author: ROBINSON, J.

text:
    IN RE BRIANNA L.

    (AC 34345)
    DiPentima, C. J., and Robinson and Bear, Js.

      Argued September 27
    officially released November 5, 2012

      Megan P., pro se, the appellant (respondent mother).

      Stephen J. Courtney, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (petitioner).

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

       November 5, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

ROBINSON, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights as to her minor child, Brianna L., and committing Brianna to the custody of the petitioner, the commissioner of children and families. The respondent claims that the court improperly granted the petition to terminate her parental rights because (1) the petitioner failed to follow the laws and protocols for filing such a petition, (2) the court rendered judgment on the basis of discrimination and bias, (3) the court admitted inadmissible evidence of the respondent’s misdemeanor arrest, (4) the court refused to allow her to call certain witnesses at the termination trial, (5) the court rendered judgment despite a conflict of interest and (6) the termination of her parental rights was not in the best interest of the child. We affirm the judgment of the court.

The following facts, which either were found by the court or are undisputed, and procedural history are relevant to our resolution of the respondent’s claims. The respondent and her three minor children, Brianna and Brianna’s two older half brothers, have a history with the department of children and families (department) that dates back to 2002, predicated on the respondent’s history of medication abuse, mental health issues and domestic violence. In 2007, all three children were removed from the respondent’s care for one year on the basis of what the court described as the respondent’s extremely bizarre and irrational conduct. The children were returned to the respondent in January, 2008, under an order of protective supervision.

In February, 2010, the respondent was involved in a domestic violence incident with her second husband, Judson F. The respondent reported that Judson had punched her in the chest and attempted to choke her. That incident resulted in a protective order that required Judson to stay away from the respondent’s home and from her children. Despite the protective order, however, the respondent continued to engage in contact with Judson.

On April 7, 2010, the petitioner filed a motion for order of temporary custody and a neglect petition on behalf of the children, alleging that the children were in immediate physical danger from their surroundings. The court, Graziani, J., granted an ex parte order of temporary custody, which it later sustained on April 21, 2010, following a contested hearing. Although the court initially granted temporary custody of Brianna to the maternal grandparents, on May 12, 2010, the court, Foley, J., modified that order, transferring temporary custody from the maternal grandparents to the petitioner. On May 25, 2010, the petitioner moved Brianna from the maternal grandparents’ care to the care of her maternal uncle.

On October 22, 2010, the court, Graziani, J., adjudicated Brianna and her half brothers as neglected and committed Brianna to the custody and care of the petitioner until further order of the court. The court ordered specific steps to be taken by the respondent in order to regain custody, including participating in family and individual counseling and engaging in parenting classes to understand the impact that domestic violence has on children. The respondent only marginally complied with the specific steps ordered, although she did complete programs on parenting education and domestic violence “after many delays and initial refusals.” She was not fully cooperative with the department.

On January 10, 2011, the petitioner filed a motion to review permanency plan with the newly proposed goal of terminating parental rights and adoption. On March 28,2011, following an evidentiary hearing on the motion to review permanency plan, Judge Graziani issued a written decision, finding, over the objection of both parents, that the plan to terminate parental rights was in the best interest of the child.

On June 9, 2011, the petitioner filed a petition to terminate the parental rights of the respondent and Brianna’s biological father on the ground that Brianna previously was adjudicated neglected or uncared for and that the parents had failed to achieve the requisite degree of personal rehabilitation necessary to assume a responsible position in Brianna’s life. See General Statutes § 17a-112 (j) (3) (B). Following a three day trial, Judge Foley rendered judgment terminating the respondent’s parental rights, finding by clear and convincing evidence that the department had made reasonable efforts to reunify the respondent with Brianna but that the respondent had been unable to benefit from those efforts, that the respondent had failed to achieve sufficient personal rehabilitation to such a degree as to encourage a belief that she could assume a responsible position in Brianna’s life within a reasonable period of time and that termination of parental rights was in Brianna’s best interest. The court also issued a lengthy memorandum of decision setting forth the bases for its findings. This appeal followed. Additional facts will be set forth as necessary.

The standard of review we apply to claims of error on appeal from a judgment terminating parental rights is well established. We consider “whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutoiy grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. . . .

“The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. . . . We note that those seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered. . . . There is no requirement that each factor be proven by clear and convincing evidence.” (Citations omitted; internal quotation marks omitted) In re Rafael S., 125 Conn. App. 605, 610-11, 9 A.3d 417 (2010). With those general standards in mind, we now turn to the specific claims of error raised by the respondent.

I

The respondent first claims that the court improperly granted the petition to terminate her parental rights because the petitioner did not follow the laws and protocols for filing such petitions. In particular, she argues that the petitioner prematurely filed the petition because Brianna had been in the custody and care of the petitioner for only six months, which, according to the respondent, is far less than the fifteen to twenty-two months of custody mandated in the petitioner’s policy manual as a prerequisite to seeking termination of parental rights. According to the respondent, the premature filing of the petition evidenced the petitioner’s lack of any true intent to reunify her and Brianna and improperly limited the amount of time she had in which to demonstrate that she had achieved sufficient personal rehabilitation. Relying on the same section of the petitioner’s policy manual, she also argues that the termination of parental rights was inappropriate because Brianna was not under the age of seven at the time the petition was filed. We find the respondent’s arguments unpersuasive because they are based on a misunderstanding of the cited policy and other applicable law.

As long as there is clear and convincing evidence that a statutory ground for termination of parental rights exists, § 17a-112 (a) provides the petitioner with the authority to petition the court for the termination of parental rights with respect to any child who is committed to her care as the result of the child previously having been adjudicated as uncared for or neglected. There is no requirement in § 17a-112 or in any other relevant statute that a previously adjudicated child on whose behalf a petition to terminate parental rights is filed must have been in the custody of the petitioner for any specific period of time before such a petition may be filed. Similarly, there is no statutory requirement that a minor child fall within a particular age group in order for the petitioner to seek termination of a parent’s parental rights.

