author: DALY, J.

text:
    FRANK S. PIZZO v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19819)
    Lavery, C. J., and Dranginis and Daly, Js.
    Argued December 1, 2000
    officially released April 3, 2001

      Jon L. Schoenhom, with whom, on the brief, was Paula Gates, for the appellant (plaintiff).

      Robert T. Morrin, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

DALY, J.

The plaintiff, Frank S. Pizzo, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commissioner of motor vehicles (commissioner) to suspend his license to operate a motor vehicle for refusal to submit to a chemical alcohol test pursuant to General Statutes (Rev. to 1999) § 14-227b following his arrest for operating a motor vehicle while under the influence of intoxicating liquor or drugs. On appeal, the plaintiff claims that the court improperly concluded that substantial evidence existed on the record to uphold the hearing officer’s findings that (1) the police had probable cause to arrest the plaintiff and (2) the plaintiff refused to submit to a chemical alcohol test. We affirm the judgment of the trial court.

The following facts and procedural history are relevant for resolution of this appeal. On January 7, 1999, at approximately 6:45 p.m., Officer Courtney Mankin of the Rocky Hill police department was dispatched to Shunpike Auto Repair, Inc., following the receipt of a complaint on a cellular telephone from a motorist, Michael Grilla, about an erratic driver. The allegedly erratic driver was later identified as the plaintiff. In his complaint, Grilla alleged that the vehicle he was driving was almost rear-ended by another car, and that the driver of that car made an obscene gesture at him, which he responded to in kind. Grilla further stated that the other driver drove alongside his vehicle, shouted that he would kill him and then drove through a red traffic signal and into the Shunpike Auto Repair, Inc., parking lot. Grilla also provided a description of the driver. A passenger in Grilla’s car confirmed Grilla’s account of the incident and description of the driver.

When Mankin and another police officer, Richard Degan, arrived at Shunpike Auto Repair, Inc., she discovered that the motor vehicle in question belonged to a cashier working there and that the cashier had lent her car to the plaintiff. The cashier informed Mankin that the plaintiff had recently returned to Shunpike Auto Repair, Inc., and that he had been driving her motor vehicle. The plaintiff approached Mankin and confirmed the cashier’s statement. Mankin noted a strong odor of alcohol on the plaintiff’s breath, and noticed that his speech was slurred and that his eyes were bloodshot. Mankin asked the plaintiff whether he had been drinking alcohol, and he responded that he had consumed two beers. Two empty beer bottles were found in the motor vehicle. The cashier denied that the beer bottles belonged to her and stated that they were not in the vehicle prior to her lending the car to the plaintiff.

Grilla had accompanied the police officers to Shun-pike Auto Repair, Inc., and informed Mankin that he wanted to press charges against the plaintiff. When Mankin explained to the plaintiff that motor vehicle charges were being made against him, the plaintiff became hostile and resisted arrest. The plaintiff refused to stand still and would not take his hands out of his pockets. As Mankin and Degan attempted to handcuff the plaintiff, he pulled his arms away and then pushed both officers. A struggle ensued between the plaintiff, Mankin and Degan, forcing Mankin to request additional police support.

Eventually, the plaintiff was subdued, arrested and transported to the police station. At the police station, Mankin provided the plaintiff with an implied consent advisory form, but the plaintiff claimed that he was unable to comprehend what was being recited to him. Mankin then afforded the plaintiff the opportunity to contact an attorney before deciding whether to submit to the chemical alcohol test. The plaintiff telephoned his attorney, who was, however, unavailable for the next hour. Mankin informed the plaintiff that he could call another attorney, but the plaintiff declined. After Mankin pressed the plaintiff for a response, in the presence of Sergeant Joseph Vernali as a witness, the plaintiff refused to submit to the chemical alcohol test. In accordance with § 14-227b (e), the plaintiffs license was suspended for six months for refusing to submit to a chemical alcohol test.

Pursuant to § 14-227b, the plaintiff requested, and was granted, an administrative hearing, which was held on January 25, 1999. The hearing officer suspended the plaintiffs driver’s license for six months on the basis of findings that (1) the police had probable cause to arrest the plaintiff, (2) the plaintiff was placed under arrest, (3) the plaintiff refused to submit to a chemical alcohol test and (4) the plaintiff had operated a motor vehicle. In addition, the hearing officer entered subordinate findings that probable cause to arrest the plaintiff existed because of the plaintiffs bloodshot eyes and slurred speech, the strong odor of alcohol on his breath and the observations by a witness, Grilla, of the plaintiffs erratic driving. The plaintiff then appealed to the trial court, which dismissed his appeal and affirmed the suspension. In affirming the decision of the hearing officer, the court stated that “this case clearly had probable cause.” This appeal followed.

