author: PETERS, J.

text:
    STATE OF CONNECTICUT v. THOMAS WALCZYK
    (AC 22055)
    Lavery, C. J., Schaller and Peters, Js.
    Argued February 11
    officially released April 8, 2003

      Jon L. Schoenhom, with whom, on the brief, was Matthew D. Dyer, certified legal intern, for the appellant (plaintiff).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Mark W. Brodsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

This appeal concerns the validity of a search warrant that produced evidence of violations of General Statutes § 29-37Í, which penalizes the improper storage of firearms to which children might have access. The warrant was issued to obtain evidence of the crime of threatening under General Statutes (Rev. to 1999) § 53a-62, but the defendant was acquitted of that charge. A valid warrant would nonetheless have authorized the seizure of the defendant’s firearms, which were in plain view when the police conducted their search. We must decide whether there was probable cause to issue the search warrant to obtain evidence of threatening. We conclude that there was not. We therefore reverse the judgment of the trial court convicting the defendant of two violations of § 29-37Í and order repayment of the fines that the defendant was ordered to pay.

This case has a convoluted procedural history. As the result of a conversation between a police officer and the defendant, Thomas Walczyk, the state filed a ten count information against him. The state charged the defendant with risk of injury to a child under General Statutes (Rev. to 1999) § 53-21. The trial court acquitted him of that charge. The state also charged him with threatening under § 53a-62. The jury acquitted him of that charge. Further, the state charged him with disorderly conduct under General Statutes (Rev. to 1999) § 53a-182 (a) (2) and reckless endangerment under General Statutes § 53a-64. Although the jury found him guilty of those charges, the state now concedes it produced insufficient evidence to support the conviction on those charges. The state asks us to affirm the conviction only on two charges of violating the improper firearm storage statute. Although the state charged the defendant with six violations, arising out of the defendant’s possession of the six firearms listed in the search warrant, the court found him guilty of only two. The court sentenced him to pay a fine of $100 for each of these charges, and the defendant appeals.

I

The first issue that we must address is whether this appeal has become moot because the defendant appears to have paid the fines arising out of his conviction under § 29-37Í. There are no longer any other outstanding charges against him. Under General Statutes § 54-96a, payment of fines before an Appellate Court hearing “shall vacate the appeal and restore the judgment [of the trial court].” We asked counsel to address whether this case has become moot because we can no longer afford the defendant any practical relief. “[A]n appeal is considered moot if there is no possible relief that the appeals court can grant to the appealing party, even if the court were to be persuaded that the appellant’s arguments are correct.” Wallingford Center Associates v. Board of Tax Review, 68 Conn. App. 803, 807, 793 A.2d 260 (2002); see also Hilton v. New Haven, 233 Conn. 701, 726, 661 A.2d 973 (1995). If a case has become moot, we lack subject matter jurisdiction to address its merits. See Loisel v. Rowe, 233 Conn. 370, 377-78, 660 A.2d 323 (1995); Grimm v. Grimm, 74 Conn. App. 406, 411, 812 A.2d 152 (2002).

At oral argument before this court, counsel for the defendant argued that the appeal is not moot because the defendant had paid the fines involuntarily. He represented that the defendant had been required to pay the fines as a special condition of his probation, which the court had imposed in conjunction with his trial court conviction of disorderly conduct and reckless endangerment. The state has not challenged the accuracy of the defendant’s representation. We are persuaded that § 54-96a does not govern the involuntary payment of fines. On the present record, we agree with the defendant that his appeal is not moot. If he prevails in this appeal, he has a claim for monetary relief.

II

We turn now to the merits of the defendant’s claim that he was wrongfully convicted of having violated § 29-37Í. The parties agree that the resolution of this claim depends upon the validity of the search warrant that authorized the police to search two residences, his own and that of his father, in connection with the charge that he had committed the crime of threatening under § 53a-62. We agree with the defendant that the trial court improperly denied his motion to suppress the evidence obtained through the use of the search warrant.

The underlying facts are undisputed. The defendant and an adjoining landowner have long been at odds about the boundary line between their properties. Although the adjoining landowner had repeatedly initiated the defendant’s arrest on issues raised by this dispute, the record does not indicate that the defendant has ever been convicted of any of those alleged crimes. Four months before the present incident, a police officer had advised the defendant that, if he believed that someone was trespassing on his property, he should not take the matter into his own hands, but instead should call the police to take care of the problem.

On August 30, 1999, the defendant observed that a locked gate on his property had been knocked down and that a logging skidder had been parked on property that he thought belonged to him. He called the police to report this alleged trespass. In response, Officer David Hebert of the Farmington police department came to the defendant’s house. Hebert advised him to file a civil action to establish his property rights but indicated that he would take no further action until the defendant could produce authoritative evidence of ownership. The defendant then told Hebert that “the police weren’t taking the necessary action to avoid a bloodbath.” Before he left, Hebert warned the defendant that he would be arrested if he interfered with the work that was being done by the adjoining landowner. During this conversation, the defendant was not armed and did not refer to firearms in any way. Hebert was annoyed and offended by the defendant’s “bloodbath” statement, but did not feel threatened thereby.

Upon returning to the police station, the officer informed his colleagues of what had transpired. This information was relayed to the abutting landowner. On September 4, 1999, the police obtained both an arrest warrant for the defendant and a search warrant for his residence and that of his father. Both warrants were executed on September 7, 1999.

Without informing the defendant of the arrest warrant, the police asked him to come to the police station to discuss the property dispute. He was then arrested and incarcerated. He was not told that the police were in the process of searching the family homes. Under arrest, the defendant had no opportunity to protest the execution of the search warrant.

Once the defendant had left his residence, a team of eight to ten police officers was dispatched to search the two residences. In addition to seizing the six firearms specifically identified in the search warrant, the officers saw and seized a large number of firearms, piles of ammunition and related paraphernalia. In the view of the police, several of the firearms were loaded. The officers knew that the defendant’s firearms were registered and licensed to him because that information, contained in records at the police station, was the source of their identification of the weapons for which they would search.

At trial, the defendant properly challenged the validity of the search warrant by filing a pretrial motion to suppress the evidence so obtained for lack of probable cause to conduct the search. Without elaboration, the trial court denied the motion.

On appeal, the defendant again argues that the search warrant violated his rights under the fourth amendment to the United States constitution and the constitution of Connecticut, article first, § 7, because the warrant was issued without probable cause to do so. “Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” (Internal quotation marks omitted.) State v. Mordowanec, 259 Conn. 94, 110, 788 A.2d 48, cert. denied, 536 U.S. 910, 122 S. Ct. 2369, 153 L. Ed. 2d 189 (2002); State v. Martinez, 51 Conn. App. 59, 66, 719 A.2d 1213, cert. denied, 247 Conn. 952, 723 A.2d 324 (1998). The defendant maintains that the search warrant (1) failed to establish probable cause of criminal activity and (2) failed to describe the property to be searched with sufficient particularity.

“Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on [that] issue, therefore, is subject to plenary review on appeal.” (Internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 864, 776 A.2d 1091 (2001); State v. Arline, 74 Conn. App. 693, 699, 813 A.2d 153, cert. denied, 263 Conn. 907, 819 A.2d 841 (2003). The facts to be considered are those contained within the four comers of the affidavit presented to the magistrate. State v. Respass, 256 Conn. 164, 172, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001); State v. Martinez, supra, 51 Conn. App. 66; see also State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

In undertaking our plenary review, we defer, if possible, to the reasonable inferences drawn by the magistrate from the affidavit before him. Nonetheless we have an independent responsibility to ascertain whether a search warrant passes constitutional muster. Considering the facts alleged in the affidavit in this case, we conclude that this is one of the rare cases in which the magistrate acted improperly. It follows that the trial court improperly denied the defendant’s motion to suppress the evidence obtained as a result of the execution of the search warrant.

The affidavit on which the magistrate relied in finding probable cause that a search would uncover evidence of threatening contained thirteen allegations of fact. The relevant paragraphs contain the following seven allegations:

“2. On 08-30-99, Officer Hebert of the Farmington Police Department responded to a trespassing complaint made by [the defendant], . . . [The defendant has had a long-standing dispute about the boundary line of his own property and that of a specific neighbor.] [The defendant] told Officer Hebert that the Farmington Police were not taking the action needed to avoid a ‘bloodbath.’

“Officer Hebert reported [the defendant’s] complaint to . . . the owner of the land in question. As a result of [the defendant’s] threat of a ‘bloodbath,’ [attorney] Robert Reeve, representing [that landowner], contacted [Captain] James Rio of the Farmington Police Department. [The attorney] expressed concerns for the safety of employees during imminent construction work planned for [the adjoining property]. He requested extra police protection during work periods.

