author: ALVORD, J.

text:
    GRACIELA CHIRIELEISON, ADMINISTRATRIX (ESTATE OF JACQUELINE BARDALES CHIRIELEISON) v. ROBERT S. LUCAS ET AL.
    (AC 34274)
    DiPentima, C. J., Alvord and Bishop, Js.

      Argued April 10
    —officially released July 30, 2013

      Bruce J. Corrigan, Jr., for the appellant (plaintiff).

      Aamina Ahmad, assistant town attorney, for the appellees (named defendant et al.).
   Opinion

ALVORD, J.

The plaintiff, Graciela Chirieleison, administratrix of the estate of Jacqueline Bardales Chi-rieleison, appeals from the summary judgment rendered in favor of the defendants, the town of Greenwich (town) and Robert S. Lucas, on her wrongful death action. The plaintiff claims that the court improperly concluded that (1) both defendants were shielded from liability pursuant to the doctrine of qualified governmental immunity because Lucas was engaged in a discretionary governmental activity; (2) the decedent was not an identifiable person subject to imminent harm and, therefore, not within the exception to qualified governmental immunity; and (3) the plaintiff failed to establish a prima facie case of nuisance against the town. We affirm the judgment of the trial court.

The following facts and procedural history are undisputed or were set forth in the court’s memorandum of decision. At approximately 5:30 a.m. on September 30, 2007, a vehicle operated by Rafael DeLaCruz struck a car that had been abandoned on the shoulder of Interstate 95 North between exits 4 and 5. DeLaCruz’ vehicle was engulfed in flames. The state police and the Cos Cob Fire Police Patrol, Inc. (fire patrol), a volunteer organization operating under the control of the town fire department, responded to the accident. Lucas, a firefighter, drove a 2004 Pierce fire truck to the scene of the accident and, upon arriving, parked the fire truck in a position such that it shielded the emergency response personnel from the traffic on the highway. At the direction of the scene commander, Lucas left the emergency lights on and positioned the fire truck to block the right and center lanes of the highway. Lucas exited the fire truck and, accompanied by another firefighter, placed warning flares in a line extending approximately 100 feet from the fire truck to the guardrail. Lucas and the other firefighter decided to set up a series of traffic cones as well, and they began to walk back to the fire truck to retrieve the traffic cones.

As the emergency personnel were responding to the accident, Reynaldo Sanchez, Gerson DeLeon and the decedent were returning from a dance club in New York City on Interstate 95 North in a car driven by Sanchez. At approximately 6:09 a.m., Sanchez veered out of the line of cars travelling in the left lane of the highway. The Sanchez vehicle crossed through the line of warning flares at a high rate of speed and collided with the fire truck. Sanchez and the decedent died as a result of the accident. DeLeon survived, but suffered severe memory loss and could not remember anything about the accident.

The plaintiff commenced a wrongful death action against the defendants and, on April 4, 2011, filed the operative complaint. The complaint contained three counts: in count one the plaintiff alleged negligence against the firefighter Lucas, in count two the plaintiff alleged negligence against the town and in count three the plaintiff alleged nuisance against the town. On September 9, 2011, the defendants filed a motion for summary judgment as to all three counts. As to count one, negligence against firefighter Lucas, the defendants claimed that Lucas was entitled to summary judgment because (1) he was engaged in discretionary governmental acts and no exception to discretionary act immunity was applicable to the facts of this case, and (2) the plaintiff did not comply with notice requirements owed to a volunteer firefighter and a municipality pursuant to General Statutes § 7-308. As to count two, negligence against the town, the defendants claimed that the town was entitled to summary judgment because (1) its officers were engaged in discretionary governmental acts and no exception to discretionary act immunity was applicable to the facts of this case, and (2) the plaintiff did not establish a prima facie case of negligence. As to count three, nuisance against the town, the defendants claimed that the town was entitled to summary judgment because the plaintiff could not establish a prima facie case of nuisance.

On January 24,2012, the court issued a memorandum of decision granting the defendants’ motion for summary judgment as to all three counts. The court rendered summary judgment on count one after concluding that Lucas was shielded from liability pursuant to the doctrine of qualified governmental immunity because he was engaged in a discretionary act and no exception to discretionary act immunity was applicable. On count two, the court rendered summary judgment based on a similar qualified governmental immunity analysis, as well as a conclusion that the plaintiff failed to establish a prima facie case of negligence. On count three, the court rendered summary judgment after concluding that the plaintiff failed to establish a prima facie case of nuisance. This appeal followed.

As a threshold matter, we raise the issue of whether the plaintiff’s claims with regard to count two are moot. “Mootness raises the issue of a court’s subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties. Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction .... A determination regarding . . . [the Appellate Court’s] subject matter jurisdiction is a question of law . . . .” (Citations omitted; internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 392, 968 A.2d 416 (2009).

In its memorandum of decision, the trial court rendered summary judgment on count two in favor of the town. The court determined that the town was shielded from liability pursuant to the doctrine of qualified governmental immunity because the town officials were engaged in discretionary governmental acts and no exception to discretionary act immunity was applicable under the circumstances of this case. The court continued its analysis of count two under a separate heading, which addressed the defendants’ claim that the plaintiff had failed to establish a prima facie case of negligence. The court noted that “[i]n an automobile accident case, [a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part.” (Internal quotation marks omitted.) Schweiger v. Amica Mutual Ins. Co., 110 Conn. App. 736, 741, 955 A.2d 1241, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). The court then found that the death of the decedent and Sanchez, coupled with DeLeon’s lack of any memory of the accident, provided a “total lack of evidence . . . as to the proximate cause of the injury.” As such, the court determined that the plaintiff had failed to present a genuine issue of fact that the town’s negligence was the proximate cause of the accident and, accordingly, concluded that “summary judgment is granted as to the defendants’ argument that the plaintiff has failed to provide any facts to support the claim of negligence.”

The plaintiff appeals the judgment rendered by the court that the town was protected by governmental immunity, but she does not appeal the ruling that the plaintiff failed to establish a prima facie case of negligence against the town. We can afford no relief to the plaintiff on her appeal with regard to count two because she did not appeal the court’s judgment that the plaintiff failed to establish a prima facie case of negligence against the town. See Lyon v. Jones, supra, 291 Conn. 394-95 (failure to appeal from court’s findings on collateral estoppel renders claims raised with respect to General Statutes § 46a-70 [a] moot because appellate court would “not be able to provide . . . any relief in light of the binding adverse finding with respect to those claims”); Housing Authority v. Davis, 57 Conn. App. 731, 732-34, 750 A.2d 1148, cert. denied, 254 Conn. 901, 755 A.2d 218 (2000) (court cannot provide practical relief on defendants’ appeal from court’s summary process judgment that their conduct constituted serious nuisance because they did not also appeal court’s judgment that use, selling or possession of illegal drugs violated their public housing lease); Grasso v. Connecticut Hospice, Inc., 138 Conn. App. 759, 765-66, 54 A.3d 221 (2012) (court cannot provide practical relief when plaintiff does not appeal judgment on counterclaim that is directly adverse to claim on appeal). Accordingly, we conclude that the plaintiffs claims with regard to count two are moot, and we do not review them.

The plaintiffs claims with regard to the two remaining counts of her complaint—negligence against Lucas and nuisance against the town—will be examined under our well established standard of review for summary judgment. “Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.” (Internal quotation marks omitted.) Mills v. The Solution, LLC, 138 Conn. App. 40, 45-46, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012).

I

The plaintiff first claims that the court improperly determined that Lucas was shielded from liability by the doctrine of qualified governmental immunity because his acts prior to the accident were ministerial and not discretionary. We disagree.

