text:
    MOUNTAIN BROOK ASSOCIATION, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WALLINGFORD
    (AC 31617)
    DiPentima, C. J., and Beach and Bear, Js.

      Argued September 22, 2011
    officially released February 7, 2012

      Janis M. Small, town attorney, for the appellant (defendant).

      Vincent T. McManus, Jr., for the appellees (plaintiffs).
   Opinion

DiPENTIMA, C. J.

The defendant, the zoning board of appeals of the town of Wallingford, appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, Mountain Brook Association, Inc. (Mountain Brook) and its individual members, from the decision of the defendant upholding the cease and desist order of the town’s zoning enforcement officer, Mark DeVoe. DeVoe had determined that the placement of children’s recreational equipment, sheds and fences violated the relevant zoning regulations of the town of Wallingford. On appeal, the defendant claims that the court failed to interpret properly the relevant zoning regulations. Specifically, it argues that the placement of children’s recreational equipment, sheds and fences in the Mountain Brook open space residential planned district violates these zoning regulations. We disagree with respect to the issue of children’s recreational equipment but agree as to the sheds and fences.

The following facts and procedural history are relevant to this appeal. By certified letter dated July 24, 2006, DeVoe issued a cease and desist order, notifying Mountain Brook that various residents were in violation of the Wallingford zoning regulations because they had placed children’s recreational equipment, sheds and fences on their property. These residents are all owners of single-family condominium units collectively known as Mountain Brook. The condominium units are located in an open space planned residential district (district), created pursuant to § 4.3 of the Wallingford zoning regulations (regulations). The permitted uses in the district are one-family, two-family and multifamily dwellings in principal buildings. See Wallingford Zoning Regs., § 4.3.B.I. The cease and desist order stated that letters previously had been sent to the individual residents regarding these violations. There had been no response to those letters, and DeVoe indicated that “recent field inspections indicate these items remain on the properties [as] noted on the attached table.” DeVoe also determined that Mountain Brook was in violation of the regulations because it had authorized the placement of the children’s recreational equipment, sheds and fences. DeVoe concluded that these items are not permitted for individual owners in the district but are permitted only as community facilities for the use and enjoyment of the entire development. Additionally, DeVoe indicated that approval from the town’s planning and zoning commission was required for these items.

On September 18,2006, the defendant heard the plaintiffs’ appeal from the cease and desist order. During this proceeding, DeVoe spoke to the members of the defendant and acknowledged that he had not sent a “survey crew” to determine the precise location of the children’s recreational equipment, sheds and fences. He also acknowledged that the majority of the items were not placed within the open space portion of the district. He believed that these items required site plan approval from the planning and zoning commission and that such approval was lacking. Attorney Vincent T. McManus, Jr., spoke on behalf of the plaintiffs at this proceeding. The defendant, by a three to two vote, denied the plaintiffs’ appeal.

The plaintiffs appealed the decision of the defendant to the trial court. On June 11, 2009, the court issued an order sustaining the plaintiffs’ appeal. The court concluded that “the record does not substantiate the [defendant’s] vote to uphold the cease and desist order.” After certification to appeal had been granted, the defendant filed a motion for articulation on November 18, 2009. On September 1, 2010, the defendant filed a motion to compel the trial court to act on its motion for articulation. On September 15, 2010, this court granted the motion to compel and ordered the trial court to rule on the motion for articulation within twenty-one days. On October 6, 2010, the court issued an articulation.

As a preliminary matter, we identify certain aspects of the procedural posture of this case. Our starting point is the decision of the defendant following the cease and desist order. In Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993), our Supreme Court concluded that “following an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.” We also are mindful that the zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer. Id., 90; see also R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33:7, p. 262.

“When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission’s decision. . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action. ... It does not apply to mere utterances of individual members of the agency.” (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). In the present case, the defendant did not issue a formal, collective statement of its reasons for upholding the cease and desist order. Both the trial court and this court, therefore, must search the entire record to find a basis for the board’s decision. Id., 423; see also Moon v. Zoning Board of Appeals, 291 Conn. 16, 25-26, 966 A.2d 722 (2009).

We have reviewed the transcript of the discussion of the members of the defendant concerning the plaintiffs’ appeal. Two of the members of the defendant, Brian Leslie and Vincent Cervoni, indicated that only the regulations in effect at the time that the special permit for the Mountain Brook development was granted should apply and, therefore, § 4.3.D.5.E of the regulations, which was effective as of October 18, 2003, should not be considered. That section provides: “Open space may only be used for purposes approved by the Planning and Zoning Commission during the approval process. In [open space planned residential districts] those uses, in most cases, shall be limited to lawn and garden areas shown on the original site plan and areas to be left in their natural state adjoining the developed areas. Any use of open space not approved by the Commission shall be a violation of these regulations.” Wallingford Zoning Regs., § 4.3.D.5.E. Chairman Jeffrey Knickerbocker was concerned that sheds were built in violation of the building permit regulations. Wilham Bimey stated that he believed that the phrase “recreation facilities” did not include “playscapes or structures such as that.” The members of the defendant then voted, with Leslie and Cervoni in favor of sustaining the appeal and the other three members opposed.

We now turn to the trial court’s decision and subsequent articulation. We note that “[t]he burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision.” (Internal quotation marks omitted.) Sciortino v. Zoning Board of Appeals, 87 Conn. App. 143, 147, 866 A.2d 645 (2005); see also Graff v. Zoning Board of Appeals, 277 Conn. 645, 669, 894 A.2d 285 (2006); Vivian v. Zoning Board of Appeals, 77 Conn. App. 340, 354, 823 A.2d 374 (2003). The court stated that it “believed that [DeVoe] relied upon [§ 4.3.D.5.E of the regulations] in issuing his order.” It also noted that the record is devoid of facts that established whether the three categories of violations set forth in the cease and desist order are located in “the open space, the limited common area, [the] common area of the development, or that part of the premises which was conveyed in fee.” The court also recited the plaintiffs’ argument that “some of the playscapes, gardens, sheds and fences existed before the relevant zoning regulations restricting uses were enacted and therefore should be protected as preexisting nonconforming uses.” Although the court recited the law regarding preexisting nonconforming uses, it never applied the doctrine to the present case and accordingly did not determine whether the children’s recreational equipment, sheds and fences existed prior to certain changes to the regulations.

On appeal, the defendant argues that the placement of children’s recreational equipment, sheds and fences in Mountain Brook violates the regulations. The plaintiffs counter that the court properly concluded that the defendant’s decision was not supported by substantial evidence. To resolve this appeal, we must interpret the relevant regulations and determine whether the plaintiffs are correct that the defendant’s decision was not supported by substantial evidence. Our task is particularly challenging in light of the sparse record.

We identify our standard of review. As previously stated, one of the issues before this court is whether the placement of children’s recreational equipment, sheds and fences is permitted in a district pursuant to the regulations. We, therefore, are presented with the opportunity to interpret the relevant regulations.