I

On appeal, the plaintiff first contends that the record lacks substantial evidence establishing probable cause to arrest him when (1) the hearing officer based his decision on hearsay statements, (2) the police officer involved, Mankin, failed to administer any field sobriety tests and (3) the hearing officer’s finding that Mankin smelled alcohol on the plaintiff’s breath is unsupported by the record. We disagree.

“[J]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act [(UAPA), General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted.” (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). When confronted with an appeal from an administrative decision, “[n] either the trial courtnorthis court may retry the case or substitute its judgment for that of the commissioner.” Kirei v. Hadley, 47 Conn. App. 451, 454, 705 A.2d 205 (1998). “[R]eview of an administrative agency decision requires [this] court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, supra, 343.

“Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) O'Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 507, 636 A.2d 409, cert, denied, 229 Conn. 909, 642 A.2d 1205 (1994). “Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 343. “It is fundamental that a plaintiff has the burden of proving that the [hearing officer], on the facts before him, acted contrary to law and in abuse of his discretion.” Demma v. Commissioner of Motor Vehicles, 165 Conn. 15,16-17,327 A.2d 569 (1973). The plaintiff therefore bears the burden of proving that the hearing officer’s determination that probable cause to arrest existed was contrary to law or in abuse of his discretion.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . In determining whether there was probable cause to arrest for operating a motor vehicle while under the influence of liquor, the court may consider, just as in an arrest for any other criminal offense, circumstantial as well as direct evidence. . . .

“To establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and this court cannot disturb the conclusions reached by the [hearing officer] if there is evidence that reasonably supports his decision.” (Citations omitted; internal quotation marks omitted.) Kirei v. Hadley, supra, 47 Conn. App. 456-57.

In this case, there was substantial evidence before the hearing officer to support the hearing officer’s finding that the police had probable cause to believe that the plaintiff had violated General Statutes § 14-227a. Mankin reported that the plaintiffs speech was slurred, he smelled of alcohol and his eyes were bloodshot. The plaintiff admitted that he had been drinking beer, and the police officers found empty beer bottles in the automobile that the plaintiff had driven. Further, Grilla provided a sworn statement to the police, detailing that he witnessed the plaintiff driving erratically and dangerously. That information was given contemporaneously with the observation of erratic operation, and the police officer came immediately to the scene. On the basis of those facts, we conclude that the record contains substantial evidence to support the hearing officer’s finding that the police officer had probable cause to arrest the plaintiff for operation of a motor vehicle while under the influence of intoxicating liquor or drugs.

The plaintiff contends that the hearing officer improperly relied on the hearsay statement of Grilla in finding that the police had probable cause to arrest. Hearings before administrative agencies, such as those before the commissioner of motor vehicles, are informal and are not governed by the strict or technical rules of evidence. See South Windsor v. South Windsor Police Union Local 1480, 57 Conn. App. 490, 505, 750 A.2d 465, cert, granted on other grounds, 253 Conn. 924, 754 A.2d 800 (2000). In the context of an administrative hearing, hearsay evidence is permissible and may properly be admitted without the presence of the witness at the hearing. Paquette v. Hadley, 45 Conn. App. 577, 581, 697 A.2d 691 (1997). Furthermore, it is within the province of the hearing officer to assess “the credibility of the witnesses and ... to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Internal quotation marks omitted.) Pickles v. Goldberg, 38 Conn. App. 322, 325, 660 A.2d 374 (1995). Accordingly, it was proper for the hearing officer to consider the sworn statement of the witness, Grilla.

The plaintiff also argues that the hearing officer improperly found probable cause to arrest him because Mankin failed to administer any field sobriety tests. We do not agree. The administration of field sobriety tests, and the subsequent results, are not required by statute nor are they dispositive in finding probable cause to arrest for driving while under the influence of intoxicating liquor. See Kolakowski v. Hadley, 43 Conn. App. 636, 643, 685 A.2d 689 (1996). To find probable cause, “the [hearing officer] need only have a substantial basis of fact from which [it] can be inferred.” (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 344. Moreover, probable cause is established “where the totality of the circumstances existing at the time of the plaintiffs arrest supports] [such a finding] . . . .” (Internal quotation marks omitted.) Id., 345. Therefore, despite the absence of field sobriety tests, as stated above, the record reflects substantial evidence to warrant the hearing officer’s conclusion that there was probable cause to arrest the plaintiff.