“The [common-law] doctrines that determine the tort liability of municipal employees are well established. . . . Generally, a municipal employee is hable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

The plaintiff argues that Lucas positioned the fire truck in accordance with the direction of the scene commander and the standards fohowed by the fire patrol. In support of this argument, the plaintiff directs this court to portions of Lucas’ deposition testimony in which he stated that he was “directed” by the scene commander, that he was “instructed” to park the fire truck diagonally across the right and center lanes of Interstate 95 and that there are “standards for positioning any fire apparatus on roads . . . .” Further, the plaintiff argues that the standards followed when the fire patrol responds to accidents are evidenced by the similarity between this accident and an incident that occurred approximately one year prior. In the prior incident, Lucas, acting in his official capacity, responded to an accident on Interstate 95 South by blocking the right and center lanes with the same fire truck to protect emergency response personnel, and a car collided with the fire truck. See Kumah v. Brown, 307 Conn. 620, 623, 58 A.3d 247 (2013).

The defendants argue that the positioning of a fire truck in response to an accident on a highway requires discretion and decision-making because each accident presents unique challenges and objectives. With regard to the plaintiffs argument that Lucas was directed to position the fire track in a specific manner, Lucas testified at his deposition that he was instructed to block two lanes of traffic, but that he executed that instruction based on his experience. Further, Lucas testified that, in the approximately twenty-five other accidents on Interstate 95 to which he has responded, the manner in which he would position the fire track “var[ied] according to the specifics [of the situation]” because “[e]very incident is different . . . .” He also testified that neither the town fire department nor the fire patrol had written policies, standards or procedures pertaining to positioning a fire track or laying out cones or flares when responding to an accident.

We previously have stated that “all accident scenes are different from one another, and in fact are so different as to require that different measures be taken to secure them.” Faulkner v. Daddona, 142 Conn. App. 113, 123, 63 A.3d 993 (2013). In this case, Lucas was required to use his judgment and decide how best to position the fire track and the warning flares given the circumstances with which he was presented. The evidence, viewed in the light most favorable to the plaintiff, reveals that Lucas received an oral instruction to park the fire truck across the right and center lanes of the highway with its emergency lights illuminated and that such a procedure is common in responding to accidents. This evidence does not qualify Lucas’ actions as ministerial because, to the extent that any standards or directives existed in this case, Lucas still was required to use his judgment in their execution, and “[determinations as to what is reasonable or proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore, discretionary in nature.” Segreto v. Bristol, 71 Conn. App. 844, 857, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). Lucas determined the exact positioning of the fire truck and the warning flares based upon his experience and judgment as applied to the specific circumstances that existed on Interstate 95 North between exits 4 and 5 in the early morning horns of September 30, 2007. The court, therefore, properly concluded that Lucas’ actions were discretionary in nature and, accordingly, that Lucas was shielded from liability by the doctrine of qualified governmental immunity.

II

The plaintiff next claims that the court improperly concluded that the decedent was not an identifiable person subject to imminent harm and, therefore, not within the exception to qualified governmental immunity. We disagree.

Because we determine that Lucas’ actions were discretionary in nature, he is shielded from liability by the doctrine of qualified governmental immunity so long as his actions do not fall within any of the “three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official’s duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity—to encourage municipal officers to exercise judgment—has no force. . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. . . . Third, Lability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . .” (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006).

The plaintiff contends that the identifiable person in imminent harm exception is applicable in this case. That exception “requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.” Id., 616. “To prevail, the plaintiff must demonstrate that [the plaintiffs decedent] was an identifiable person and was subject to imminent harm and that a public officer’s conduct subjected her to that harm, despite the apparent likelihood of harm to her.” (Emphasis in original.) Id., 620. “The failure to establish any one of the three prongs precludes the application of the identifiable person subject to imminent harm exception.” Merritt v. Bethel Police Dept., 120 Conn. App. 806, 812, 993 A.2d 1006 (2010).

As to the second prong of the identifiable person subject to imminent harm exception, the plaintiff argues that the decedent was an identifiable victim because she was within a class of foreseeable victims. “With respect to the identifiable victim element, our Supreme Court has stated that this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. . . . [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care. . . .” (Internal quotation marks omitted.) Id., 812-13. “[T]he only identifiable class of foreseeable victims that [our Supreme Court] ha[s] recognized for these purposes is that of schoolchildren attending public schools during school hours . . . .” (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 352, 984 A.2d 684 (2009). Further, “[our Supreme Court] ha[s] interpreted the identifiable person element narrowly as it pertains to an injured party’s compulsion to be in the place at issue . . . .” Id., 356. In addition to “not recognizfing] any additional classes of foreseeable victims outside of the public school context . . . even in such a context, such a class has only been recognized where attendance has been compulsory.” Merritt v. Bethel Police Dept., supra, 120 Conn. App. 814.

Connecticut appellate courts previously have declined to extend the identifiable person in imminent harm exception to the general public using roads and highways. See Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982); DeConti v. McGlone, 88 Conn. App. 270, 271, 275, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). We see no reason to deviate from this precedent. The class of foreseeable victims to which the plaintiff argues the decedent belonged— people in automobiles on Interstate 95—is not narrowly defined because any member of the public could have chosen to travel Interstate 95 at that time. Further, the decedent was not compelled by any municipal or state mandate to be in an automobile on Interstate 95 at approximately 6:09 a.m. on September 30, 2007. The court, therefore, properly concluded that Lucas was shielded from liability by the doctrine of qualified governmental immunity because his acts were discretionary in nature and the decedent did not fall within the exception of an identifiable person in imminent harm.

Ill

The plaintiffs third claim is that the court improperly concluded that the plaintiff failed to establish a prima facie case of public nuisance against the town. We disagree.

“Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety. ... [A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiffs] injuries and damages.” (Citation omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 561-62, 23 A.3d 1176 (2011). “In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance.” Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010). “Whether the elements necessary to establish a claim of nuisance have been proven is ... a question of fact which is ordinarily determined by the trier of fact.” (Internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 197, 602 A.2d 1011 (1992).

On appeal, the plaintiff claims that the blocking of two lanes of traffic by a fire truck on Interstate 95 is a public nuisance for which the town is liable pursuant to General Statutes § 52-557n (a) (1) (C). She argues that the facts that gave rise to Kumah v. Brown, supra, 307 Conn. 623, sufficiently put the defendants on notice that parking the fire truck across the right and center lanes of Interstate 95 had a natural tendency to create danger and inflict injury on people driving on the highway. The court found, however, that the plaintiff failed to demonstrate a substantial similarity between the accident in this case and the accident in Kumah such that Kumah would create any basis for the finding of nuisance in this case. It noted that Lucas testified that he had responded to hundreds of incidents on the highway and that the plaintiff provided no exhibits, testimony, expert opinions, or affidavits in support of her claim that the manner in which the fire truck was parked had a natural tendency to create danger and to inflict injury.

In our earlier discussion of the effect of the trial court’s rendering of summary judgment on the basis of the plaintiff failing to establish a prima facie case of negligence against the town, we noted that “[i]n an automobile accident case, [a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not aproxímate consequence of negligence on his part.” (Internal quotation marks omitted.) Schweiger v. Amica Mutual Ins. Co., supra, 110 Conn. App. 741. As we previously stated, the plaintiff did not submit any evidence that the fire truck being parked across two lanes of Interstate 95—the alleged nuisance—was the proximate cause of the decedent’s injuries.

Further, the court found no genuine issue with the facts that the defendants did not violate any statutory or other requirement and that the acts undertaken by the defendants in responding to the accident were reasonable and lawful. The court opined that to conclude that a fire truck blocking a public highway is unreasonable or unlawful, without any further factual support as to why that fire truck constituted a nuisance, would render meaningless the protection that General Statutes § 7-313e provides to fire officers responding to an emergency. The plaintiff provided no further factual support as to why the fire truck constituted a nuisance.