“3. In the early spring of 1999, the Farmington Police Department received a letter from [the attorney for the adjoining landowner] along with a copy of a March 14, 1997 decision made by the State of Connecticut Superior Court regarding the issue of the land in question. The decision by Judge Christine E. Keller was in favor of [the adjoining landowner], and stated that [the defendant] has no estate, interest in or encumbrance of said real property or any part thereof.

“4. During late winter of 1998 and early spring of 1999 [the defendant] came to the Farmington Police Department to speak with [Captain] Rio about the land dispute and the impending land development. He told [Captain] Rio at that time that he had a common law right to the property because he had been farming and maintaining it for some time. [The defendant] said that he was in the process of getting a Superior Court ruling to reverse the one made [in favor of the adjoining landowner]. He claimed that [a witness] had perjured himself and that the presiding Judge had acted inappropriately. [Captain] Rio explained that the Farmington Police had been advised of the ruling in favor of [the adjoining landowner] and that until we were officially notified otherwise, all parties and the police department would have to abide by the last court ruling. [The defendant] responded that, ‘If you guys don’t comply with what I’m telling you I’ll take matters into my own hands.’ [Captain] Rio advised the [the defendant] against any illegal actions to which [the defendant] responded that he would, ‘. . . do what [he] had to do to protect his property.’

“5. The Farmington Police Department has investigated [the defendant] on previous occasions for incidents involving threatening during which times he has either threatened the use of or displayed a gun.

“6. On 09-15-96 Officer Charette of the Farmington Police Department investigated a disturbance [on the defendant’s street] involving [the defendant] and his brother. The argument was over property [on the defendant’s street] for which [the defendant] was suing his parents. [The defendant’s brother] claimed that the defendant had pushed him and threatened to shoot him. His brother felt no imminent threat but was concerned because he knew that [the defendant] owned numerous guns. [The defendant] denied making the statement and no arrest was made.

“7. On 02-15-92, [the defendant] was arrested in Farmington for cruelty to animals and unlawful discharge of a firearm. Neighbors reported seeing him shoot a cat on his property with a handgun.

“8. On 12-08-90 neighbors complained that [the defendant] was shooting guns on property at the end of [the defendant’s] street. He was shooting but was not in violation.

“9. On 07-30-90 [the defendant] was arrested by the Farmington Police for threatening. A motorist followed [the defendant] home to complain about the way he was driving. The defendant went inside and came back with a A-K assault rifle and an argument ensued. The assault rifle was taken as evidence. It was loaded with twenty rounds of ammunition.

“10. On 03-24-88 the Farmington Police Department responded to a disturbance [on the defendant’s street]. The disturbance was over the same land dispute between [the defendant] and [his adjoining neighbor], [Employees of the adjoining landowner] were working on the land. [The defendant] approached them carrying an AR 15 assault rifle ordering them to get off his property. One of the employees complained that [the defendant] had pointed the gun directly at him. [The defendant] was arrested for threatening, reckless endangerment, and interfering with police. He denied actually pointing the gun at anyone. The gun was seized as evidence. It contained one .223 round in the chamber and twenty-nine rounds in the magazine. [The defendant] fought with officers prior to being arrested.

* * *

“12. That a review of Farmington Police records indicate that [the defendant] has maintained residences at [two identified numbers on Ms street]. That town of Farmington property records show that [one of the residences] is owned by [the defendant’s father] and the [other residence] is owned by [the defendant].”

In a one sentence memorandum of decision, the trial court demed the motion to suppress, stating that it had “reviewed the warrant and listened to the arguments.” Taking into account the deference to be given to the decisions of fellow judges, the court noted that, if it had any doubt, it had resolved that doubt in favor of the issuing magistrate. It did not respond in any fasMon to the defendant’s argument about alleged shortcomings m the affidavit to provide probable cause for the crime of tMeatening. Without comment, it demed a subsequent motion for articulation.

We have before us the same record that was before the trial court. Our plenary review of the court’s demal of the motion to suppress persuades us that the court should have granted the defendant’s motion.

We start our analysis by noting what the affidavit does not say. It does not attempt to reconcile a construction of the “bloodbath” statement as a threat in the second subparagraph of paragraph two with the statement in the first subparagraph of what the defendant actually had said. It does not state that any of the alleged earlier incidents of misconduct resulted in the defendant’s conviction of tMeatening or of any other crime. It does not distinguish between recent incidents and those that have become stale by passage of time. It does not represent that the defendant’s possession of firearms was illegal. It does not indicate wMch of the specifically described firearms would likely be found in the defendant’s residence and which would likely be found in his father’s residence. Indeed, it does not allege any criminal behavior at all on the part of the defendant’s father.

What remains are slim pickings. We can discern only two assertions of fact that might establish probable cause to search the defendant’s residence for firearms on August 30, 1999. Neither singly nor jointly do these facts suffice.

One assertion in the affidavit is that the defendant and his neighboring landowner were engaged in a property dispute. The neighbor felt concern for the safety of his employees on the basis of hearsay that the neighbor might have misunderstood. The voicing of this concern does not warrant an inference that the neighbor’s apprehension was appropriate. A statement to a police officer that “there will be a bloodbath” if the police took no action does not give rise to probable cause to believe that the defendant intended to resolve the dispute by threatening his neighbor by the use of any of the firearms that were registered in the defendant’s name.

A second assertion is that the defendant deplored the failure of the police to take action against the neighboring landowner. On an earlier occasion, the defendant had told Rio that, in the absence of police action, he would take matters into his own hands and do what he had to do to protect his property. He was advised not to do so and, indeed, in this case, he followed instructions to report any possible trespass to the police. Hebert came to the defendant’s residence at the defendant’s request. Hebert was not there in response to an incident in which the defendant had threatened the neighboring landowner, his employees or anyone else. A statement to a police officer that the police needed to act to avoid a “bloodbath” cannot be the basis of probable cause to believe that the defendant, at that time or in the immediate future, would engage in threatening behavior.

We conclude, therefore, that the affidavit in this case was defective in at least two respects. It did not establish probable cause that, on August 30,1999, the defendant had committed the crime of threatening. Further, it did not establish that the firearms to be seized were connected with any criminal activity on that date. The magistrate improperly concluded that the affidavit showed probable cause to search the defendant’s residence and the trial court improperly denied the defendant’s motion to suppress the evidence seized in accordance with the warrant.

Concededly, apart from the firearms that were seized as a result of this defective search warrant, the state introduced no independent evidence that the defendant had improperly stored firearms in violation of § 29-37L We conclude, therefore, that there was insufficient evidence to support the defendant’s conviction on those charges.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty of all of the charges filed against the defendant and to refund $200 to the defendant with interest, if applicable.

In this opinion the other judges concurred.

       General Statutes § 29-37Í provides: “No person shall store or keep any loaded firearm on any premises under his control if he knows or reasonably should know that a minor is likely to gain access to the firearm without the permission of the parent or guardian of the minor unless such person (1) keeps the firearm in a securely locked box or other container or in a location which a reasonable person would believe to be secure or (2) carries the firearm on his person or within such close proximity thereto that he can readily retrieve and use it as if he carried it on his person. For the purposes of this section, ‘minor’ means any person under the age of sixteen years.” Concededly, three minors lived in the defendant’s residence.

       General Statutes (Rev. to 1999) § 53a-62 (a) provides: “A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.”

       General Statutes (Rev. to 1999) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

       General Statutes (Rev. to 1999) § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (2) by offensive or disorderly conduct, annoys or interferes with another person . . . .”

       General Statutes § 53a-64 (a) provides: “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical ipjury to another person.”

       The record does not disclose the distinction upon which the court relied to hold the defendant guilty of the first two charges under General Statutes § 29-37Í and not guilty of the remaining four. Each involved possession of a specifically identified firearm.

       General Statutes § 54-96a provides: “Any person appealing from the judgment of the Superior Court, adjudging him to pay a fine only, may pay the same at any time before the hearing in the Supreme Court or Appellate Court, without further cost, which payment shall vacate the appeal and restore the judgment.”

       In these circumstances, we need not address the question of whether a conviction under § 29-37Í may have collateral consequences that would counsel against mootness. Such collateral consequences might, for example, arise in the context of applications for bail, employment, licenses or public housing. See, e.g., State v. McElveen, 261 Conn. 198, 205-208, 802 A.2d 74 (2002); Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993); State v. Smith, 207 Conn. 152, 160, 540 A.2d 679 (1988); Barlow v. Lopes, 201 Conn. 103, 112-13, 513 A.2d 132 (1986).