The plaintiff additionally asserts that the hearing officer improperly found probable cause in that the hearing officer stated during the hearing that alcohol lacks an odor. That isolated statement uttered during the proceedings does not negate the entire record in which substantial evidence existed establishing probable cause to arrest the plaintiff. Further, the court found that the hearing officer’s statement that alcohol was odorless was a misprint in the transcript. We conclude that this claim is without merit and that the hearing officer properly found that probable cause to arrest existed.

n

The plaintiff next claims that the hearing officer improperly found that the plaintiff had refused to submit to a chemical alcohol test. We disagree.

One of the four issues that a hearing officer must resolve during a license suspension hearing is whether the person involved refused to submit to a chemical alcohol test. See General Statutes (Rev. to 1999) § 14-227b (g). As previously stated, “[judicial review of an administrative decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. ... In the context of a license suspension under the implied consent law, if the administrative determination of the four license suspension issues set forth in [§ 14-227b (g)] is supported by substantial evidence in the record, that determination must be sustained.” (Citations omitted; internal quotation marks omitted.) Schallenkamp v. DelPonte, 29 Conn. App. 576, 580-81, 616 A.2d 1157 (1992), aff d, 229 Conn. 31, 639 A.2d 1018 (1994).

The determination of whether the plaintiffs actions are tantamount to a refusal to submit to a chemical test is a question of fact for the hearing officer to resolve. See Altschul v. Salinas, 53 Conn. App. 391, 397, 730 A.2d 1171, cert, denied, 249 Conn. 931, 761 A.2d 751 (1999) . Refusal to submit to a blood alcohol test may be established by one’s actions or by verbally expressing one’s unwillingness. Lomen v. Commissioner of Motor Vehicles, 61 Conn. App. 213, 217, 763 A.2d 676 (2000) . On appeal, “our review is limited to determining whether the hearing officer’s finding was supported by substantial evidence.” Altschul v. Salinas, supra, 397.

Here, after the police officers informed the plaintiff about implied consent and chemical alcohol testing, he was afforded multiple opportunities to contact an attorney. When the plaintiffs attorney was unavailable, Mankin offered the plaintiff the chance to telephone another attorney, which the plaintiff declined. Further, in her report, Mankin stated that the plaintiff had refused to consent to the chemical alcohol test and that Sergeant Vemali witnessed that refusal.

“[This] court may not substitute its judgment for that of the commissioner and must affirm his decision unless it is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” Lomen v. Commissioner of Motor Vehicles, supra, 61 Conn. App. 219. After close review, we conclude that the record contains substantial evidence supporting the hearing officer’s finding that the plaintiff refused to submit to chemical alcohol testing.

The plaintiff contends that his behavior did not constitute a refusal, but rather that he merely was insisting on speaking to an attorney before submitting to any test. That argument is without merit. When a plaintiff delays deciding whether to submit to a chemical alcohol test or expressly declines to take the test on the ground that he or she was unable to contact an attorney, such behavior may amount to a refusal to submit to a chemical alcohol test. See Altschul v. Salinas, supra, 53 Conn. App. 396-98. In Altschul, the plaintiff was arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a. Id., 393. The arresting police officer provided the plaintiff with the opportunity to contact his attorney before deciding whether to submit to chemical testing. Id., 393-94. After the plaintiff was unable to reach an attorney, the plaintiff stated that without legal counsel, he could neither refuse nor submit to a chemical alcohol test. Id., 394. The plaintiffs operator’s license thereafter was suspended. Id. Affirming the hearing officer’s suspension of the plaintiffs operator’s license, this court found that the plaintiffs actions in Altschul provided substantial evidence in support of the hearing officer’s determination that the plaintiff refused to submit to a chemical alcohol test. Id., 398.

In light of the evidence in the record previously described, which is similar to the situation in Altschul, we conclude that the hearing officer properly found that the plaintiffs actions established substantial evidence of a refusal to submit to chemical alcohol testing. Accordingly, the plaintiffs claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1999) § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.
      “(c) If the person arrested refuses to submit to such test or analysis . . . the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four-hour period and shall issue a temporary operator’s license .... The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall ... be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both . . . and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so ... .
      “(e) Upon receipt of such report, the Commissioner of Motor Vehicles may suspend any license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. . . .”

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. ...”

       General Statutes (Rev. to 1999) § 14-227b (a) provides: “Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, Ms parent or parents or guardian shall also be deemed to have given Ms consent.”

       See footnote 1.

       General Statutes (Rev. to 1999) § 14-227b (g) provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. . . .
      General Statutes § 14-227b (h) provides in relevant part: “If, after such hearing, the commissioner does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension contained in the suspension notice . . .

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .”

       See footnote 1.