We agree with the court’s conclusions that the plaintiff failed to establish a prima face case of nuisance because she did not provide any proof that the positioning of the fire truck had a natural tendency to create danger and to inflict injury on person or property, that the town’s actions were the proximate cause of the decedent’s injuries, or that it was unreasonable or unlawful to park the fire truck across the right and center lanes of Interstate 95 to shield emergency personnel responding to an accident.

The judgment is affirmed.

In this opinion the other judges concurred.

       Throughout this opinion, Graciela Chirieleison will be referred to as the plaintiff, and Jacqueline Bardales Chirieleison will be referred to as the decedent.

       The defendant Cos Cob Fire Police Patrol, Inc., and the apportionment defendants Rafael DeLaCruz, Fredie Perez, Ronald C. Metell, R. C. Metell Construction, Leonardo Sanchez and Elizabeth Jackson are not parties to this appeal. For convenience, we refer in this opinion to the town and Lucas as the defendants.

       The operative complaint is the second amended complaint. On March 16, 2011, the court granted a motion to strike two counts from the first amended complaint, thereby removing the fire patrol as a party to this action.

       The court found that the undisputed evidence presented in the defendants’ motion for summary judgment supported a conclusion that Lucas met the qualifications of being a volunteer fireman engaged in his fire duties under § 7-308, but it determined that count one of the operative complaint alleged a violation of common-law negligence and that § 7-308 does not apply to a common-law negligence action. See Rowe v. Godou, 209 Conn. 273, 278, 650 A.2d 1073 (1988). On cross appeal, the defendants submit that the failure to comply with § 7-308 is an alternative basis on which we can affirm summary judgment on count one. Because we affirm summary judgment on count one on other grounds, we need not reach this issue.

       The court limited its discussion to the claim of negligence against the town because, in the defendants’ motion for summary judgment, they only argued that the plaintiff failed to establish a prima facie case of negligence against the town. Accordingly, we treat the judgment on a failure to establish a prima facie case of negligence as only being rendered with regard to count two.

       The plaintiff does not argue that the decedent was identifiable as an individual. See Sestito v. Groton, 178 Conn. 520, 522-23, 528, 423 A.2d 165 (1979).

       General Statutes § 52-557n provides in relevant part: “(a) (1) . . . [A] political subdivision of the state shall be liable for damages to person or property caused by . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . . .”

       “In the early morning of September 3, 2006, Leo G. Brown was operating a tractor trailer in a westerly direction on Interstate 95 in [the town of] Greenwich. . . . Brown lost control of the tractor trailer, struck a jersey barrier and bridge railing, and eventually came to a stop in the right and center lanes of [the roadway]. Following the accident, Robert Lucas, a member of the Cos Cob fire police patrol, a volunteer organization operating in conjunction with the Greenwich fire department, responded to the scene. While assisting with the accident cleanup, Lucas parked a . . . fire truck diagonally across the center and right lanes . . . and also placed safety cones along the road to alert oncoming vehicles of the accident. Shortly thereafter, William Kumah, who also was driving his automobile ... on Interstate 95 in Greenwich, collided with the parked fire truck, sustaining serious physical injuries . . . .” (Internal quotation marks omitted.) Kumah v. Brown, supra, 307 Conn. 623.

       Our Supreme Court in Kumah held that a plaintiff could use § 52-557n to bring a nuisance action against a municipality, declining to accept the defendants’ argument that General Statutes § 13a-149 was the exclusive remedy against a municipality for damages arising out of injuries to a person or property caused by a defective road or bridge. In so doing, the court affirmed the denial of the defendants’ motion to strike. Kumah v. Brown,
        supra, 307 Conn. 622-23. Denial of a motion to strike only has precedential value for determining the sufficiency of pleadings, which is not at issue in this case. See Practice Book § 10-39; Cadle Co. v. D’Addario, 131 Conn. App. 223, 230, 26 A.3d 682 (2011).

       General Statutes § 7-313e provides in relevant part: “[A]ny member serving in the capacity of fire officer-in-charge, shall, when any fire department or company is responding to or operating at a fire, service call, or other emergency, within such municipality, have the authority to . . . (c) blockade any public highway, street, or private right-of-way temporarily while at such scene . . . .”


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    THOMAS B. SCHULHOF ET AL. v. ZONING BOARD OF APPEALS OF THE CITY OF NORWALK ET AL.
    (AC 34270)
    DiPentima, C. J., and Lavine and Bishop, Js.

      Argued February 19
    —officially released July 30, 2013

      Louis Ciccarello, for the appellants (named plaintiff et al.).

      Vernon C. Miller, Jr., for the appellee (defendant Cedar Hammocks, LLC).

      Robert F. Maslan, Jr., corporation counsel, with whom, on the brief, was Brian L. McCann, associate corporation counsel, for the appellee (named defendant).
   Opinion

LAVINE, J.

Following this court’s granting of their petition for certification to appeal, the plaintiffs Thomas B. Schulhof and Anne K. Schulhof appealed from the judgment of the trial court dismissing their appeal from a decision of the defendant zoning board of appeals of the city of Norwalk (board). On appeal, the plaintiffs claim that the court improperly sustained the board’s decision to grant an application for a setback variance filed by the defendant Cedar Hammocks Island, LLC (owner), which owns Cedar Hammocks Island (island). The plaintiffs claim that the court improperly sustained the board’s decision on the basis of (1) hardship, (2) the independent ground of nonconforming use, and (3) its personal knowledge of the Connecticut shoreline. We conclude that the trial court properly affirmed the board’s decision on the basis of hardship.

The following procedural history is relevant to our resolution of the plaintiffs’ appeal. In 2009, the owner filed an application for a zoning variance (2009 application) to replace an existing nonconforming structure with a boathouse on the island. The board denied the 2009 application. In 2010, after modifying its plans, the owner submitted another application again seeking a setback variance (2010 application), which the plaintiffs opposed. The board granted the 2010 application, and the plaintiffs appealed to the Superior Court. Following an evidentiary hearing, the court, Tobin, J., found that the plaintiffs were aggrieved by the board’s decision. The merits of the appeal were then heard by the court, Hon. A. William Mottolese, judge trial referee, which found that the board properly had granted the owner’s 2010 application for a setback variance on the basis of hardship and that the variance does not substantially affect Norwalk’s comprehensive zoning plan. The court therefore dismissed the plaintiffs’ appeal.

The court found the following facts. The plaintiffs are residents of the Wilson Point area of Norwalk, which lies adjacent to Long Island Sound and overlooks the Norwalk Island Chain, including the subject island. The island is crescent shaped and 0.23 acre in size. In 1973, an eight feet by twelve feet wooden building (existing structure) was constructed on the island, which also contains a dock or boat landing. In 1974, the zoning classification of the island changed from B residence zone to “Island Conservation Zone” (conservation zone). See Norwalk Zoning Regs., § 118-300. The uses permitted in the conservation zone are one-family dwellings, parks and playgrounds, and boathouses, landings and docks that are not operated as a business. Norwalk Zoning Regs., § 118-300 C (1). The minimum lot size in the conservation zone is two acres per dwelling unit. Norwalk Zoning Regs., § 118-300 C (2). The existing structure does not conform to the mean high water setback in the conservation zone, save for the southerly setback. See Norwalk Zoning Regs., § 118-800 D. The court further found that the 2010 application called for the removal of the existing structure and construction of a 666 square foot boathouse in a different location on the island. In order to construct the boathouse, the owner needed a variance of the fifty foot setback from the mean high water mark. See Norwalk Zoning Regs., § 118-300 C (4).

On appeal to the Superior Court, the plaintiffs challenged the board’s granting of the 2010 application permitting the owner to construct the boathouse because the variance fails to comply with the setback requirements and violates § 118-800 D of the of the Norwalk Zoning Regulations, which prohibits a nonconforming structure from being enlarged. The board did not articulate its reason for granting the 2010 application, and thus the court searched the record to determine the basis of the board’s decision. See Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 532, 777 A.2d 624 (2001) (when board fails to articulate reason for action, court must search record to find basis of board’s decision).