In support of her arguments that the petition to terminate her parental rights was premature and that Brianna was too old for the petitioner to seek to terminate the respondent’s parental rights, the respondent relies on language found in § 46-3-21.5 of the policy manual of the department. See Dept, of Children and Families, Policy Manual, Vol. II, § 46-3.21.5, available at http:// www.ct.gov/dcf/cwp/view.asp?a=2639&Q=395220 (last visited November 1, 2012). Our review of that policy section, however, indicates that it is inapplicable to the present situation and, therefore, does not provide any basis for reversing the court’s judgment.

Section 46-3-21.5 concerns the filing of coterminous petitions. Dept, of Children and Families Policy Manual, supra, § 46-3-21.5. A coterminous petition is defined as “the simultaneous filing of a neglect petition and a termination of parental rights petition on behalf of the same child, or the consolidation of the two petitions if the [petition to terminate parental rights] is filed before the neglect petition has been adjudicated.” Id. According to the policy, several factual scenarios would justify the filing of a coterminous petition, including when “the parent of a child, under the age of seven (7), has failed, is unable or unwilling to achieve such degree of rehabilitation as would encourage the belief that, within a reasonable period of time, considering the age and needs of the child, the parent could assume a responsible role in the life of the child and such parent’s parental rights were terminated on another child” or when “the child has been in the care and custody of [the department] for fifteen (15) consecutive months or fifteen (15) of the last twenty-two (22) months.” Id. It is the above quoted language that the respondent believes supports her arguments that the petition was premature and that Brianna was too old for the petitioner to seek to terminate the respondent’s parental rights.

The present case, however, did not involve a coterminous petition to terminate parental rights; accordingly, § 46-3-21.5 of the department’s policy manual is inappo-site. In the present case, the court adjudicated Brianna neglected on October 22, 2010, and, at that time, committed her to the custody of the petitioner. The petition to terminate parental rights was filed more than seven months later on June 9, 2011. Because Brianna previously had been adjudicated as neglected and remained in the petitioner’s custody, the petitioner was under no obligation to wait for fifteen months or any other specified length of time before petitioning for the termination of parental rights, assuming the petitioner otherwise could meet her burden of showing that there was a proper ground for termination and that termination was in the child’s best interest. See General Statutes § 17a-112. The fact that Brianna was not under the age of seven at the time that the petitioner sought to terminate the respondent’s parental rights also was not a determinative factor in whether the petition properly was before the court. We therefore must reject the respondent’s first claim.

II

We next address the respondent’s claims that the court impermissibly rendered judgment on the basis of discrimination and bias. The respondent argues in her brief that the court rendered judgment against her “based mostly on” the respondent’s “disability” and “socioeconomic status” in violation of her “civil and constitutional rights and in violation of the Americans with Disabilities Act [(ADA), 42 U.S.C. § 12101 et seq.].” The respondent suggests that the court favored terminating her parental rights and leaving Brianna in the care of Brianna’s uncle because he was gainfully employed, whereas she has been unemployed and collecting social security. The respondent also claims that the court made prejudicial, improper and sarcastic remarks to witnesses and to her trial counsel in violation of rule 2.8 of the Code of Judicial Conduct.

In support of her discrimination and bias claim, the respondent does not cite to any particular portions of the record or to specific passages in the court’s memorandum of decision that would tend to support a claim that the court discriminated against her or rendered judgment terminating her parental rights wholly on the basis of a disability or her socioeconomic status. The respondent does not identify the particular disability to which she is referring in her claim, nor does she explain what provision of the ADA the court allegedly violated in rendering judgment. The respondent, in fact, fails to provide any legal analysis of her claims beyond a recitation of article first, §§ 7 and 20, of the constitution of Connecticut. In support of her claim of prejudicial comments by the judge, the respondent claims there were inappropriate comments “throughout the trial pages.” Although she cites a few specific examples, she again provides no legal analysis relative to her claim that the referenced comments violated rule 2.8 of the Code of Judicial Conduct.

“Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law. . . . [W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Traylor v. State, 128 Conn. App. 182, 185 n.2, 15 A.3d 1173, cert. denied, 301 Conn. 927, 22 A.3d 1276 (2011). The respondent’s mere assertion that the court acted with bias in this matter and discriminated against her in violation of her constitutional rights is insufficient to satisfy minimal appellate briefing requirements. Because the respondent has not briefed her claim adequately, we decline to review it.

Ill

The respondent next claims that the court improperly admitted into evidence a police case report describing events that occurred on September 27, 2011, including the respondent’s arrest for breach of the peace. The respondent contends that the court improperly relied on the case report in reaching its decision to terminate her parental rights and that the petitioner improperly used the report to influence adversely the opinion and testimony of Suzanne Ciaramella, the psychologist who conducted two court-ordered psychological evaluations of the respondent. The respondent argues that the report was inadmissible pursuant to § 4-5 of the Connecticut Code of Evidence, which provides in relevant part that “[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.”

Before we can reach the merits of the respondent’s evidentiary claim, we first must determine whether the respondent properly preserved her claim for appellate review. “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) In re Tayler F., 111 Conn. App. 28, 45, 958 A.2d 170 (2008), aff'd, 296 Conn. 524, 995 A.2d 611 (2010). “[W]henever evidence is admitted without objection, the trier of fact can rely on its contents for whatever they are worth on their face.” (Internal quotation marks omitted.) In re Anna Lee M., 104 Conn. App. 121, 132, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).

Our review of the record reveals that the respondent’s appointed counsel indicated at trial that she had “[n]o objection” to the case report being offered as a full exhibit. The respondent cannot now claim that it was improper for the court to have admitted the report pursuant to § 4-5 of the Connecticut Code of Evidence when no such objection was raised before the trial court. Because the respondent’s evidentiary claim was not properly preserved, we decline to review the merits of her claim.

