author: LAVERY, C. J.

text:
    JAMES AZZARITO ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF NEW CANAAN ET AL.
    (AC 22566)
    Lavery, C. J., and Bishop and West, Js.
    Argued October 15, 2002
    officially released September 23, 2003

      Robert A. Fuller, with whom was Louis S. Ciccarello, for the appellants (defendants).

      Robert F. Maslan, Jr., for the appellees (plaintiffs).
   Opinion

LAVERY, C. J.

The defendants, the planning and zoning commission of the town of New Canaan (commission) and John A. Kessler, appeal from the judgment of the trial court sustaining the plaintiffs’ administrative appeal from the commission’s granting of Kessler’s subdivision application. On appeal, the defendants claim that the court improperly concluded that the subdivision plan did not meet any of the exceptions to the commission’s regulations governing adequate width frontage on a public highway. We affirm the judgment of the trial court.

In 1961, the commission approved a three lot subdivision of an 18.872 acre parcel owned by Jane B. Glidden. One of those lots was parcel B, containing 6.959 acres. Kessler became the owner of the 6.959 acres in 1985, which is situated in a two acre residential zone. On January 24, 2000, Kessler submitted a subdivision application to the commission seeking to divide his land into two parcels. Parcel 170 would have its entire width on Wing Road, a private road. Parcel 171 would have thirty feet of width on Wing Road and 227 feet along an accessway that serviced the property of Edward T. Walsh and Patricia A. Walsh. The commission unanimously approved Kessler’s subdivision application with modifications on April 25,2000. In doing so, the commission found that Wing Road was a private road with a right of way of fifty feet. The plaintiffs filed in the trial court an administrative appeal, which the court sustained because there was no substantial evidence that supported the commission’s determination that Kessler’s subdivision plan conformed with the New Canaan zoning regulations concerning width on a public highway or met any of the four exceptions to that requirement as set forth in § 60-14.5 of the New Canaan zoning regulations. This appeal followed.

Chapter 55, article IV, §§ 55-4.1 to 55-4.24, of the New Canaan subdivision and street regulations sets forth the standards and requirements for a subdivision. Section 55-4.11 requires that the lot arrangement of the proposed subdivision comply with the regulations and ordinances of New Canaan. See also New Canaan Zoning Regs., c. 60, article XIV, § 60-14.3 (no land shall be divided resulting in noncompliance with zoning regulations). Furthermore, General Statutes § 8-26 prohibits a commission from approving a subdivision that conflicts with applicable zoning regulations. One of the zoning regulations that must be satisfied is that each proposed zone unit have a width of 225 feet on a public highway. New Canaan Zoning Regs., c. 60, article XIV, §§ 60-14.2, 60-14.5; schedule of residential zoning requirements of the zoning regulations of the New Canaan. Specifically, § 60-14.5 of the New Canaan zoning regulations provides in relevant part: “In residential zones, no zoning permit will be issued for the construction of a residence . . . unless the required minimum width for the zone involved, as set forth in § 60-14.2 of these regulations, shall be upon a public highway . . . .” There exist four exceptions to the width requirement. Although neither parcel satisfies the width requirement, the defendants argue that the first three exceptions are met by the subdivision plan, and, therefore, there was substantial evidence to support the commission’s approval of the subdivision. The defendants further argue that the court improperly sustained the plaintiffs’ appeal because the court was not allowed to substitute its own judgment for that of the commission. We disagree.

“It is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations. ... It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission. . . . The evidence, however, to support any [reason stated by the planning commission for its action] must be substantial. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. . . . The trial court can sustain the [plaintiffs’] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal .... In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [commission] should be overruled.” (Citations omitted; internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 326-28, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001).

Here, the commission stated that “the application generally meets the applicable subdivision regulations” but did not make specific factual findings to support its approval of the application, especially with regard to the width requirement. When a commission states its reasons in support of its decision on the record, the court goes no further, but if the commission has not articulated its reasons, “the court must search the entire record to find a basis for the [commission’s] decision.” (Internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 532, 772 A.2d 624 (2001). We, therefore, as did the trial court, search the record to determine if there was substantial evidence to support the commission’s conclusion that the zoning regulation or the exceptions pertaining to the width on a public highway were satisfied. We will consider in turn each exception that the defendants claim is applicable.

I

The first exception to the width requirement provides in relevant part that “where a parcel of land is of sufficient area to afford a division thereof into not more than two (2) zone units, one (1) of which zone units does not have the required width on a public highway for the zone involved, zoning permits for both of said two (2) zone units may be issued, provided that the zone unit not having the required width on a public highway has access thereto by means of an accessway serving such zone unit and such accessway is not less than twenty-five (25) feet in horizontal width.” New Canaan Zoning Regs., c. 60, article XIV, § 60-14.5 (A). The defendants argue that both parcels qualify under that exception because they obtain access to a public highway by means of an accessway at least twenty-five feet in width. We are not persuaded.

The subdivision plan does not comply with § 60-14.5 (A) because neither parcel has the required 225 feet on a public highway. Section 60-14.5 (A) allows for a second zone unit that does not have the required width on a public highway if it is served by an accessway with a twenty-five foot width. That is only permitted, however, if the other zone unit has the required width along a public highway. Here, parcel 170 has its entire width on Wing Road, which is a private road. Parcel 171 has thirty feet of its width on Wing Road and the rest on an accessway that services the Walsh property. Neither Wing Road nor the Walsh accessway are public highways, and the defendants do not argue otherwise. We therefore conclude that the court properly determined that the subdivision application did not meet the requirements for the exception set forth in § 60-14.5 (A).

II

The second exception to the width requirement provides in relevant part that “where a parcel of land is of sufficient area to afford a division thereof into three (3) or more zone units, no zoning permits shall be issued for the third zone unit or any subsequent zone units located in the subject parcel of land until a subdivision thereof has been made in accordance with the Subdivision and Street Regulations of the Town of New Canaan and a map thereof has been filed for record on the land records of the Town of New Canaan.” New Canaan Zoning Regs., c. 60, article XIV, § 60-14.5 (B). The defendants argue that the Kessler subdivision would create “subsequent zone units” to the 1961 Glidden subdivision and that the commission’s approval of the Kessler subdivision caused § 60-14.5 (B) to be satisfied. We disagree. Even if we assume, without deciding, that the “parcel” referred to in § 60-14.5 (B) refers to the Glidden property that originally was subdivided, as opposed to simply Kessler’s parcel, that exception is not satisfied because there was no valid resubdivision approval for Kessler’s property.

The division of Kessler’s property is a resubdivision pursuant to General Statutes § 8-18 and § 55-2.1 of the New Canaan subdivision and street regulations because it constituted a further division of land that already had been subdivided. The defendants, therefore, are correct that Kessler’s subdivision application would create “subsequent zone units” to the Glidden parcel because the Glidden parcel already had been divided into three lots in 1961. Before there could be further division of the property into subsequent zone units, § 60-14.5 (B) of the zoning regulations requires that a subdivision be approved. That subdivision must comply with the zoning regulations, including having its width on a public highway or meeting one of the exceptions to that rule. “Once a zoning violation has been found on the face of a submitted plan, a commission may not approve the plan.” Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 673, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990); see also General Statutes § 8-26 (nothing shall authorize commission to approve subdivision that conflicts with zoning regulations). The defendants argue that the commission’s approval of the Kessler subdivision application satisfies the requirement of an approved subdivision in § 60-14.5 (B). That argument is without merit.

Although the commission did approve Kessler’s subdivision, that approval was invalidated by the court on appeal because there was no substantial evidence that supported the commission’s determination that the subdivision met the width requirements or the exceptions to the regulation. The major flaw in the defendants’ argument is its failure to recognize that the required subdivision in § 60-14.5 (B) must, like all subdivisions, comply with the zoning regulations, including having adequate width on a public highway or meeting an exception to that rule. See Krawski v. Planning & Zoning Commission, supra, 21 Conn. App. 673; General Statutes § 8-26. Here, parcels 170 and 171 do not have their width on a public highway, and no exception to that requirement has been satisfied. Section 60-14.5 (B) simply requires that if subsequent zone units are to be created from a parcel, a subdivision must be approved. It does not excuse the subdivision, which would allow a subsequent zone unit, from complying with the width requirement or one of its exceptions in the New Canaan zoning regulations.

