Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. Conn. Code Evid. § 4-1. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative.” (Citations omitted; internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 496-97, 964 A.2d 73 (2009).

We see no merit in the state’s assertion that the contested portion of Gauvin’s testimony was relevant to establish that the defendant’s arrest was proper. The propriety of the defendant’s arrest was not disputed at trial. Indeed, the detective could have justified his conduct without any specific reference to the substance of the video playing on the defendant’s television. What materials the defendant was viewing prior to his arrest had no bearing on whether the arrest was proper. Because the aforementioned testimony was not relevant to establish a material issue of fact, it should not have been admitted into evidence.

To the extent that the court abused its discretion by admitting this portion of Gauvin’s testimony, we conclude that the defendant has failed to demonstrate that he suffered any harm. “When an improper eviden-tiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... As we . . . have noted, a nonconstitu-tional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [W]hether [the improper admission of evidence] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative . . . the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial.” (Citations omitted; internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 363-64, 933 A.2d 1158 (2007).

The defendant’s assertions that the error was harmful are unavailing. The testimony at issue was not emphasized by the state, nor was it discussed in Gauvin’s subsequent testimony or on cross-examination. Gauvin instead testified primarily as to the substance of the defendant’s oral and written inculpatory statements. S also specifically testified as to the nature of the incidents of assault, and her testimony was corroborated by her mother, the guidance counselor to whom she made her initial disclosure and the social worker who conducted her forensic interview. Indeed, the defendant’s own inculpatory statements were partially corroborated by S’s testimony regarding the incidents of inappropriate touching. See State v. Ritrovato, 280 Conn. 36, 58, 905 A.2d 1079 (2006) (sufficiently corroborated confession is most damaging evidence of guilt and usually renders errors harmless); State v. Stevenson, 269 Conn. 563, 596, 849 A.2d 626 (2004) (same). In light of such evidence, we cannot conclude that it was more probable than not that the jury was affected by the isolated and brief testimony that pornographic material was playing on the defendant’s television at the time of his arrest. We therefore conclude that the error in the present case was harmless.

II

The defendant finally argues that the court improperly marshaled the evidence in favor of the state in its jury instructions, thereby violating his due process right to a fair trial. Specifically, the defendant asserts that the court emphasized expert medical testimony that was given in favor of the state when such testimony could have been summarized more objectively. We are not persuaded. The following additional facts are relevant to our resolution of this issue.

Nina Livingston, a pediatrician specializing in the evaluation of victims of child abuse, testified on behalf of the state. Livingston explained that the history provided by the child is the most common evidence in child sexual abuse cases and that fewer than 5 percent of children have diagnostic findings evident of sexual contact. Livingston stated that she had reviewed S’s medical records, consisting of visits to hospital emergency departments and some primary care records, as well as the recording of her forensic interview. Livingston noted that S had three visits to the emergency department just after she became ten years old for complaints relating to her genital and anal area, including constipation, watery stools, rectal pain and bleeding, and urinary symptoms such as frequency, urgency, burning and blood in her urine. During one of the emergency department visits, S was noted to have an anal fissure, which is a break in the skin, and mucus with blood in it during a rectal examination. Livingston testified that an anal fissure is a nonspecific finding that could be caused by trauma or other medical conditions. Livingston explained that if she had examined S at that time, she would not have been able to say that the fissure was diagnostic of trauma because it is a nonspecific finding that could have been caused by other conditions. Livingston further testified that the urinary symptoms reported by S were also nonspecific, as they could have been caused by a urinary tract infection, and therefore the symptoms were not diagnostic by themselves.

Livingston also testified that on three separate occasions, S’s medical records indicated that the health care provider considered sexual contact as a possible cause for her symptoms, but on each occasion sexual abuse or contact was denied. Livingston opined that S’s symptoms documented in her medical records were consistent with the history of abuse S provided in her forensic interview. Livingston further stated that based upon S’s medical records alone, she was unable to conclude whether or not S had been sexually abused.

The court, in its proposed instructions to the jury, provided a brief summary of the testimony of the experts who testified at trial. The defendant objected to the court’s summary of Livingston’s testimony, arguing that the court’s characterization of Livingston’s conclusions favored the state because Livingston also testified that S’s records were consistent with other medical conditions, including constipation. The defendant specifically argued that the court’s summation could be phrased more objectively, like the summaries given for the testimony of expert witnesses Jessica Alejandro and Diane Edell, by stating that Livingston gave her opinion with respect to S’s medical records. The state agreed that the court could instruct the jury as the defendant suggested, or that it could instruct that Livingston reviewed S’s medical records and gave her opinion. The court overruled the defendant’s objection.