Our Supreme Court has stated that “[u]nder our well established standard of review, [w]e have recognized that [a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that . . . deference . . . to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation .... Heim v. Zoning Board of Appeals, 289 Conn. 709, 714-15, 960 A.2d 1018 (2008); Borrelli v. Zoning Board of Appeals, 106 Conn. App. 266, 270, 941 A.2d 966 (2008); Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 803, 818 A.2d 72 (2003) ([i]t is our job, as an appellate court, to construe the relevant zoning regulation because . . . the outcome . . . eventually will depend on a legal interpretation of the regulation by an appellate court).” (Internal quotation marks omitted.) Goulet v. Zoning Board of Appeals, 117 Conn. App. 333, 337, 978 A.2d 1160, cert. denied, 294 Conn. 909, 982 A.2d 1082 (2009).

“Because the interpretation of the regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended .... The process of statutory interpretation involves the determination of the meaning of the statutory language [or . . . the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006); see also Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416, 920 A.2d 1000 (2007); 9A R. Fuller, supra, § 33:7, p. 261.

“[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . Furthermore, General Statutes § 1-1 (a) provides: In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Citation omitted; internal quotation marks omitted.) Moon v. Zoning Board of Appeals, supra, 291 Conn. 21.

“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 are to be interpreted in their natural and usual meaning. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible. . . . [Regulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them.” (Internal quotation marks omitted.) Fedus v. Zoning & Planning Commission, 112 Conn. App. 844, 849-50, 964 A.2d 549, cert. denied, 292 Conn. 904, 905, 973 A.2d 103, 104 (2009); see 9A R. Fuller, supra, § 34:6, pp. 299-303.

We first consider the issue of whether the placement of children’s recreational equipment for individual unit owners violates the zoning regulations. Intertwined with this issue is the question of whether the plaintiffs have persuaded us that insufficient evidence existed before the defendant to support its decision in favor of upholding DeVoe’s cease and desist order. The defendant acknowledges that § 4.3.B.2.c of the regulations permits certain recreational facilities within the district but contends that an application of all of the relevant regulations limits such equipment to those that are centrally located for the use of all unit owners within the Mountain Brook development. On the basis of the facts and record in this case, we disagree with the defendant’s interpretation of the regulations and conclude that its decision as to children’s recreational equipment lacks substantial evidence in the record.

We now set forth the relevant language from the zoning regulations. Section 4.3.B.2.C of the Wallingford zoning regulations specifically permits, as a related accessory use to one-family, two-family and multifamily dwellings in the district “[r]ecreation facilities limited to the use of individuals living on the premises.” Section 4.3.D.11 of the Wallingford zoning regulations states: “Swimming pools, tennis courts, and other recreational facilities shall be as centrally located as possible, protected with a suitable and safe fence, located at least 25 feet from any dwelling unit and shall not be located within any of the required setbacks.” Finally, § 4.3.A. 1 states that one of the purposes of the district is to create a “coordinated entity.” Wallingford Zoning Regs., § 4.3.A.1.

The defendant argues that it would make “absolutely no sense to interpret § 4.3.B.2.C to mean that such uses are permitted in each and every unit of a planned development” because this inteipretation would thwart the stated purpose of a coordinated entity. Further, the defendant contends that in this type of district, accessory uses such as recreation facilities are required to be centrally located. It would appear, therefore, that the defendant’s view is that any and all recreation facilities, whether in the open space or the limited common area, must be centrally located and not permitted at each and every unit. The fatal flaw with this argument, however, is that such an interpretation leads to a bizarre and unworkable result.

Because the term “facility” is not defined in the regulations, we turn to the dictionary. See Moon v. Zoning Board of Appeals, supra, 291 Conn. 21. The American Heritage Dictionary (2d College Ed. 1985) defines “facility” as “[s]omething that facilitates an action or process . . . [something created to serve a particular function.” The list of what falls within the definition of recreation facilities appears to be virtually limitless. For example, a lawn sprinkler used by children to cool off on a hot day, a lawn chair, an infant car carrier with a mobile dangling from it, a book, a travel swing, and a portable children’s basketball hoop all facilitate recreation and therefore fall within the interpretation proposed by the defendant. Clearly, this could not have been the intention of the drafters of this regulation. A local zoning regulation must be interpreted to intend a reasonable and rational result. Day v. Middletown, 59 Conn. App. 816, 822, 757 A.2d 1267, cert. denied, 254 Conn. 945, 762 A.2d 900 (2000). Additionally, “[z]oning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms. . . . The words used 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.” (Citation omitted; internal quotation marks omitted.) Coppola v. Zoning Board of Appeals, 23 Conn. App. 636, 640-41, 583 A.2d 650 (1990); see also Newman v. Planning & Zoning Commission, 293 Conn. 209, 214, 976 A.2d 698 (2009). Finally, applying the rule of ejusdem generis, children’s recreational facilities such as playsets, a far less intensive disruption of the landscape, may well not be in the same category as swimming pools and tennis courts. We conclude, contrary to the defendant’s argument, that the drafters of §§ 4.3.B.2 and 4.3.D.11 of the regulations could not have intended to include all recreation facilities.

Further, the record in the present case provides no details regarding the children’s recreational equipment. The letter from DeVoe refers to them as “playsets.” It is not clear how many, if any, of the children’s recreational equipment are located in the open space. Therefore, there is no evidence that the goal of preserving open space, as set forth in §§ 4.3.A.2 and 4.3.D.5.A of the regulations, is advanced. Given the barren state of the record in this case, we cannot conclude that there was substantial evidence in the record to support the defendant’s determination that the children’s recreational equipment in this case fell with the definition of “recreation facilities” as set forth in the regulations.

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached.” (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Zoning Board of Appeals, 108 Conn. App. 621, 628, 949 A.2d 1239 (2008). Put another way, a reviewing court decides whether the defendant’s findings reasonably were supported by the record. 9A R. Fuller, supra, § 33:7, p. 263. Under the facts and circumstances of this case, we conclude that the defendant’s findings that the children’s recreational equipment violated the regulations was not supported reasonably by the record, and, therefore, the court properly sustained the plaintiffs’ appeal with respect to this issue.

We next turn to the question of whether the regulations permit the placement of a shed by an individual unit owner in the district. The defendant first argues that § 4.3.B of the Wallingford zoning regulations sets forth the only uses permitted in such a district, and because the regulation does not include the term “shed,” they are not allowed.

As we previously indicated, § 4.3.B of the regulations limits the permitted uses in a district to one-family, two-family and multifamily dwellings in principal buildings. The only permitted accessory buildings, structures and uses are: “[a] Private garages . . . [b] Maintenance and utility shops for the upkeep and repair of buildings, structures and equipment on the site . . . [c] Recreational facilities limited to the use of individuals living on the premises . . . [d] Manager’s office . . . [and] [e] Utility building and structures.” Wallingford Zoning Regs., § 4.3.B.2.

We are not persuaded by the defendant’s argument that the lack of the term “shed” in § 4.3.B of the regulations requires a conclusion that sheds are not a permitted use or building. We turn to the common meaning of the term. Shed is defined as “[a] small structure, either freestanding or attached to a larger structure, serving for storage or shelter.” American Heritage Dictionary (2d College Ed. 1985). The structures classified as “sheds” by DeVoe could be permitted under the regulations as a “utility building” or as “maintenance and utility shops.” See Wallingford Zoning Regs., § 4.3.B.2.

The defendant argues in the alternative that a special permit is required before a shed may be placed in a district. Section 7.5. A. 1 of the Wallingford zoning regulations provides: “A Special Permit shall be required for all uses specifically listed in these regulations.” (Emphasis added.) Thus, assuming arguendo that a shed falls within § 4.3.B.2 of the regulations, it follows that a special permit is required. There is no evidence that any of the plaintiffs obtained a special permit prior to installing a shed within the Mountain Brook development. We conclude, therefore, that these sheds are in violation of the regulations.