Before addressing the plaintiffs’ claims, we review the well established standard of review applicable to zoning appeals. “[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547, 684 A.2d 735 (1996). “The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings. . . . [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. . . . Where the board states its reasons on the record we look no further. . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision. . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, must determine whether the court properly concluded that the board’s decision to grant the variance was arbitrary, illegal or an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 568, 785 A.2d 601 (2001).

Because the court, in interpreting the regulations, made conclusions of law in its memorandum of decision, our review is plenary. See Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 229, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision in this case, the plaintiffs. See id.

General Statutes § 8-6 (a), which sets forth the powers and duties of a zoning board of appeals, provides in relevant part: “The zoning board of appeals shall . . . (3) . . . determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . . .” See also Norwalk Zoning Regs., § 118-1410.

“To support a variance ... a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control. . . . The applicant bears the burden of demonstrating the existence of ahardship.” (Internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, supra, 62 Conn. App. 533. “Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. ... A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.” (Citations omitted; internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 570.

I

The plaintiffs claim that the court improperly sustained the board’s granting of the 2010 application for a setback variance on the basis of a hardship that is not unusual, unique or in harmony with Norwalk’s comprehensive zoning plan. We do not agree.

In its memorandum of decision, the court found that the plaintiffs grounded their appeal in § 18-800 D of the Norwalk Zoning Regulations, which they asserted “ ‘prohibits a nonconforming structure from expansion, movement, or enlargement where the result is an increase in the nonconformity.’ ” The plaintiffs reasoned that the board’s granting the 2010 application for a setback variance was unlawful because (1) the 2010 application proposed the relocation of a prior nonconforming structure and (2) the limits imposed by § 118-800 D may not be varied pursuant to § 8-6 (a) (3). The court construed § 118-800 D and determined that the terms “enlarged,” “altered,” and “moved” apply to existing nonconforming structures only, not to a new structure as proposed in the 2010 application. The court also found the plaintiffs’ position with regard to § 8-6 (a) (3) unpersuasive because the statute’s prohibition against variances applies only to use variances, not to setback or location variances. Moreover, the court found that the existing structure is nonconforming as it is neither a single-family dwelling nor a boathouse. See Norwalk Zoning Regs., § 118-300 C (1) (a) and (c).

The court then directed its attention to whether the board properly granted the 2010 application on the basis of hardship. The court found that § 118-300 C (4) of the Norwalk Zoning Regulations prescribes setbacks of fifty feet from the mean high water mark in the conservation zone. See footnote 8 of this opinion. None of the setbacks for the boathouse proposed in the 2010 application—23.55 feet from the north, 27.78 feet from the south, 25.81 feet from the east and 20.67 feet from the west—conform to the setback requirement. The court concluded that the setback from the mean high water mark was a hardship created in 1974 when the classification of the island changed from B residence zone to conservation zone, and that the reclassification occurred when the island was owned by someone other than the owner. The court noted, citing Lawrence Memorial Hospital, Inc. v. Zoning Board of Appeals, 22 Conn. App. 291, 300, 677 A.2d 740 (1990), that “if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, then the purchaser has the same right to seek a variance and, if [its] request is supported in law, to obtain the variance. . . . Otherwise the zoning ordinance could be unjust and confiscatory.” (Internal quotation marks omitted.) Moreover, the court found that the fifty foot setback lines overlap, effectively preventing any structure from being built on the island. This court upheld a similar variance in Eagan v. Zoning Board of Appeals, 20 Conn. App. 561, 564-65, 568 A.2d 811 (1990) (enforcement of setback requirement would preclude house of any size on lot).

The court concluded that the hardship derived from the 1974 zoning reclassification that adopted a fifty foot mean high water setback and that the size, shape, and topography of the island prevent any structure, other than a dock or boat landing, from being erected on the island. The court also found that granting the 2010 application for a setback variance would not substantially affect the Norwalk comprehensive zoning plan as the boathouse is designed to store three small boats, which is in harmony with the purpose of the conservation zone. See footnote 5 of this opinion.

On appeal here, the plaintiffs claim that the basis of the hardship is not the size of the island, but the personal preference of the owner to remove the existing structure and build a boathouse. They contend that the regulations permit the owner to use the island for a dock, but not to build a structure in which to store boats or spend the night. The plaintiffs’ argument overlooks the fact that the size of the lot on the island is legally nonconforming and that the regulations permit boathouses in the conservation zone.

“A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town. . . . The Norwalk zoning regulations strictly limit the extent to which structural nonconformities may be expanded or altered. Norwalk Zoning Regs., § 118-800.” (Citation omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). “An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone.” (Internal quotation marks omitted.) Id., 207. Our Supreme Court has held that § 8-6 authorizes a zoning board of appeals to grant a variance only when (1) the variance will not substantially affect the comprehensive zoning plan and (2) adherence to the strict letter of the zoning ordinances causes unusual hardship unnecessary to carry out the general purposes of the zoning plan. Id.

In this case, the court properly found a hardship existed in that the small size, shape, and topography of the island, and the 1974 setback requirements rendered it impossible to build any permitted structure on the island because the setback lines from the mean high water mark overlap. See, e.g., Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 565. The island is a legally nonconforming buildable lot. Section 118-300 C (1) (c) of the Norwalk Zoning Regulations permits boathouses in the conservation zone. The court properly concluded that without a setback variance, there is no place on the island for the owner to construct a boathouse and that strict adherence to the setback regulations would greatly decrease the value of the island for a permitted use, i.e., a boathouse. See Culinary Institute of America, Inc. v. Board of Zoning Appeals, 143 Conn. 257, 262, 121 A.2d 637 (1956).

The plaintiffs’ argument that the variance constitutes an enlargement of a nonconforming structure overlooks the fact that the existing structure is to be demolished and the boathouse situated at a higher elevation on the island. In Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 573, this court concluded that the board in that case “did not allow for a continuance and expansion of the nonconforming use, rather, it granted [the defendant’s] application for a variance under the [setback] regulations. The defendant is not increasing the size of the existing structure or building a larger one at the same location. Therefore, no expansion of the nonconforming use can occur. The existing house is to be razed and replaced with a new structure at a different location on the property. The variance application was submitted ... as if the lot were vacant.” The same reasoning applies in the present case where the existing nonconforming structure is to be taken down and a boathouse, a permitted use in the conservation zone, is to be constructed.

We also agree that the hardship is unique to an island too small to accommodate the setback from the mean high water mark. The court found that the island is one of the smallest of the Norwalk Islands; some of the larger islands range in size from forty to fifty-nine acres and many of them are improved with one-family dwellings served by landings and docks. “Topographic conditions on the property involved in the application may be the basis for granting a variance, as long as other properties in the area do not have the same problem.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 9.3, p. 245. In this instance, the island is disadvantaged by its size when compared to the larger islands. If the setbacks were strictly applied to the island, no structure could be built on it. When strict adherence to zoning regulations effectively prohibit construction of a permitted use, a variance is proper. See Eagan v. Zoning Board of Appeals, supra, 20 Conn. App. 564.

The plaintiffs also claim that the court improperly concluded that the variance is in harmony with the comprehensive zoning plan. Although the plaintiffs concede that boathouses are a use permitted in the conservation zone, they contend that the analysis of whether the variance comports with the comprehensive zoning plan should go beyond “mere” compliance with one of the several permitted uses in the conservation zone. The substance of the plaintiffs’ argument is that the variance constitutes the expansion of a nonconformity, a claim we have rejected.