We conclude, therefore, that the court properly found that there was no substantial evidence to support the commission’s approval of the subdivision application under § 60-14.5 (B) of the New Canaan zoning regulations.

Ill

The third exception to the width requirement provides in relevant part that zoning permits may be issued for zone units “having the required width . . . upon roadways other than public highways, provided that such roadways have a width of at least fifty (50) feet and a traveled way to Town standards of at least twenty (20) feet of asphalt . . . .” New Canaan Zoning Regs., c. 60, article XIV, § 60-14.5 (C). The defendants argue that this exception was satisfied because parcel 170 has its entire width along Wing Road, which has a fifty-foot width, and parcel 171 has thirty feet of its width along Wing Road. We disagree.

Our interpretation of ordinances presents a question of law and, therefore, our review is plenary. See Witty v. Planning & Zoning Commission, 66 Conn. App. 387, 390-91, 784 A.2d 1011, cert. denied, 258 Conn. 950, 788 A.2d 100 (2001). “We interpret and construe local ordinances according to the principles of statutory construction.” Miller v. Zoning Board of Appeals, 36 Conn. App. 98, 102, 647 A.2d 1050 (1994). We are aware of the principles of statutory construction as set forth in State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc). The extratextual sources referenced in Courchesne to guide us in our reasoned search for the intent of a legislative body in enacting an ordinance are not present here. We therefore must focus on the language of the regulation.

“A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words [employed] in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant.” (Citations omitted; internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 234, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). “We construe words and phrases according to the commonly approved usage of the language. . . . Where an ordinance does not define a term, we look to the common understanding expressed in dictionaries.” (Citation omitted.) Miller v. Zoning Board of Appeals, supra, 36 Conn. App. 102.

Parcel 170 complies with the exception because it has its entire width, which is longer than the requisite 225 feet, on Wing Road, which has a width of fifty feet. We therefore must determine whether the third exception to the width requirement mandates that 225 feet of the width of parcel 171 border Wing Road or whether it requires only that a portion of its width be on that roadway. Our focus is on the words “width” and “upon” as used in the exception in analyzing whether parcel 171 is compliant. “Width” is defined in the zoning regulations as “the dimension of the plot generally parallel to the street front . . . .” New Canaan Zoning Regs., c. 60, article XXV, § 60-25.1. “Upon” is not defined in the regulations, and we therefore must look to its dictionary definition. “Upon” is defined as being synonymous with “on.” Memam-Webster’s Collegiate Dictionary (10th Ed. 1999). “On” is defined as: “1 a — used as a function word to indicate position in contact with and supported by the top surface of [the book is lying on the table] b — used as a function word to indicate position in or in contact with an outer surface [the fly landed on the ceiling] [I have a cut on my finger] [paint on the wall] c — used as a function word to indicate position in close proximity with [a village on the sea] [stay on your opponent] d— used as a function word to indicate direction or location with respect to something [on the south] [the garden is on the side of the house].” (Emphasis added.) Id.

Subsection (a) of that definition is not applicable here because the width is not supported “by the top surface of’ Wing Road. Similarly, subsection (b) of that definition is not relevant because Wing Road is not an “outer surface” with which the width of lot 171 is in contact. Rather, the definitions found in subsections (c) and (d) are relevant and applicable to the third exception to the frontage width requirement. In the context of the regulation, “upon” means that the width be located near or in close proximity with Wing Road.

We conclude that the third exception requires that the required 225 foot width be on Wing Road. The definition of “width” mandates that 225 feet be on a roadway other than a public highway, specifically, Wing Road. Utilizing the dictionary definition of “upon,” we conclude that the exception requires that 225 feet be near, in close proximity with or border Wing Road. Here, only thirty feet of the width of parcel 171 satisfies that definition. Accordingly, we conclude that there was no substantial evidence to support the commission’s determination on the basis of the third exception to the width requirement.

IV

The defendants also claim that the commission properly approved the subdivision plan because any noncompliance with the regulations constituted a variance or a waiver. We decline to review that claim.

The defendants raise that claim for the first time on appeal. The commission was not asked to issue a variance, nor was it asked to waive the width requirement of the zoning regulations. That issue also was never raised before the court. Rather, the commission was confronted only with a subdivision plan application. On appeal to the court, the issue was whether the plan complied with the width requirement or any of the exceptions to that regulation. Never was the issue of waiver or variance raised. “Our Supreme Court has repeatedly stated that issues not properly raised before the trial court will ordinarily not be considered on appeal. ... A plaintiff cannot try his case on one theory and appeal on another.” (Citation omitted; internal quotation marks omitted.) Bishel v. Connecticut Yankee Atomic Power Co., 62 Conn. App. 537, 544-45, 771 A.2d 252, cert. denied, 256 Conn. 915, 773 A.2d 943 (2001). Accordingly, we decline to review that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are James Azzarito, Susan W. Azzarito, George B. Harvey, Elizabeth V. Harvey, Edward T. Walsh and Patricia A. Walsh. Kessler filed a motion to dismiss the administrative appeal as to James Azzarito, Susan Azzarito, George Harvey and Elizabeth Harvey on the ground that they were not statutorily or classically aggrieved. The court denied the motion and concluded that those plaintiffs were statutorily aggrieved pursuant to General Statutes § 8-8 because they own land that abuts or is within 100 feet of Wing Road in its entirety, which is the land involved in the decision of the commission. Edward Walsh and Patricia Walsh owned property that abutted Kessler’s property.

       Although there is no map that depicts the fact that Kessler’s property was located within a two acre residential zone, the parties agreed that it was so situated.

       Chapter 55, article IV, §55-4.11, of the New Canaan subdivision and street regulations provides in relevant part: “The lot arrangement shall be such that there will be no foreseeable difficulties ... in securing building permits to build on all lots in compliance with the regulations and ordinances of the town and in providing driveway access to buildings on such lots from an existing street or a street approved by the Commission.”

       General Statutes § 8-26 provides in relevant part that “nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . .”

       Chapter 60, article XXV, § 60-25.1, of the New Canaan zoning regulations defines “zone unit” as “a plot of land having the minimum width and area required by the schedule for a conforming use in any zone.”
      Chapter 60, article XXV, § 60-25.1, of the New Canaan zoning regulations defines “width” in relevant part as “the dimension of the plot generally parallel to the street front . . . .”

       The defendants do not claim that the fourth exception to the width requirement set forth in chapter 60, article XIV, § 60-14.5 (D), of the New Canaan zoning regulations was met by their subdivision plan.

       If we construed the “parcel” to refer to Kessler’s property alone, that exception would not be implicated because there is no subdivision application for the creation of three or more zone units from Kessler’s parcel. Rather, the application sought the creation of only two lots.

       General Statutes § 8-18 defines “subdivision” as “the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development . . . and includes resubdivision . . . .”
      General Statutes § 8-18 defines “resubdivision” as “a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval or recording of such map . . . .”

       Although parcel 171 has the majority of its required width along the Walsh accessway, the parcel is still noncompliant because the accessway does not have a width of fifty feet, which is required by chapter 60, § 60-14.5 (C), of the New Canaan zoning regulations.

       Chapter 55, article XI, § 55-11.2, of the New Canaan subdivision and street regulations provides in relevant part: “Where the Commission finds that because of special circumstances in any particular case, extraordinary hardships may result from strict compliance with these regulations, it may permit a variation from the regulations for such particular case so that substantial justice may be done and the public interest be secured .... In granting any such variation, the Commission shall attach such conditions as are, in its judgment, necessary to fulfill substantially the purposes of the standards or requirements and shall state on its records the reasons for the granting of any such deviation.”
      Chapter 55, article XI, § 55-11.3, of the New Canaan subdivision and street regulations provides in relevant part: “The Commission may waive, for such period as it may determine, the provision of any or all such improvements, or parts thereof, as, in its judgment, are not immediately necessary in the interests of public health, safety and general welfare. In the case of each waiver granted, the commission shall enter upon its records the reason or reasons why the particular improvement is not immediately necessary and it shall attach appropriate conditions, or require such guarantees as may be necessary to protect the public interest.”