Finally, we address the issue of whether the placement of fences by individual unit owners within the district violates the regulations. We note that fences are not listed as a permitted use or accessory use in § 4.3.B of the regulations. Additionally, the Wallingford zoning regulations require certain information to be submitted for site plan approval. Section 7.4.A.3.a of the Wallingford zoning regulations requires that the “[l]ocation, dimensions, area, height, and setbacks of all existing and proposed buildings, signs, fences, and walls” be included in the site plan application. The defendant argues that when the Mountain Brook development was created, a site plan was required, and any fencing needed to be included and identified on the site plan application. The plaintiffs do not claim that the fencing at issue in the present case was set forth in the initial site plan for the Mountain Brook development. Additionally, under the regulations, even if the placement of fencing in the district constituted a permitted use, a special permit would be required, and there was no evidence in the record that any of the plaintiffs obtained a special permit. For all these reasons, we conclude that the placement of the fences at issue in this case violates the regulations.

As a final matter, we address an issue mentioned before the trial court and discussed in its articulation. Effective October 18, 2003, the regulations were amended to include § 4.3.D.5.E, which provides: “Open space may only be used for purposes approved by the Planning and Zoning Commission during the approval process. In [open space planned residential districts] those uses, in most cases, shall be limited to lawn and garden areas shown on the original site plan and areas to be left in their natural state adjoining the developed areas. Any use of open space not approved by the Commission shall be a violation of these regulations.” Wallingford Zoning Regs., § 4.3.D.5.E. The plaintiffs’ counsel argued before the defendant that he believed § 4.3.D.5.E of the regulations to be the basis for DeVoe’s cease and desist order. In his view, it was improper to apply a “retroactive regulation” to the owners of the Mountain Brook units because they had purchased their units before the effective date of § 4.3.D.5.E. DeVoe countered that because the majority of the children’s recreational equipment, fences and sheds at issue were not in the open space of the district, § 4.3.D.5.E did not apply and therefore did not provide the basis for the cease and desist order.

It does not appear that either the defendant or the court conclusively determined whether the items at issue in this case were preexisting nonconforming uses. We acknowledge that the court’s articulation set forth the law on this issue, but we emphasize that it was not a matter actually decided by the court. Additionally, the defendant made no factual findings as to whether the children’s recreational equipment, sheds and fences were preexisting nonconforming uses. Most importantly, in setting forth the rationale and reasoning supporting our decision, we have not used any regulation that did not exist prior to the creation of the Mountain Brook development.

The judgment is reversed in part and the case is remanded with direction to dismiss the plaintiffs’ appeal with respect to the issues pertaining to the sheds and fences. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The individual members of Mountain Brook that appealed the decision of the defendant to the trial court are Kenneth Mackenzie, Jessica Mackenzie, Douglass Barnett, Katherine Barnett, Anthony Verde, Caroline Pawlak, Yoo SookMin, Peter Lowell, Francesca Lowell, Mark Allen, Dawn Allen, Michael Papacoda, Mary Caracciolo, Thomas Brien, Piper Brien, Donald Algrove, Michael Defeo, Holly Defeo, Zhang Shun, Le Zhao Shun, Heidi Long, Sharon McArthur, Robert Grant, HI, Amy Grant, Jeffrey Wilson and Theresa Wilson.

       “In deciding an appeal to it concerning interpretation of the zoning regulations as applied to a particular piece of property, the zoning board of appeals acts in a quasi-judicial capacity. The zoning board of appeals has the authority to interpret the town’s zoning ordinance and decide whether it applies to a given situation.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33:7, pp. 260-61.

       During this proceeding, DeVoe stated that all land in the district is owned in common and that each unit owner has exclusive use of the area surrounding the unit. The plaintiffs’ counsel, attorney Vincent T. McManus, described this area as a “limited common area.” DeVoe then indicated that each unit owner owns in fee the area “out to the foundations” of his or her unit.

       The complete text of the court’s order was as follows: “This court has with delight reviewed the professional written memoranda and oral arguments presented by counsel in the zealous advocacy of their clients. The court has reviewed with care the record of the proceedings of the [defendant]. The court based upon the foregoing concludes that the record does not substantiate the [defendant’s] vote to uphold the cease and desist order. Accordingly, the plaintiffs’ appeal from the [defendant’s] decision to uphold the decision is sustained.”

       On September 7, 2010, the plaintiffs filed an objection to the defendant’s motion to compel.

       Andrew Barnett, a member of the defendant, questioned whether § 4.3.D.5.E of the regulations was relevant to the discussion because it addressed open space areas, and not the limited common area of each unit. Barnett further stated that, in his view, § 4.3.D.5 describes what “can and can’t be done in open space.”

       In its articulation, the court stated: “Neither the regulations in force in 1999 nor any of the subsequently adopted changes mentions playsets, sheds and other recreational facilities.” This statement, although true, is neither dispositive of the case nor does it end our analysis.

       We need not, therefore, address the plaintiffs’ alternative grounds for affirming the judgment. Additionally, to the extent that the plaintiffs and the court concluded that the placement of certain children’s recreational equipment, sheds and fences constituted preexisting nonconforming uses, we note that there is no evidence in the record to support such a determination.

       According to the chart attached to the cease and desist order, the following unit owners have children’s recreational equipment: Douglas Barnett and Katherine Barnett, Anthony Verde, Caroline Pawlak, Yoo Sook Min, Peter Lowell and Francesca Lowell, David Wong and Gillian Wong, Thomas Brien and Piper Brien, Maria Buono and William Buono, Donald Algrove, and Zhang Shun and Le Zhao Shun.

       During Ms argument before the defendant, McManus stated: “[W]e are talking about little plastic things that you snap together when you bring them home that is what we have pictures of them here. I mean they are not you know the kind they bring on trucks and they set them up on blocks and they are ten by twelve. . . . We are talking about stuff, little things like this that you would put one lawn mower m or somethmg like that or you know, they are put together by the homeowner because you snap them together or somethmg you don’t need a permit, you don’t build them in a sense and you certaiMy wouldn’t need a buildmg permit to have one.” Additionally, umt owner Peter Lowell, speaking m favor of the appeal, told the defendant: “I have a little shed. ... I just have my lawn mower back there [and] a couple of lawn chairs.” We note that no photographs of the sheds appear in the record before this court.

       According to the chart attached to the cease and desist order, the following unit owners have sheds: Kenneth Mackenzie and Jessica Mackenzie, Peter Lowell and Francesca Lowell, Mark Allen and Dawn Allen, Michael Papacoda and Mary Caraciolo, Heidi Long, Sharon McArther, Jesse Conte and Erica Conte, Robert Grant and Amy Grant, and Jeffrey Wilson and Theresa Wilson.

       We agree with the defendant that these regulations are permissive, meaning that those matters not specifically permitted are prohibited. See Graff v. Zoning Board of Appeals, supra, 277 Conn. 653.

       We note that the regulations do not define the term “utility building.”

       Unlike the term “recreation facilities,” we note that the term “shed” is subject to amore precise description; that is, astructure subject to regulation under the regulations.