       We agree with the state that this issue is not resolved by the fact that the defendant was acquitted of having committed the crime of threatening. A valid search warrant requires no more than a showing of probable cause, while a conviction requires a showing of guilt beyond a reasonable doubt. See, e.g., State v. Mordowanec, 259 Conn. 94, 109-10, 788 A.2d 48 (search warrant), cert. denied, 536 U.S. 910, 122 S. Ct. 2369, 153 L. Ed. 2d 189 (2002); State v. Lee, 32 Conn. App. 84, 97-98, 628 A.2d 1318 (conviction), cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994).

       The defendant had been unsuccessful in obtaining a judgment that he had record title to the disputed part of the property owned by the neighbor. As best we can tell, he was trying to pursue a claim of adverse possession.

       During the course of the trial and during the pendency of this appeal, the trial court, denied the defendant’s motion for permission to regain possession of any of the seized materials. The state does not dispute that some of the firearms were valuable antiques.

       In light of Hebert’s uncontested description of his encounter with the defendant, we wonder how the state can assert, in its brief, that the defendant had threatened to commence a bloodbath or engage in a crime of violence. Indeed, we have been unable to find a direct assertion to this effect in the affidavit, except in paragraph two, which reports a conversation between the police and the attorney for the landowner.

       We therefore need not address the defendant’s contention that the warrant failed to establish that (1) the defendant kept firearms either at his home or that of his father or (2) that the items seized were either contraband or stolen goods.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUIS M. FERNANDEZ
    (AC 22521)
    Drangmis, Flynn and Bishop, Js.
    Argued December 5, 2002
    officially released April 8, 2003

      Auden Grogins, special public defender, for the appellant (defendant).

      Melissa L. Streeto, special deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and David M. Holzbach, senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Luis M. Fernandez, appeals from the judgments of conviction, rendered after a jury trial, of five counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), five counts of possession of narcotics in violation of General Statutes § 21a-279 (a) and one count of violation of probation in violation of General Statutes § 53a-32. On appeal, the defendant claims (1) that the trial court improperly permitted the state to introduce into evidence acts of his prior uncharged misconduct and (2) that there was insufficient evidence for the jury to have convicted him on the five counts of sale of narcotics by a person who is not drug-dependent in violation of § 21-278 (b). We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In early October, 2000, the defendant became the subject of a police narcotics investigation. Officers from the Danbury police department conducted a series of surveillances of the defendant, and were able to confirm his physical description and the facts that he used the nickname “Alex,” conducted his business through the use of a pager and primarily drove a white Honda Civic with a license plate that read “998PLC.”

Beginning on October 13, 2000, the Danbury police began a series of controlled purchases from the defendant, first by showing Officer Thomas Barcello a photograph of the defendant to be able to identify him. Barcello then was provided with the defendant’s pager number, a body transmitter and $100 in cash. Barcello then proceeded to call the defendant’s pager number. The defendant returned the page and told Barcello to go to the McDonald’s parking lot in Danbury. After Barcello arrived at the parking lot, a white Honda Civic with a license plate reading “998PLC” entered the lot. Barcello left his vehicle, approached the defendant’s vehicle and said, “Can I get two?” whereupon the defendant handed Barcello two small plastic bags of powder cocaine. That routine was repeated on October 17 and twice on October 20, when controlled buys were made at different locations.

On October 27, 2000, the Danbury police obtained an arrest warrant for the defendant and planned to execute it upon observing him conducting a sale with a regular buyer. The police conducted surveillance of the defendant throughout the day. At approximately 6:20 p.m., the defendant arrived at the Bradlee’s parking lot where he was observed making a sale to Laurie LeBlanc. Upon seeing the sale, officers blocked the defendant’s avenues of escape and approached the defendant’s vehicle. As the officers approached, the defendant attempted to leave the scene, but his route was blocked by a police cruiser. The police searched LeBlanc and found four small plastic bags of powder cocaine in his possession. The defendant then was placed under arrest.

The defendant was tried on the drug sale and possession charges simultaneously with the violation of probation proceedings. The jury found the defendant guilty of five counts of sale of narcotics by a person who is not drug-dependent and five counts of possession of narcotics. The court then found that the defendant had violated his probation. The defendant was sentenced to a total effective term of twenty-eight years imprisonment. This appeal followed.

I

The defendant first claims that the court improperly permitted the state to introduce into evidence acts of his prior uncharged misconduct and improperly failed to give the jury a limiting instruction as to how it could use the evidence of the prior uncharged misconduct.

The following additional facts are necessary for our resolution of the defendant’s claims. At trial, the state called LeBlanc, who had been arrested with the defendant on October 27, 2000, as a witness. During direct examination of LeBlanc, the state asked him if he had any contact with the defendant prior to his being arrested on October 27, 2000. The defendant objected, and the jury was excused from the courtroom.

Outside of the presence of the jury, LeBlanc testified that he had dealt with the defendant, whom he knew as “Alex,” to purchase cocaine, “a couple of times” before he was arrested, but was unable to specify where and when the prior meetings had occurred. The defendant then objected to the admissibility of LeBlanc’s testimony relating to the prior interactions he had had with the defendant, claiming that its probative value was outweighed by its prejudicial effect.

The court, in turn, noted that LeBlanc’s testimony was probative of identity and course of conduct. The defendant responded that the testimony should not be allowed because LeBlanc already had identified the defendant as the individual who had sold him the cocaine on October 27, 2000, and that any further testimony about prior sales would only tend to show that the defendant was a drug dealer.

The court overruled the defendant’s objection and permitted LeBlanc to testify, stating that it would provide the jury with an instruction that the testimony about the prior sales was limited to the identity of the defendant. In front of the jury, LeBlanc then testified that prior to his arrest on October 27, 2000, he had dealt with the defendant three or four times. The defendant now claims that LeBlanc’s testimony relating to his prior contact with the defendant was irrelevant and that any probative value that it might have had was outweighed by its prejudicial effect.

A

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . .

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence. . . . Our standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court.” (Internal quotation marks omitted.) State v. Sawyer, 74 Conn. App. 743, 747, 813 A.2d 1073 (2003).

“Evidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue. C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.1.3. Relevant evidence is defined in the Connecticut Code of Evidence, § 4.1, as evidence having 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.” (Internal quotation marks omitted.) State v. Gibson, 75 Conn. App. 103, 110, 815 A.2d 172 (2003).

In this case, the court permitted the state to introduce into evidence the testimony of LeBlanc relating to the prior occasions when LeBlanc had purchased cocaine from the defendant. The court admitted the testimony to prove the defendant’s identity. Clearly, the defendant’s identity was both material and relevant. As defense counsel stated in closing argument to the jury, the state had “to prove their case, each and every element of their case, including identification, beyond a reasonable doubt.”

The theory of the defense was one of mistaken identity. It was the defendant’s contention that he was not the individual who had sold cocaine to Barcello on October 13 and 17, and twice on October 20, 2000. Rather, the defendant claimed that he was at work at the times when the purchases occurred. Further, the defendant claimed that the photograph shown to Bar-cello prior to his meeting with the defendant was not his photograph and that the vehicle that the police identified at trial as the one that they observed being used during the drug transactions was not his vehicle. Additionally, the defendant testified that he never had met LeBlanc prior to being arrested on October 27, 2000. Accordingly, the court did not abuse its discretion when it permitted the state to admit into evidence the testimony of LeBlanc regarding his previous interactions with the defendant. The fact that LeBlanc had purchased cocaine from the defendant in the past was relevant to LeBlanc’s ability to positively identify the defendant. See State v. Lopez, 14 Conn. App. 536, 539, 541 A.2d 902 (1988).

Having determined that LeBlanc’s testimony was relevant and material, we now must address the court’s determination that the probative value of the evidence outweighed its prejudicial effect. “The primary responsibility for conducting the balancing test to determine whether the evidence is more probative than prejudicial rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.” State v. George B., 258 Conn. 779, 793, 785 A.2d 573 (2001).

“Prejudicial evidence is evidence that tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence . . . but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The problem is thus one of balancing the actual relevancy of the other [misconduct] evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Gibson, supra, 75 Conn. App. 111-12.

LeBlanc’s testimony regarding the defendant’s prior conduct is not the type of evidence that would “ ‘improperly arouse the emotions of the jury.’ ” Id., 111. “A trial court’s admission of evidence that a defendant previously engaged in drug related activity is not necessarily prejudicial.” State v. Oliver, 48 Conn. App. 41, 51, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998). Accordingly, we conclude that the court did not improperly permit the state to introduce into evidence the defendant’s prior misconduct.