The Norwalk zoning regulation’s declaration of the necessity and purpose of the conservation zone identified the need to protect “the fragile environment of the Norwalk Islands while permitting their development for limited residential uses” and provided that “to permit such development and to protect the islands, the following provisions are declared necessary to the public interest.” See Norwalk Zoning Regs., § 118-300 A. The plaintiffs have not presented any substantive analysis or law to demonstrate that the construction of a small boathouse on the island is adverse to the fragile environment of the Norwalk Islands or how it is not in the public interest. Their analysis is limited to noting the three ways in which the proposed boathouse fails to conform to the Norwalk zoning regulations: lot size, yard setback, mean high water setback. They ask at what point a variance impairs the comprehensive zoning plan. Our answer is: Not in this case. The island is too small to conform to the two acre lot minimum of the conservation zone, and the building lot is legally nonconforming. The argument that the variance does not conform to the twenty-five foot yard setback defies reason as there is no yard from which to setback. The subject property is an island owned by one person; the plaintiffs’ property is 1800 feet away over a body of water. The setbacks from the mean high water mark overlap, which, if enforced, prevent any structure from being built on the island.

The plaintiffs’ claims also fail to consider that the granting of the setback variance is only one step in the process to securing permission to construct the boathouse on the island. Before it may construct the boathouse, the owner must secure a special permit to do so. See Norwalk Zoning Regs., § 118-300 D. The zoning regulations therefore provide further protection of the conservation zone. The plaintiffs have failed to demonstrate that the variance does not conform to Nor-walk’s comprehensive zoning plan. Moreover, the plaintiffs have failed to demonstrate why a small structure on the island affects the comprehensive zoning plan any more than the dwelling houses on the larger Nor-walk Islands.

We therefore conclude that the plaintiffs have not carried their burden to demonstrate that the board acted improperly by granting the 2010 application for a setback variance. See Raymond v. Zoning Board of Appeals, supra, 76 Conn. App. 229.

II

The plaintiffs also claim that the court improperly dismissed their appeal by relying on (1) an independent ground not raised by the parties and (2) its personal knowledge of the Connecticut shoreline. We need not reach these claims to resolve the appeal. Even if we were to agree with the plaintiffs’ claims, any error is harmless in light of the court’s having found that the board properly granted the 2010 application on the grounds of hardship and substantial conformity with the comprehensive zoning plan. See LaBow v. LaBow, 69 Conn. App. 760, 761 n.2, 796 A.2d 592 (upholding right decision although founded on wrong ground), cert. denied, 261 Conn. 903, 802 A.2d 853 (2002).

The judgment is affirmed.

In this opinion the other judges concurred.

       The following individuals were plaintiffs in the trial court but are not parties to this appeal: Richard L. Barovick, David R. Caxlucci, Debra H. Carlucci, Michael Jaharis, Linda Hicklin Morgens, John F. Megrue, Uzanne G. Megrue, William H. Miller, Jr., Robert D. Ready, Jane W. Ready, and Jill A. Hanau. In this opinion, we refer to Thomas B. Schulhof and Anne K. Schulhof as the plaintiffs.

       More specifically, the plaintiffs claim that the hardship is not unusual, unique, or in harmony with Norwalk’s comprehensive zoning plan.

       On appeal to the Superior Court, all of the plaintiffs alleged that the board acted improperly in granting the 2010 application because (1) it lacked jurisdiction to consider the 2010 application, (2) the 2010 application violated the prior application rule; see Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 244-46, 794 A.2d 1016 (2002) (rule explained); (3) the variance granted violates the nonconformity provisions of the zoning regulations of the city of Norwalk, (4) there was no proof of hardship, and (6) the variance granted is not in harmony with Norwalk’s comprehensive zoning plan. The court concluded that the board properly considered the 2010 application and that the application did not violate the prior application rule. On appeal to this court, the plaintiffs do not challenge the court’s determinations regarding jurisdiction and the prior application rule.

       There are twenty-five islands in the Norwalk Island Chain ranging in size from fifty-nine acres to less than one acre.

       Section 118-300 A of the Norwalk Zoning Regulations provides: “Declaration of necessity and purpose.
      “(1) It is declared that a need has developed for the protection of the fragile environment of the Norwalk Islands while permitting their development for limited residential uses.

        “(2) In order to permit such development and to protect the islands, the following provisions are declared to be necessary to the public interest.”

       The lot requirement in the B residence zone is a minimum of 6250 square feet.

       Section 118-800 D of the Norwalk Zoning Regulations provides in relevant part: “(1) A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations. . . .
      “(2) A nonconforming structure shall not be moved unless, as a result of the move, the structure is made to conform to these regulations.
      “(3) Where a change of use would create new setbacks, any structure which lawfully existed before such change shall be rendered legally nonconforming, provided that the existing structure is effectively screened from adjacent properties, subject to the satisfaction of the Zoning Inspector.”

       Section 118-300 C (4) of the Norwalk Zoning Regulations, entitled “Yards,” provides in relevant part: “NOTE: No main structure shall be located closer than fifty . . . feet from the mean high-water line, and all accessory structures, if located within fifty . . . feet of the mean high-water line, shall be constructed in such manner as to permit the free flow of pedestrians and tidal waters along the beach or shores.”

       Section 118-1410 A of the Norwalk Zoning Regulations provides in relevant part: “The Board of Appeals may, in specific cases, after public hearing and subject to appropriate conditions and safeguards . . .
      “(3) Vary any requirement of these regulations in harmony with their general purpose and intent, so that substantial justice may be done. This authority shall be exercised in a manner to secure the public health, safety and welfare solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulations. To grant a variance, the Zoning Board of Appeals shall adopt a resolution which shall stipulate the reasons for granting the variance.”

       Section 118-800 of the Norwalk Zoning Regulations provides in relevant part: “A. Purpose and intent. There exists throughout Norwalk lawful lots, structures and uses of land and structures which are nonconforming because they do not comply with these regulations as originally adopted or subsequently amended. The purpose of this regulation is to permit nonconformities to continue, but to strictly limit the extent to which nonconformities may be established, continued, expanded or altered. This regulation is intended to bring nonconforming uses into conformity with the regulations as quickly as the fair interests of the parties will permit. . . .
      “D. Nonconforming structures.
      “(1) A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations ....

        “(2) A nonconforming structure shall not be moved unless, as a result of the move, the structure is made to conform to these regulations.
      “(3) Where a change of use would create new setbacks, any structure which lawfully existed before such change shall be rendered legally nonconforming, provided that the existing structure is effectively screened from adjacent properties, subject to the satisfaction of the Zoning Inspector.”

       The record demonstrates that the existing structure does not comply with building, health, electrical and coastal flooding codes or Federal Emergency Management Agency and Coastal Area Management regulations. Those regulations preclude reconstruction and the location and height of the existing structure. The proposed boathouse will comply with building codes, be situated farther above the mean high water mark and be anchored with breakaway foundation walls that comply with the federal regulations.

       In their brief to this court, the plaintiffs rely on Grillo v. Zoning Board of Appeals, 206 Conn. 362, 537 A.2d 1030 (1988), for the proposition that a claim of hardship will be denied where there are alternative uses for the land. Grillo is factually different from this case as the variance requested there was sought in order to sell the middle of two adjoining lots to the neighbor on the opposite side. Id., 363-64. Our Supreme Court determined that the middle lot could be used as a side yard. Id., 370-71.
      The plaintiffs also rely on Norwood v. Zoning Board of Appeals, supra, 62 Conn. App. 528, in support of their argument that diminution in property value does not ordinarily constitute hardship. Id., 534. There is no claim of personal hardship due to diminution in property value at issue in this case. The basis of the hardship claimed is the size, shape and topography of the island.