IV

We next consider the respondent’s claim that the court refused to allow her to call certain witnesses on her behalf allegedly in violation of her rights under article first, § 8, of the constitution of Connecticut and rule 2.6 of the Code of Judicial Conduct. According to the respondent, the court did not allow her trial counsel to call the guardian ad litem who had been appointed on behalf of Brianna’s half brothers as a witness at trial, and the court also “made it unable” for her counsel to recall her therapist and her psychiatrist to rebut the testimony of Ciaramella. Other than baldly asserting her claim, however, the respondent’s brief contains no legal analysis of the alleged violation of her state constitutional rights or of the court’s alleged judicial misconduct. As previously stated in this opinion, “[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Traylor v. State, supra, 128 Conn. App. 185 n.2. We decline to review the respondent’s claim because it has not been briefed adequately.

V

The respondent next claims that the court improperly rendered judgment terminating her parental rights despite a conflict of interest in violation of rule 2.11 of the Code of Judicial Conduct. The respondent states that, “within the same time frame” as the termination of parental rights proceedings, Judge Foley presided over a trial involving the brother of Judson F. The respondent has failed, however, to preserve this claim for appellate review because she never filed a motion for disqualification with the court pursuant to Practice Book § 1-23. See Danzig v. PDPA, Inc., 125 Conn. App. 242, 252 n.7, 9 A.3d 382 (2010), cert. denied, 300 Conn. 920, 14 A.3d 1005 (2011); Mortgage Electronic Registration Systems, Inc. v. Book, 97 Conn. App. 822, 828, 908 A.2d 547 (2006). The respondent also has failed to request that we apply the plain error doctrine. See Practice Book § 60-5; see also Mortgage Electronic Registration Systems, Inc. v. Book, supra, 828. Accordingly, we will not review her claim.

VI

Finally, the respondent argues that the petitioner failed to prove by clear and convincing evidence that the termination of parental rights was in the best interest of Brianna. The respondent argues that the evidence shows that, because of her age, Brianna has an absolute bond with the respondent and with her half brothers, and that removing her from the only family she has known for the majority of her life would not be in her best interests. We are not persuaded.

As previously stated, “[i]n the dispositional phase . . . the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. . . . It is well settled that we will overturn the trial court’s decision that the termination of parental rights is in the best interest of the children only if the court’s findings are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) In re Devon W., 124 Conn. App. 631, 648-49, 6 A.3d 100 (2010).

Here, the court considered and made specific written findings as to each of the factors set forth in § 17a-112 (k). Of particular relevance are the following factual findings. Although the department offered the respondent many services aimed at facilitating the return of her children, including domestic violence counseling, parenting education, supervised visitation, individual counseling and medication management, those services did not result in an improvement in the respondent’s functioning. “A child could not be placed with her with any confidence that [the respondent], awash in opiates, inclined to dysfunctional relationships and often a dishonest reporter, would properly supervise and care for Brianna.” Brianna has adjusted very well to living with her uncle and his family, and they have provided the day-to-day physical, emotional, moral and educational support that Brianna needs. Her uncle and aunt are committed to and would like to adopt Brianna. Although Brianna has a significant bond with her mother, that relationship is forced and lacks boundaries. The relationship is more of a friendship rather than a true mother-daughter relationship. Although ongoing contact between Brianna and the respondent would be desirable, the respondent’s conduct in undermining the parental authority control of her brother and his wife has made any temporary guardianship options unworkable and undesirable to them because they fear the financial and time constraints of continuous litigation with the respondent. Brianna is a nine year old child, and, as she approaches early adolescence, she needs a structured environment with strong parental models, which the respondent cannot provide. Although the respondent maintains consistent and regular contact with Brianna, she tries to undermine the uncle’s authority, putting Brianna in a position of divided loyalty.

On the basis of its findings and its consideration of all relevant factors, the court ultimately reached the conclusion that it was in Brianna’s best interest to terminate the parental rights of the respondent. Other than making generalized assertions that termination would not be in Brianna’s best interest, the respondent has failed to indicate which of the court’s many subordinate findings are clearly erroneous or to provide any analysis from which we could make such a determination. On the basis of our review of the trial court’s detailed memorandum of decision and the evidence contained in the record, we conclude that the court’s finding that the termination of the respondent’s parental rights is in the best interest of Brianna is well supported by the evidence and, therefore, not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of Brianna’s biological father, Thomas F., and denied a motion by the intervening maternal grandmother to transfer guardianship of Brianna to her. Because the respondent father has not appealed from the judgment terminating his parental rights and the maternal grandmother has not appealed from the denial of the motion to transfer guardianship, we refer to the respondent mother throughout this opinion as the respondent. We further note that, although the respondent was represented by counsel during the termination proceedings, she filed and argued this appeal as a self-represented party. See Practice Book § 35a-21.

       At the end of 2006, the respondent, who at the time was in the midst of divorcing her first husband, removed Brianna from day care and then went to the boys’ school, where she reported to school officials that the boys wanted to kill themselves and that she was removing them to take them to United Services, a behavioral health center. After the respondent took the boys from their classroom and left, the school reported the incident to the police. The police and a department investigator went to the respondent’s home to check on the welfare of the children. The respondent claimed that the children were not home, but the police found the children in the closet in the master bedroom covered with blankets and pillows. The children reported that the respondent had told them to hide and that they were scared. One of the children stated that the respondent had first tried to hide them in the drawers of a dresser, but that they would not fit. As a result of the petitioner’s ensuing investigation, a safety plan was implemented according to which the children were not to be in the unsupervised care of the respondent. Soon after, however, the department learned that the respondent was taking care of the children alone, and an order of temporary custody followed, removing the children from the respondent’s care.

       The court awarded custody of the two half brothers to their biological father.

       General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court . . . may grant a petition [to terminate parental rights] ... if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-lllb, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to taire to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child

       We note that, generally, it is our statutes and rules of practice that govern a court’s termination of parental rights.

       The language comports with § 17a-112 (j) (3) (B) (ii), which provides the court with the authority to adjudicate a termination of parental rights petition contemporaneously with a neglect petition, provided that the child in question “has been in the custody of the commissioner for at least fifteen months . . . .”