B

The defendant next claims that the court improperly failed to provide the jury with a limiting instruction regarding LeBlanc’s testimony as to the defendant’s prior uncharged misconduct. Upon overruling the defendant’s objection to LeBlanc’s testimony, the court stated that it would provide the jury with a limiting instruction that it was to use the evidence to establish only the defendant’s identity. The court, however, never gave such an instruction, nor did the defendant request one. The defendant also did not take any exception to the charge that the court gave to the jury at the close of all the evidence.

The defendant’s brief to this court does not provide any legal authority for his conclusion that the trial court was required to give a limiting instruction to the jury. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) In re Kachainy C., 67 Conn. App. 401, 413, 787 A.2d 592 (2001). Even if we were to assume, without deciding, that the court should have provided a limiting instruction, the absence of such an instruction was harmless given the strength of the state’s case. See State v. Kaddah, 250 Conn. 563, 576-77, 736 A.2d 902 (1999).

II

The defendant’s final claim is that there was insufficient evidence for the jury to have convicted him on five counts of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b) because he proved by a preponderance of the evidence that he was drug-dependent. We disagree.

“To obtain a conviction under § 2 la-278 (b), the state must prove that the defendant possessed narcotics with the intent to sell them. [T]he absence of drug dependency is not an element of the offense .... Rather, [proof of drug dependency provides] an exemption from liability that must be proved by the defendant. ... [A] person charged with sale of narcotics pursuant to § 2 la-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 21a-278 (b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense. . . .

“Whether the defendant met his burden is for the jury to determine. It is without question that the jury is the ultimate arbiter of fact and credibility. ... As such, it may believe or disbelieve all or any portion of the testimony offered. ... A trier of fact is free to reject testimony even if it is uncontradicted . . . and is equally free to reject part of the testimony of a witness even if other parts have been found credible. ... It is axiomatic, however, that, in rejecting such testimony, a fact finder is not free to conclude that the opposite is true.” (Internal quotation marks omitted.) State v. Alvarado, 62 Conn. App. 102,110-11, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001).

At trial, the defendant introduced the testimony of Robert Harkins, a physician. Harkins testified that he was a general family practitioner and had diagnosed the defendant as drug-dependent. Harkins’ diagnosis was based on a series of questions that he had asked the defendant, and the review of certain medical records from Danbury Hospital and the department of correction’s medical facility. On cross-examination, Harkins testified that he was not a specialist in chemical dependency, and that his diagnosis of the defendant as drug-dependent was primarily based on the self-reporting of the defendant and that his diagnosis would be affected if the responses from the defendant were not accurate. Additionally, Harkins testified that the medical reports he used from Danbury Hospital and the department of correction’s medical facility were generated from responses from the defendant. When questioned by the court, Harkins testified that his physical examination of the defendant was limited because it occurred when the defendant was incarcerated and there was a Plexiglas screen separating him from the defendant at all times.

The defendant testified that he was dependent on drugs in October, 2000, and that he had been using drugs for approximately six years. Additionally, the defendant stated that he used drugs prior to being arrested on October 27, 2000.

In rebuttal, the state called Erin Nolan, a probation officer and licensed alcohol and drug counselor. Nolan had met with the defendant in August, 2000. During the interview, the defendant admitted to using marijuana and drinking alcohol. The defendant, however, denied using any illegal narcotic substances such as cocaine, heroin and lysergic acid diethylamide, also known as LSD, and denied having any substance abuse issues. Nolan also testified that she observed no physical signs of substance abuse by the defendant during their meeting. Additionally, during its case-in-chief, the state elicited from Detectives Mark Trohalis and John Merullo, and from Officer Barcello, that during their interactions with and surveillance of the defendant, they did not observe him to be under the influence of any type of intoxicating drug.

“The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses ... is determined by the trier of fact. ... In its consideration of the testimony of an expert witness, the [trier of fact] might weigh, as it sees fit, the expert’s expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. ... It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties’ assertions.” (Internal quotation marks omitted.) Id., 112.

Construing the evidence in the light most favorable to sustaining the verdict, we conclude that it was not unreasonable for the jury to discredit the testimony of the defendant and Harkins, whose diagnosis was based on information provided by the defendant without any corroborating evidence, and to credit the testimony of Nolan, a licensed drug counselor, and the police officers, who had significant prior experience regarding individuals in various states of intoxication. Accordingly, we conclude that it was reasonable for the jury to find that the defendant did not meet his burden of proving, by a preponderance of the evidence, that he was drug-dependent between October 13 and 27, 2000.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant pari,: “Any person who . . . sells . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . .


author: PER CURIAM.

text:
    HOUSING AUTHORITY OF THE CITY OF NEW LONDON v. STATE BOARD OF LABOR RELATIONS ET AL.
    (AC 22588)
    Foti, Schaller and Peters, Js.
    Argued November 21, 2002
    officially released April 15, 2003

      Susan M. Phillips, for the appellant (plaintiff).

      Lisa S. Lazarek, assistant general counsel, for the appellee (named defendant).
   Opinion

PER CURIAM.

The plaintiff, the housing authority of the city of New London (housing authority), appeals from the judgment of the trial court, dismissing the appeal from two decisions of the defendant state board of labor relations (board), in which the board concluded that the housing authority had violated General Statutes § 7-470 (a) (4) of the Municipal Employee Relations Act by repudiating a provision in two collective bargaining agreements. We affirm the judgment of the trial court.

On appeal, the housing authority claims that the court improperly (1) determined that the board properly admitted into evidence the memorandum of understanding between the housing authority and one of its unions, (2) concluded that the board improperly determined that the housing authority’s executive director had apparent authority to bind it to the collective bargaining agreement through the execution of a memorandum and (3) dismissed the administrative appeal as to a second union of the housing authority.

The following facts and procedural history are relevant to our resolution of the housing authority’s appeal. In April, 1996, a local unit of the trade union, Local 1303-287, Council 4, American Federation of State, County and Municipal Employees, AFL-CIO (Local 287), filed a prohibited practices complaint with the board against the housing authority, alleging that the housing authority had repudiated § 9.2 of the collective bargaining agreement with Local 287. Section 9.2 requires a postretirement payout of 60 percent of an employee’s accrued but unused sick time.

The board held hearings on the complaint in January and April, 1998. During the January hearing, an oral motion was made by the union to amend the complaint. The board granted the motion during the April hearing. Thereafter, Local 287 amended its complaint to join a parallel claim of another unit of the trade union, Local 1303-171, Council 4, American Federation of State, County and Municipal Employees, AFL-CIO (Local 171).

The union specifically alleged that § 9.2 was part of the collective bargaining agreement that the union’s bargaining agent and the housing authority’s executive director had ratified in March, 1994, but that § 9.2 inadvertently was omitted from the final draft of the collective bargaining agreement. The union further claimed that although the memorandum of understanding subsequently was prepared to reflect that § 9.2 inadvertently had been omitted from the final contracts, the housing authority refused to honor § 9.2. At the hearing before the board, the union supplied a copy of the memorandum with Local 171, but it did not supply a copy of the memorandum with Local 287.

On August 6, 1999, the board dismissed Local 287’s claim for lack of evidence and rendered a decision in favor of Local 171. In so ruling, the board concluded that (1) the housing authority’s executive director had the authority to bind the housing authority to § 9.2 without subsequent ratification from the housing authority board of commissioners and (2) the union’s failure to produce a signed memorandum of understanding with Local 287 precluded a finding that § 9.2 was a part of the contract applicable to Local 287.

On August 18, 1999, Local 287 filed a motion for reconsideration of the board’s decision, asserting that it had discovered new evidence, a copy of the memorandum of understanding for Local 287, that would compel the board to rule in favor of its claim. On August 30, 2000, the board granted the motion and modified its decision, concluding that § 9.2 was apart of the contract between the housing authority and each local union.

On October 3, 2000, the housing authority filed an appeal in the trial court from the board’s decision, arguing, among other things, that the board improperly had concluded that its executive director had the apparent authority to bind it by signing the memorandum, and that the board improperly had opened and reconsidered its August 6, 1999 decision on the basis of newly discovered evidence.

The board then filed a motion to dismiss the portion of the housing authority’s appeal that challenged the board’s decision in favor of Local 171, claiming that the court lacked subject matter jurisdiction over that portion of the appeal because the appeal was not taken within forty-five days of the board’s decision pursuant to General Statutes § 4-183 (c). The board essentially claimed that when it granted Local 287’s motion for reconsideration and rendered a revised decision on August 30, 2000, its rulings were restricted to Local 287’s claim and did not serve to open its August 6,1999 decision with respect to Local 171’s claim. Accordingly, the board claimed that the forty-five day statutory period for appealing from its August 6, 1999 decision as to Local 171 had lapsed.