       See footnote 5.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ARNOLD PAYNE v. COMMISSIONER OF CORRECTION
    (AC 20321)
    Landau, Schaller and Mihalakos, Js.
    Submitted on briefs January 12
    officially released April 3, 2001

      Mary Anne Royle, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, and Harry Weller and Mary Elizabeth Baran, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Arnold Payne, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. He claims that the habeas court improperly determined that his trial counsel had provided effective assistance. In his petition, the petitioner claimed that his counsel failed to inform him fully of the direct consequences of his guilty plea. Specifically, the petitioner claimed that counsel failed to inform him that he would have to serve 85 percent of his sentence before he would be eligible for parole. The habeas court denied both the petition and the petitioner’s subsequent request for certification to appeal. We dismiss the appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000), citing Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert, denied, 233 Conn. 912, 659 A.2d 183 (1995). “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden; 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608,612,646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77, 712 A.2d 992 (1998).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999). “For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” White v. Commissioner of Correction, supra, 58 Conn. App. 170, citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992).

In the present case, the habeas court based its dismissal of the petition for a writ of habeas corpus on a review of the petitioner’s claims and the evidence presented. The petitioner’s trial counsel testified that it was his standard practice to inform a defendant that he must serve 85 percent of his sentence before he would be eligible for parole, if in fact that were the case. The petitioner testified that his counsel mistakenly had informed him that he would be eligible for parole after serving only 50 percent of his sentence. In its memorandum of decision, the habeas court credited counsel’s testimony and rejected the petitioner’s testimony. Accordingly, the habeas court concluded that the petitioner failed to carry the burden of proof required to establish that his counsel had provided ineffective assistance.

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Citations omitted; internal quotation marks omitted.) Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert, denied, 243 Conn. 957, 704 A.2d 806 (1997). Thus, the petitioner cannot successfully challenge the habeas court’s decision to credit counsel’s testimony and to reject his testimony.

Having reviewed the record and the briefs, we conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of establishing that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, supra, 229 Conn. 189. Therefore, we conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       On April 23, 1998, the trial court accepted the petitioner’s plea of guilty to the following four charges: (1) assault in the second degree in violation of General Statutes § 53a-60; (2) risk of injury to a child in violation of General Statutes § 53-21; (3) assault in the third degree in violation of General Statutes § 53a-61; and (4) failure to appear in the first degree in violation of General Statutes § 53a-172. On May 28, 1998, the court imposed a total effective sentence of twenty-seven months of incarceration. The petitioner did not file a direct appeal.

       General Statutes (Kev. to 1997) § 54-125a (b) provides in relevant part: “(1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section: Capital felony, as defined in section 53a-54b, felony murder, as defined in section 53a-54c, arson murder, as defined in section 53a-54d, murder, as defined in section 53a-54a, or any offense committed with a firearm, as defined in section 53a-3, in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school. (2) A person convicted of an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed. . . .”


author: PETERS, J.

text:
    37 HUNTINGTON STREET, H, LLC v. CITY OF HARTFORD
    (AC 20522)
    Schaller, Zarella and Peters, Js.

      Argued December 5, 2000
    officially released April 3, 2001

      Kerry M. Wisser, with whom was Nathan A. Schatz, for the appellant (plaintiff).

      Denise E. Aguilera, assistant corporation counsel, with whom were Delroy Shirley, senior assistant corporation counsel, and, on the brief, Kevin G. Dubay, corporation counsel, for the appellee (defendant).

      Mary-Michelle U. Iiirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

      Linda S. Charet filed a brief for the Federal Deposit Insurance Corporation as amicus curiae.
   Opinion

PETERS, J.

The dispositive issue in this case is whether 12 U.S.C. § 1825 (b) entitles an owner of real property to immunity from municipal tax liens for the period of time during which the Federal Deposit Insurance Corporation (FDIC) held a security interest in the property. This is an issue of federal law that comes to this court as a matter of first impression. The trial court adjudged the municipal tax hens to be valid and enforceable despite the FDIC’s mortgage. We affirm the judgment of the trial court.

The plaintiff, 37 Huntington Street, H, LLC (landowner), brought this declaratory judgment action against the defendant city of Hartford (city) to contest the validity of involuntary tax liens for unpaid real property taxes assessed on property in which the landowner now holds a fee interest. The city asserted its authority to conduct a tax foreclosure sale to collect the unpaid taxes from the landowner.

The trial court’s careful and thorough memorandum of decision states the uncontested facts. As reported in the city’s tax lists, the unpaid real property taxes at issue accrued during the years 1994, 1995 and 1996. During these years, the FDIC held a property interest as a result of a mortgage on the real property. The FDIC acquired the mortgage in 1994 as a result of its receivership of property formerly owned by a failed Connecticut banking institution. The FDIC’s interest in the property ended in 1999, when the foreclosure court approved a foreclosure by sale.