       Rule 2.8 (b) of the Code of Judicial Conduct provides in relevant part: “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity . . . .”

       Article first, § 8, of the constitution of Connecticut provides in relevant part that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf . . .

       Rule 2.6 (a) of the Code of Judicial Conduct provides: “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”

       Our review of the relevant transcript reveals that counsel for the respondent sought to call the half brothers’ guardian ad litem for the purpose of admitting a letter referred to in testimony by an earlier witness, but objected to by the petitioner as hearsay. Although counsel for the petitioner questioned the relevancy of the letter to the matter before the court, he nevertheless later agreed to allow the letter to come into evidence, thus apparently obviating any need for testimony by the guardian ad litem. We further note that the respondent has not identified any particular portion of the transcript evidencing the court’s denial of a request by counsel to recall any witness, nor does our review of the transcripts reveal any such request or refusal.

       Rule 2.11 (a) of the Code of Judicial Conduct provides in relevant part that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned . . . .”

       General Statutes § 17a-112 (k) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to acjjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


source: Caselaw Access Project

license: Public Domain

text:
    EUREKA V, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF RIDGEFIELD ET AL.
    (AC 33125)
    DiPentima, C. J., and Gruendel and Robinson, Js.

      Argued February 16
    officially released November 27, 2012

      Matthew Ranelli, with whom, on the brief, was Joseph P. Williams, for the appellant (plaintiff).

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

      Jessica Morowitz and Roger Reynolds filed a brief for the Connecticut Fund for the Environment, Inc., and Rivers Alliance of Connecticut, Inc., as amicus curiae.

      Elizabeth P. Gilson filed a brief for the Connecticut Water Works Association, Inc., as amicus curiae.
   Opinion

ROBINSON, J.

The plaintiff, Eureka V, LLC, appeals from the judgment of the Superior Court sustaining, in part, the plaintiffs appeal from the decisions of the defendant planning and zoning commission of the town of Ridgefield on the plaintiffs affordable housing applications, which sought amendments to the town’s zoning regulations and zoning map. On appeal, the plaintiff claims that the court improperly upheld that portion of the defendant’s decision that imposed conditions effectively banning development of affordable housing on a portion of the plaintiffs property located within a public water supply watershed area, including prohibiting the extension of municipal sewer lines into or through the watershed area. Because we conclude that the defendant failed to meet its statutory burden of establishing that the restrictions it imposed were necessary to protect a substantial public health or safety interest; see General Statutes § 8-30g (g) (1) (A); we reverse the judgment of the Superior Court and remand the matter for further proceedings.

The record reveals the following relevant facts and procedural history. The plaintiff is the owner of a 153 acre parcel of property located at 616 Bennett’s Farm Road in Ridgefield (subject property). Sixty-seven acres of the subject property are located within the watershed for the Saugatuck Reservoir, a source of public drinking water. In April, 2007, the plaintiff filed applications with the defendant pursuant to § 8-30g that sought the approval of amendments to the town’s zoning map and zoning regulations. At the time the plaintiff filed the applications, the subject property was zoned as a corporate development district, which permitted various types of commercial use but not residential development. The plaintiff proposed to amend the town’s zoning regulations to create a new housing opportunity development zone and to amend the town’s zoning map to reflect a rezoning of the subject property from a corporate development district to the newly created housing opportunity development zone. Along with its applications, the plaintiff submitted a conceptual site plan that illustrated the potential future development of the subject property as a site for residential housing. The conceptual site plan, as originally submitted, envisioned 509 residential units, divided roughly in half between three bedroom town homes and one and two bedroom apartments, approximately 30 percent of which would be affordable housing. The plaintiff was not seeking formal site plan approval of the conceptual site plan.

On November 13, 2007, after several days of public hearings, the defendant rendered its decision on the plaintiff’s applications. The defendant adopted much of the plaintiff’s proposed zoning regulation amendments with some significant modifications. For example, rather than amending the zoning regulations to create a new housing opportunity development zone as proposed by the plaintiff, the defendant instead modified the town’s existing housing opportunity development provisions so that they could be applied as an overlay zone to designated properties, including the subject property. In light of the overlay provisions, the defendant denied the plaintiff’s application to amend the zoning map to indicate a rezoning of the subject property.

Although the new zoning provisions adopted by the defendant permitted the development of affordable housing on the subject property, the regulations limited development to a lot density of 1.9 dwelling units per gross acre of land, which was substantially less than the fourteen units per acre density initially sought by the plaintiff. The newly adopted provisions also provided that all housing opportunity development dwelling units must be served by the municipal water and sewer system, and that no sewer line could be extended into or cross through the Saugatuck Reservoir public water supply watershed area, effectively prohibiting development of any residential units on the sixty-seven acres located in the watershed area. The defendant also made modifications to the regulations submitted by the plaintiff as to the required percentage of age restricted units, the number of allowable bedrooms per unit and the size of lot setbacks.

The defendant stated in its decision that the modifications it had made to the plaintiffs applications were necessary to protect the public’s interest in maintaining a safe and healthy public water supply, and that such public interests “clearly outweigh the need for affordable housing at the density and in the locations proposed by the [plaintiff] while still permitting a development under § 8-30g which is the largest affordable housing development ever considered in the [t]own of Ridgefield . . . .” The defendant further stated that its decision was supported by the strong opinions opposing the proposed development as expressed in letters from the state’s department of public health and from the Aquarion Water Company (Aquaiion), which owned and operated the Saugatuck Reservoir.

Rather than immediately appeal from the defendant’s November 13, 2007 decision, the plaintiff submitted a modified application in accordance with § 8-30g (h). One proposed revision was to allow residential units to be connected either to the municipal sewer system or to private septic systems. Another proposed revision was to limit development on the watershed portion of the subject property to a lot density of one unit per acre, thus resulting in a proposed 2.6 units per acre density for the overall site. Along with the modified application, the plaintiff submitted a new conceptual site plan that reflected a reduction in the total number of proposed units on the subject property in accordance with its proposed revisions from 509 to 389 total units, which included a marked reduction in the number of units proposed for the watershed area.