On March 23, 2001, the court granted the board’s motion to dismiss, holding that the board’s August 30, 2000 decision did not modify or change its August 6, 1999 decision with respect to Local 171 and that the applicable statute of limitations bars the housing authority from appealing from the board’s decision concerning Local 171.

On November 26, 2001, in ruling on the remaining portions of the housing authority’s appeal, the court held that the board’s conclusion that the housing authority’s executive director had apparent authority to sign the memorandum with Local 287 was reasonable. In so ruling, the court indicated that the housing authority’s bylaws provide that the housing authority’s chairman, rather than its executive director, shall sign all of the housing authority’s contracts; however, the court determined that because the housing authority did not introduce the bylaws in the proceedings before the board, the board could not be faulted for finding that the executive director had actual authority to sign the memorandum. The court also held that the board did not abuse its discretion in granting the union’s motion to reconsider and in admitting into evidence a copy of the memorandum with Local 287.

With respect to the first two claims on appeal, our examination of the record and briefs and our consideration of the arguments of the parties, persuades us that the judgment should be affirmed. In a thoughtful and comprehensive memorandum of decision, the court, Schuman, J., properly resolved those claims. Housing Authority v. State Board of Labor Relations, 47 Conn. Sup. 624, 820 A.2d 332 (2001). We adopt it as a proper statement of the issues and applicable law. See Cloukey v. Leuba, 67 Conn. App. 221, 223, 786 A.2d 1182 (2001).

The judgment is affirmed.

       See General Statutes § 7-470.

       Local 287 consists of clerical and administrative employees of the housing authority, and Local 171 consists of maintenance employees of the housing authority.

       The memoranda were discussed at a meeting before the housing authority’s board of commissioners, but the board of commissioners did not take any action with respect to them. In June, 1994, the housing authority’s executive director executed the memorandum with Local 171.

       General Statutes § 4-183 provides in relevant part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .
      “(c) Within forty-five days after mailing of the final decision . . . .” The board did not dispute that Local 287’s claim was timely; therefore, Local 287’s claim was not subject to the board’s motion to dismiss.

       On or about April 3, 2001, the housing authority filed a notice of its intent to defer its appeal from the court’s March 23, 2001 decision until after a final judgment on the remaining issues.

       Prior to its ruling on the remaining portions of the housing authority’s appeal, the court granted Local 171’s motion to intervene as party defendant.

       With respect to the third issue on appeal, we conclude that the dismissal of the administrative appeal as to Local 171 by the trial court, Martin, J., was proper.


author: FOTI, J.

text:
    BERLIN BATTING CAGES, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF BERLIN
    (AC 22282)
    Foti, Flynn and West, Js.
    Argued December 3, 2002
    officially released April 15, 2003

      E. Timothy Sullivan, Jr., for the appellant (defendant).

      Vincent T. McManus, Jr., for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, the planning and zoning commission of the town of Berlin (commission), appeals from the judgment of the trial court sustaining the administrative appeal of the plaintiff, Berlin Batting Cages, Inc. On appeal, the commission claims that the court improperly (1) denied its motions to dismiss because the appeal was moot and because the plaintiff failed to exhaust its administrative remedies, (2) permitted the plaintiff to amend its complaint and (3) concluded that it lacked a legal basis on which to deny the plaintiffs site plan application. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues raised in the commission’s appeal. On June 12, 1996, the plaintiff corporation, which owns real property in Berlin, filed with the commission an application seeking site plan approval to construct a go-cart track on the rear portion of its property. The plaintiff’s original application sought approval to construct a track for use by gasoline powered go-carts. On July 14, 1996, the commission, reasoning that the application did not conform to certain zoning regulations, denied the application.

On July 29,1996, the plaintiff appealed from the commission’s denial to the Superior Court. The court later granted the plaintiffs request to amend its appeal, thereby permitting the plaintiff to challenge the validity of the regulations on which the commission relied in denying the application. The court conducted a hearing and, on May 14,1999, issued a memorandum of decision in which it reversed the commission’s decision. The court concluded that the commission had relied on regulations that were not valid. Accordingly, the court remanded the matter to the commission with direction to consider the application in light of only the regulations that were valid and in effect at the time of the filing of the application.

Both parties petitioned this court for certification to appeal from the trial court’s decision. On June 23,1999, this court granted both of the petitions. On July 8,1999, the plaintiff filed its appeal and, on July 9, 1999, the commission filed its appeal. On October 20, 1999, this court, sua sponte, ordered that the appeals be dismissed because they did not challenge an appealable final judgment.

On July 19, 1999, after the parties had filed their appeals to this court, the plaintiff filed another site plan application with the commission. In that application, the plaintiff sought approval of a site plan to construct a track on which to operate electric powered, as opposed to gasoline powered, go-carts. On October 14, 1999, the commission approved the application.

On July 6, 2000, after having reconsidered the original application in accordance with the trial court’s remand order, the commission again denied the application for approval to construct and to operate a track for the use of gasoline powered go-carts. On July 14, 2000, the plaintiff appealed to the Superior Court from the commission’s denial. On February 27, 2001, the commission filed a motion to dismiss the appeal on the ground that the court lacked jurisdiction to hear the appeal because the controversy between the parties was moot. The court denied the motion and denied the commission’s subsequent motion to reconsider its denial. On May 8, 2001, the commission filed another motion to dismiss on the ground that the court lacked subject matter jurisdiction because the plaintiff had failed to exhaust available administrative remedies. The court also denied that motion.

After conducting a hearing, the court filed a memorandum of decision on June 6,2001. The court sustained the plaintiffs appeal and directed the commission to issue the requested permit. The commission thereafter petitioned this court for certification to appeal. This court granted the petition and, on August 31, 2001, the commission filed the present appeal. Additional facts will be set forth as they become necessary in the context of the claims raised in the commission’s appeal.

I

The commission first claims that the court improperly denied its motions to dismiss the appeal on the grounds (1) that the issues raised therein were moot and (2) that the plaintiff had failed to exhaust its administrative remedies. We disagree.

A claim that an appellant in an administrative appeal seeks review of issues that are moot or that such appellant has failed to exhaust its administrative remedies implicates the court’s subject matter jurisdiction and may be raised at any stage of the proceedings. See, e.g., Johnson v. Dept. of Public Health, 48 Conn. App. 102, 108, 710 A.2d 176 (1998); Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 505-506, 671 A.2d 844 (1996). Such a claim is a proper subject of a motion to dismiss. Practice Book § 10-30 et seq. A party may challenge a court’s subject matter jurisdiction at any time, and “whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to [its] previous rulings.” (Internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987).

“The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 610-11, 793 A.2d 215 (2002). Furthermore, whether subject matter jurisdiction exists is a question of law, and our review of the court’s resolution of that question is plenary. Id., 611. We will address separately each of the commission’s motions to dismiss.

A

Mootness

The commission, in its February 27, 2001 motion to dismiss, claimed that because it approved the plaintiffs application to construct and to operate an electric powered go-cart track, the controversy between the parties no longer existed, rendering the appeal moot. The commission posited that the plaintiff, having obtained approval of the subsequent application, had “waived whatever benefit it may have derived from the earlier application [and that] its development rights are controlled by the subsequent approval . . . .”

“Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. ... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. . . . An issue is moot when the court can no longer grant any practical relief.” (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002). “[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Internal quotation marks omitted.) Id.

We agree with the court that the appeal before it was not moot. The fact that the defendant granted the plaintiffs site plan application for a track for electric powered go-carts did not deprive the court of the ability to fashion for the plaintiff practical relief in its appeal from the denial of its site plan application for a track for gasoline powered go-carts. Simply stated, we are persuaded by the fact that those proposed uses are not mutually exclusive. In opposing the motion to dismiss, the plaintiff submitted the affidavit of Michael Nelson, the plaintiffs president. Nelson averred that after receiving approval of the application to construct a track for electric powered go-carts, he began construction of the track. He further averred that after significant inquiry of suppliers, he believed that electric powered go-carts were neither technologically nor commercially feasible. Essentially, he represented that, having obtained permission to construct a track for electric powered go-carts, he still wanted to use the track for gasoline powered go-carts, which he described as readily available, safe, manufactured by reliable suppliers and relatively inexpensive. In short, he described the defendant’s approval of the plaintiffs plan to operate electric powered go-carts as “an approval that we can’t use.”