       In granting the 2010 application, the board imposed the following conditions: “no heavy equipment will be used on the island, no blasting be permitted during the construction, any tree removal be done only with prior approval of the Planning and Zoning, an approved Conservation Plan be put in place prior to start of construction that’s approved by Coastal Area Management, Planning and Zoning, that the existing construction of the house, the porch and the patio be completely demolished prior to start of construction and that any, arches necessary for the construction be taken away prior to the end of each day of construction.”

       Section 118-300 D of the Norwalk Zoning Regulations provides in relevant part: “The construction of an attached or detached one-family dwelling in the Island Conservation Zone shall be permitted by Special Permit in accordance with the provisions of Article 140, § 118-1450. Additions of less than five hundred . . . square feet, modifications to existing structures and accessory uses and structures shall be exempt from a Special Permit.”

       See Bloom v. Zoning Board of Appeals, supra, 233 Conn. 203-204, for a discussion of a trial court’s basing its decision on an independent ground.

       See Raymond v. Zoning Board of Appeals, supra, 76 Conn. App. 239, for a discussion of the trial court’s use of its personal knowledge that is outside the record to decide a zoning appeal.


author: BEACH, J.

text:
    WILTON CARRAWAY v. COMMISSIONER OF CORRECTION
    (AC 33963)
    Beach, Bear and Sheldon, Js.
    Argued April 18
    —officially released July 30, 2013

      Dante R. Gallucci, assigned counsel, for the appellant (petitioner).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Wilton Carraway, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred by rejecting his claims that his trial counsel had rendered ineffective assistance by failing to investigate adequately the extent of the victim’s injuries, as documented in his medical records, and to engage an expert witness who could have testified that these injuries might have been caused by something other than a dangerous instrument. These alleged deficiencies, according to the petitioner, rendered involuntary and unintelligent his decision to enter a plea of nolo conten-dere to one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). Because the habeas court applied an incorrect legal standard in assessing the petitioner’s claims, we reverse the judgment of the court and remand the case for further proceedings consistent with this opinion.

The following facts and procedural history are relevant to the petitioner’s claims on appeal. During the early morning hours of September 21, 2006, the petitioner discovered his former girlfriend, Jessica Balisci-ano, with Brendan Connolly in the backseat of Connolly’s car, in a parking lot behind Quinn’s Tavern in Southington. Accordingly to Connolly, the petitioner opened the car door without warning and struck him on the side of the head with a blunt object that resembled a tire iron. The petitioner pulled Connolly out of the car and struck him again in the nose. The petitioner proceeded forcibly to remove Balisciano from the car. The petitioner dragged her to her green Ford Mustang, which was parked in an adjacent spot, forced her into the passenger seat and drove to the Flamingo Motel in Meriden, where he checked in under an alias.

Despite his injuries, Connolly was able to drive his own car home. Family members took him to Bradley Memorial Hospital. Computed tomography (CT) scans showed that Connolly had sustained a skull fracture and an epidural hematoma. An X ray revealed a broken nose. He told doctors that his injuries were caused by blows from a crowbar or a similar metal object. A few hours later, Connolly was taken by ambulance to New Britain General Hospital, where he was admitted to the intensive care unit. After a period of observation and additional CT scans, Connolly was discharged at around noon on September 22,2006. He returned to the hospital on September 25, 2006, for a follow-up CT scan.

Connolly and Balisciano provided sworn statements to the Southington police. Connolly stated that the petitioner had wielded “a steel type object that may have been a tire iron” during the assault in the parking lot. Balisciano’s statement corroborated Connolly’s account of the attack and also detailed what had transpired after the petitioner had brought her to the Flamingo Motel. She said that the petitioner had called her a “slut” and a “whore” and threatened that she “wasn’t going to get out of the motel room alive.” In her statement, Balisciano further alleged that the petitioner eventually cleaned up her face and they left the hotel, stopped at the home of a friend of the petitioner’s to switch vehicles, and returned to Balisciano’s home in Meriden. She sought medical treatment later that day at MidState Medical Center and was diagnosed with a concussion.

The petitioner was arrested and charged with one count each of assault in the first degree, assault in the third degree, kidnapping in the first degree, and unlawful restraint in the first degree, and two counts of breach of the peace in the second degree. He initially retained attorney Paul Carty to defend him, but fired Carty after they “couldn’t agree [on] things.” On the recommendation of a friend, the petitioner hired attorney William J. Watson. According to the petitioner, he was adamant from the outset of the case that he wanted to go to trial. He wanted to present his side of the story, which was, essentially, that he had engaged in a fist fight with Connolly to defend Balisciano, and that he had not struck Connolly with a crowbar or tire iron. At that point, the state was offering a twenty-year prison sentence, execution suspended after ten years, if the petitioner would plead guilty to assault in the first degree in violation of § 53a-59 (a) (1).

Watson hired a private investigator to determine whether Balisciano would be a cooperative and credible witness for the state. He determined that, based on e-mails and text messages that she had sent to the petitioner, her credibility as a witness could be undermined. At a pretrial conference, Watson presented his findings to the court, Alexander, J., who decided, in light of Balisciano’s potentially diminished credibility, that the court would impose a sentence of fifteen years incarceration, execution suspended after seven years, with five years of probation, in return for the guilty plea.

Watson communicated the details of this new offer to the petitioner in a letter and in a meeting at his office. Watson’s letter explained that at a court hearing on March 11, 2008, the “accept or reject date,” the petitioner would need to decide whether to accept the offer. If he rejected it, Watson informed him that the case would be placed on the trial list and that all offers would be withdrawn. Watson also outlined all of the other charges in the state’s information, and the potential term of incarceration associated with each. According to Watson’s calculations, the petitioner faced a maximum sentence of sixty-one years of incarceration if convicted on all charges. The petitioner decided to reject the offer and to proceed to trial.

On March 11, 2008, the petitioner appeared in court. After he expressed his intention to reject the offer, the prosecutor stated on the record that if the case went to trial, he would amend the information to charge the petitioner with attempt to commit murder and that he would proceed also on the kidnapping charge related to the petitioner’s alleged abduction of Balisciano. The prosecutor told the court that he believed that Balis-ciano’s sworn statement to the Southington police “would still hold sway with the jury” despite her subsequent sympathetic communications with the petitioner. Watson asked the court if he could discuss the matter with the petitioner during the lunch recess, before the pending offer was rejected irretrievably. When Watson and the petitioner returned, the petitioner agreed to enter a plea of nolo contendere to the charge of assault in the first degree.

During the plea canvass, the court reviewed with the petitioner the elements of § 53a-59 (a) (1) that the state would have been required to prove beyond a reasonable doubt if he had chosen to exercise his right to a trial. The court specifically explained: “A dangerous instrument means any instrument which under the circumstances in which it is used is capable of causing serious physical injury. . . . [Sjerious physical injury means physical injury which creates a substantial risk of death or serious impairment of health or the loss or impairment of any function of a bodily organ.” The court further stated that the allegations with respect to Connolly’s injuries were that he had “lost consciousness, had bleeding in the brain and had a fracture, all of which [constitute] serious physical injury.” The court asked the petitioner if he understood the elements of the crime to which he was entering a plea; the petitioner indicated that he did. Before the plea canvass concluded, the prosecutor informed the court that he was not sure if Connolly actually had lost consciousness, although he was certain that Connolly had sustained a fractured skull and bleeding on the brain. The plea was accepted by the court, and the case was continued for sentencing.

Prior to the sentencing hearing, the petitioner filed a motion to withdraw his plea, pursuant to Practice Book § 39-27, on the ground that his plea had been rendered involuntary by Watson’s ineffective assistance. That motion was denied by the court. The petitioner thereafter commenced the habeas corpus proceeding that is the subject of this appeal. The gravamen of the amended habeas petition is that Watson “failed to provide sufficient information to enable the petitioner to make an informed decision about whether to plead nolo contendere or proceed to trial.” Specifically, he argued that his plea was not entered knowingly, intelligently and voluntarily because Watson failed to ascertain the actual severity of Connolly’s injuries and to engage an expert who could have testified that the nature of Connolly’s injuries was not inconsistent with the petitioner’s version of events, i.e., that Connolly’s injuries were inflicted not by a dangerous blunt instrument, but by the petitioner’s fists.