After a public hearing on the plaintiffs modified application, the defendant issued a February 12, 2008 decision that accepted in part and rejected in part the plaintiffs proposed modifications. The defendant refused to adopt the proposal to permit the use of private septic systems, maintaining its ban on any development on the sixty-seven acres located within the watershed area. The defendant also denied the proposal to increase the maximum lot density on the subject property from 1.9 to 2.6 units per acre, although it agreed to a more modest increase in lot density to two units per acre in order to accommodate the construction of some additional residential units on the nonwa-tershed portion of the subject property.

On April 17,2008, the plaintiff filed an appeal with the Superior Court challenging portions of the defendant’s November 13, 2007 and February 12, 2008 decisions. Specifically, the plaintiff challenged the two unit per acre lot density, the complete restriction of development on the sixty-seven watershed acres, the requirement that residential units connect to the town’s sewer system as well as the provisions establishing the percentage of age restricted units, the number of allowable bedrooms per unit and the size of side and rear yard setbacks.

On October 20, 2010, the court issued a decision that, in large part, sustained the plaintiffs appeal. The court concluded that the defendant’s decision to limit lot density to two units per acre on the nonwatershed portion of the subject property was arbitrary and that the defendant had failed to meet its burden to show that such a restriction was necessary to protect a public health and safety interest. The court similarly concluded that it could not uphold the defendant’s decision regarding the sewering requirements for the nonwatershed portion of the subject property because the defendant had failed to cite any substantial public interest that would be harmed by allowing sewering in the nonwatershed area either ft-om a neighboring city or by private septic systems. The court also determined that the defendant had failed to meet its burden of establishing that the adopted restrictions in the regulations regarding age of occupants, allowable number of bedrooms per unit and setback size were necessary to address a public health and safety concern or other substantial public interest.

With regard to the watershed portion of the subject property, the court concluded that the “weight of the evidence” supported the defendant’s decision not to permit the development of affordable housing because such a ban was necessary to protect the public’s substantial interest in maintaining a safe public drinking water supply. The court also upheld the defendant’s decision not to allow sewer lines to enter the watershed area or to permit private septic systems on watershed lands, again concluding that the possible degradation of the public water supply provided a sound basis for such a decision.

The court remanded the matter to the defendant with direction to approve the plaintiffs modified application under reasonably justified terms and conditions with regard to the nonwatershed portion of the subject property. The plaintiff filed this appeal challenging that portion of the court’s decision concluding that the defendant had “sufficiently demonstrated that precluding development of housing or sewer within the Sauga-tuck watershed land is necessary to protect a substantial public interest.”

We first address the legal framework that governs our consideration of the plaintiffs appeal. Section 8-30g sets forth the procedures and guidelines applicable to an affordable housing appeal. Section 8-30g (f) provides in relevant part: “Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development, may appeal such decision pursuant to the procedures of this section. . . .” (Emphasis added.) As previously noted, § 8-30g (g) provides in relevant part: “Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1) (A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development .... If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.”

In considering whether a decision that is the subject of a § 8-30g appeal is supported by sufficient evidence in the record to satisfy the requirement set forth in the first sentence of § 8-30g (g), our Supreme Court has instructed that “the court must determine whether the record establishes that there is more than a mere theoretical possibility, but not necessarily a likelihood, of a specific harm to the public interest if the application is granted. If the court finds that such sufficient evidence exists, then it must conduct a plenary review of the record and determine independently whether the commission’s decision was necessary to protect substantial interests in health, safety or other matters that the commission legally may consider, whether the risk of such harm to such public interests clearly outweighs the need for affordable housing, and whether the public interest can be protected by reasonable changes to the affordable housing development.” River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26, 856 A.2d 973 (2004). The foregoing determinations present “mixed factual and legal determinations, the legal components of which are subject to plenary review. . . . [T]he planning and zoning commission remains the finder of fact and any facts found are subject to the ‘sufficient evidence’ standard of judicial review.” (Citations omitted.) Id., 24. “Because the plaintiff[’s] appeal to the trial court is based solely on the record, the scope of the trial court’s review of the [commission’s] decision and the scope of [an appellate court’s] review of that decision are the same.” (Internal quotation marks omitted.) Id., 26 n.15.

I

Before turning to the merits of the appeal, we first briefly discuss the issue of aggrievement. Aggrievement is a threshold matter that implicates subject matter jurisdiction, and, therefore, whether raised by the parties or by the court sua sponte, it must be resolved before addressing claims raised on appeal. See PHH Mortgage Corp. v. Cameron, 130 Conn. App. 238, 241, 22 A.3d 1282 (2011), and cases cited therein. It is axiomatic that “[t]here is no absolute right of appeal to the courts from a decision of a [planning and zoning commission]. . . . Appeals to the court from [commissions] exist only under statutory authority .... Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.” (Internal quotation marks omitted.) Warner v. Planning & Zoning Commission, 120 Conn. App. 50, 61, 990 A.2d 1243, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). Section 8-30g (f) provides that an affordable housing appeal may be brought by any person whose affordable housing application either “is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units in a set-aside development . . . .’’(Emphasis added.) In the present case, the plaintiff s affordable housing applications as modified were not denied outright; rather, they were approved with restrictions. Accordingly, to satisfy the statutory provisions in § 8-30g (f) that confer standing to bring an affordable housing appeal, it was incumbent on the plaintiff to establish before the Superior Court that the defendant’s decisions created a substantial adverse impact either on the viability of the planned affordable housing development or on the degree of affordability of the planned affordable dwelling units. See Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 575-76, 735 A.2d 231 (1999) (where town grants application without imposing restrictions having substantial adverse impact on viability or affordability of affordable housing development no appeal lies pursuant to what is now § 8-30g (f), although traditional zoning appeal not precluded).