In light of those averments and, on the basis of the nature of the controversy itself, we are unable to conclude that the commission’s approval of the plaintiffs applications precluded the court from affording the plaintiff practical relief. Such relief, in the form of approval of the applications to construct a track for gasoline powered go-carts, would permit the plaintiff to use the track for the purpose for which it sought such approval in the first instance. Nothing about the commission’s approval of the electric powered go-cart application rendered the relief sought in the administrative appeal either impractical or inconsequential.

The commission relies primarily on Gagnon v. Planning Commission, 222 Conn. 294, 608 A.2d 1181 (1992), in support of its claim that the appeal was moot. Gagnon is factually distinguishable. The appellant in Gagnon appealed to the Superior Court from a planning commission’s approval of an application to subdivide certain real property that abutted property owned by her. Id., 295-96. During the pendency of the administrative appeal, the planning commission granted a separate request filed by the original applicants to resubdivide the same real property. Id., 295. That second approval went unchallenged. Id.

Thereafter, the applicants in Gagnon sought to dismiss the pending appeal from the approval of the original subdivision application. Id., 296. They argued that the planning commission’s approval of the resubdivision application had rendered the pending appeal moot. Id. The trial court agreed and, on further appeal, this court affirmed that decision. In affirming this court’s decision in Gagnon v. Planning Commission, 24 Conn. App. 413, 588 A.2d 1385 (1991), our Supreme Court agreed with our conclusion that the “approval of the resubdivision application controls the applicants’ rights to develop the parcel.” (Internal quotation marks omitted.) Gagnon v. Planning Commission, supra, 222 Conn. 298. Our Supreme Court further noted that the applicants, by obtaining approval for the resubdivision and having recorded the resubdivision map in the land records, had “waived irrevocably whatever benefit they may have derived from the planning commission’s earlier approval of the first subdivision. The defendants having withdrawn their claim to its benefits and having effectively extinguished the original subdivision plan through recording of the resubdivided version, the subdivision’s potential burdens to the plaintiff no longer presented a justiciable issue.” Id., 298-99.

In the present case, the fact that the plaintiff obtained approval to construct a track on which to operate electric powered go-carts did not in any way extinguish its opportunity to operate gasoline powered go-carts on that track. The plaintiff did not withdraw its original application and did not file its subsequent application in lieu of its original application. Nothing about the fact that the commission approved the subsequent application irrevocably changed the plaintiffs ability to use the subject property to operate a track for gasoline powered go-carts. The subsequent granting of the application concerning electric powered carts did not control the applicant’s rights so as to preclude it from using the track on the subject property to operate gasoline powered go-carts. The appellant in Gagnon, having failed to appeal from the granting of the resubdivision application, could derive no relief from the pending administrative appeal from the granting of the original subdivision application. The appellant in this case, however, stands on different footing. Should the commission grant the plaintiffs original application, the plaintiff will gain the opportunity to pursue its plan of operating a gasoline operated go-cart track. For those reasons, the plaintiffs appeal presented a justiciable issue to the Superior Court.

B

Exhaustion of Administrative Remedies

The commission, in its May 8, 2001 motion to dismiss, claimed that the plaintiff had failed to exhaust its administrative remedies, thereby depriving the court of subject matter jurisdiction over the appeal. The commission pointed out to the trial court, as it does to this court, that the plaintiff failed to appeal to the zoning board of appeals from the commission’s July 6, 2000 denial of its application, which came before the commission on remand from the Superior Court. The commission posits that the plaintiff thereby failed to exhaust the administrative remedies available to it.

“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. . . . Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme. . . . Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief.” (Internal quotation marks omitted.) River Bend Associates, Inc. v. Water Pollution Control Authority, 262 Conn. 84, 100, 809 A.2d 492 (2002). The requirement that an appellant first exhaust its administrative remedies “reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment.” (Internal quotation marks omitted.) O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995).

Our inquiry in the present case focuses on whether an administrative remedy was available to the plaintiff after the commission, on July 6, 2000, denied the application that was before it on remand from the court. We begin our analysis mindful that the particular regulations at issue dictate whether a further administrative remedy existed. Castellon v. Board of Zoning Appeals, 221 Conn. 374, 383, 603 A.2d 1168 (1992); Borden v. Planning & Zoning Commission, 58 Conn. App. 399, 406-407, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000).

Section XV of the Berlin zoning regulations, entitled “Zoning Board of Appeals,” provides in relevant part: “A. Powers and Duties. The Zoning Board of Appeals (ZBA) shall have all the powers and duties prescribed by Chapter 124, Section 8 and by Chapter 250, Section 14 of the General Statutes, and by these Regulations, which powers and duties are summarized and more particularly specified below. None of the following provisions shall be deemed to limit any of the authority of the ZBA that is conferred by general law.

“1. Appeals. The ZBA shall have the authority to hear and decide upon any appeal where it is alleged that there is an error in the order, requirements, decision or determination of the ZEO. No question of hardship shall be involved in such appeal, and the action of the ZBA thereon shall be limited to the question of whether or not, and to what extent such order, requirement, decision, or determination was a correct interpretation of the subject provision of these Regulations.”

Subsection B of § XV of the regulations, entitled “General Rules,” further provides in relevant part: “1. Appeals. All appeals to the ZBA from an order, requirement, decision or determination of the ZEO shall be taken within 90 days of such action by the ZEO. Such appeals shall be made in writing on a form prescribed by the ZBA and shall be accompanied by a filing fee to cover the cost of processing the appeal.”

The commission argues, essentially, that the regulations provided a further administrative remedy from its denial in that the plaintiff had the opportunity to appeal from the decision to the zoning board of appeals. The commission posits that the regulations afforded such remedy because they refer to the powers conferred on the zoning board of appeals by General Statutes § 8-6. As the commission correctly points out, our courts have held that pursuant to powers conferred by our statutes, a zoning board of appeals may hear an appeal from a planning and zoning commission. Conto v. Zoning Commission, 186 Conn. 106, 114, 439 A.2d 441 (1982); Borden v. Planning & Zoning Commission, supra, 58 Conn. App. 409; Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 27 Conn. App. 412, 415-16, 606 A.2d 725 (1992), rev’d on other grounds, 225 Conn. 432, 623 A.2d 1007 (1993). In each of those cases, however, the regulations at issue provided for appellate review of the commission’s action by the zoning board of appeals.

The present case is distinguishable from those cases because here, the zoning regulations do not provide for review of the commission’s decisions by the zoning board of appeals. Although the regulations refer to the powers and duties conferred on the board by, inter alia, § 8 of our General Statutes, other provisions in the regulations more particularly specify the scope of the board’s authority. On the basis of the excerpts of the regulations previously set forth, we conclude that the regulations unambiguously circumscribe the board’s appellate authority to hearing and to deciding appeals from any “error in the order, requirements, decision or determination’’; Berlin Zoning Regs., § XV (A); of Berlin’s zoning enforcement officer. Having reviewed the regulations in toto, we do not find any provision that confers on the board the authority to review the commission’s decisions.

For those reasons, we conclude that no further administrative remedy existed for the plaintiff to exhaust before pursuing its appeal before the trial court. See Castellon v. Board of Zoning Appeals, supra, 221 Conn. 382 (in absence of provision in regulations authorizing board to review commission’s decision, no further remedy administrative remedy existed for plaintiffs to exhaust before resorting to an appeal pursuant to General Statutes § 8-9). The court properly concluded that it possessed subject matter jurisdiction over the appeal and, accordingly, properly denied the defendant’s motion to dismiss the appeal.

II

The commission next claims that the court improperly permitted the plaintiff to amend its complaint. We disagree.

The following additional procedural history underlies the commission’s claim. On November 16, 1999, the plaintiff filed a motion to amend its complaint. The plaintiff thereby sought to add grounds to its appeal that, it alleged, it had discovered only after the commencement of the appeal. Essentially, the plaintiff wanted to add to its appeal its claims that the commission improperly had denied its applications on the basis of regulations that either were not effective or had not been adopted validly in the first place. The commission timely objected to the request to amend. The court thereafter issued a memorandum of decision in which it granted the plaintiffs motion.

We first set forth our standard of review. “A trial court’s ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [burden of the party challenging the court’s ruling] to demonstrate that the trial court clearly abused its discretion.” (Citation omitted; internal quotation marks omitted.) Mastrolillo v. Danbury, 61 Conn. App. 693, 696, 767 A.2d 1232 (2001).

On appeal, the commission argues, as it did before the trial court, that the court could not exercise jurisdiction to consider the plaintiffs challenge to the regulations that the commission relied on in denying the applications. The commission claims that the plaintiff could not challenge the validity of the regulations because it failed to comply with the notice requirement codified in Practice Book (1998) § 17-55 (4).