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    BALF COMPANY v. PLANNING AND ZONING COMMISSION OF THE TOWN OF MANCHESTER
    (AC 23313)
    Lavery, C. J., and West and DiPentima, Js.

      Argued June 5
    officially released September 23, 2003

      John F. Sullivan, assistant town attorney, with whom was Michael M. Darby, town attorney, for the appellant (defendant).

      Stephen J. Anderson, with whom was Jared Cohane, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, the planning and zoning commission of the town of Manchester (commission), appeals from the judgment of the trial court sustaining the appeal by the plaintiff, Balf Company, from the commission’s denial of a special exception permit for the construction and operation of a concrete manufacturing plant on the plaintiffs property. On appeal, the defendant claims that the court improperly (1) exercised subject matter jurisdiction over the plaintiffs appeal and (2) interpreted the commission’s regulations in concluding that the plaintiff was not obligated to apply for a special exception permit for the proposed construction. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the commission’s appeal. The plaintiff is the owner of two contiguous parcels of land, totaling 55.6 acres, located in an industrial zone in Manchester. During the relevant time periods and thereafter, the plaintiff has operated an asphalt production plant on that property. The plaintiff desired to construct and to operate a concrete production plant on a 1.9 acre portion of its industrially zoned property. The town’s senior planner stated that special exception approval was required because the plaintiffs property was more than four acres. Pursuant to § 16.02 of Manchester’s industrial zone regulations, the plaintiff on December 1, 2000, applied for a special exception from the commission. The commission held a public hearing on the plaintiffs application on March 19 and April 2, 2001. Following the presentation of evidence and arguments for and against the proposed project, the commission denied the special exception.

Pursuant to General Statutes § 8-8, the plaintiff appealed to the Superior Court from the commission’s denial of the special exception. The court found that the commission improperly had interpreted its regulations when it required the plaintiff to apply for a special exception where the actual site on which the proposed plant was to be constructed was only 1.9 acres. The commission filed a petition for certification to appeal to this court, which granted certification to appeal. The commission then appealed.

I

We first address the defendant’s claim that the court did not have subject matter jurisdiction over the plaintiffs zoning appeal on the ground that the plaintiff had failed to exhaust its administrative remedies. The defendant argues that the plaintiff never raised the issue of whether it should be required to submit to the special exception process until its appeal to the trial court. According to the defendant, if the plaintiff did not think it was required to submit to the special exception process, it had options available to it by which it could raise that issue. Because the plaintiff did not avail itself of those options, the defendant contends that the plaintiff failed to exhaust its administrative remedies and, therefore, the court was without jurisdiction over the plaintiffs appeal. We disagree with the defendant.

According to the defendant, if the plaintiff believed that it could proceed with the concrete plant without the special exception, it need not have submitted to the special exception process. Rather, the plaintiff could have filed a site plan and applied lor a certificate of zoning compliance. If the town zoning enforcement officer denied the plan and ruled that the plaintiff was required to submit to the special exception process, the defendant argues, the plaintiff would then have had two alternatives. The plaintiff could have submitted to the special exception process and raised that issue before the commission. Alternatively, the defendant argues that the plaintiff could have appealed to the town’s zoning board of appeals from the zoning enforcement officer’s decision. We conclude, however, that the plaintiff exhausted the administrative procedures available to it by submitting the application for a special exception and then appealing to the court from the commission’s denial of the application pursuant to § 8-8.

“It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review. ... In addition, the administrative agency may be able to resolve the issues, making judicial review unnecessary.” (Citations omitted; internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 11-13, 756 A.2d 262 (2000), overruled in part on other grounds, Waterbury v. Washington, 260 Conn. 506, 545, 800 A.2d 1102 (2002).

A

We first address the defendant’s argument that the plaintiff, in the first instance, could have ignored the town planner’s direction to seek a special exception permit and instead sought a certificate of zoning compliance, and whether that amounts to a failure to exhaust administrative remedies. The defendant argues that had the zoning enforcement officer issued the certificate of zoning compliance, the plaintiff would have had no obligation to apply as directed for a special exception permit. On the other hand, if the zoning enforcement officer denied the plaintiff a certificate of zoning compliance on the basis of its failure to seek a special exception, the defendant argues, then the plaintiff would have had available to it two administrative options. It could have submitted to the special exception and raised the issue to the commission. Alternatively, according to the defendant, the plaintiff could have appealed to the zoning board of appeals from the decision of the town official.

“Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.” (Internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 228, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). The defendant has not cited any cases in support of its proposition that an applicant for a special exception may attempt an “end run” around the regulatory authority responsible for granting such special exceptions by simply ignoring that authority’s requirement that the applicant appear before it. The Manchester zoning regulations also do not support the defendant’s argument. Even if, in the best scenario presented by the defendant, the zoning enforcement officer had granted the certificate of zoning compliance without requiring the special exception permit, the plaintiff would still be faced with the commission’s contrary interpretation of the regulatory requirements.

The Manchester zoning regulations specifically charge the planning and zoning commission as the regulatory authority responsible for applications for special exceptions involving the development of more than four acres. Manchester Zoning Regs., article II, § 16.15.02. Nothing in those regulations grants the zoning enforcement officer the authority to trump a determination of the commission regarding the requirement to apply for a special exception permit. Thus, we conclude that under the circumstances, the plaintiff properly followed the administrative procedures set forth in the pertinent regulations and did not fail to exhaust its administrative remedies by failing to seek a certificate of compliance from the zoning enforcement officer.

B

We next address the defendant’s argument that the plaintiffs failure to raise to the commission the applicability of the special exception requirement constitutes a failure to exhaust the administrative remedies available to the plaintiff and consequently deprived the court of subject matter jurisdiction.

“The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. . . . [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes . . . such as when recourse to the administrative remedy would be futile or inadequate. In light of the policy behind the exhaustion doctrine, these exceptions are narrowly construed.” (Citations omitted; internal quotation marks omitted.) Fish Unlimited v. Northeast Utilities Service Co., supra, 254 Conn. 13. “For example, a mere conclusory assertion that the administrative agency will not reconsider its decision does not mean that resort to the agency would be futile; Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993); nor does the fact that the fact finder previously indicated how it would decide the claim. Housing Authority v. Papandrea, 222 Conn. 414, 428-30, 610 A.2d 637 (1992). Futility is more than mere allegation that the administrative agency might not grant the relief requested. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 559-60, 529 A.2d 666 (1987).” Wallingford Center Associates v. Board of Tax Review, 68 Conn. App. 803, 809-10, 793 A.2d 260 (2002).

In the present case, the plaintiff challenges the commission’s interpretation and application of the special exception procedures contained in the town’s zoning regulations. The defendant argues that the record is devoid of any input from the commission as to how that agency interprets the pertinent regulations. We disagree and find that the commission did in fact take a position on the proper interpretation of the regulations. Both during the hearing and on appeal, the commission consistently has expressed its belief that the proper interpretation of the relevant zoning regulations required the plaintiff to apply for a special exception permit on the basis of the overall size of the plaintiffs property.

That situation differs from those cases in which our Supreme Court has found a failure to exhaust administrative remedies when a party has failed to seek a ruling from an administrative body on the basis of that body’s public statements declaring how it would rule on a certain issue. See Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 561 (conclusory assertion that agency will not reconsider decision); Housing Authority v. Papandrea, supra, 222 Conn. 428-30 (prior statement by fact finder how it would decide issue). In each of those cases, the statements relied on to establish that the administrative body had reached a decision and that resort to the administrative process would be futile were made outside of the normal administrative process. See Polymer Resources, Ltd. v. Keeney, supra, 561; Housing Authority v. Papandrea, supra, 428-30. It also is worth noting that in each of those cases, the party claiming futility had eschewed administrative relief completely by failing to appear before the administrative body. Thus, for both of those reasons, there had been no final action on which an appeal could be predicated.

In the present case, thé town planner had told the plaintiff that it had to apply for a special exception because its property consisted of more than four acres. The plaintiff duly complied and presented to the commission an application for a special exception. The commission accepted the application, held a public hearing to decide the issue and denied the plaintiffs application. In the subsequent appeals, the commission consistently has reiterated that it interprets the pertinent regulations, consistent with its action during the hearing on the plaintiffs application, as requiring a special exception permit for projects on property consisting of more than four acres.