       According to the chart attached to the cease and desist order, the following unit owners have a fence: Douglas Barnett and Katherine Barnett, Anthony Verde, Donald Algrove, Michael DeFeo and Holly DeFeo, Balji Gurumoorthy and Kala Narayanaswamy, Heidi Long, Robert Grant and Amy Grant, and Scott Ciña and Ann Cina.

       “The word ‘use’ and the word ‘used’ refers to any purpose for which a lot or part thereof is arranged, intended, or designed to be used, occupied, maintained, made available, or offered for use, and to any purpose for which a building or structure or part thereof, is arranged, intended or designed to be used, occupied, maintained, made available, or offered for or erected, constructed, altered, enlarged, moved or rebuilt with the intention or designed of using the same.” Wallingford Zoning Regs., § 2.1.
      Section 2.2 of the Wallingford zoning regulations defines an “accessory use or building” as follows: “A use or building, or both, customarily incidental and subordinate to the principal use or building, in character with the surrounding zone, and located on the same lot as such principal use or building or on a contiguous lot under the same ownership.”

       We note that only fences over eight feet high are deemed structures. See Wallingford Zoning Regs., § 2.2.

       Additionally, § 7.4.C of the regulations requires that an open space and landscaping plan illustrate the proposed and existing location, general layout, type and size of fencing on the property.

       The regulations were amended in October, 2003, and an application for a special permit now requires a special permit plan and the information required in § 7.4 of the regulations. See Wallingford Zoning Regs., § 7.5.C. In reaching our conclusions, we do not rely on § 7.5.C.

       Most of § 4.3 of the regulations was effective as of September 18, 1990.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    RICHARD BROOKS ET AL. v. ELECTRIC BOAT CORPORATION ET AL.
    (AC 32632)
    Gruendel, Lavine and Espinosa, Js.
    Argued November 7, 2011
    officially released February 7, 2012

      Joseph J. Passaretti, Jr., with whom, on the brief, was SeanB. Reidy, for the appellant (defendant Connecticut Insurance Guaranty Association).

      Melissa Olson Riley, for the appellees (plaintiffs).

      Lucas D. Strunk, for the appellees (named defendant et al.).

      Gregory J. Vetter, with whom, on the brief, was Thomas M. McKeon, for the appellees (defendant Ebasco Services, Inc., et al.).

      Robert J. Enright, for the appellees (defendant Benzolene Energy Company et al.).

      Frank Ancona, for the appellees (defendant C.N. Flagg & Company, Inc., et al.).
   Opinion

GRUENDEL, J.

The defendant Connecticut Insurance Guaranty Association appeals from the decision of the workers’ compensation review board (board) affirming the determination by the workers’ compensation commissioner for the first district (commissioner) that W.J. Barney Corporation (Barney) was the party responsible under General Statutes § 31-299b for the death of the plaintiff Richard Brooks (decedent). On appeal, the defendant claims that the board erred in affirming the commissioner’s decision because (1) the commissioner’s determinations that the decedent was exposed to asbestos while employed by Barney in 1988, and that such exposure was the decedent’s last injurious exposure, were not supported by the evidence, (2) the decision “contains numerous conclusions and omissions that are unsupported, or unreasonably drawn from the subordinate facts” and (3) the commissioner erroneously concluded that the decedent’s exposure to asbestos after 1988 was “speculative and de minimis at best.” We affirm the board’s decision.

The following facts were found by the commissioner. The plaintiff Nena Brooks is the dependent widow of the decedent. The decedent worked for various employers from approximately 1969 through 1995. The decedent was employed by Electric Boat Corporation as a welder in 1969 and was exposed to significant amounts of asbestos. From 1969 to 1975, he worked for Barney and was exposed to significant amounts of asbestos. Following his employment with Barney, the decedent was employed by Bechtel Corporation in 1973 and 1974, Ebasco Services, Inc., in 1974 and 1975, C.N. Flagg & Company, Inc., in 1979 and Crouse in 1980, 1981 and 1982. At each of these jobs, the decedent was exposed to asbestos. In 1988, the decedent was employed again by Barney, where he again was exposed to asbestos.

On July 19, 2002, the decedent was diagnosed with lung cancer. On April 2, 2004, he was examined by Arthur C. DeGraff, Jr., a physician, who confirmed the diagnosis of lung cancer and opined that the exposure to asbestos over the decedent’s entire employment history was a substantial and significant contributing factor in causing the cancer. DeGraff further opined that the decedent’s asbestos exposure through the early 1980s and mid-1980s resulted in the development of his cancer. The decedent died of lung cancer on April 28, 2004. Susan M. Daum, a physician, performed a records review of the decedent on October 20, 2004, and opined that his occupational exposure to asbestos was a substantial and significant contributing factor in the development of his lung cancer and resulting death.

Thereafter, the plaintiff sought survivor’s benefits under General Statutes § 31-306. Formal hearings were held before the commissioner on November 6, 2007, April 14 and July 10, 2009. The commissioner credited the testimony of the decedent regarding his exposure to asbestos and credited the opinions and testimony of Daum and DeGraff as to the issues of causation and the resulting death of the decedent. The commissioner concluded that the decedent developed occupational lung cancer as a result of asbestos exposure. The commissioner concluded further that Barney was the responsible party pursuant to § 31-299b because the decedent’s exposure during employment subsequent to 1988 was minimal and was not a substantial contributing factor to the decedent’s lung cancer.

Several postdecision motions were filed. In particular, the defendant filed a motion for articulation requesting the commissioner to clarify six issues. The commissioner granted one of the six requests and articulated that, while he found the decedent to be a credible and persuasive witness, he found the decedent’s testimony regarding his exposure to asbestos at any employer subsequent to Barney to be “speculative and de minimis at best.” The defendant appealed that decision to the board.

On appeal to the board, the defendant argued that the commissioner’s conclusion that the decedent was last exposed to significant amounts of asbestos while employed by Barney in 1988 was not supported by evidence in the record. The board affirmed the commissioner’s finding and award, determining that the evidence in the record satisfactorily established that, as of 1988, the decedent was still exposed to a substantial level of workplace asbestos and that Barney is therefore the responsible party. This appeal followed. Additional facts will be set forth as necessary.

“The principles that govern our standard of review in workers’ compensation appeals are well established. . . . The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review ... of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner .... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .

“This court’s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [W]e must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Citations omitted; internal quotation marks omitted.) Williams v. State, 124 Conn. App. 759, 763-64, 7 A.3d 385 (2010).

I

The defendant claims that the board acted improperly in affirming the commissioner’s finding because the commissioner’s conclusion that the decedent was exposed to asbestos while employed by Barney, and that such exposure was the last injurious exposure, resulted from inferences unreasonably drawn from the subordinate facts. We disagree.

The commissioner credited the testimony of the decedent as to his work history and exposure to asbestos. Indeed, the decedent’s testimony was the only evidence presented regarding his work history and asbestos exposure. The decedent testified that when he returned to Barney in 1988, he worked in areas where there was asbestos, and the asbestos was disturbed by other workers. The decedent removed gaskets and piping with asbestos lagging and worked around asbestos, testifying specifically to working around old steam lines with pulverized asbestos on them. Regarding his exposure to asbestos following his 1988 employment with Barney, the decedent testified that it was minimal, and that the bulk of his exposure occurred before that. The commissioner credited the physicians’ opinions with respect to causation, and the physicians concurred that occupational exposure to asbestos caused the decedent’s lung cancer and death.