As a preliminary matter, we note that the plaintiff in the present case did not bring a declaratory judgment action to challenge the regulations at issue in this appeal. Instead, it brought a nondeclaratory administrative appeal to adjudicate a specific claim of error concerning the commission’s denial of its application. When it sought leave to amend its complaint, the plaintiff essentially sought for the court to consider a challenge to the regulations relied on by the commission as an avenue to obtain relief in its nondeclaratory administrative appeal.

In Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998), our Supreme Court addressed a similar issue. The trial court in that case had declined to consider a plaintiffs challenges to certain municipal grand lists, as well as to certain public acts, because the plaintiff had failed to afford notice of those challenges to interested parties in accordance with Practice Book § 390 (d), subsequently § 17-55 (4) (notice requirements of subdivision (4) were repealed January 1, 2000). Our Supreme Court held that because the plaintiff had raised those declaratory claims in the context of its administrative, or nondeclaratory, claim for relief, it was improper for the trial court to decline to consider them. Stafford Higgins Industries, Inc. v. Norwalk, supra, 576-79. The court observed that the plaintiffs challenges to the grand lists and the public acts were raised properly in the context of its nondeclaratory action. Id., 577-78.

Our Supreme Court expressly rejected the trial court’s rationale in denying the motion, i.e., that “it lacked subject matter jurisdiction to consider the plaintiffs request for a declaratory judgment”; id., 576; because the plaintiff had failed to provide notice to interested parties of certain of its declaratory claims in accordance with Practice Book (1998) § 17-55 (4). The court held that a party, without bringing a declaratory judgment action, could pursue a substantive administrative appeal in which it could challenge the validity of legislation in which many persons may have an interest. In so holding, the court, for several reasons, abandoned the rule it had set forth in Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 563, 552 A.2d 796 (1989), which required that “certain general challenges to the legality of legislation in which many persons may have an interest may be brought only through a declaratory judgment action, in order to ensure that notice be provided to all interested parties.” Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 579.

In following Stafford Higgins Industries, Inc., we conclude that the commission’s claim, i.e., that the court lacked jurisdiction to consider the plaintiffs challenge to certain municipal regulations, is without merit. The plaintiff properly pursued its challenges to the regulations in its substantive appeal instead of in a separate declaratory action. For that reason, the court properly considered the plaintiffs claims in that regard, despite the fact that the plaintiff did not provide notice in accordance with Practice Book (1998) § 17-55 (4). Accordingly, the court’s decision to grant the plaintiffs motion to amend was not improper and, on the basis of our review of the record, reflected an appropriate exercise of its discretion.

Ill

Finally, the commission claims that the court improperly concluded that the commission lacked a legal basis on which to deny the plaintiffs site plan application. Specifically, the commission challenges the court’s legal conclusions that (1) it improperly relied on § X (D) (3) of the regulations because such regulation was ineffective and (2) it improperly applied § XIII (9) (b) and (k) of the regulations. We disagree.

Before addressing each issue in turn, we note that the commission’s claims challenge the court’s underlying legal conclusion that, as a matter of law, it could not rely on those challenged regulations as a basis to deny the plaintiffs site plan application. We afford plenary review to such questions of law. See Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001); Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 720-21, 780 A.2d 1 (2001).

A

Validity of § X (D) (3) of the Regulations

The commission relied in part on § X (D) (3) of the regulations as a basis for denying the site plan applications. That regulation, listed under § X, entitled “Environmental and Related Regulations,” provides: “Noise — Any noise emitted outside the property from which it originates shall comply with the provisions of Sections 22a-69-l to 22a-69-7.4 of the Regulations of the Connecticut Department of Environmental Protection (‘Control of Noise’).” The court concluded that this regulation was ineffective because it conflicted with state statutes governing noise pollution control. We agree.

Our legislature codified statutes governing noise pollution control in General Statutes § 22a-67 et seq. Section 22a-67 (a) provides in relevant part that “(1) [e]xcessive noise is a serious hazard to the health, welfare and quality of life of the citizens of the state of Connecticut” and that “(4) the primary responsibility for control of noise rests with the state and the political subdivisions thereof . . . .” The statutory scheme’s expressed purpose is “to establish a means for effective coordination of research and activities in noise control . . . .” General Statutes § 22a-67 (b). The scheme empowers the commissioner of environmental protection to “develop, adopt, maintain and enforce a comprehensive state-wide program of noise regulation” as well as to work with local governments in their efforts to abate noise pollution. General Statutes §§ 22a-69 (a), 22a-70 (a) and (d).

To that end, the legislature expressly encouraged municipalities to “develop and establish a comprehensive program of noise regulation. Such program may include a study of the noise problems resulting from uses and activities within [their] jurisdiction and [their] development and adoption of a noise control ordinance.” General Statutes § 22a-73 (a). The legislature further provided, in regard to municipal noise ordinances, that “[n]o ordinance shall be effective until such ordinance has been approved by the commissioner. No ordinance shall be approved unless it is in conformity with any state noise control plan ... or any standards or regulations adopted by the adininistrator of the United States Environmental Protection Agency .... Notwithstanding the provisions of this subsection, any municipality may adopt more stringent noise standards than those adopted by the commissioner, provided such standards are approved by the commissioner.” General Statutes § 22a-73 (c). General Statutes § 22a-68 defines “commissioner” as “the Commissioner of Environmental Protection or his designated agent as defined in subsection (b) of section 22a-2.”

Section X (D) (3) of the regulations, by its terms, purported to adopt the noise control regulations promulgated by the commissioner. As the defendant concedes, only the commission approved that regulation. The commission does not suggest that the commissioner approved the regulation.

Having reviewed the statutory scheme, we conclude that the legislature intended it to be a comprehensive plan for state and local efforts to abate noise pollution. The legislature clearly envisioned that municipalities could adopt regulations promulgated by the commissioner or that they could adopt regulations of their own. The legislature, however, required that local efforts comply with § 22a-73: Local efforts must be validly adopted and gain approval by the commissioner. On the basis of the statutes, the fact that the legislature addressed the means by which a municipality could adopt noise pollution control enactments and those statutory provisions regarding such local enactments in particular, we are left to conclude that the legislature has undertaken to preempt that field of legislation and to require that local efforts aimed at noise pollution control comply with the requirements it has enumerated by statute. See Bencivenga v. Milford, 183 Conn. 168, 176, 438 A.2d 1174 (1981) (whether legislature undertakes to occupy exclusively given field of legislation to be determined on analysis of statute and circumstances on which it intended to operate).

The legislature has provided, in unambiguous language, that “[n]o ordinance shall be effective until such ordinance has been approved by the commissioner. . . .” General Statutes § 22a-73 (c). The commission concedes that it did not obtain such approval. It acknowledges § 22a-67 et seq., but posits that General Statutes § 8-2 empowered the commission to adopt § X (D) (3) of the regulations. Specifically, the commission argues that “[t]he type of regulation provided for in chapter 442 of the General Statutes [titled ‘Noise Pollution Control’], by ordinance, is entirely different from the land use regulation adopted by the Berlin planning and zoning commission. Indeed, § X (D) (3) of the zoning regulations applies only to site plan review while an ordinance adopted pursuant to chapter 442 would regulate noise emissions in all situations and not merely when a site plan is under review.”

We reject the commission’s argument for several reasons. Most importantly, we read chapter 442, § 22a-67 et seq., as a comprehensive scheme for state and local efforts aimed at controlling noise pollution. Second, § 8-2, which grants local zoning commissions the authority to promulgate regulations, does not govern noise pollution laws. In fact, § 8-2, which sets forth in nearly exhaustive detail the types of regulations that local zoning commissions may promulgate, does not even mention noise or noise pollution. Although § 8-2 (a) does provide that regulations “shall be designed ... to promote health and the general welfare,” we do not read that language in the enabling statute to necessarily confer authority in the zoning commission to promulgate regulations concerning noise pollution and, moreover, we certainly do not read that language to contradict the legislature’s specific enactment in § 22a-67 et seq. In construing statutes, we are mindful that “specific terms covering the given subject matter will prevail over other general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 23, 803 A.2d 879 (2002).

Finally, the fact that § 22a-73 refers to local ordinances, while the commission has labeled the enactment at issue in this case a zoning regulation, is of no consequence. On the basis of our review of § 22a-67 et seq., we conclude that it reflects the legislature’s intent to preempt the field of noise pollution control. It is clear that the regulation at issue here imposes a type of noise pollution control that the statutory scheme was enacted to effectuate; the regulation specifically refers to the commissioner’s regulations, promulgated under the authority conferred by the statutes. It would yield a strange result were we to hold that the commission could do that which the legislative body of the municipality could not do, that is, circumvent the provisions of § 22a-67 et seq.