In its decisions on the plaintiffs affordable housing applications, the defendant repeatedly stated that “[t]here has been no evidence submitted by the [plaintiff] to establish that the [defendant’s decision] has had a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units.” The plaintiff nevertheless alleged in its appeal to the Superior Court that “[the defendant]’s resolution approving the [housing opportunity development] amendment with substantial modifications . . . substantially reduces or destroys the viability and affordability of the proposed plan.” In its decision on the merits, the Superior Court disposed of the threshold issue of aggrievement by stating that the plaintiff was aggrieved on the basis of its ownership of the subject property, although that fact alone would not be sufficient to establish statutory aggrievement under the previously stated provision of § 8-30g (f). Given the defendant’s finding that the plaintiff had not presented evidence necessary to establish aggrievement under § 8-30g, and because the plaintiff initially did not provide this court with transcripts of the proceedings before the Superior Court, our review of the record left us with some concern as to whether the court properly had exercised jurisdiction over the present appeal.

We asked the parties to file supplemental briefs addressing the issue of statutory aggrievement pursuant to § 8-30g and whether, if absent, the Superior Court nevertheless had the authority to consider the plaintiffs appeal pursuant to its authority to adjudicate zoning appeals pursuant to General Statutes § 8-8 (b). As part of its response to our supplemental briefing order, the plaintiff filed that portion of the transcript before the Superior Court in which the plaintiff had endeavored to present its aggrievement evidence to the court. Having now reviewed that transcript, in which counsel for the defendant did not object to the assertion of the plaintiffs fact witness that the restrictions imposed by the defendant would, in fact, substantially and adversely affect the viability of the plaintiffs project, we conclude that the plaintiff met its burden, albeit minimally, of presenting evidence sufficient to establish aggrievement to bring the present affordable housing appeal. We turn, therefore, to the merits of the appeal.

II

As indicated, the decisions under review are not an outright denial of the plaintiffs applications. Rather, the defendant accepted with modifications the zoning changes sought by the plaintiff, thereby setting the stage for the future development of the subject property as a site for affordable housing while, at the same time, attempting to protect a source of public drinking water by concentrating any development to the nonwatershed portion of the property. The defendant reasoned that allowing development on the watershed portion of the property, at least at the density proposed by the plaintiff, could present more than a theoretical possibility of harm to the Saugatuck Reservoir public water supply watershed area.

The plaintiff cannot, and does not, dispute that the protection of public drinking water supplies is a legitimate public health and safety concern that the defendant properly considered in evaluating the plaintiffs applications. Any substantial risk to the public’s legitimate interest in maintaining safe and healthy drinking water certainly could outweigh the need for affordable housing. In this regard, the state legislature has provided that local zoning commissions, in enacting zoning regulations and local conservation and development plans, should give reasonable consideration toward “the protection of existing and potential public surface and ground drinking water supplies.” General Statutes §§ 8-2 (a) and 8-23 (d). It is among the water resources policies of this state “(1) [t]o preserve and protect water supply watershed lands and prevent degradation of surface water and groundwaters; (2) to protect groundwater recharge areas critical to existing and potential drinking water supplies; (3) to make water resources conservation a priority in all decisions ... (5) to prevent contamination of water supply sources or reduction in the availability of future water supplies . . . .” General Statutes § 22a-380.

Our review of the record reveals that the defendant was presented with conflicting evidence regarding the potential impact that development of the subject property would have on the safety of the public drinking water supply. John Block and Peter Galant addressed the defendant on behalf of the plaintiff. Galant is the vice president of Tighe and Bond, Inc., the engineering and environmental consulting company hired by the plaintiff to analyze the means of providing water and sewer service to the subject property, and Block is a registered professional engineer employed by Tighe and Bond, Inc. Block spoke regarding sewer options and on-site storm water management, and Galant spoke about the watershed and watershed protection. Block opined that “there [would be] no increase in public health and safety issues associated with sewage, as well as with storm water management elements related to the zoning change.” He indicated that the plaintiff intended to construct an on-site wastewater treatment facility outside of the watershed area to handle stormwater runoff and that the plaintiff was committed to employing good engineering principles, best management practices and state-of-the-art technology in preparing its water and sewage management plans. Block acknowledged that more detailed plans would be revealed during the formal site plan approval process.

Galant noted that the subject property currently was zoned for commercial use, which, in his opinion, had the potential of exposing the subject property to uses that could present a far higher risk of harm to the public water supply than the residential use proposed in the plaintiffs applications. He also explained and illustrated by use of a map that the subject property was located in the “far reaches” of the Saugatuck Reservoir watershed, and comprised only .2 percent of the entire watershed area, so that there would be ample opportunity for renovation and dilution of any potentially contaminated water from the proposed site.

In setting forth the reasons why it chose not to adopt the applications as submitted, however, the defendant chose not to credit the opinions offered by Galant and Block. Instead, the defendant based its decision on the opinions expressed in letters from the state’s department of public health and Aquarion, both of which opposed the plaintiffs applications as submitted. See Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995) (within province of commission to decide whether to give credence to expert opinions).

The June 15,2007 Aquarion letter was signed by Brian T. Roach, a senior environmental analyst for Aquarion. Roach stated that any high density residential development on the watershed, such as that proposed by the plaintiff, had been shown “to create significantly more adverse effects to water quality than those associated with less intensive, large-lot residential development.” Roach also attempted to counter the argument that effects on the water supply would be minimized by the remote location of the subject property with respect to the reservoir and the small size of the watershed area at issue when compared to the entire watershed. He explained that the defendant must also consider the potential cumulative impacts on water quality, noting: “A specific development may not in itself have a deleterious impact on a water supply reservoir. However, the cumulative impact of a number of discrete projects may result in negative impact on water quality.”