In arguing that the evidence does not support the finding that the decedent was last injuriously exposed to asbestos in 1988, the defendant points to the testimony and opinions of the two physicians. DeGraff opined that the decedent’s lung cancer resulted from exposure to asbestos dust and included all employment with such exposure up through “the early 1980s” or “mid-1980s.” Daum opined that all exposure to asbestos was “cumulative and injurious,” including exposure past 1988. The defendant contends that in light of this conflicting testimony, the commissioner reasonably could not have concluded that Barney was the responsible party.

“ [I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of the witnesses . . . and the commissioner’s conclusions cannot be reversed simply because the plaintiffs own evaluations of the findings causes him to reach a contrary conclusion. Unless the factual findings on which the commissioner bases his conclusion are clearly erroneous, or there is no evidence in the record to support the conclusion, the conclusion must stand.” (Citation omitted.) D’Amico v. Dept. of Correction, 73 Conn. App. 718, 725, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003). As the board also noted, “it is proper to consider medical evidence along with all other evidence to determine whether an injury is related to the employment.” (Emphasis in original.) Marandino v. Prometheus Pharmacy, 294 Conn. 564, 595, 986 A.2d 1023 (2010). Our review of the commissioner’s decision persuades us that his factual findings were not clearly erroneous and that the evidence presented supported the commissioner’s decision. Accordingly, we conclude that the board did not improperly affirm the decision of the commissioner that Barney is the responsible employer under § 31-299b.

II

The defendant further argues that the board improperly affirmed the commissioner’s decision because the commissioner denied the defendant’s motion to correct. We disagree.

Specifically, the defendant argues that the commissioner’s decision contains conclusions and omissions that are unsupported by, or unreasonably drawn from, the subordinate facts, as alleged in its July 28, 2009 motion to correct, including (1) failing to include employers C.N. Flagg & Company, Inc., and Stone & Webster in his findings, (2) distinguishing the decedent’s level of exposure to asbestos while employed by Benzoline Energy Company and Harry Grodsky & Co., Inc., from his exposure while employed by Barney, (3) concluding that DeGraff opined that the decedent’s asbestos exposure extended through the mid-1980s and (4) concluding that the decedent’s exposure to asbestos at subsequent employers was minimal and not injurious. The defendant argues that because of these conclusions and omissions, it was error for the board to affirm the commissioner’s decision.

The board affirmed the commissioner’s denial of the defendant’s motion to correct because the “motion sought to interpose the [defendant’s] conclusions as to the law and the facts presented.” In D’Amico v. Dept. of Correction, supra, 73 Conn. App. 728, this court noted: “In his motion to correct, the plaintiff merely seeks to have the commissioner conform his findings to the plaintiffs view of the facts. It is the commissioner, however, who must determine which portions of a witness’ statement or what medical opinions are credible, and, therefore, helped form the basis of the commissioner’s conclusion. . . . The plaintiff cannot expect the commissioner to substitute the plaintiffs conclusions for his own.” Likewise, in the present case, the defendant’s motion to correct sought to substitute its view of the facts and testimony for that of the commissioner. “It is the commissioner, however, who has the discretion to determine the facts.” Testone v. C. R. Gibson Co., 114 Conn. App. 210, 222, 969 A.2d 179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009). Because the findings and award of the commissioner were supported by the evidence, we conclude that the board properly affirmed the commissioner’s denial of the defendant’s motion to correct.

Ill

The defendant also claims that the board improperly affirmed the commissioner’s conclusion that the decedent’s testimony concerning his exposure to asbestos after 1988 was “speculative and de nünimis at best.” We disagree.

In response to the defendant’s July 28, 2009 motion for articulation, the commissioner issued one articulation. The defendant sought articulation of the commissioner’s findings that the decedent’s exposure to asbestos following his 1988 employment with Barney was minimal. On August 13, 2009, the commissioner issued a corrected finding that stated: “While finding the [decedent] persuasive and credible on all issues, his testimony concerning his exposure with those [employers] . . . after his employment with W.J. Barney Coiporation in 1988 was speculative and de minimis at best.” The board determined that the commissioner found “the exposure standard required under our precedent was not met by employers subsequent to . . . Barney.” Our precedent “requires that the employment, or the risks incidental thereto, contribute to the development of the injury in more than a de minimis way” (Emphasis in original.) Birnie v. Electric Boat Corp., 288 Conn. 392, 412-13, 953 A.2d 28 (2008).

The defendant argues that the board improperly affirmed the commissioner’s conclusion because there was no medical evidence to support the conclusion that the decedent’s exposure after 1988 was speculative and de minimis. The commissioner did not determine that the decedent’s exposure was de minimis; rather, he concluded that the decedent’s testimony regarding his exposure after 1988 was de minimis. We are bound by a factual determination made by the commissioner if there is evidence in the record to support it. Williams v. State, supra, 124 Conn. App. 764.

The decedent’s testimony regarding his employment history and asbestos exposure subsequent to 1988 was largely that he was not exposed to asbestos at all. For a few employers, he was not sure if he had been exposed, or he gave an unclear answer. For example, when questioned if he was exposed to asbestos while at Bechtel Corporation, he responded that he did not recall. When asked if he was exposed to asbestos while employed by Harry Grodsky & Co., Inc., the decedent responded: “No. I tried to get away from it.” Our review of the record persuades us that there is evidence to support the commissioner’s finding that the decedent’s testimony regarding his work history and asbestos exposure after 1988 was speculative and de minimis. Accordingly, we conclude that the board did not err in affirming the decision of the commissioner.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Connecticut Insurance Guaranty Association was the only defendant to appeal from the commissioner’s decision. We thus refer to it as the defendant in this opinion. Other entities named as defendants were Electric Boat Corporation, Ebasco Services, Inc., Broadspire, C.N. Flagg & Company, Inc., Liberty Mutual Insurance Company, ABB Combustion Engineering, CNA Insurance Company, ACE USA, Benzoline Energy Company, Crum & Forster, Stone & Webster, John P. Bell & Sons, Carrier Corporation, Travelers Indemnity, Bechtel Corporation, Nationwide Insurance, and The Hartford Insurance Group/Specialty Risk Services.

       Legal liability for Barney was transferred to the defendant after Barney’s insurer was declared insolvent.

       General Statutes § 31-299b provides in relevant part: “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. . . .”

       The defendant also claimed that the board improperly affirmed the commissioner’s decision holding it initially liable for payment of benefits pursuant to § 31-299b on the basis that holding the defendant initially liable for the award under § 31-299b conflicts with General Statutes § 38a-845 (a) of the Connecticut Insurance Guaranty Association Act, General Statutes § 38a-836 et seq., which requires the exhaustion of all other insurance policies covering the same claim before recovery is permitted from the defendant. The defendant withdrew this claim at oral argument before this court as a result of our Supreme Court’s decision in Franklin v. Superior Casting, 302 Conn. 219, 223, 24 A.3d 1233 (2011), which concluded that “holding [the defendant] liable for an insolvent insurer’s obligations under § 31-299b as the last insurer on the risk does not conflict with § 38a-845.”

       During the pendency of these proceedings, the plaintiff Richard Brooks died. We refer herein to Nena Brooks as the plaintiff.