The court, when instructing the jury, stated specifically that “Livingston testified that she is a child abuse pediatrician who reviewed [S’s] medical records and opined that her medical history [was] consistent with sexual abuse.” With regard to the two other experts, the court gave the following instruction: “Jessica Alejandro testified that she is a clinical child interview specialist who interviewed [S] . . . regarding her allegations of abuse .... Diane Edell testified that she . . . conducts forensic interviews of children alleging sexual abuse and testified regarding the delayed disclosure of sexual abuse by children.”

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence ... is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. ... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention. . . .

“On review, we do not evaluate the court’s marshaling of the evidence in isolation. Rather, [t]o determine whether the court’s instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Andrews, 102 Conn. App. 819, 821-22, 927 A.2d 358, cert. denied, 284 Conn. 911, 931 A.2d 932 (2007).

We are mindful that the “influence of the trial judge on the jury is necessarily and properly of great weight, and ... his [or her] lightest word or intimation is received with deference, and may be prove controlling . . . .” (Internal quotation marks omitted.) State v. Malave, 250 Conn. 722, 735, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). “In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his [or her] responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 769, 760 A.2d 82 (2000).

While we agree with the defendant that it would have been preferable for the court to summarize Livingston’s testimony in neutral and impartial language that directed the jury to consider more than “ ‘one side of the case’ State v. Andrews, supra, 102 Conn. App. 821;—an argument to which the state conceded at trial—we are not persuaded that the instruction as given rises to the level necessary to transgress the bounds of fair comment. In fact, the court also instructed the jury that the jury is the judge of an expert’s credibility and the weight, if any, it assigns to his or her testimony. Moreover, we find the defendant’s reliance on State v. Hernandez, 218 Conn. 458, 590 A.2d 112 (1991), misplaced. In Hernandez, “the court recapitulated nearly all of the state’s testimonial and physical evidence, frequently commented favorably on the credibility of the state’s witnesses and thoroughly explained how the state’s evidence related to the essential elements of the crime charged.” Id., 464. In the present case, however, the instruction at issue was brief, was technically accurate and the only evidence the court summarized was the experts’ testimony—of which only one summary is contested by the defendant. See State v. Andrews, supra, 824 (“[t]he defendant’s attempt to isolate certain comments by the court is unavailing because those comments must be evaluated in fight of the entire charge”).

The jury was twice instructed that it was the sole fact finder and that its recollection of the evidence controlled over the court’s summary—once at the beginning of the instructions and once at the end. See State v. Fana, 109 Conn. App. 797, 811, 953 A.2d 898, cert. denied, 289 Conn. 936, 958 A.2d 1246 (2008); see also State v. Bardliving, 109 Conn. App. 238, 246, 951 A.2d 615 (court explicitly instructed jury it was sole finder of fact and it should rely on its recollection of evidence), cert. denied, 289 Conn. 924, 958 A.2d 153 (2008); State v. Dixon, 62 Conn. App. 643, 648, 772 A.2d 166 (2001) (court repeatedly reminded jury it is sole finder of fact, it should rely on its own recollection and disregard opinion suggested by court regarding fact). For the foregoing reasons we conclude that the charge, read in its entirety, did not mislead the jury, and therefore, did not deprive the defendant of his right to due process.

The judgment is affirmed.

In this opinion ROBINSON, J., concurred.

LAVINE, J.,

concurring. I concur in the result.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       At that time, the school did not report the allegations made by S to the authorities.

       According to Gauvin’s testimony, the defendant stated that while he was wrestling with S, “at some point [she] was unclothed and . . . that she was on his lap and his penis fell out of his boxers . . . [and that his] penis might have rubbed against [S’s] butt/crack area and that it might have touched her vaginal area.” Gauvin stated that the defendant described his penis as large and S’s vaginal opening as tight. The defendant’s signed written statement, which was read to the jury and admitted into evidence, stated the same.

       The state asserts an alternative ground for this court to affirm the judgment. Because we affirm the judgment of the trial court on the basis of harmless error, we need not address this claim.

       We note that the video recording of the forensic interview was also played for the jury during trial and admitted as a full exhibit.