For those reasons, we conclude that the court properly deemed § X (D) (3) of the regulations to be ineffective and properly concluded that the commission could not rely on the regulation in denying the site plan application.

B

Application of § XIII (9) (b) and (k) of the Regulations

The commission also relied, in part, on § XIII (9) (b) and (k) of the regulations in denying the site plan application. Those regulations are listed under § XIII, entitled “Site Plans.” Subsection nine, entitled “Standards for Approval,” provides in relevant part: “In reviewing and acting upon an application for Site Plan approval, the Commission shall take into consideration the health, safety and welfare of the public in general and the immediate neighborhood in particular, as well as the following factors . . . .” Factor (b) provides: “The arrangement of buildings, structures and uses on the site . . . .” Factor (k) provides: “The adequacy of the landscaping treatment, including any buffers and other screening.”

The court, in its May 14, 1999 memorandum of decision, later modified by its July 7,1999 articulation, ruled that, on remand, the commission could apply those regulations to the application “only insofar as the commission has other regulations dealing with the arrangement of buildings or the adequacy of landscaping and buffers,” and not in regard to the other regulations that the court ruled could not be applied to the application.

After reconsidering the application on remand, the commission again denied it. The commission represents that it based its denial on § XIII (9) (b) and (k) of the regulations and concluded that the applications did not satisfy the zoning requirements “because of the health, safety and welfare concerns for the immediate neighborhood.” Specifically, the commission represented to the court that “there was considerable concern by [it] that the noise generated by the gas go-karts would have a significant negative impact on the abutting residential property . . . .”

The court ruled that the commission’s reliance on § XIII (9) (b) and (k) of the regulations was flawed. It noted that it had ordered the defendant to consider those regulations “only insofar as [it] has other regulations dealing with the arrangement of buildings or the adequacy of landscaping and buffers.” As the court observed, the commission failed to do so. Instead, it grounded its decision on those regulations and its concerns about potential noise pollution that the property would generate.

A zoning commission’s authority in ruling on a site plan is limited. A site plan is “filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 2.2, p. 18. General Statutes § 8-3 (g) limits a zoning commission’s authority to act on a site plan application: “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations.” As this court has stated: “In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than its quasi-judicial or legislative capacity. It is given no independent discretion beyond determining whether the plan complies with the applicable regulations.” (Internal quotation marks omitted.) Roraback v. Planning & Zoning Commission, 32 Conn. App. 409, 412, 628 A.2d 1350, cert. denied, 227 Conn. 927, 632 A.2d 704 (1993); see also R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 468-69, 778 A.2d 61 (2001) (denial of site plan application cannot be based on subjective reasons bearing no relationship to zoning regulations).

In the present case, the commission, after considering the applications on remand, did not evaluate the applications in light of clearly defined standards set forth in the regulations. We agree with the court that § XIII (9) (b) and (k) of the regulations are not substantive in that they do not provide a specific basis on which to deny a site plan application. By its terms, § XIII (9) of the regulations is procedural in nature; it instructs the commission how it should consider applications for site plan approval. The provisions provide that the defendant should consider “[t]he arrangement of buildings, structures and uses on the site”; Berlin Zoning Regs., § XIII (9) (b); or “[t]he adequacy of landscaping treatment, including any buffers and other screening.” Id., § (9) (k). Although it is logical that the commission will consider those provisions when determining if an application complies with clearly defined requirements set forth in the regulations, those provisions do not provide an independent basis upon which to base a denial. Similarly, although § XIII (9) of the regulations also provides that the defendant may consider the “health, safety and welfare of the public,” the defendant could not properly base its denial on that provision. As we previously stated, the commission was not empowered to exercise discretion in considering the application; its task was to determine if the application violated any clearly enunciated provisions set forth in the regulations. In the present case, the commission used the provisions discussed in an exercise of discretion that it did not possess.

Furthermore, to the extent that the commission denied the applications on the basis of its continued concerns about noise pollution, we conclude, as did the trial court, that this was improper. We already have concluded that the court properly invalidated the noise pollution control provisions of the regulations. That being the case, the commission lacked any basis in the regulations to deny the applications on the basis of noise. Denying the applications on the basis of its subjective concerns, as appears to be the case, is inconsistent with the commission’s aforementioned ministerial role in reviewing a site plan application.

The judgment is affirmed.

In this opinion the other judges concurred.

       The subject property is located partially in zones designated by the commission as general commercial (GC-1) and residential (R-15). The stated purpose of regulations applicable to GC-1 districts is “[t]o accommodate small scale commercial uses on property that benefit from and are appropriate for a highway location in such manner so as to be compatible with nearby residential properties.” The commission’s GC-1 regulation provides in relevant part: “The following principal uses shall be permitted in the GC-1 district subject to Site Plan approval by the Planning Commission . . . o. Indoor or outdoor commercial recreation facilities including . . . go-cart facilities . . . .”
      The stated purpose of regulations applicable to R-15, or single-family residential, districts is “to provide suitable areas for residential development appropriate to the environmental characteristics of the land and the character of the neighborhood. The districts are also intended to accommodate certain non-residential uses which are compatible with residential uses while preserving neighborhood character and property values.”

       See General Statutes §§ 8-8 (b) and 8-9.

       See General Statutes §§ 8-8 (o) and 8-9; Practice Book § 81-1 et seq.

         This court reached its decision in light of the fact that the trial court had remanded the matter to the commission for reconsideration of the plaintiffs application.

       The court later consolidated that appeal with the original appeal.

       The regulations, in § II, entitled “Rules and Definitions,” provide in relevant part that “[t]he abbreviation ‘ZEO’ means the Zoning Enforcement Officer of the Town of Berlin.” Berlin Zoning Regs., § II (A) (17).

       General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .”

       Practice Book (1998) § 17-55 provides in relevant part: “The judicial authority will not render declaratory judgments upon the complaint of any person . . .
      “(4) until all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”

       The court further noted: “ [E]ven if we were to assume, without deciding, that the plaintiff was required by Practice Book § 390 (d) [later Practice Book (1998) § 17-55 (4)] to give further notice of its additional [declaratory relief] claims, any lack of proper notice under that section with respect to the declaratory judgment count did not deprive the court of jurisdiction to consider those claims in the context of the plaintiff s nondeclaratory count.” Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 578.

       The commission apparently claims that the plaintiffs failure to so provide notice deprived the court of subject matter jurisdiction and, thus, the ability to pass judgment on the challenged regulations. We note that even if there were a declaratory judgment action, this characterization would be incorrect. Effective January 1, 2000, our rules of practice were amended to provide that challenges to the failure to provide notice in a declaratory judgment action must be made by way of a motion to strike as provided by Practice Book § 10-39 (a) (“[wjhenever any party wishes to contest . . . (3) . . . pursuant to Section 17-56 (b), the failure to . . . give notice to any interested person . . . (5) . . . that party may do so by filing a motion to strike the contested pleading or part thereof’). As the official commentary to that section provides: “Under Section 17-56 as amended, the exclusive remedy for . . . failure to give notice to interested persons in declaratory judgment actions is by a motion to strike .... if the motion to strike is granted, the party seeking the declaratory judgment could either file a new pleading or move for judgment and then appeal.” As subsequently stated in 37Huntington Street, H, LLC v. Hartford, 62 Conn. App. 586, 593, 772 A.2d 663, cert. denied, 256 Conn. 914, 772 A.2d 1127 (2001), that change makes “explicit what formerly had been implicit,” that is, that the failure to comply with the notice requirement is not a jurisdictional defect.

       The commission relied on other regulations, in addition to those at issue in this appeal, in denying the plaintiffs site plan applications. Specifically, the commission cited to §§ VI (F); IX (B) (14) (c) (4); and IX (B) (14) (c) (4), (4) (a) and (5) of the regulations. For purposes of this opinion, it suffices to state that those regulations imposed certain landscaping or bulk requirements. The court concluded that the commission had failed to adopt those regulations and, consequently, concluded that the commission improperly had relied on them in denying the applications. The commission does not challenge that ruling on appeal.

       Subsection X (D), under which that provision is listed, provides in relevant part: “Environmental and Performance Standards — The use of land, buildings, and other structures shall be conducted in accordance with the following performance standards. All applicants for Site Plan approval under these Regulations shall demonstrate that the use they propose shall conform to the following standards . . . .”