       The decedent testified via deposition on two occasions.


author: BISHOP, J.

text:
    ANTHONY CARTER v. COMMISSIONER OF CORRECTION
    (AC 32722)
    Lavine, Bear and Bishop, Js.

      Argued October 27, 2011
    officially released February 7, 2012

      Anthony Carter, pro se, the appellant (petitioner).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, Anthony Carter, appeals from the judgment of the habeas court dismissing his fourth petition for a writ of habeas corpus. The petitioner claims that the court improperly concluded that, pursuant to Practice Book § 23-29, his claims of ineffective assistance of counsel at sentencing and insufficiency of evidence are successive and barred by the doctrine of res judicata. We reverse in part, and affirm in part, the judgment of the habeas court.

The following facts and procedural history are relevant to the petitioner’s appeal. In 2002, after a jury trial, the petitioner was found guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The trial court rendered judgment accordingly and sentenced the petitioner to a total effective term of twenty-seven years incarceration. A direct appeal to this court followed.

In affirming the judgment of conviction, this court concluded, inter aha, that the evidence adduced at trial was sufficient to support the conviction of assault in the first degree and risk of injury to a child. More specifically, this court stated that the evidence adduced at trial was sufficient to establish that the petitioner “shot the victim.” State v. Carter, 84 Conn. App. 263, 270, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005).

In 2004, the petitioner filed his first petition for a writ of habeas corpus in which he raised fourteen claims. That petition was denied by the habeas court. The petitioner then appealed following the court’s denial of his petition for certification to appeal, claiming that the court abused its discretion in denying his petition for certification and in denying his petition as unfounded. This court dismissed that appeal in Carter v. Commissioner of Correction, 106 Conn. App. 464, 942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d 651 (2008).

The petitioner then filed a second petition for a writ of habeas corpus on March 6, 2007. In a supplemental memorandum attached to his petition, the petitioner raised four claims. The court summarily dismissed the petitioner’s second petition on its own motion, without an evidentiary hearing and before the respondent, the commissioner of correction, had filed her reply. The court stated in its judgment of dismissal that “[a]fter having reviewed the above-captioned petition, the court finds the petition to be res judicata and dismisses the petition pursuant to Practice Book § 23-29 (3).” (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 109 Conn. App. 300, 304, 950 A.2d 619 (2008). The court subsequently denied the petition for certification to appeal. On appeal, this court concluded that the record was inadequate to review the petitioner’s claim and, therefore, dismissed the appeal. Id., 307.

In October, 2007, the petitioner initiated a third habeas action in which he alleged that the state had withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). After a full hearing, the habeas court concluded that there was no Brady violation and denied the petition. See Carter v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-07-4002005 (January 22, 2010). The petitioner then appealed following the court’s denial of his petition for certification to appeal, and this court subsequently dismissed that appeal in Carter v. Commissioner of Correction, 131 Conn. App. 905, 28 A.3d 360 (2011).

On November 21, 2007, the petitioner filed a motion to correct an illegal sentence. In his motion, he argued that the trial court, in rendering its sentence, improperly considered an argument the prosecutor had made to the jury during closing argument that certain evidence suggested that the petitioner had fired a nine millimeter firearm. See State v. Carter, 122 Conn. App. 527, 529-30, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011). The trial court denied that motion and, after reviewing the record, this court affirmed the judgment, concluding that there was nothing in the record to indicate that the court relied on any misstated or inaccurate information in sentencing the petitioner. Id., 532.

On January 29, 2010, the petitioner initiated the present habeas action. By an amended petition dated March 1, 2010, the petitioner alleged the following: (1) his trial counsel rendered ineffective assistance during sentencing by failing to preserve his right of sentence review, (2) insufficient evidence existed that he had caused the victim’s injuries, (3) insufficient evidence existed that he had possessed a firearm and (4) insufficient evidence existed that he had performed an act likely to injure the victim. The habeas court dismissed the petition on the grounds that his claims constituted a successive petition and were barred by the doctrine of res judicata. The habeas court subsequently granted the petitioner certification to appeal, and this appeal followed.

The petitioner claims that the habeas court improperly dismissed each count of his petition. More specifically, the petitioner asserts that his claims were neither successive nor barred by res judicata because the present petition sought a different form of relief than his previous petitions. He further contends that his claims were not barred by the doctrine of res judicata because his claims were not actually litigated in his prior petitions.

We begin by setting forth our standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus. “The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008). “To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 121 Conn. App. 295, 298, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

With that standard in mind, we turn to the court’s conclusion that the petitioner’s claims were barred by the doctrine of res judicata. We begin with an overview of pertinent legal principles. “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings. . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding.” (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57, 63-64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).

“[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief. . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.” (Citation omitted; internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn. App. 228, 231, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).

“Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language. . . . They raise, however, the same generic legal basis for the same relief. Put differently, two grounds are not identical if they seek different relief.” (Citations omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998). Simply put, an applicant must “show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground.” (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 111 Conn. App. 405, 410, 959 A.2d 646 (2008).

With these precepts in mind, we first address the petitioner’s claims that the court improperly dismissed counts two through four of his petition, which alleged insufficiency of evidence. The petitioner argues that the evidence produced against him was constitutionally insufficient to sustain the conviction, and he now seeks relief in the form of a judgment of acquittal. In doing so, the petitioner tries to differentiate the presently requested relief from the relief he requested in prior petitions in which he claimed insufficiency of evidence by arguing that seeking a judgment of acquittal is different from seeking relief in the form of a new trial or appeal. Thus, he claims, the present petition is not presented on the same grounds. We are not persuaded by this novel argument.

In his first habeas petition attacking his conviction, the petitioner requested “such other relief [as] law and justice require.” As a practical matter, because the petitioner’s claim in that first habeas was the insufficiency of evidence leading to his conviction, if he had been successful the only appropriate remedy would have been an order of acquittal — the same relief he now seeks in this fourth petition. The petitioner, nevertheless, cites to James L. v. Commissioner of Correction, supra, 245 Conn. 141, for the proposition that “two grounds are not identical if they seek different relief.” The reason of the law is not so thin, however, as to reward a petitioner merely for rewording the relief requested in two separate petitions, as the petitioner does here, where an order of acquittal would be the only relief available in the event of success in either petition. Thus, the petitioner cannot circumvent the dismissal of his action by relying on the mere fact that he did not explicitly seek such relief in a prior habeas petition.

The petitioner also argues that the three sufficiency of evidence claims are not barred by res judicata because the claims were not actually litigated in a prior proceeding. A review of the petitioner’s prior habeas proceedings and his direct appeal, however, demonstrate otherwise. On direct appeal, this court concluded that sufficient evidence existed to establish that the petitioner “shot the victim” and that, therefore, the petitioner used a firearm to cause the victim’s injuries. State v. Carter, supra, 84 Conn. App. 270-71. Although the petitioner has altered slightly the language used to frame his claims — he now claims that there was insufficient evidence that he possessed a firearm, discharged a firearm or caused the victim’s injuries — there is no substantive difference between his current claims and those resolved on direct appeal. The finding on direct appeal that there was sufficient evidence that the petitioner “shot the victim” fully resolves any question relating to the petitioner’s current assertions. This determination forecloses his current claims attacking the sufficiency of the evidence that he possessed a firearm, discharged a firearm and caused the injuries to the victim. Therefore, the court properly dismissed the petitioner’s counts relating to sufficiency of the evidence. Neither the doctrine of res judicata nor the rule against successive petitions allows a petitioner simply to reword the factual basis underlying a particular claim in order to avoid dismissal.