Far from involving a conclusory allegation as to how the commission may have interpreted the regulation before us, the present appeal involves the commission’s actual, concrete interpretation of the regulation on the record. To require the plaintiff, therefore, essentially to seek a declaratory judgment from the commission regarding its consistent interpretation of the relevant zoning regulation serves no useful purpose. Accordingly, we conclude that a remand to the commission does not hold the prospect of the plaintiffs gaining the relief that it seeks and that seeking such relief from the commission would be futile.

II

We next address the defendant’s claim that the court improperly interpreted and misapplied the commission’s regulations by concluding that the commission improperly required the plaintiff to submit an application for a special exception to construct a concrete manufacturing facility, covering less than four acres, in an existing industrial zone solely on the ground that the total lot size of the plaintiffs property was more than four acres.

Our review of the court’s interpretation of the zoning regulations is plenary. Vivian v. Zoning Board of Appeals, 77 Conn. App. 340, 344, 823 A.2d 374 (2003). Thus, we must determine whether the conclusions reached by the court are legally and logically correct and supported by the facts in the record. Id., 344-45. “Generally, it is the function of a zoning [commission] ... to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the [commission] correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the [commission] is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal. . . .

“A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court. . . . The court is not bound by the legal interpretation of the ordinance by the [commission]. . . .

“The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation. . . . Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms. . . . The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning .... [W]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction] . . . .” (Citation omitted; internal quotation marks omitted.) Farrior v. Zoning Board of Appeals, 70 Conn. App. 86, 89-90, 796 A.2d 1262 (2002).

“A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall inteipretation. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” (Internal quotation marks omitted.) Vivian v. Zoning Board of Appeals, supra, 77 Conn. App. 345.

Article II, § 16.15.02 (a), of the zoning regulations mandates that “[a]ll uses which include development of an area in excess of four (4) acres” require approval by the planning and zoning commission after a public hearing. Section 16.02 of the regulations, governing “the regulating of large site development” in industrial zones, requires that “development of sites in excess of four (4) acres ... be subject to special exception approval.” The court determined that interpretation of the words “area” and “site” was the key to understanding the proper scope of the regulations. The court concluded that the special exception permitting process was not triggered by the size of the overall lot on which a proposed development project will sit, but rather by the area of that lot that will be subject to disturbance as a result of the development.

Following our independent review of the pertinent zoning regulations, we agree with the court’s interpretation. It seems clear that as used in the regulations, both area and site connote something different from an entire lot such as would be described within a deed of ownership and recorded in the land records. Article I, § 2, of the zoning regulations defines “lot” as a “parcel of land to be occupied by one principal building or by a group of principal buildings and the accessory buildings or uses incident thereto, including such open spaces as are required by these regulations and such open spaces as are used in connection with the buildings.” The zoning regulations do not contain any specific definition of the terms area or site. Nevertheless, their meaning can be divined from the context in which they are used within the relevant sections of the zoning regulations.

Section 16.01 requires that the “development of the site shall be engineered and developed so that the landscape will be preserved in its natural state insofar as practicable by minimizing soil and tree removal, and all grade changes shall be designed so that the finished levels and contours will blend harmoniously with the natural and undisturbed landscape. . . .” Section 16.02 requires that “development of sites in excess of four (4) acres ... be subject to special exception approval.” (Emphasis added.) Finally, § 16.15.02 (a) mandates that “[a]ll uses which include development of an area in excess of four (4) acres” require approval by the commission after a public hearing. (Emphasis added.) Article I, § 2, of the zoning regulations defines “development” as “any construction or grading activities or removal of vegetation to improved or unimproved real estate.” Thus, we conclude that properly interpreted, the regulations requiring special exception permits for large site development are concerned with the area of disturbance associated with the proposed construction activity, taking into account the actual construction of buildings and associated infrastructure as well as any ancillary landscaping.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that there is some ambiguity as to which town official is being referred to by the defendant in its brief. The administrative regulatory scheme specifically provides for appeal to the zoning board of appeals from an adverse decision of the zoning enforcement officer. In light of the line of the defendant’s argument, it would be logical to assume that that is the official referred to as the town official. The defendant argues in its brief: “[I]f the plaintiff believed its plans for the concrete mixing plant was something it could do ‘as of right,’ it should have proceeded with an application for zoning approval. Had the zoning enforcement officer denied that application and ruled that a special permit was required, the plaintiff could have taken [an] appeal to the zoning board of appeals.” The defendant, however, appears to conflate the town’s zoning enforcement officer, building inspector and town planner. Thus, the defendant argues: “If the zoning enforcement officer denied the plan . . . the plaintiff would have had two alternatives. . . . The second course would be to avail itself of its regulator right to appeal to the zoning board of appeals .... The [zoning board of appeals] has the power to hear and decide appeals where it is alleged [that] there is error in any order, requirements or decision made by the building inspector. . . . If the plaintiff believed that the town planning official was wrong ... the plaintiff should have gone to the [zoning board of appeals], Cf. Borden v. Planning & Zoning Commission, 58 Conn. App. 399, 409, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000).” (Citations omitted; emphasis added.)
      We note that Borden involved only the question of whether an appeal from the zoning enforcement officer’s decision should have been taken to the zoning commission or the zoning board of appeals. It did not discuss the necessity of challenging a zoning commission’s interpretation of the zoning regulations by seeking a certificate of compliance from the zoning enforcement officer.

       Article V, § 4.01, of the Manchester zoning regulations provides in relevant part: “No land shall be occupied or used, and no buddings hereafter erected or altered, shall be occupied or used, in whole or in part, for any purpose whatsoever . . . until a Certificate of Zoning Compliance shall have been issued by the zoning enforcement officer, stating that the premises or building complies with all provisions of the Zoning Regulations.”
      Article V, § 4.03, of the Manchester zoning regulations provides: “No permit for excavation for, or the erection of, any building shall be issued before a Certificate of Zoning Compliance has been issued. No building or premises, for which a certificate of Zoning Compliance is required, may be occupied until such Certificate shall have been issued.”


author: DRANGINIS, J.

text:
    NANCY WEINSTEIN v. LUKE A. WEINSTEIN
    (AC 22843)
    Foti, Dranginis and Hennessy, Js.

      Argued April 29
    officially released September 23, 2003

      Lori Welch-Rubin, with whom was Susan W. Wolfson, for the appellant (plaintiff).

      Wesley W. Horton, with whom were Karen L. Dowd and, on the brief, Linda T. Douglas, for the appellee (defendant).
   Opinion

DRANGINIS, J.

The plaintiff, Nancy Weinstein, appeals from the judgment of the trial court denying her motion to open the judgment dissolving her marriage to the defendant, Luke A. Weinstein. In her motion, the plaintiff alleged that the defendant fraudulently misrepresented certain information in the financial affidavit that he submitted to the court at the time of the dissolution. On appeal, the plaintiff claims that the court abused its discretion in denying her motion because she presented sufficient evidence of fraud. We affirm the judgment of the trial court.

The court found the following facts. After nearly seven years of marriage, the parties’ marriage was dissolved in May, 1998. One child was bom during the marriage. Following a two day dissolution trial, the court entered orders for custody, visitation, alimony, medical expenses and insurance coverage. The judgment also ordered the defendant to pay to the plaintiff $100,000 as a property settlement within sixty days. Two weeks later, the defendant filed a motion for reconsideration and for reargument, which the court denied.

At the time of the dissolution, the defendant owned a minority interest in a small computer company, known as Product Technologies, Inc. During the pendency of the matter, the plaintiff had deposed the defendant, requesting financial information about the value of his interest in the company. At trial, her expert witness, Kenneth Pia, submitted a report to the court containing his valuation of the defendant’s share in the company, which he made on the basis of the financial information contained in the defendant’s deposition, discovery and other representations, including the defendant’s sworn financial affidavit. Subsequently, the parties stipulated to and the court adopted the $40,000 value the defendant’s expert placed on the defendant’s minority interest.