       Gauvin testified that the defendant stated that his penis may have touched S’s vagina and anus, and S testified that the defendant engaged in penile-vaginal intercourse with her, attempted penile-rectal intercourse once and touched her genital area.

       Livingston testified that for the past five years she has specialized in evaluating children who were referred to her when concern arose about sexual abuse.

       Livingston noted that the findings are divided into categories including normal; nonspecific, which can be caused by other medical conditions; indeterminate; and diagnostic findings such as evidence of penetrating trauma, sexually transmitted diseases or the presence of sperm.

       At the time S received treatment, she had not yet disclosed the abuse to anyone.

       At the beginning of the charge, the court instructed the jury that it alone was responsible for recollecting and determining the facts, and that it was the sole judge of the facts. When the court instructed the jury regarding the evidence, it specifically charged that “[i]f I refer to any of the evidence in these instructions, it will be simply for the purposes of illustration and clarification, and you are not to understand that I intend to emphasize any evidence I mentioned or limit your consideration to that evidence alone. ... If I incorrectly state any evidence, you will correct my error because it is your exclusive function to review the evidence and determine the facts established by it. ... If the court has expressed . . . any opinion as to the facts, you are not bound by that opinion.” At the close of its instructions, the court again charged the jury as to its duty to determine the facts.


text:
    APRYL R. MORRONE v. GARY J. MORRONE
    (AC 33382)
    DiPentima, C. J., and Beach and Sullivan, Js.

      Argued October 15, 2012
    officially released April 30, 2013

      AlfredF. Morrocco, Jr., for the appellant (defendant).

      Patrick Tomasiewicz, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this contested marital dissolution action, the defendant, Gary J. Morrone, appeals from the judgment of the trial court with respect to several of the court’s financial orders and the court’s order awarding sole legal and physical custody of the parties’ two minor children to the plaintiff, Apryl R. Morrone. The defendant claims that the court abused its discretion by making its financial and custody determinations against the weight of the evidence. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiff and the defendant were married on October 21, 1994. They have two sons, one bom in April, 1998, and the other bom in February, 2004. On October 14, 2010, after a trial lasting several days, the court rendered judgment dissolving the parties’ marriage, entering several financial orders and granting sole physical and legal custody of the two children to the plaintiff.

In its memorandum of decision, the court made the following financial orders relevant to this appeal: (1) that the plaintiff receive 65 percent and the defendant receive 35 percent of the marital assets; (2) that the defendant pay $197 per week in child support for the two minor children; (3) that the defendant pay $2567 in child support, which was in arrears at the time of trial; (4) that the defendant pay 60 percent and the plaintiff pay 40 percent of the $15,496 in guardian ad litem fees; (5) that the marital home be sold and the proceeds divided equally between the parties after the first $40,000 is paid to the plaintiff to repay what the court found was a loan from her parents for the purchase of the lot for the second marital home; (6) that the defendant repay to the plaintiff from his share of the sale proceeds of the marital home $9700 for protecting his equity by paying his share of the mortgage during the pendente lite period and $4000 in attorney fees from that period; and (7) that the plaintiff retain sole possession of the entire $28,000 in her 401 (k) account. In awarding sole physical and legal custody of the children to the plaintiff, the court also made several orders regarding visitation rights for the defendant and parenting time during weekends, vacations and holidays. This appeal followed.

On appeal, the defendant challenges the above financial orders and the custody order. Central to his multiple claims is his argument that the court improperly disregarded evidence provided by the defendant and placed too much weight on evidence or testimony from the plaintiff. For the reasons discussed herein, we disagree.

I

We first address the defendant’s challenge of the financial orders. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.” (Internal quotation marks omitted.) Tracey v. Tracey, 97 Conn. App. 122, 124, 902 A.2d 729 (2006). “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in . . . dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) de Repentigny v. de Repentigny, 121 Conn. App. 451, 460, 995 A.2d 117 (2010); see General Statutes § 46b-81. “[W]e are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Watrous v. Watrous, 108 Conn. App. 813, 818, 949 A.2d 557 (2008). In deciding whether the court has abused its broad discretion in such decisions, “we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Internal quotation marks omitted.) Casey v. Casey, 82 Conn. App. 378, 383, 844 A.2d 250 (2004).

On two of the defendant’s financial claims, he argues that the court did not have evidence in the record to support the findings that it made.