We now turn to the first count of the petition, which alleged ineffective assistance of sentencing counsel. The petitioner claims that his sentencing counsel rendered ineffective assistance of counsel by failing to preserve lüs rights to sentence review and now seeks relief in the form of restoring his right to apply for sentence review. The petitioner argues that this claim is neither successive nor an abuse of the writ because he is seeking relief different from that which he sought in his previous habeas petitions. We agree and, accordingly, reverse the judgment in this respect only.

In response to this claim, the respondent argues that the habeas court properly exercised its discretion in determining that the petitioner’s “piecemeal litigation” constituted an abuse of the writ and, therefore, properly dismissed the petition in accordance with Practice Book § 23-29. The respondent further contends that since the petitioner proffered no good reason for waiting more than seven years from the date of his sentence to inquire with the sentencing division regarding review of his sentence, there is no legally sufficient good cause to warrant a hearing at this late date. Although the respondent’s arguments may bear on a habeas court’s determination of whether to restore the petitioner’s right to sentence review, these arguments do not form an adequate basis to deny the petitioner an opportunity for an evidentiary hearing on this particular claim. That is, whether the respondent is correct that the petitioner does not have a valid explanation for failing to timely pursue his sentence review rights and whether such a defense is appropriate to this particular claim are determinations to be made by the habeas court after an evidentiary hearing and not by this court on review.

In his first habeas petition, the petitioner claimed ineffective assistance of trial and appellate counsel for reasons unrelated to sentence review. In that petition, the petitioner sought relief in the form of a new trial and appeal. Furthermore, in his second habeas petition, the petitioner claimed ineffective assistance of counsel relating to trial counsel’s actions during trial and sought relief in the form of a new trial. The petition was dismissed as successive and barred by the doctrine of res judicata. The petitioner did not claim ineffective assistance of counsel in his third habeas petition. In the present petition, the petitioner claims counsel was ineffective for failing to preserve his right to sentence review, and he seeks the restoration of those rights, which form the basis of a distinct form of relief that he did not seek in any of his prior petitions. He is entitled to be heard in regard to this claim for relief.

The judgment is reversed only as to count one of the petition alleging ineffective assistance of counsel and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Practice Book § 23-29 states in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .”

       In dismissing the petition, the court stated: “In accordance with Practice Book § 23-29 (3) and (5), the court dismisses this matter on grounds of res judicata and that this petition is successive.” It thereafter opined that “[t]he petitioner is abusing the writ of habeas corpus through his attempts to repeatedly litigate claims.” Id. Insofar as the respondent, the commissioner of correction, looks to that latter language to support his claims, we conclude that it is extraneous and not part of the habeas court’s holding.

       The petitioner amended his first petition several times, finally claiming that (1) there was insufficient evidence to prove beyond a reasonable doubt the element of intent for assault in the first degree, (2) the prosecution knowingly elicited perjured testimony during the criminal trial, (3) prosecutorial impropriety transpired, (4) his arrest warrant contained false statements and material omissions in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (5) the trial court impermissibly amended the information on the charge of assault in the first degree during its instruction to the jury, (6) his arrest was illegal on the charge of attempt to commit assault in the first degree, (7) the trial court improperly instructed the jury on the element of intent, (8) the conviction of assault in the first degree and risk of injury to a child is legally inconsistent, (9) the conviction of assault in the first degree and attempt to commit assault in the first degree violates the constitutional protection against double jeopardy, (10) § 53a-59 is unconstitutionally vague, (11) General Statutes § 53-21 is unconstitutionaUy vague, (12) he received ineffective assistance of trial counsel, (13) he received ineffective assistance of appellate counsel and (14) he was actually innocent of the crime of assault in the first degree. See Carter v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-04-4000182-S (May 4, 2006).

       In his second petition for a writ of habeas corpus, the petitioner claimed that (1) the prosecuting authority deliberately deceived the court and jurors in order to obtain his conviction, (2) the state’s argument on direct appeal deliberately deceived the Appellate Court in order to have his conviction affirmed, (3) his trial counsel rendered ineffective assistance when he failed to call certain adverse witnesses and (4) his trial counsel rendered ineffective assistance when he failed to object to the prosecutor’s false or misleading argument to the jury. Carter v. Commissioner of Correction, supra, 109 Conn. App. 304 n.4.

       The habeas court’s judgment of dismissal stated in relevant part: “In accordance with Practice Book § 23-29 (3) and (5), the court dismisses this matter on grounds of res judicata and that this petition is successive.”

       Count three of the petitioner’s second habeas petition claims that his trial counsel rendered ineffective assistance of counsel in violation of the petitioner’s sixth and fourteenth amendment rights by failing to call adverse witnesses and raising the only viable defense available to the petitioner. In regard to count three the petitioner requested relief in the form of a new trial or a release from prison.


author: DiPENTIMA, C. J.

text:
    JEFFREY D. GLENN v. DIANE P. GLENN
    (AC 32760)
    DiPentima, C. J., and Alvord and Foti, Js.

      Argued November 15, 2011
    officially released February 7, 2012

      Mary M. Puhlick, with whom, on the brief, was Michael J. Cartier, for the appellant (plaintiff).

      Diane P. Glenn, pro se, the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Jeffrey D. Glenn, appeals from the postdissolution order of the trial court requiring him to pay a portion of the college expenses for the parties’ adult child. On appeal, he argues that (1) General Statutes § 46b-56c violates the equal protection clause of the Connecticut constitution, (2) the court abused its discretion by failing to make the threshold finding that the parties would have provided support for the college expenses had the family remained intact and (3) the court abused its discretion with respect to the amount he was to contribute to the college expenses. We affirm the judgment of the trial court.

On October 3, 2007, the court rendered a judgment dissolving the marriage of the plaintiff and the defendant, Diane P. Glenn. The court incorporated the parties’ written settlement agreement into the terms of the dissolution judgment. Section 4.4 of the settlement agreement provided that the court would “retain jurisdiction to allocate between [the parties] any and all college tuition and expenses incurred on behalf of the [then] minor child upon post-judgment motion of either party, pursuant to ... § 46b-56c.”

On March 27, 2009, the defendant filed a motion for modification seeking $160 per week to help provide the opportunity of higher education for the parties’ child. On June 16, 2009, the court issued the following order: “[The] [p]laintiff is to pay $100 per week to [the] defendant until the minor child’s eighteenth birthday .... After her birthday, payments are ordered to go directly to the educational institution that the [child] attends. If [the] plaintiff resumes employment before the end of the year, his payments are to increase to $160 per week. This order will last one year from July 1, 2009.” On July 14, 2010, the defendant filed another motion for modification, noting that the court’s previous order had lapsed and seeking an increase in the educational support order and an extension of the order to the remainder of the child’s college education.

A hearing on the defendant’s motion was held on September 7, 2010. The plaintiff testified that he had suffered an injury in the course of his employment and was receiving workers’ compensation benefits. He also stated that he had a pending personal injury action. The plaintiff testified that, as a result of his inability to work, he had exhausted his savings, liquidated his retirement plan and been forced to rely on credit cards to meet his financial obligations. The plaintiffs counsel suggested that the plaintiff be permitted to turn over approximately $3000 worth of savings bonds in lieu of an educational support order, until the plaintiff was able to return to work.