In October, 1998, five months after the entry of the judgment of dissolution, the defendant’s company was sold to ICL, Inc., another software company, for $6 .million. Thereafter, the plaintiff filed a motion to open and to vacate the judgment, asserting that the defendant fraudulently had misrepresented material information during discovery, and in his deposition and financial affidavit. After taking evidence and hearing argument, the court, in a well reasoned thirty-nine page memorandum of decision, ruled against the plaintiff, finding that she did not proffer clear and convincing evidence that the defendant had made fraudulent misrepresentations to her regarding his financial status. The court predicated its conclusion primarily on the fact “that the plaintiff has not proved, even by the lower preponderance of the evidence standard, that the defendant knew of the eventual sale to ICL, Inc., as of the time of trial on April 15 and 16, 1998. The evidence is clear that ICL, Inc., had not proposed, or even broached, acquisition until June 15, 1998.” Thereafter, the plaintiff filed a motion for reconsideration and for reargument, which the court denied. She then filed a motion for pennission to file a late articulation, along with a proposed motion for articulation. This court denied those motions. The plaintiff now appeals from the trial court’s decision.

The plaintiff claims that the court improperly failed to find that the defendant fraudulently had misrepresented his financial condition at the time of the dissolution of marriage. Specifically, she asserts that the defendant’s failure to mention the existence of the company’s private placement memoranda and to disclose the fact that a sale of the company was pending, or that ICL, Inc., had offered to buy the company, in his responses to her discovery requests, constituted fraud sufficient to open the judgment of dissolution. The plaintiff further asserts that if she had known about the private placement memorandum, she would not have stipulated that the defendant’s minority interest in the company was only $40,000. Finally, the plaintiff maintains that because the dissolution court based its valuation on the parties’ stipulation, it would have reached a different result if there were a new trial. We disagree.

We begin by setting forth the applicable standard of review that governs our consideration of the plaintiffs claim. “Our review of a court’s denial of a motion to open [based on fraud] is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. . . .

“Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed. . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment. ... A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud. ... A court’s determinations as to the elements of fraud are findings of fact that we will not disturb unless they are clearly erroneous. . . .

“There are three limitations on a court’s ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different. . . .” (Citations omitted; emphasis in the original; internal quotation marks omitted.) Mattson v. Mattson, 74 Conn. App. 242, 244-46, 811 A.2d 256 (2002).

Resolution of the plaintiffs claim requires us to state certain additional facts. At trial, the defendant testified that his company and ICL, Inc., had worked together for four years, developing and selling smart card systems. In March, 1998, their business relationship began to deteriorate and that by virtue of a termination clause in their software licensing agreement, ICL, Inc., sent to Product Technologies, Inc., a notice of termination, effective September 26, 1998.

Despite the tension between the two companies, they met in April, 1998, in London. The defendant attended that meeting. The exact purpose for the meeting is not clear. Following that meeting, Philip Eames, the managing director of the smart card business for ICL, Inc., and Ross Bailey, a longtime employee of ICL, Inc., began to look at the defendant’s company with an eye toward how it would fit into the overall smart card strategy of ICL, Inc. In mid-June, 1998, the defendant and William J. Mangino, Jr., the principal stockholder and president of Product Technologies, Inc., and Eames and Alan P. Wain, the in-house counsel for ICL, Inc., met at the office of Product Technologies, Inc., in Middletown. At that meeting, the defendant and Mangino claimed that Product Technologies, Inc., had superior rights to the jointly developed software. In the hope of avoiding litigation, ICL, Inc., offered to purchase the company for $2.5 million. Subsequently, the defendant and Mangino rejected that offer as too low. Wain exchanged letters with the defendant and Mangino. Each letter expressed substantially the same concern, which was with the ownership of and the intellectual property rights to the software.

One week later, Eames called Mangino to schedule another meeting. On July 1, 1998, the defendant and Mangino signed a memorandum of understanding with ICL, Inc., which set forth its acquisition of Product Technologies, Inc., for $6 million. As a result of the sale, the value received by the defendant for his minority interest in the company was $1,449,721. Less than three months before the defendant signed the memorandum of understanding, he had claimed the value of his interest to be $40,000.

We now turn to the merits of the plaintiffs appeal. The plaintiff argues that the court adopted too narrow an interpretation of her discovery requests. At the hearing, she introduced three interrogatories and one request for production of documents into evidence. The sixth interrogatory asked the defendant to disclose any information about the sale or purchase of the company. The seventh and eighth interrogatory and the first request for production of documents were aimed specifically at uncovering whether the defendant had applied for new financing and, if so, from whom and when. In finding no fraud, the court performed a careful step by step analysis of the defendant’s responses to the plaintiffs discovery requests, limiting its review of the defendant’s responses to only those requests that the plaintiff had introduced into evidence.

With respect to the sixth interrogatory, concerning the sale or purchase of the company, we first note that the defendant gave his sworn responses on December 16, 1997. There is no evidence that ICL, Inc., had approached Product Technologies, Inc., about a purchase before that date. The court credited the defendant’s responses, during discovery and at the hearing, that ICL, Inc., had not broached the subject of buying the company until May, 1998. The court is responsible for assessing a witness’ credibility and, therefore, was free to accept or to reject the defendant’s testimony in making findings of fact. See Giulietti v. Giulietti, 65 Conn. App. 813, 878, 784 A.2d 905 (“ ‘trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility’ ”), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). We will not second-guess the court’s determination.

Next, the plaintiff argues that the defendant should have revealed the existence of his company’s private placement memorandum in his responses to interrogatories seven and eight and in response to the first request for production of documents.

It is undisputed that the defendant did not disclose a private placement memorandum before the dissolution proceedings. The question becomes whether his nondisclosure amounted to fraud. The record shows that Product Technologies, Inc., had issued a private placement memorandum in 1997 to raise $5 million in equity capital. ICL, Inc., received a copy of the private placement memorandum in late 1997. No action on the private placement memorandum took place. Thereafter, in April, 1998, the previously discussed meeting took place. Whether acquisition of Product Technologies, Inc., was talked about at that meeting is unclear. Mangino and the defendant testified that there was no such discussion, and the court found that other proffered evidence, which was sketchy at best, was not credible.

At no point in 1998 did the two companies discuss the private placement memorandum. We have no quarrel with the court’s finding that the plaintiff did not offer any evidence that the defendant was obliged to disclose the existence of the private placement memorandum in response to the plaintiffs discovery requests, which were admitted into evidence, and that his failure to do so constituted fraud. Without having more evidence of the defendant’s responses to the plaintiffs discovery requests, the court could not determine whether the plaintiff had asked in other discovery requests about the efforts of Product Technologies, Inc., to raise equity capital. We therefore conclude that the plaintiff did not meet the high standard of clear proof required for fraud, namely, that she did not proffer evidence that the defendant fraudulently had concealed the existence of the private placement memorandum. See Jucker v. Jucker, 190 Conn. 674, 678, 461 A.2d 1384 (1983); Castro v. Castro, 31 Conn. App. 761, 768, 627 A.2d 452 (1993).

The plaintiff also argues that the defendant should have disclosed the private placement memorandum when Pia, the plaintiffs business expert, asked for the business plan for Product Technologies, Inc. The defendant and Pia had met in December, 1997, prior to trial. At that meeting, the defendant gave Pia information about the company so that Pia could appraise the value of the defendant’s share in the company. There was no evidence before the court about what happened during that meeting. Pia testified at the hearing that he never specifically asked the defendant about the private placement memorandum, and the defendant testified that Pia did not ask him about it. The court found that the plaintiff did not ask the defendant at his deposition if Product Technologies, Inc., had a business plan. No part of the defendant’s deposition, however, was introduced into evidence at the hearing on the motion to open the dissolution judgment. Moreover, the plaintiff did not put anyone on the witness stand to define a “business plan.” Rather, the evidence established only that Pia gave a detailed definition of a private placement memorandum. The plaintiff also asserts that the defendant should have revealed the existence of the private placement memorandum when asked if Product Technologies, Inc., had applied to any banks or financial institutions for financing. The court rejected that argument, finding that “[b]ank financing generally means a loan; banks do not ordinarily make equity investments in companies [the] size and tenure [of Product Technologies, Inc.].” The court found, and we agree, that there was no “correlation between the $5 million offering price for 12,000 shares of series A preferred stock of [Product Technologies, Inc.] and the value of [Product Technologies, Inc.].” The court, thus, found that “[t]here [was] no credible evidence [that the] decision [by ICL, Inc.] to acquire Product Technologies, Inc., was influenced by or in any way the result of the private placement memorandum. There is no evidence that the private placement memorandum was even remotely instrumental in bringing about [the] decision [by ICL, Inc.] to acquire Product Technologies, Inc.”