Subsequent to the foreclosure, the city notified the foreclosure purchaser that, pursuant to General Statutes § 12-157, it would exercise its authority to have the property sold for unpaid taxes. Thereafter, the landowner acquired the property as a successor to the purchaser at the foreclosure sale.

At the outset of the trial, each party filed a motion for summary judgment. The landowner argued that, as a successor in interest to the FDIC’s mortgage rights, it was entitled to the benefit of the immunity from municipal tax lien foreclosure that federal law has conferred on the FDIC, pursuant to 12 U.S.C. § 1825 (b). In light of that immunity, the landowner argued that no tax lien could attach to its property. The city argued that the landowner was being taxed as fee holder and not as mortgagee, and therefore could not avail itself of the federal statute. The court denied the landowner’s summary judgment motion, granted the city’s motion and rendered judgment accordingly. The landowner has appealed.

As it did at trial, the landowner maintains that the uncontested facts of record demonstrate its immunity from municipal tax liens, pursuant to 12 U.S.C. § 1825, for the taxes accrued during the FDIC receivership. Its argument focuses on subsection (b) (2), which provides that “[n]o property of the Corporation shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Corporation, nor shall any involuntary lien attach to the property of the Corporation.” See footnote 1. Because it purchased the property as a result of the FDIC’s foreclosure of its security interest, the landowner claims that it has become the assignee of the FDIC’s tax immunity.

Whether the court properly applied the provisions of 12 U.S.C. § 1825 (b) “involves statutory interpretation, which is a question of law. Therefore, our review of this issue is plenary.” Turner v. Frowein, 253 Conn. 312, 337, 752 A.2d 955 (2000); Babcock v. Bridgeport Hospital, 251 Conn. 790, 819, 742 A.2d 322 (1999).

The proper construction of 12 U.S.C. § 1825 (b) raises a question of great difficulty and great significance. We have no reason to doubt the assertion of the FDIC, in its amicus curiae brief, that delinquent property taxes are a common feature of many FDIC receiverships of failed banking institutions. No claim has been made that the property tax in Connecticut specifically extends to cover mortgage interests. Principally for these reasons, we agree with the trial court’s construction of the statute.

THE JURISDICTIONAL ISSUE

In the parties’ presentation of their case, at trial and before this court, they overlooked the special notice requirement that has long been a condition to the authority of a judge to render a declaratory judgment. Pursuant to Practice Book § 17-56 (b), a “party seeking [a] declaratory judgment shall append to its complaint ... a certificate stating that all . . . interested persons have been joined as parties to the action or have been given reasonable notice thereof. ...” The landowner filed no such certificate of notice. In the absence of the requisite notice, pursuant to Practice Book § 10-39 (a) (3), the city could have filed a motion to strike the complaint, but did not do so. Practice Book § 10-39, in its present form, was not, however, part of the Practice Book at the time that the landowner filed its complaint and the defendant filed its answer. The new section became effective before the trial court rendered its judgment.

Our Supreme Court repeatedly has held that failure to give the notice required by Practice Book § 17-56 (b) “deprives the trial court of subject matter jurisdiction to render a declaratory judgment.” Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225, 680 A.2d 127 (1996), cert, denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997); Mannweiler v. LaFlamme, 232 Conn. 27, 34-35, 653 A.2d 168 (1995). These cases hold that the absence of notice cannot be cured retrospectively on appeal. Serrani v. Board of Ethics, 225 Conn. 305, 309, 622 A.2d 1009 (1993); see Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985). Noncompliance with the notice requirement can, however, be cured prospectively, upon remand, by providing the necessary notice before a new judgment is rendered. Connecticut Ins. Guaranty Assn. v. Raymark Corp., 215 Conn. 224, 230, 575 A.2d 693 (1990).

The question before us is whether recent amendments to the relevant rules of practice, effective January 1, 2000, have modified these guiding principles. If they have not, we must remand the case to the trial corut for the filing of the requisite notice certificate and the rendering of a valid judgment thereafter. An appeal could then be taken on the basis of the corrected record. Id. Under the new Practice Book § 17-56 (c), however, although notice to all interested parties is still required, “[t]he exclusive remedy for . . . failure to give notice to interested persons is by motion to strike as provided in Sections 10-39 and 10-44.” It is plausible that the amended sections were enacted to avoid having a case bounce back and forth between courts for no articulable reason of policy. Indeed, in a case like this one, in which

the facts are undisputed, a remand is a particularly dysfunctional exercise in futility.

The city urges us not to apply the new Practice Book § 17-56 because it was not yet effective at the time when the landowner filed its complaint and the city filed its answer. It follows, according to the city, that the city lacked the opportunity to strike the landowner’s complaint. For two reasons, we disagree.