The court issued an oral decision, first finding an arrearage of $500 from the previous court order. It then ordered the plaintiff to convert the bonds to cash and to tender that money to the defendant. It also ordered each party to pay $9334.50 toward the child’s educational expenses for her sophomore year. The court then elaborated: “And I am doing that not because of the history of the case but because at the present [time] their earnings are essentially equal, even with the workers’ [compensation] and with [the plaintiffs] injury. [The plaintiff] continues to draw good benefits from his prior employment, and in the long run he has one or two pots of gold perhaps that he’s going to recover at some point.” The order required that the bond payment be completed within two weeks, and the remaining $9334.50 be paid in full if he received a lump sum award from either his workers’ compensation benefits or the personal injury action. If the plaintiff received neither award, he was to pay $100 per week, starting on September 1, 2010.

On appeal, the plaintiff first claims that § 46b-56c violates the equal protection clause of the Connecticut constitution. Specifically, he argues that the statute imposes the payment of postmajority educational expenses on divorced or unmarried parents, but not on parents of intact families. We decline to review this claim.

The issue of the constitutionality of § 46b-56c was not raised before the trial court. In his appellate brief, the plaintiff failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book 60-5. This court recently stated: “It is a bedrock principle of appellate jurisprudence that, generally, claims of error not raised before the trial court will not be considered by a reviewing court. The principle is rooted in considerations of fairness as well as judicial economy.” (Emphasis in original.) State v. Elson, 125 Conn. App. 328, 340-41, 9 A.3d 731 (2010) (en banc), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011); see also Adamo v. Adamo, 123 Conn. App. 38, 45-46, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d 830 (2010); Noonan v. Noonan, 122 Conn. App. 184, 190, 988 A.2d 231, cert. denied, 298 Conn. 928, 5 A.3d 490 (2010). The failure of the plaintiff to request any of the extraordinary avenues of appellate review for unpreserved claims is fatal to his argument on appeal.

The plaintiff next argues that the court abused its discretion by failing to make the threshold finding that the parties would have provided support for the college expenses had the family remained intact. Section 46b-56c (c) provides in relevant part: “The court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact.

We acknowledge that the court’s oral decision does not contain the finding required by § 46b-56c (c). This court in Sander v. Sander, 96 Conn. App. 102, 117, 899 A.2d 670 (2006), concluded that “the statute clearly provides that the court must make the necessary factual finding before it can enter an educational support order. The finding, therefore, merely may not be implied, but must be expressed. We are convinced that § 46b-56c (c), as written, cannot be read in any other manner.” (Emphasis in original.) Nevertheless, the court there concluded that the failure to make the express finding was harmless because there was ample evidence in the record to support such a finding. Id., 118.

In the present case, we also conclude that the court’s failure to make the finding pursuant to § 46b-56c (c) was harmless. First, we note that the settlement agreement expressly provided for the court to retain jurisdiction over and to allocate the child’s college expenses. Second, the plaintiffs counsel offered the money from the savings bonds in lieu of an educational support order. This offer suggests an intention by the plaintiff to provide financial support for the child’s college education, not contradicted by any other evidence. Third, the plaintiff never presented evidence or argued to the trial court that he would not have provided support for the college expenses had the family remained intact; instead he focused on his present financial issues and his inability to pay the amount requested by the defendant. We also note that the plaintiff requested only that the court refrain from entering an educational support order until he was able to return to work. Finally, the court noted that the defendant had gone into debt to pay the child’s college expenses and that it was appropriate for the plaintiff to “step up to the plate and meet his obligation.” The court appears to have implicitly recognized an intention by the plaintiff to provide support for college expenses.

There is no evidence in the record that would support a finding that the plaintiff would not have provided support for the college education of the child had the family remained intact. Given the facts and circumstances of this case, we are persuaded that had the court found that the plaintiff would not have provided support for the college education of the child, such a finding would have been clearly erroneous. Therefore, for these reasons, we conclude, as we did in Sander, that the court’s failure to comply with § 46b-56c (c) is harmless because there was evidence in the record to support such a finding. Accordingly, the plaintiff is not entitled to relief. See Sander v. Sander, supra, 96 Conn. App. 118.

The plaintiffs final claim is that the court abused its discretion with respect to the amount he was to contribute to the child’s college expenses. Specifically, he argues that the court improperly based its order on two speculative events, the receipt of a lump sum award from either workers’ compensation benefits or from his personal injury action. Additionally, the plaintiff contends that the award exceeded his ability to pay, given his present financial circumstances. We disagree.

“We review financial awards in dissolution actions under an abuse of discretion standard. ... In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Internal quotation marks omitted.) Loughlin v. Loughlin, 93 Conn. App. 618, 624, 889 A.2d 902, aff'd, 280 Conn. 632, 910 A.2d 963 (2006); see also Crews v. Crews, 107 Conn. App. 279, 305, 945 A.2d 502 (2008) (trial court afforded wide latitude of discretion in making financial orders), aff'd, 295 Conn. 153, 989 A.2d 1060 (2010).

First, we note that the court did not make the plaintiffs financial obligation dependent on his potential receipt of a lump sum award from either workers’ compensation benefits or the personal injury action. It merely ordered that if such an award occurred, then the plaintiff was obligated to pay in full his share of the college expenses at that time. Second, after carefully reviewing the record, we conclude that the court’s financial order did not constitute an abuse of discretion. Specifically, the court found the parties’ earnings to be essentially equal, even though the plaintiff was receiving workers’ compensation benefits. Additionally, the court found that the plaintiff “continues to draw good benefits from his prior employment, and in the long run, he has one or two pots of gold perhaps that he’s going to recover at some point.” (Emphasis added.) The plaintiff has failed to persuade us that the court’s order constituted an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the defendant was represented by counsel'before the trial court but has acted pro se in this appeal.

       Although the defendant filed a motion for modification, it is in essence a motion for allocation of the parties’ respective shares of the child’s college education expenses, and we treat it as such. See Tobet v. Tobet, 119 Conn. App. 63, 65, 986 A.2d 329 (2010).

       We note that the plaintiff failed to provide this court with a signed transcript of the court’s decision. See Practice Book § 64-1. Despite this noncompliance with our rules of practice, we conclude that the record is adequate for our review, and we will review the plaintiff’s claims.

       “Under Golding, 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. . . . The test set forth in Golding applies in civil as well as criminal cases.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Perricone v. Perricone, 292 Conn. 187, 212 n.24, 972 A.2d 666 (2009).

       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. . . .”

       We note that “ordinarily appellate review is not available to a party who follows one strategic path at trial and another on appeal, when the original strategy does not produce the desired result. ... To allow the [party] to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the [opposing party and the court] with that claim on appeal.” (Citation omitted; internal quotation marks omitted.) State v. Castillo, 121 Conn. App. 699, 716 n.17, 998 A.2d 177, cert. denied, 297 Conn. 929, 998 A.2d 1196, cert. denied, 562 U.S. 1094, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010); see also Kaczynski v. Kaczynski, 294 Conn. App. 121, 131 n.13, 981 A.2d 1068 (2009).

       “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn. App. 672, 677, 6 A.3d 141 (2010).