At the habeas trial, the petitioner testified that he had decided whether to accept the plea deal under the erroneous assumption—allegedly advanced by the state and not refuted by Carty and Watson—that Connolly had been in a coma and hospitalized for four days. The petitioner stated that he had asked to see Connolly’s medical records before the hearing on the plea offer, but that Watson was unable to locate them. He further averred that he did not know the actual length of Connolly’s hospitalization until he reviewed the relevant medical records with his habeas counsel. If he had known that Connolly’s injuries were less severe than he had thought, the petitioner testified, he would have insisted on going to trial. The petitioner further stated that he would have pursued this course despite the fact that at trial the state could have pursued additional charges related to the alleged kidnapping and assault of Balisciano.

The petitioner also called as a witness Barbara Levin, a legal nurse consultant and a clinical scholar of the orthopedic trauma department at Massachusetts General Hospital in Boston. Levin had reviewed Connolly’s medical records from Bradley Memorial Hospital and New Britain General Hospital, photographs of Connolly’s injuries and the police report. She testified that, in her opinion, Connolly’s injuries were caused by a fist. Levin opined that if Connolly had instead been struck by a crowbar or a bat, his injuries would have been more extensive and his fracture’s depression would have been more horizontal or lateral in shape depending on how the blow landed. She also testified that, based on her review of Connolly’s medical records, he was never in a coma. Levin stated that a “coding error” on a hospital summary sheet erroneously indicated that Connolly had been treated for “traumatic stupor and coma” on September 26, 2006.

Watson was the sole witness for the respondent, the commissioner of correction. He testified that, with respect to the strength of the state’s case against the petitioner, Connolly was consistent in his accusations: “He had indicated that he had been pulled out of the motor vehicle by [the petitioner] and subsequently assaulted with a metal object . . . .” He also stated that, on the basis of his review of the medical records, he felt that Connolly’s injuries constituted serious physical injuries as defined by the Penal Code. See General Statutes § 53a-3 (4). Watson further stated that, in his view, a trial would have come down to a credibility contest between Connolly’s and the petitioner’s versions of what had occurred, and Connolly was, “potentially, a very solid witness.” Watson also noted that there was significant downside risk to going to trial because the state had announced its intention to pursue the charges stemming from the alleged assault and kidnapping of Balisciano. Given all of these considerations, Watson characterized the plea offer accepted by the petitioner as “fair.”

The court addressed only the prejudice prong and applied the rule enunciated in Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995), regarding what constitutes prejudice when a criminal defendant chooses to take a plea and to forgo his right to a trial. See id. (holding that “[Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)] requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial” [emphasis added]). The court held that, in order to prevail, the petitioner needed to show that, “but for counsel’s unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty and that the outcome was likely to be more successful.” (Emphasis added.)

Applying this standard, the court observed that, even if the state had failed to prove beyond a reasonable doubt that the petitioner had struck Connolly with a dangerous instrument, the petitioner had admitted that he had assaulted Connolly, fracturing his skull and nose and causing a subdural hematoma. Given this concession, the court found that “[t]he petitioner may very well have been convicted of assault [in the first degree] under a different subsection, such as § 53a-59 (a) (3) . . . or assault [in the] second or third degree.” The court further noted that any expert medical testimony regarding the cause of Connolly’s injuries could have been rejected by a jury, which also would have heard conflicting testimony from Connolly that he had been struck with a metal object. Finally, the court found that the petitioner’s prospect of a better outcome at trial was significantly undermined by the lingering charges stemming from the assault and kidnapping of Balisci-ano. Those charges, despite Balisciano’s apparent reluctance to cooperate with the prosecution, were supported by her sworn statement to the police and hospital records documenting the injuries she sustained. Accordingly, the court ruled that the petitioner’s claim failed because he had not demonstrated prejudice, as that concept was defined in Copas. This appeal followed.

On appeal, the petitioner does not claim that the habeas court erred by applying the wrong prejudice standard. Instead, he argues that the court erred in its application of the facts to the Copas standard. The respondent, however, concedes that in a case pending before our Supreme Court, Brown v. Commissioner of Correction, Docket No. SC 18859, the respondent has taken the position that the prejudice standard applied by the court here is incorrect. Notwithstanding this concession, the respondent contends that the petitioner’s claim fails because he did not demonstrate that “he would have achieved a more favorable outcome had he proceeded to trial.” In other words, the respondent is asking this court to apply a standard in this case that he has abandoned elsewhere. In these circumstances, we cannot avoid the question of whether the court applied the correct prejudice standard. We conclude that it did not.

“[W]hether the court applied the correct legal standard is a question of law subject to plenary review. . . . When an incorrect legal standard is applied, the appropriate remedy is to reverse the judgment of the trial court and to remand the matter for further proceedings.” (Citations omitted; internal quotation marks omitted.) Deroy v. Estate of Baron, 136 Conn. App. 123, 127, 43 A.3d 759 (2012). The controlling authority for evaluating the petitioner’s claims was announced by the United States Supreme Court in Hill v. Lockhart, supra, 474 U.S. 52. “The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” (Internal quotation marks omitted.) Id., 56. “Where . . . a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.” (Internal quotation marks omitted.) Id.

As with other ineffective assistance claims, the two part standard articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies in cases in which a criminal defendant claims that he endured ineffective assistance of counsel leading to the acceptance of a plea offer. See Hill v. Lockhart, supra, 474 U.S. 57. The defendant must show that his counsel's performance was deficient and that, as a result, he suffered prejudice. The performance prong requires an attorney to act reasonably and in accordance with prevailing professional norms. Strickland v. Washington, supra, 688.

The prejudice inquiry in claims arising from counsel’s advice during the plea process differs from the analysis of claims following conviction after trial. See Hill v. Lockhart, supra, 474 U.S. 58-59; see also Copas v. Commissioner of Correction, supra, 234 Conn. 156. “[I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. In many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the prejudice inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. . . . [T]hese predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker.” (Citation omitted; internal quotation marks omitted.) Hill v. Lockhart, supra, 59-60. “Admittedly, the prejudice [prong] of the Hill-Strickland test may pose a difficulty in some cases because it is by no means obvious how a court is to determine the probability that a defendant would have gone to trial. It is clear enough that a defendant must make more than a bare allegation that he would have pleaded differently and gone to trial . . . but it is not clear how much more is required of him.” (Citation omitted; internal quotation marks omitted.) United States v. Horne, 987 F.2d 833, 835-36 (D.C. Cir.), cert. denied, 510 U.S. 852, 114 S. Ct. 153, 126 L. Ed. 2d. 115 (1993).

The prejudice analysis formulated in Hill was discussed, at some length, in Copas v. Commissioner of Correction, supra, 234 Conn. 151. Our Supreme Court summarized Hill as follows: "Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial.” Id. The Copas court’s explanation of the Hill prejudice inquiry—which was applied by the habeas court here—is problematic in two respects. First, it diminishes the necessity of considering the impact of counsel’s alleged failures on his or her advice as to the desirability of the plea agreement. See Hill v. Lockhart, supra, 474 U.S. 58-59 (“the determination whether the error ‘prejudiced’ the defendant . . . will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea”); Witherspoon v. Purkett, 210 F.3d 901, 903 (8th Cir. 2000) (“[i]n cases involving claims of failure to investigate, a defendant can establish prejudice by showing that the discovery of evidence would have caused counsel to change his recommendation as to the plea offer”). Second, the Supreme Court held that the dispositive factor in the prejudice analysis is the viability at trial of undiscovered evidence or an unpursued affirmative defense. Copas v. Commissioner of Correction, supra, 157. The Copas court interpreted Hill as “[requiring] the petitioner ... to show that the defense that was not discovered or explained to him during the plea process would have likely resulted in either an acquittal, or a more favorable sentence following a conviction of the charged offense or of a lesser included offense.” Id., 163 n.18; cf. id., 168 (Callahan, J., dissenting) (“it is not likely that an extreme emotional disturbance defense would have been successful at trial and, consequently, the petitioner was not prejudiced by his counsel’s shortcomings”).