First, although Practice Book § 10-39 (a) (3) did not become effective until January 1,2000, the new formulation did not create new law. With respect to the availability of a motion to strike, the section only made explicit what formerly had been implicit. Although a claim of lack of jurisdiction normally is raised by filing a motion to dismiss, it also may be raised in a subsequent motion to strike. Westbrook v. Savin Rock Condominium Assn., 50 Conn. App. 236, 239, 717 A.2d 789 (1998).

Second, our Supreme Court’s jurisprudence has construed the rules of practice to permit the mandatory certificate of notice to be filed at any time before a judgment is rendered at trial. Connecticut Ins. Guaranty Assn. v. Raymark Corp., supra, 215 Conn. 230. The defendant, therefore, was not precluded from raising the issue subsequent to the filing of its answer.

In sum, this appeal is not defective jurisdictionally. This is not a case in which the underlying procedural issue casts a shadow over an issue of subject matter jurisdiction. In view of the general rule that procedural defects may be waived, as now clarified in the provisions of Practice Book § 17-56 (c) and the sections to which it refers, the city’s failure to challenge the absence of notice at trial allows us to proceed to the merits.

THE VALIDITY OF THE TAX LIENS

The validity of the city’s tax hens for delinquent real property taxes turns on the proper construction of 12 U.S.C. § 1825 (b). In relevant part, 12 U.S.C. § 1825 (b) (2) provides that “[n]o property of the Corporation shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Corporation, nor shah any involuntary hen attach to the property of the Corporation.” In determining the applicability of that provision here, we must also take into account the pohcy implications to be drawn from 12 U.S.C. § 1825 (b) (1), which states that “any real property of the Corporation shah be subject to State, territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed . . . .” Neither party has argued that § 1825 (b) is ambiguous.

The landowner’s claim to successor tax immunity for the period of the FDIC receivership cannot rise above the immunity that the FDIC itself then had. That immunity is conferred with respect to property in which the FDIC had an interest. Federal law permits a federal agency that has been appointed receiver to acquire a property interest in the form of a fee interest or in the form of a security interest. New Brunswick v. United States, 276 U.S. 547, 555, 48 S. Ct. 371, 72 L. Ed. 693 (1928).

In this case, the FDIC’s property interest was that of a mortgagee rather than that of a fee holder. The question before us is whether the protection that federal law affords to the FDIC as a mortgagee extends to the underlying property interest of a different entity, the private owner and mortgagor of the underlying fee. On this question, guiding law is sparse and divided. Two federal district courts and one state appellate court have granted tax lien immunity, while two other federal district courts and a state trial court have ruled to the contrary.

The principal case granting immunity from local tax liens is Old Bridge Owners Cooperative Corp. v. Old Bridge, 914 F. Sup. 1059 (D.N.J. 1996). That case contains no discussion of the relationship between taxation of the mortgagor’s fee interest and the FDIC’s interest as mortgagee. Its holding was applied in PLM Tax Certificate Program v. Denton Investments, Inc., 195 Ariz. 210, 986 P.2d 243 (App. 1999), in a decision largely based on a determination that Old Bridge, although not a decision of the United States Supreme Court, was binding precedent on the Arizona court. Id., 212-13. Recently, another federal district court in New Jersey agreed with Old Bridge. Pacific Northwest Capital, Inc. v. First Union National Bank, United States District Court, Docket No. 00-2334 (D.N.J. January 10, 2001).

The principal case upholding the validity of local tax liens is Casino Reinvestment Development Authority v. Cohen, 321 N.J. Super. 297, 728 A.2d 868 (1998). In that case, the court held that the FDIC, as mortgagee, could not claim an ownership interest in the underlying property. Id., 302. In the absence of an FDIC ownership interest, it was proper for a city to attach a tax lien to the underlying property. Id., 307. Two federal district courts came to the same conclusion. In RTC Commer cial Assets Trust v. Phoenix Bond & Indemnity Co., 963 F. Sup. 706 (N.D. Ill. 1997), aff d, 169 F.3d 448 (7th Cir. 1999), the court observed that the hen attachment preclusion contained in § 1825 (b) (2) did not apply to a case in which the federal agency’s property interest did not include a fee interest in the underlying real property. Id., 712 n.2. In Atlantic National Trust, LLC v. ECKAssociates, United States District Court, Docket No. 00-1087 (D.N.J. January 10, 2001), the court criticized the logic of the Old Bridge decision and declined to follow it even though both cases had been heard in the same federal district court.