In support of his position, Roach cited favorably to the state’s department of environmental protection publication, “Protecting Connecticut’s Water-Supply Watersheds: A Guide for Local Officials,” a copy of which was part of the record before the defendant. He noted that the report contains an indication that “a maximum density of [one] dwelling per [two] acres will provide adequate protection of water quality” provided that reasonable pollution control measures are followed. Roach also indicated that the proposal to permit the running of sewer lines through the watershed portion of the subject property was “the most alarming aspect” of the plaintiffs plan given that sewer system failures are commonplace and well documented. Aquarion made clear its belief that permitting the pumping of sewage through the watershed “would create an unacceptable risk of pollution to the [Saugatuck] Reservoir,” although it provided no quantitative assessments of the potential level of harm to the watershed or of the probability that the harm actually would occur if the plaintiff’s applications were granted.

The letter from the department of public health was signed by Lori Mathieu, supervisor of the department’s source water protection unit. According to Mathieu, the zoning changes as proposed in the plaintiffs initial applications were inconsistent with the state’s conservation and development plan, which recommended that intensive development be guided away from water supply watersheds. In reference to the applications being considered by the defendant, Mathieu stated that the proposed zoning changes had “the potential to increase the risk to public health due to the high density residential land use.” Mathieu also stated that “direct harm to the public will be realized by allowing for intensive land use that is inconsistent with long standing” state water source protection policies and that developments of the size and density proposed “have not been allowed within the state’s public water supply watershed areas due to [those policies].” The letter concluded: “Finally, consistent with the [state’s conservation and development policies], when public drinking water supply watershed and groundwater recharge area land is developed, low density residential development is the least impacting and most preferable land use from a public health perspective. Use of minimum sustainable lot sizes of two or more acres should adequately protect public drinking water supplies while allowing community growth.”

On the basis of our plenary review of the record and the reasons cited by the defendant for its decisions, we conclude that there was sufficient evidence before the defendant to support its initial determination that the granting of the plaintiffs applications as submitted would present more than a mere theoretical possibility of a specific harm to the public’s substantial interest in maintaining a safe and healthy drinking water supply. Accordingly, the defendant was justified in making modifications to the applications. Nevertheless, the defendant failed to meet the additional burden imposed by § 8-30g to prove that the modifications that it chose to adopt were necessary to protect that public interest.

Neither of the letters discussed previously in this opinion, both of which the defendant cited as the reason for its modifications to the plaintiffs applications, recommended a complete ban on residential development on the watershed portion of the subject property. The Aquarion letter advised only that “high density” residential development should be avoided. The letter cited agreement with the state’s guidelines that “adequate protection of water quality” could be achieved by allowing density of one dwelling unit per two acres. The department of public health letter similarly concluded that two acre lots “should adequately protect public drinking water supplies while allowing community growth.” Thus, the evidence before the defendant was that development of the size and density proposed by the plaintiff should not be permitted on the watershed portion of the subject property because such development would pose a substantial risk to the public drinking water supply. The evidence supported limiting development on the watershed portion of the subject property to a density of not more than one dwelling unit per two acres; it did not support an outright ban. Although the defendant’s ultimate choice, clearly made out of an abundance of caution, to ban all development on the watershed area and to increase development on the nonwatershed portion of the subject property as an offset may have been a reasonable solution, the test we must apply under § 8-30g is not whether the defendant’s decision was reasonable, but whether the decision was necessary. Because the evidence in the record shows that allowing development at a lower density than that sought by the plaintiff could have adequately protected the public’s interest in safe drinking water, the outright ban was not a necessary precaution.

Finally, the plaintiff claims that the defendant’s decision to prohibit extension of public sewers through the watershed portion of the subject property for the purpose of serving affordable housing is not supported by the record, is based on generalized fears and “guidance documents” and is inconsistent with the defendant’s treatment of all other watershed property in Ridgefield. We agree that, as with the outright ban on development in the watershed area, the defendant has failed its evidentiary burden of showing that a ban on sewering within the watershed area is necessary to protect the public’s interest in safe drinking water.

In Kaufman v. Zoning Commission, supra, 232 Conn. 154-56, our Supreme Court rejected a defendant commission’s citing of potential harm to the Lake Keno-sia watershed as the basis for denying an application for a zone change necessary to accommodate the development of affordable housing on the plaintiffs property. In discussing the commission’s burden of showing a reasonable basis in the record for concluding that its decision was necessary to protect substantial public interests, the court explained that the record needed to “contain evidence concerning the potential harm that would result if the zone were changed . . . and concerning the probability that such harm in fact would occur.” (Emphasis added.) Id., 156. The Supreme Court determined that the record before the commission contained no evidence that either quantified the potential level of harm to the watershed or estimated the probability that such harm would actually occur if the commission granted the requested zone change. Id., 162. Here, as in Kaufman, the defendant made its decision to ban all sewering in the watershed portion of the subject property solely on the basis of generalized evidence of the potential for harm to watersheds from sewer line breaks and other potential avenues for contamination, without any evidence of the likelihood that such harm actually might occur on the subject property or establishing the level of harm that might result. Without such evidence, the defendant could not determine that its decision was necessary to protect the public’s interest vis-a-vis the watershed or that the harm clearly outweighed the town’s need for affordable housing.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs appeal as to the density and sewering restrictions imposed by the defendant with regard to the watershed portion of the subject property and to remand the matter to the defendant with direction to approve the plaintiffs applications under reasonably justified terms and conditions with regard to the watershed portion of the subject property in accordance with this opinion.

In this opinion the other judges concurred.

       We refer to the planning and zoning commission of the town of Ridgefield as the defendant throughout this opinion. Ridgefield Open Space Association, Inc., and Connecticut Fund for the Environment, Inc., intervened in the administrative proceedings before the defendant pursuant to General Statutes § 22a-19, and the plaintiff initially named both of those entities as additional defendants in its administrative appeal to the Superior Court. The plaintiff, however, later withdrew the appeal as to both. After the appeal was filed with the Superior Court, the town of Ridgefield filed a motion to intervene as a party defendant pursuant to § 22a-19. Although the court granted the motion to intervene, it does not appear from the record before us that the town participated further in the proceedings before the Superior Court. The town of Ridgefield is not listed as a party on the trial court’s docket sheet, and it is not a party to the present appeal.
      We granted Connecticut Fund for the Environment, Inc., and Rivers Alliance of Connecticut, Inc., permission to file a joint amicus brief in support of the defendant’s decision. Connecticut Water Works Association, Inc., also was permitted to file an amicus brief supporting the position of the defendant.