We conclude that the evidence was sufficient for the court to find that the factual record before it failed to support the plaintiffs contention that at the time of the dissolution, the defendant failed to disclose the private placement memorandum to defraud her. “[F]actual findings of a trial court . . . are reversible only if they are clearly erroneous. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Citation omitted; internal quotation marks omitted.) Muller v. Muller, 43 Conn. App. 327, 338, 682 A.2d 1089 (1996).

After concluding that the plaintiff had failed to proffer clear proof of fraud, the court proceeded to analyze her claim to see if she established that “[t]here [i]s a substantial likelihood that the result of the new trial will be different.” (Internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 218, 595 A.2d 1377 (1991). The plaintiff claims that had she known about the private placement memorandum, she would not have stipulated to the $40,000 valuation of the defendant’s minority interest in the company. The plaintiff further claims that on the basis of the information in the private placement memorandum, the dissolution court would have reached a different result. Contrary to the plaintiffs claims, the evidence does not show that the dissolution court would have found a different value for the defendant’s minority interest in Product Technologies, Inc. Rather, the evidence shows that although Pia initially opposed the $40,000 valuation of the defendant’s interest in the company, Pia eventually agreed on that figure. Furthermore, Pia did not testify at the hearing on the motion to open the judgment as to whether $40,000 was the appropriate valuation of the defendant’s minority interest in the company. More importantly, the record shows that the plaintiff never asked Pia if his opinion of the value of the defendant’s share of the company would have changed if he or the plaintiff had the private placement memorandum before the dissolution trial in April, 1998. Under those facts and giving every reasonable presumption in favor of the court’s action, we conclude that the court reasonably found that the new evidence presented likely would not have produced a different result. Cf. Jackson v. Jackson, 2 Conn. App. 179, 195, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984).

We conclude that there was sufficient credible evidence in the record to support the court’s conclusion that the defendant’s nondisclosure of the private placement memorandum was not fraudulent. As such, the court did not abuse its discretion in denying the motion to open the dissolution judgment. See Nolan v. Nolan, 76 Conn. App. 583, 586, 821 A.2d 772 (2003). Contrary to the plaintiffs characterization, we do not perceive the defendant’s behavior as attempting to conceal the offer by ICL, Inc., to purchase Product Technologies, Inc. This case is similar to the occurrence of a windfall or an unexpected postdivorce prosperity. Although disconcerting, the other party simply is not entitled to share in that new prosperity. See Castro v. Castro, supra, 31 Conn. App. 768. Accordingly, the court did not abuse its discretion in refusing to open the dissolution judgment on the ground of fraud.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Although the motion to open the judgment was filed more than four months from the date of dissolution; see Practice Book § 17-4; the court has inherent power to determine if fraud exists. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). Furthermore, the four month provision in the rules of practice may be waived by the conduct of the parties, such as the participation of the parties in the determination of the motion without objection. See In re Baby Girl B., 224 Conn. 263, 292, 618 A.2d 1 (1992).” Mattson v. Mattson, 74 Conn. App. 242, 243-44 n.1, 811 A.2d 256 (2002).

       A private placement memorandum is used to secure financing to start a new business or to expand a current business.


text:
    ALLISON CARUSILLO ET AL. v. ASSOCIATED WOMEN'S HEALTH SPECIALISTS, P.C.
    (AC 21604)
    Foti, Dranginis and Flynn, Js.
    Argued March 24
    officially released September 23, 2003

      William F. Gallagher, with whom, on the brief, was Roger B. Calistro, for the appellants (plaintiffs).

      Eugene A. Cooney, for the appellee (defendant).
   Opinion

DRANGINIS, J.

This case is before us on remand from our Supreme Court. Carusillo v. Associated Women’s Health Specialists, P.C., 262 Conn. 920, 812 A.2d 861 (2002). The plaintiff Allison Carusillo appealed to this court from the judgment of the trial court rendered in favor of the defendant, Associated Women’s Health Specialists, P.C., after the granting of the defendant’s motion to set aside the jury’s verdict and damages award. We determined that the court improperly granted the defendant’s motion because expert testimony may be based on inadmissible hearsay as long as the expert’s opinion is based on reliable information and the expert witness has sufficient experience to evaluate the information. Our Supreme Court granted the defendant’s petition for certification to appeal and, in the same order, remanded the case to us for consideration of the defendant’s alternate grounds for affirmance. Those alternate grounds for affirmance are that the plaintiff (1) did not present sufficient evidence of the appropriate standard of care for an operative vaginal delivery, and (2) failed to prove that the defendant did not act in accordance with that standard, and that such failure was aproxímate cause of the plaintiffs injuries. We reject the defendant’s alternate grounds for affirmance of the trial court’s judgment.

The underlying facts and procedural history of this case are fully set forth in our opinion in Carusillo v. Associated Woman’s Health Specialists, P.C., 72 Conn. App. 75, 76-83, 804 A.2d 960, remanded, 262 Conn. 920, 812 A.2d 861 (2002). The following summary of the facts is necessary to resolve the defendant’s alternate arguments. On October 6, 1994, the plaintiff went to Waterbury Hospital to deliver her first child. At approximately 5:30 p.m., after the plaintiff had been pushing for two hours, Janet Vodra, the delivering obstetrician-gynecologist employed by the defendant medical practice, did an internal examination and determined that the baby was at a “plus two” station. Because there was little or no progress in the baby’s descent within the birth canal, Vodra decided to use a vacuum extractor to get the baby’s head to come out of the womb. After repeated attempts with the vacuum extractor, the baby’s head was delivered. The baby’s shoulder, however, became stuck behind the plaintiffs pubic bone, a condition known as shoulder dystocia. Vodra made a fourth degree episiotomy, which is a vertical incision in the perineal tissue (the area between the vagina and the rectum), thereby allowing more room for the baby’s delivery through the birth canal. The baby was delivered twelve to fifteen minutes later; she appeared normal except for an elongated head. Following the delivery, Vodra surgically repaired the episiotomy. The plaintiff subsequently suffered from a rectovaginal fistula (passage of stool through the vagina) and underwent two operations by Ian Cohen, another physician employed by the defendant, and David Cherry, a physician outside the defendant practice, to repair the nonhealing episiotomy incision, but the plaintiff continues to suffer pain and permanent incontinence.

In April, 1996, the plaintiff brought an action against the defendant, naming Vodra and Cohen as its agents. In her complaint, the plaintiff alleged that Vodra’s performance of a high pelvic operative vaginal delivery had resulted in the baby’s presentment of shoulder dystocia. She asserted that when confronted with the obstetric complication, Vodra performed a fourth degree episiotomy, which subsequently caused the plaintiff permanent injury. At trial, each side presented the testimony of one expert witness. The plaintiff offered the testimony of Harold Schulman, and the defendant presented expert testimony from Edmund Olson. Both are board certified obstetricians and gynecologists. The case proceeded to trial before a jury, which returned a verdict in favor of the plaintiff, awarding $5000 in economic damages and $265,000 in noneconomic damages. Thereafter, the defendant filed a motion to set aside the verdict, which the court granted. In its memorandum of decision addressing the defendant’s motion, the court found that the plaintiffs expert witness testimony on causation consisted of inadmissible hearsay. The plaintiff appealed to this court. We reversed the court’s judgment, and remanded the case with direction to reinstate the jury’s verdict and to render judgment on the verdict in favor of the plaintiff. Thereafter, the defendant appealed to our Supreme Court, which granted the petition for certification to appeal and remanded the case for us to consider the defendant’s alternate grounds for affirmance. See Carusillo v. Associated Women’s Health Specialists, P.C., supra, 262 Conn. 920.

We first note the applicable standard of review. “[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . .

“A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. ... On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Citations omitted; internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn. App. 574, 581-82, 785 A.2d 253 (2001).