Although the conflict in the existing precedents presents us with a close question, we conclude that the reasoning of Casino Reinvestment Development Authority v. Cohen, supra, 321 N.J. Super. 297, is the more persuasive. We adopt its reasoning that FDIC immunity from the attachment of involuntary tax hens does not extend beyond the FDIC’s own property as a mortgagee. The long-standing common-law distinction between a mortgage interest and a fee interest is well established. As a matter of statutory construction, we generally decline to assume that, sub silentio, a statute negates a common-law principle. Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994). Perhaps a statute expressly could encompass mortgage interests within the reach of local property taxes, but no argument has been made in this case that any relevant statute so provides.

To the extent that local property law is relevant, it supports our conclusion. Connecticut case law distinguishes between the rights of a mortgagee and that of the owner of the underlying property. The “mortgagee has title and ownership enough to make his security available, but for substantially all other purposes he is not regarded as owner, but the mortgagor is so regarded . . . .” (Internal quotation marks omitted.) Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 569, 620 A.2d 118 (1993).

It has become a truism that property is a bundle of rights. See B. Cardozo, The Paradoxes of Legal Science (1928), p. 129. Unbundling these rights in this case, we are not persuaded to extend a statutory prohibition against the attachment of city tax liens on property owned by the FDIC to property that the FDIC does not own. Our state property law, to the extent relevant, is therefore entirely compatible with the holding of Casino Reinvestment Development Authority.

In its reply brief, the landowner proffers two new arguments for reversal of the judgment of the court. Apart from the procedural impropriety of raising new arguments at a time in the proceedings that does not allow an opportunity for the opposing party to respond in writing, the arguments, on their merits, are not compelling.

First, the landowner claims that the court’s interpretation of the statute is improper because the FDIC’s property interest as mortgagee would be impaired by foreclosure of the city’s tax lien. That argument is irrelevant in this case, in which the city has not pursued a right to foreclosure without the consent of the FDIC. The city’s emphasis on a right of attachment of its tax lien, even in the absence of immediate foreclosure, appropriately reflects its view that there is a need to finalize its tax liens now in order to facilitate collection of unpaid taxes later.

Second, the landowner claims that, even if all that is at stake is an attachment of property owned by someone other than the FDIC, the existence of tax liens would impair the FDIC’s security interest because a potential purchaser at an FDIC liquidation sale would devalue property that was subject to such liens. Although the landowner’s contention is factually plausible, we know no more than that. Certainly, no such issue was presented in the motions for summary judgment. Further, although 12 U.S.C. § 1825 (b) protects an FDIC property interest from forced involuntary liquidation through foreclosure, it does not, as far as we have been informed, purport to guarantee that the value of the property will not diminish during the FDIC receivership.

Moreover, with respect to the landowner’s concern for the best interests of the FDIC, we are reassured by the FDIC’s own statements expressing a different policy. In the present case, in its brief as amicus curiae, the FDIC, agreeing with the city, construes the phrase “property of the Corporation” in 12 U.S.C. § 1825 (b) as confined to the FDIC’s property interest as mortgagee. In its view, the FDIC’s property interest as mortgagee does not prevent the city’s tax hens from attaching to real estate at 17 Huntington Street because it is not property of the FDIC.

The FDIC’s position is not an ad hoc construction of 12 U.S.C. § 1825 (b) for this case only, but represents a long-standing policy position. The FDIC, which assisted in the drafting of 12 U.S.C. § 1825 (b), has consistently construed the statute to permit tax liens to attach to real property in which the FDIC holds only a mortgage interest. In its policy statement, the FDIC states “[bjecause the involuntary lien for delinquent real property taxes attaches to the property itself, non-consensual liens purporting to attach to property owned in fee by the FDIC are considered void, but liens may attach to property in which the FDIC holds only a mortgage interest as security for a loan.” Federal Deposit Insurance Corporation, Statement of Policy Regarding the Payment of State and Local Property Taxes, 61 Fed. Reg. 65,056 (December 10,1996). It has advocated such a policy in court cases such as Simon v. Cebrick, 53 F.3d 17,19 (3d Cir. 1995). It has articulated and published its policy statement that “a lien for taxes and interest may attach to property in which the Corporation has a lien or security interest, but the Corporation will not permit a lien or security interest held by it to be eliminated by foreclosure without the Corporation’s consent.” Federal Deposit Insurance Corporation, Statement of Policy Regarding the Payment of State and Local Property Taxes, supra, 61 Fed. Reg. 65,058.