The Hill court, however, did not hold that the prejudice analysis—i.e., a determination of whether the petitioner would have insisted on going to trial—should be reduced to a comparison between the sentence imposed pursuant to a plea bargain with the likely outcome of a trial. The prospect of an acquittal, or a more favorable sentence after a trial, is clearly relevant in considering whether counsel’s advice with respect to a plea offer would have changed had he not performed deficiently; indeed, it may be the single most important consideration. See Hill v. Lockhart, supra, 474 U.S. 60 (evaluation of whether counsel would have changed plea advice depends in “large part on a prediction whether the evidence likely would have changed the outcome of atrial” [emphasis added]). Additionally, a petitioner’s assertion after he has accepted a plea that he would have insisted on going to trial “suffers from obvious credibility problems and must be evaluated in light of the circumstances the defendant would have faced at the time of his decision.” Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.), cert. denied, 488 U.S. 843, 109 S. Ct. 117, 102 L. Ed. 2d 91 (1988). In evaluating the credibility of such an assertion, the strength of the state’s case is often “the best evidence of whether a defendant in fact would have changed his plea and insisted on going to trial,” in light of newly discovered evidence or a defense strategy that was not previously contemplated. Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001), cert. denied, 534 U.S. 1140, 122 S. Ct. 1092, 151 L. Ed. 2d 990 (2002).

Notwithstanding the relevance of the projected outcome at a trial that included undiscovered evidence or an overlooked defense, such a prediction is not disposi-tive in resolving an ineffective assistance claim of this kind. If it were, there would be no need to consider whether the defendant would have insisted on a trial; see Hill v. Lockhart, supra, 474 U.S. 59; it would be enough for a court to compare the terms of the plea agreement with the outcome of a theoretical trial in which the defendant had competent counsel. Instead, the likelihood of an acquittal or a shorter sentence is a factor to be considered in assessing whether an attorney who had found different, evidence or considered advancing an affirmative defense would have advised his client to reject a plea offer and go to trial. Likewise, the credibility of the petitioner’s after the fact insistence that he would have gone to trial should be assessed in light of the likely risks that pursuing that course would have entailed. See Miller v. Champion, supra, 262 F.3d 1074 (“strength of the. case that could have been mounted against one pleading guilty to a crime is relevant only because it offers circumstantial evidence of what the petitioner would have done had his counsel not proved to be ineffective”). The bottom line issue that must be resolved is whether, but for counsel’s allegedly deficient performance, the petitioner would have insisted on a trial. Hill v. Lockhart, supra, 59. Analysis of the strength of the state’s case and the viability of unadvanced defense strategies informs this analysis, but it is not by itself determinative.

The petitioner’s claims are, essentially, that Watson failed to uncover the true extent of Connolly’s injuries and to engage an expert who could have furthered the petitioner’s “defense” to the charge that he had assaulted Connolly with a dangerous instrument. The petitioner testified that, had he known that Connolly’s period of hospitalization was less than he had thought and that Connolly had not in fact been comatose, or that an expert could have supported his version of events, he would have insisted on going to trial. The court evaluated these ineffective assistance claims by considering whether the difference in the severity of Connolly’s injuries or the engagement of a medical expert likely would have led to a lesser sentence at trial. The court did not make any findings with respect to whether Watson would have changed his plea advice if he had been cognizant of the actual extent of Connolly’s injuries or if he had considered the desirability of utilizing an expert witness to bolster the petitioner’s slightly less culpable narrative of the assault. The court also did not consider, at least explicitly, how the petitioner’s prospects at a trial that included the introduction of this evidence reflected on the credibility of his testimony that, but for Watson’s allegedly deficient performance, he would have rejected the plea offer of seven years incarceration. Of course, many of the court’s findings—e.g., that the petitioner had admitted to at least some degree of assault, that the prosecutor had stated his intention to proceed on the charges related to the assault and kidnapping of Balisciano, and that a jury would not be required to accept the conclusions of a medical expert regarding what caused the fracture of Connolly’s skull—will be relevant in evaluating both the credibility of the petitioner’s testimony and whether Watson’s advice to accept the plea would have changed had he performed differently. The fundamental question, of course, is whether the petitioner would not have pleaded guilty.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The habeas court granted the petition for certification to appeal from the judgment denying the amended petition for a writ of habeas corpus.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       Although the petitioner and Balisciano had apparently ended their relationship at the time of the assault, the petitioner was still living at Balis-ciano’s home.

       Watson did not represent the petitioner with respect to the motion to withdraw.

       The amended habeas petition was in two counts: ineffective assistance of counsel and violation of due process. The court dismissed the due process count because it was “entirely duplicative of the ineffective assistance allegations of the first count . . . .” The petitioner does not challenge that ruling on appeal.

       Watson also testified that, in an interview conducted by a private investigator engaged by his predecessor Attorney Carty, the petitioner had admitted to threatening Connolly with a fireplace poker that was later recovered by the police from the petitioner’s vehicle.

       The court did not analyze the performance prong of the petitioner’s ineffective assistance of counsel claim.

       In the petitioner’s appellate brief, he makes the related claim that if Watson had not performed deficiently, the prosecutor or the court might have suggested a more favorable plea agreement. This issue was not alleged in the operative habeas petition and, accordingly, was not considered by the habeas court. We therefore decline to address it. See State v. Outing, 298 Conn. 34, 63, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011); Lopez v. Commissioner of Correction, 119 Conn. App. 606, 612, 988 A.2d 901, cert. denied, 295 Conn. 920, 991 A.2d 565 (2010).

       Despite our determination that the court applied the incorrect standard for establishing prejudice, we note that it acted in accordance with existing precedent. In addition, although we are ordinarily bound by Supreme Court precedent; see Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 672, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006); in light of the respondent’s concession, the clear language of Hill v. Lockhart, supra, 474 U.S. 52, and the analysis of this issue by various Circuit Courts of Appeals, we feel obligated to follow the United States Supreme Court on this question of federal constitutional law. We also note that our Supreme Court has enunciated the standard set forth in Hill in several cases subsequent to Copas. See Washington v. Commissioner of Correction, 287 Conn. 792, 833, 950 A.2d 1220 (2008); Crawford v. Commissioner of Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008); Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008). Though inconsistent with Copas, then, our decision today is consistent with subsequent decisions of our Supreme Court.

       Under Strickland, in order to demonstrate prejudice following a conviction after trial, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. 694.

       Indeed, determining whether a hypothetical trial would have resulted in a lesser sentence for the petitioner will likely entail even more speculation than evaluating how the predicted outcome would have informed the petitioner’s and his counsel’s decision-making process with respect to the plea.

       The respondent’s position in Brown v. Commissioner of Correction, Docket No. SC 18859, is consistent with the Tenth Circuit Court of Appeals’ statement in Miller regarding the relevance of the petitioner’s likely prospects at trial. In his appellate brief, the respondent states: “The question of whether the petitioner would have achieved a more favorable outcome at trial is a consideration in examining the credibility of the petitioner’s claim that he would have insisted on going to trial.”

       In many situations, the analysis appropriately should consider whether, with the information or analysis that should have informed counsel’s advice, counsel would have changed his or her advice, and, if so, with what degree of urgency.