We also note that a medical negligence action requires the plaintiff to prove “(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.” (Internal quotation marks omitted.) Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 613, 816 A.2d 719, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003).

I

The defendant first argues that the plaintiff did not present expert testimony establishing the required standard of care for performing an operative vaginal delivery. Our review of Schulman’s testimony persuades us that the plaintiff set forth the standard of care by which the jury could have evaluated the defendant’s conduct.

According to Schulman, a former member of the American College of Obstetricians and Gynecologists, the prevailing standard of care in effect in October, 1994, required that a physician perform an operative vaginal delivery only after determining that the leading bony point of the baby’s head is at the level of the ischial spines and the biparietal diameter has passed the maternal pelvic inlet. He also testified that physicians should always assess the station by both abdominal method and pelvic method to be certain that the skull is at an adequate station. Finally, Schulman testified that the standard of care prohibited physicians from performing a vacuum assisted delivery when the station (location) of the baby’s head is high in the birth canal.

We conclude, therefore, that Schulman’s testimony concerning the then accepted standard of care was sufficient for the plaintiff to meet her burden of providing expert testimony to establish the requisite professional standard of care for performing an operative vaginal delivery.

II

Next, we determine whether there was sufficient evidence that the defendant deviated from the required standard of care in its care and treatment of the plaintiff and whether the facts alleged established causation. Schulman testified that in his opinion, Vodra breached the standard of care when she performed a high pelvic instrumental delivery. He opined that to a reasonable degree of medical certainty, had the vacuum not been used, the baby would not have had a problem with her shoulders fitting through the plaintiffs pelvis and, thus, the episiotomy would not have been necessary and the plaintiff would not have suffered permanent incontinence resulting from the fourth degree episiotomy.

Schulman testified that the following facts led him to conclude that the baby was too high in the birth canal, thereby causing the unnecessary episiotomy: (1) the baby was in a “plus two” station and in an occiput posterior position (baby is head down, but facing the mother’s abdomen), (2) the frequent detachment of the vacuum extractor cup, (3) presentment of shoulder dystocia and (4) a prolonged second stage of labor. He also testified that he agreed with the defendant that the location of the baby’s head is usually low enough for an operative vaginal delivery when the leading bony part of the baby’s head is at least two centimeters (or at a plus two station) below the ischial spines. Schulman asserted that if, however, there is molding of the baby’s head, as there was here, then the head will appear much lower than it actually is, making the assessment of the station more difficult. Schulman also told the jury that Vodra breached the standard of care by not performing an abdominal exam to help determine if the baby’s head was at an adequate station. Olson, the defendant’s expert, testified that he believed that Vodra acted within the standard of care and was not negligent when she used the vacuum extractor.

The record here, viewed in the light most favorable to the plaintiff, provides sufficient evidence of her malpractice claim: Applicable standard of care, breach of that standard of care and injury caused by the breach. As with many medical malpractice cases, this case amounted to the proverbial battle of expert witnesses. Nonetheless, conflicting opinion testimony concerning compliance with the applicable standard of care does not necessarily equate to insufficient evidence. “If there is conflicting evidence . . . the fact finder is free to determine which version of the event in question it finds most credible.” State v. Bruno, 236 Conn. 514, 546, 673 A.2d 1117 (1996). “It is axiomatic that we do not reevaluate the credibility to be afforded witnesses or the weight to be given specific testimony.” Maloney v. PCRE, LLC, 68 Conn. App. 727, 736, 793 A.2d 1118 (2002). Therefore, we conclude that the alternate grounds for affirmance do not require a different result.

The judgment is reversed and the case is remanded with direction to reinstate the jury’s verdict and damages award and to render judgment in favor of the plaintiff.

In this opinion the other judges concurred.

       Although Stephen Carusillo, the husband of Allison Carusillo, also is a plaintiff, we refer in this opinion to Allison Carusillo as the plaintiff.

       A “plus two” station means that the baby’s head is located two centimeters lower than the level of a woman’s ischial spines in the birth canal.

       A vacuum extractor is a cup made of steel or soft flexible plastic. It is attached to a suction device to help guide the baby out of the birth canal.

       The medical negligence alleged is not that the medical procedures used were performed improperly, but that they were inappropriate under the circumstances.

         The use of a vacuum extractor (or forceps) for delivery of a baby’s head is termed an “operative vaginal delivery.”

       Schulman testified that the station of the baby’s head in the birth canal is determined by the relationship of the head to bony projections, also referred to as the ischial spines, in the pelvis. Schulman explained that the ischial spines are the narrowest point of the pelvis and are commonly used to measure the point of the baby’s descent. That point is known as zero station. Essentially, that is the definition of engagement of the fetal head: When the biparietal diameter (width) of the baby’s head has passed through the pelvic inlet. If the head lies above the ischial spines, the station is reported as a negative number from zero to negative five, where each number is a centimeter. If the head, or other presenting part, lies below the ischial spines, the station is reported as a positive number from zero to five, where each number is a centimeter. That information, according to Schulman, is important because physicians need to get a sense of how far the baby has descended into the birth canal before the vacuum extractor can be used. Schulman testified that if the head is above the spines, then it is not engaged, and the baby is too high to deliver vaginally.

       Molding of a baby’s head, occurs when the head is compressed while passing through the pelvis during vaginal delivery.


text:
    STATE OF CONNECTICUT v. ALAN L. WEISENBERG
    (AC 22590)
    Foü, Dranginis and Bishop, Js.
    Argued June 3
    officially released September 23, 2003

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Kevin T. Kane, state’s attorney, and, on the brief, Michael E. Kennedy, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Alan L. Weisenberg, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of drugs in violation of General Statutes § 14-227a (a) (l). He also appeals from the conviction on part B of the information, rendered by the court, of being a third time offender under General Statutes (Rev. to 1999) § 14-227a (h) (3). On appeal, the defendant claims that the state did not present sufficient evidence to prove beyond a reasonable doubt that he was guilty of violating § 14-227a (a) (1) and (h) (3). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of August 7, 1999, at approximately 1:05 p.m., Michael Coovert was driving southbound from Colchester to Mystic on Route 85 when he saw the defendant driving his red Thunderbird erratically near the Montville-Waterford town lines. Coovert testified that he saw the defendant’s vehicle cross the center line of the road into the other lane several times. At some point, Coovert observed the defendant’s car almost hit a motorcyclist and a bicyclist. Coovert then called 911 to report the defendant’s erratic driving.

Officer Stephen Bellos of the Waterford police department received a dispatch concerning a possible drunken driver on Route 85 in Waterford. Bellos testified that the defendant’s vehicle crossed the double yellow line as it proceeded southbound along the highway, forcing him, as he traveled in the northbound lane, off the road.

Officer Cynthia Munoz of the Waterford police department stopped the defendant’s car, and approached the defendant, informing him of the reason for the stop and asking him to produce his driver’s license, registration and proof of insurance. Munoz testified that the defendant had difficulty retrieving those documents. During their conversation, the defendant admitted to Munoz that he had taken three different prescribed medications that morning: Imipramine, methadone and Xanax, and that they made him shaky. Munoz observed that the defendant had slurred speech and constricted pupils. On the basis of those observations, she asked the defendant to exit the car. Munoz further testified that the defendant, when getting out of his car, had to hold onto the car to steady himself.

Munoz then asked the defendant to perform two field sobriety tests. Munoz first administered the walk and turn test, which required the defendant to walk heel to toe in a straight line. Then, she administered the one-leg stand test, in which the defendant had to raise one foot off the ground and count for thirty seconds. The test results were consistent with her belief that the defendant was under the influence of alcohol or drugs.

Thereafter, Munoz took the defendant into custody and transported him to the police station. At the police station, the defendant became more unsteady and was transported by ambulance to Lawrence and Memorial Hospital in New London for treatment. Kathleen Katamura, the emergency room physician, examined the defendant and found that he had slurred speech due to the medications and coordination problems. Thereafter, Katamura ordered a routine urine test, which later revealed the presence of methadone. Katamura discharged the defendant with orders not to drive while taking Xanax.