       General Statutes § 8-30g (g) provides: “Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record. The commission shall also have the burden to prove, based upon the evidence in the record compiled before such commission, that (1) (A) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and (C) such public interests cannot be protected by reasonable changes to the affordable housing development, or (2) (A) the application which was the subject of the decision from which such appeal was taken would locate affordable housing in an area which is zoned for industrial use and which does not permit residential uses, and (13) the development is not assisted housing, as defined in subsection (a) of this section. If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.”

       The plaintiff also filed an application seeking changes to the town’s plan of conservation and development. The defendant’s resolution of that application is not at issue in the present appeal.

       The defendant later agreed to amend the zoning map to reflect the two parcels, including the subject property, that were designated as eligible for application of the overlay provisions.

       General Statutes § 8-30g (h) provides in relevant part: “Following a decision by a commission to reject an affordable housing application or to approve an application with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units, the applicant may, within the period for filing an appeal of such decision, submit to the commission a proposed modification of its proposal responding to some or all of the objections or restrictions articulated by the commission, which shall be treated as an amendment to the original proposal. The day of receipt of such a modification shall be determined in the same manner as the day of receipt is determined for an original application. The filing of such aproposed modification shall stay the period for filing an appeal from the decision of the commission on the original application. . . . Within the time period for filing an appeal on the proposed modification as set forth in section 8-8, 8-9, 8-28,8-30 or 8-30a, as applicable, the applicant may appeal the commission’s decision on the original application and the proposed modification in the manner set forth in this section. ...”

       Although the court remanded the matter to the defendant, we conclude that the present appeal nevertheless was taken from an appealable final judgment pursuant to Kaufman v. Zoning Commission, 232 Conn. 122, 131, 653 A.2d 798 (1995) (holding remand order that directed zoning commission to approve application and that gave opportunity for commission to impose reasonable conditions was appealable final judgment because order did not require commission to hear additional evidence and proceedings on remand could not deprive plaintiff of changes trial court ordered).

       Our Supreme Court has explained that “the key purpose of § 8-30g is to encourage and facilitate the much needed development of affordable housing throughout the state. . . . Requiring the town to state its reasons on the record when it denies an affordable housing land use application will further that purpose because it will help guard against possibly pretextual denials of such applications.” (Citation omitted; internal quotation marks omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 577, 735 A.2d 231 (1999).

       General Statutes § 8-8 (b) provides in relevant part: “Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147Í, any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6. . .

       The relevant colloquy from the July 16, 2010 direct examination of the plaintiffs witness, John Sanders, is as follows:
      “[The Plaintiffs Counsel]: Will the, will the restrictions imposed by the [defendant] substantially and adversely affect the viability of the project for [the plaintiff]?
      “[The Witness]: Yes, they will.
      “[The Plaintiffs Counsel]: And—
      “[The Defendant’s Counsel]: Your Honor, if I may.
      “The Court: Yes.
      “[The Defendant’s Counsel]: Just for the record, the [defendant] is not taking any position on it or objecting to the finding of an aggrievement here.
      “The Court: All right.
      “[The Plaintiffs Counsel]: Okay. Well, in that case—
      “The Court: WeE, I think you — you’re right that you, even though you’re not taking a position, you have to put this on the record. And if he were not able to say it wiE affect, then obviously there would be a problem. But, here you’ve got deeds, you’ve got the fact that he says it affects, I don’t think we reaEy have to belabor the point.
      “[The Plaintiffs Counsel]: Just being cautious, Your Honor.
      “The Court: Okay.
      “[The Plaintiffs Counsel]: That’s fine. Thank you, Mr. Sanders.
      “The Court: Did you have any questions, sir?
      “[The Defendant’s Counsel]: I do not, Your Honor. I do not.
      “The Court: Okay.
      “[The Defendant’s Counsel]: And that’s why—
      “The Court: AE right.
      “[The Defendant’s Counsel]: —I interjected—
      “The Court: Sure.
      “[The Defendant’s Counsel]: —that we weren’t taking a position.
      “The Court: I think we’re all set on aggrievement.”

       The defendant, in addition to addressing the aggrievement issue as framed in our supplemental briefing order, also raised as an additional argument that the plaintiff was not aggrieved by the defendant’s action on its application for changes to the zoning regulation because the plaintiff could always submit an affordable housing site plan application that did not comply with all aspects of the regulations as adopted by the defendant. The defendant relies on a Superior Court’s analysis of our decision in Wisniowski v. Planning Commission, 37 Conn. App. 303, 311-18, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995), in which we held that the defendant planning commission could not justify the denial of an affordable housing development application on the ground that the proposed development would not be in compliance with existing zoning regulations. Although we agree with the defendant that the plaintiff could submit an application for site plan approval that fails to comply with the newly adopted regulations, we are not persuaded that that opportunity in any way negates statutory aggrievement as established in the present case. To hold otherwise would effectively eliminate the right of a party to appeal from a ruling on any application for a zone change or change to zoning regulations in connection with an affordable housing development that did not simultaneously seek site plan approval. Such a holding would run afoul of prior Supreme Court holdings and legislative intent, and, thus, we will not consider it further. See General Statutes § 8-30g (a) (2); Kaufman v. Zoning Commission, 232 Conn. 122, 140, 653 A.2d 798 (1995) (§ 8-30g is remedial statute that must be liberally construed in favor of those whom legislature intended to benefit);
        West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508-509, 636 A.2d 1342 (1994) (§ 8-30g applies without qualification to any type of application filed in connection with affordable housing proposal).