First, the defendant argues that there was no evidence to justify the court’s finding that the $22,000 credit from the defendant’s parents toward the couple’s first home was a gift, but the $41,000 from the plaintiffs parents toward the purchase of the lot for the second home in Harwinton was a loan. This is clearly contradicted by the record. The court had before it uncontro-verted testimony and documentary evidence that the $22,000 was a gift. In contrast to that, the court heard uncontroverted testimony from the plaintiff and her mother that the $41,000 from the plaintiffs parents was a loan.

Second, the defendant argues that the court deviated from the presumed amount of child support called for in the child support guidelines without providing the justification required by General Statutes § 46b-215b (a). See Savage v. Savage, 25 Conn. App. 693, 698, 596 A.2d 23 (1991) (“unless there is a specific finding on the record that would allow the presumption to be rebutted, child support awarded must be in the amount provided by the guidelines”). In its memorandum of decision, however, the court found the defendant’s imputed income, based on his social security earnings statement, to be $51,000. The court also found that the defendant had other potential sources of income and that since losing his job in 2008, he had made little effort to find work. Moreover, the defendant acknowledged during oral argument before this court that given a finding of $51,000 of imputed income, $197 per week in child support fell properly within the guidelines. Given these explicit findings and the defendant’s concession, we cannot conclude that the court abused its discretion in awarding child support in the amount of $197 per week.

On the remaining financial claims, the defendant does not argue that the court did not have evidence in the record for its findings. Instead, he argues that the court gave too much weight to some evidence and not enough to other evidence, nearly all related to the defendant’s earning ability and income. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Tracey v. Tracey, supra, 97 Conn. App. 125. “That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Desai v. Desai, 119 Conn. App. 224, 237-38, 987 A.2d 362 (2010).

The court made a number of findings about the reasons for the breakdown of the marriage, the parties’ financial situations and earning abilities, the state of the marital assets, debts owed by the parties together and to each other and payments toward those debts. Those findings were based on testimony from the parties, family members, the family relations officer and the guardian ad litem, as well as documents in the record. The court explained the findings upon which each order was based. On the entire evidence, we are not “left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Tracey v. Tracey, supra, 97 Conn. App. 125.

II

We next address the defendant’s claim that the court abused its discretion by awarding sole physical and legal custody to the plaintiff. The defendant argues that the court ignored evidence in support of joint custody and placed too much weight on evidence that supported the plaintiffs request for sole custody. General Statutes § 46b-56 (c) provides in relevant part that when making custody orders, “the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of [sixteen listed factors] . . . The court is not required to assign any weight to any of the factors that it considers.” “In reaching a decision as to what is in the best interests of a child, the court is vested with broad discretion and its ruling will be reversed only upon a showing that some legal principle or right has been violated or that the discretion has been abused.” (Internal quotation marks omitted.) Stahl v. Bayliss, 98 Conn. App. 63, 68, 907 A.2d 139, cert. denied, 280 Conn. 945, 912 A.2d 477 (2006).

The court based its findings on testimony from the parties, the family relations officer and the guardian ad litem regarding the reasons for the breakdown of the marriage, each parent’s role in the upbringing and care of the two children and specific aspects of the defendant’s behavior that it considered relevant to the custody decision. The court noted that it had considered the criteria for making custody orders contained in § 46b-56 (c). Specifically, it considered the family relations officer’s recommendation that the parents share joint custody and the guardian ad litem’s recommendation that the plaintiff have sole custody, and it noted the reasons for its decision to reject the family relations officer’s recommendation. See Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1991) (trial court not bound to accept expert opinion of family relations officer).

The report and testimony of the family relations officer and the guardian ad litem’s testimony provide abundant evidence—specifically with respect to the defendant’s conduct—along with the guardian ad litem’s specific recommendation, for the court’s finding that awarding sole custody to the plaintiff was in the best interest of the children.

The judgment is affirmed.

       The defendant also has a daughter from a previous relationship, who at the time of dissolution was younger than eighteen years old.

       The record reflects that the plaintiffs parents also provided $1000 as a deposit for the purchase of the lot, but the court’s order requires repayment of only $40,000.

       The defendant also claimed that the court erred in awarding all of the contents of the marital home to the plaintiff and not awarding the defendant certain personal property. During oral argument before this court, the defendant abandoned that claim.

       See footnote 2 of this opinion.

       The defendant argued that the federal Department of Housing and Urban Development settlement form associated with the Harwinton property did not list the $41,000 from the parents as a loan, and that nothing in writing supports the claim that it was a loan. The record, however, reveals no such form associated with that house or any other evidence to contradict testimony that the money from the plaintiffs parents was not a loan.