The defendant subsequently was charged with operating a vehicle under the influence of drugs. In support of his defense, the defendant presented the testimony of Naimet A. Syed, his psychiatrist, Carolyn Delgado, the service coordinator of a methadone clinic, and Vasco Gomes, his mechanic. After the close of the state’s case and again at the conclusion of the evidence, the defendant orally made motions for a judgment of acquittal. The court denied those motions, and the jury subsequently convicted the defendant on part A of the information, which alleged a violation of § 14-227a (a) (1). At the sentencing hearing, the defendant requested a judgment of acquittal and a new trial. The court denied both motions. The defendant pleaded guilty to part B of the information, which alleged that he was a repeat offender under § 14-227a (h) (3). Thereafter, the court sentenced the defendant to two years imprisonment, execution suspended after one year, with two years probation. The special conditions of the defendant’s probation included that he undergo alcohol abuse testing and treatment, and that he not operate a motor vehicle while his license is under suspension. This appeal followed. Additional facts will be discussed where relevant to the issues in this appeal.

I

The defendant first claims that the evidence adduced at trial was insufficient to sustain his conviction of operating a vehicle while under the influence of drugs. The defendant does not dispute that he had taken three prescribed medications. He does, however, argue that the proof at trial was insufficient evidence “connecting [his] use of medication to his driving on the date in question.” We disagree.

To be convicted of operating a motor vehicle while under the influence of drugs pursuant to § 14-227a, the state must prove beyond a reasonable doubt that the defendant operated his motor vehicle on a public highway while under the influence of intoxicating liquor or drugs or both. The defendant conceded that he was the operator of the vehicle and that he was driving on a public highway. His challenge relates to the last element, which provides that he operated the motor vehicle while under the influence of drugs.

The appellate standard of review of sufficiency of the evidence claims is well established. “In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ...

“We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . . We are content to rely on the [jury’s] good sense and judgment.” (Citations omitted; internal quotation marks omitted.) State v. Gentile, 75 Conn. App. 839, 861-63, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003).

Governed by that standard of review, we conclude that the state submitted ample evidence from which the juiy could find that the defendant was guilty beyond a reasonable doubt of operating a vehicle while under the influence of drugs. The record discloses that the state presented evidence showing that the combination of imipramine, methadone and Xanax had a depressive effect on the defendant’s central nervous system. The emergency room physician testified that the defendant was not fit to drive on the afternoon in question. There was evidence that a nurse had warned the defendant about mixing methadone with other drugs. Bellos testified that he had observed the defendant’s erratic driving and had to swerve to avoid a collision with the defendant’s car. Munoz testified that the defendant had some difficulty getting out of the car and producing his driver’s license, registration and insurance documents when ordered to do so. Munoz also testified that the defendant had slurred speech and constricted pupils, and had performed poorly on two field sobriety tests. The jury also had before it testimony from a witness who observed the defendant’s car cross the center line of the road and enter the other lane of traffic before nearly hitting a motorcyclist and bicyclist. That evidence, coupled with defendant’s admission to having taken three prescription medications, was sufficient evidence to show that the defendant was impaired and that his impairment was caused by the medications.

Although the defendant attempted to prove that the car’s mechanical problems could have caused his car to “clunk” and “sway,” the juiy was free to disbelieve that evidence. “It is the jury’s right to accept some, none or all of the evidence presented. . . . Moreover, [e]vidence is not insufficient . . . because it is conflicting or inconsistent. [The jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Citation omitted; internal quotation marks omitted.) State v. Pranckus, 75 Conn. App. 80, 87, 815 A.2d 678, cert. denied, 263 Conn. 905, 819 A.2d 840 (2003).

Viewing the evidence in a light most favorable to sustaining the verdict, we conclude that the cumulative effect of the evidence was more than sufficient to support the jury’s conclusion that the state had met its burden of production regarding each element of the crime of operating a motor vehicle while under the influence of drugs.

II

The defendant’s second claim is that the evidence was insufficient to convict him of being a third time offender in violation of § 14-227a (h) (3) because the state presented no evidence of the prior convictions other than that the person convicted of those crimes had the identical name as does the defendant. We disagree.

The following facts are relevant to our resolution of the defendant’s unpreserved claim. The state filed a part B information, alleging that the defendant previously had been convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1) on February 4, 1992, and on April 1, 1997. After canvassing the defendant, the court accepted his guilty plea and sentenced him in accordance with the enhanced penalty provisions of § 14-227a (h) (3). The defendant did not move to withdraw his guilty plea prior to sentencing, electing instead to raise the issue of the allegedly defective plea canvass for the first time on appeal. Accordingly, he seeks review of the court’s alleged violation of Practice Book § 39-19 under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine. See Practice Book § 60-5.

The defendant claims that his guilty plea was constitutionally defective because the court accepted it when there was no factual basis for it in violation of Practice Book § 39-27 (5). Relying on State v. Gallichio, 71 Conn. App. 179, 190, 800 A.2d 1261 (2002), the defendant correctly points out that the state does not necessarily establish that a defendant committed an offense just because someone with the same name has been convicted of the same crime. The defendant asserts that because the only evidence offered was his name, the court could not have concluded that he was the same person who previously had been convicted of operating a vehicle under the influence.

We conclude that the defendant’s reliance on Gallichio is misplaced because it clearly is distinguishable from the facts of the present case. In Gallichio, the state did not present any evidence other than certified copies of the defendant’s prior convictions. This court, citing State v. Grady, 153 Conn. 26, 33, 211 A.2d 674 (1965), concluded that the trial court improperly had imposed the enhanced penalties of § 14-227a (h) (3) on the defendant because “there was insufficient evidence for the court to have concluded beyond a reasonable doubt that the defendant and the person named in the record of the conviction were one and the same.” State v. Gallichio, supra, 71 Conn. App. 190. Here, the defendant’s record of prior convictions was read into evidence and, during the court’s plea canvass, the defendant admitted to those prior convictions. Specifically, the record reflects that the defendant responded affirmatively to the court when it asked him whether on February 4,1992, and April 1,1997, he was convicted in Manchester of operating a vehicle while under the influence of intoxicating liquor.

“On appeal, the claim for review must meet all four prongs of the Golding analysis to be successful. . . . Because the defendant failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial, his claim fails to satisfy the third condition of Golding.” (Citations omitted.) State v. Williams, 60 Conn. App. 575, 579, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).

We also conclude that the defendant’s claim does not merit plain error review. “[P]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . The claimed error here is not so egregious or obvious as to merit such review.” (Internal quotation marks omitted.) State v. Beverly, 72 Conn. App. 91, 104-105, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002). Accordingly, because the defendant’s arguments under both Golding and the plain error doctrine are unavailing, the defendant’s claims fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence ... if such person operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor or any drug or both . . . .”

       General Statutes (Rev. to 1999) § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within ten years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege suspended for three years . . . .”

       The defendant also argues in his reply brief that the state did not prove how much imipramine, methadone and Xanax was in his blood at the time of the alleged offense. That argument is without merit. Unlike the situation in which a defendant is charged with operating a motor vehicle under the influence of alcohol and the state must prove the defendant’s blood alcohol content, the state does not have to prove the quantity of drugs in the blood to obtain a conviction for operating a motor vehicle while under the influence of drugs.

       Practice Book § 39-26 provides: “A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”

       Pursuant to State v. Golding, supra, 213 Conn. 233, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239^40. “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; internal quotation marks omitted.) State v. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001).

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       Additionally, the transcript of the plea canvass indicates that before accepting the defendant’s plea, the court conducted a lengthy examination of the defendant pursuant to Practice Book §§ 39-19 through 39-21. During the plea canvass, the court explained to the defendant that he was waiving his rights to a trial by jury and to present evidence, to force the state to prove the second part of the information beyond a reasonable doubt, to confront and to cross-examine witnesses, and to remain silent. The court then asked the defendant if his attorney had reviewed with him his constitutional rights and the ramifications of waiving those rights. The defendant indicated that his attorney had not talked with him. The court then gave the defendant time to discuss with his attorney the consequences of the decision to plead guilty. After ensuring that no one had forced or threatened the defendant to plead guilty, the court made sure that he understood that as a result of his guilty plea, he was in violation of his probation. The court further explained the mandatory minimum sentence. On the basis of the foregoing, we have no hesitation in concluding that the defendant’s guilty plea met both the federal and state standards for validly entered guilty pleas and is, therefore, valid.