In sum, we conclude that immunity conferred by the phrase “property of the Corporation” in 12 U.S.C. § 1825 (b) refers only to the particular property interest that the FDIC has acquired. An FDIC security interest in the form of a mortgage is a property interest that does not, per se, encompass a fee interest in the underlying property. Connecticut common law and tax law maintain a distinction between these various property interests. Federal law does not manifest any clear interest to unambiguously overturn these distinctions. Furthermore, in our construction and application of 12 U.S.C. § 1825 (b), we assign great weight to the FDIC’s own interpretation of a statute that it helped to draft.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 1825 (b) of title 12 of the United States Code provides in relevant part: “When acting as a receiver, the following provisions shall apply with respect to the Corporation:
      “(1) The Corporation . . . shall be exempt from all taxation imposed by any State, county, municipality, or local taxing authority, except that any real property of the Corporation shall be subject to State, territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed, except that, notwithstanding the failure of any person to challenge an assessment under State law of such property’s value, such value, and the tax thereon, shall be determined as of the period for which such tax is imposed.
      “(2) No property of the Corporation shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Corporation, nor shall any involuntary lien attach to the property of the Corporation.
      “(3) The Corporation shall not be liable for any amounts in the nature of penalties or fines, including those arising from the failure of any person to pay any real property . . . tax . . . .”

       Pursuant to 12 U.S.C. § 1811 et seq., the FDIC is an independent federal agency that has the responsibility of promoting the stability of the banking system in this country.

       The plaintiff challenged only the validity of the tax liens. It has not contested its liability for the underlying taxes themselves.

       General Statutes § 12-157 (a) provides in relevant part: “When a collector levies one or more tax warrants on real estate, he shall prepare notices thereof, containing the name of the taxpayer, a legal description of the real property . . . upon which taxes are due, the amount of the tax or taxes due . . . and the time and place of sale. The collector shall . . . [inter alia, send a copy of the notice] by certified mail, return receipt requested, to the taxpayer and each mortgage, lienholder and other record encumbrancer of record whose interest will be affected by the sale. . . .”

       The property was removed from the tax sale list on or about June 7, 1999. The removal was prompted by the landowner’s plan to initiate the present declaratory judgment action.

       Although several other issues were raised at trial, they are not a part of the present appeal. For present purposes, therefore, the plaintiff, as a successor to the FDIC’s interest in the property, may claim the benefit of the rights of the FDIC under 12 U.S.C. § 1825 (b).

       In referencing “the Corporation,” the statute is referring to the FDIC.

       Practico Book § 10-39 (a) provides in relevant part: “Whenever any party-wishes to contest [inter alia] ... (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-5G (b), the failure to join or give notice to any interested person . . . that party may do so by filing a motion to strike the contested pleading or part thereof.”

       When this procedural defect came to light, this court afforded the parties an opportunity to respond, and they have done so.

       Practice Book § 10-44 provides: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       For a discussion of the distinction between subject matter jurisdiction and personal jurisdiction in another context, see Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999); Rosenfield v. Rosenfield, 61 Conn. App. 112, 762 A.2d 511 (2000).

       The court’s ruling to that effect has not been challenged on appeal.

       It is undisputed that the city has sought to impose a tax lien only on the property of the plaintiff fee holder and not on the property of the FDIC as mortgagee. It is similarly undisputed that the city has conceded that, even if it has the right to attach a tax lien to the underlying property, it could not, foreclose that lien as long as the FDIC had a security interest in the property.

       It is noteworthy that RTC Commercial Assets Trust v. Phoenix Bond & Indemnity Co., 963 F. Sup. 706 (N.D. Ill. 1997), affd, 169 F.3d 448 (7th Cir. 1999), was a federal district court decision affirmed by the circuit court of appeals.

       This case also does not discuss the relationship between taxation of the mortgagor’s fee interest and the FDIC’s interest as mortgagee.

        Casino Reinvestment Development Authority, and its progeny, refer to state law that does not ordinarily include mortgages within the property to which a property tax lien attached. Neither party in this case has suggested that the city’s real property tax has a broader base. In this case specifically, the city had not claimed the right to levy a property tax on the mortgage interest formerly held by the FDIC.

       We disfavor arguments first presented in a reply brief because they impair the opposing party’s opportunity to reply in writing. We recognize, however, that the plaintiff had no earlier opportunity to respond to issues raised in briefs filed by amici curiae.

       We recognize that one federal appellate court has found fault with the FDIC policy statement in the context of an analysis of 12 U.S.C. § 1825 (b) (3). Irving Independent School District v. Packard Properties, 970 F.2d 58, 61-63 (5th Cir. 1992). The case is distinguishable because that section is not before us in this litigation. Further, its holding is inconsistent with that of Simon v. Cebrick, supra, 53 F.3d 17. We therefore decline to follow it.

       In its brief as amicus curiae, the FDIC states the following: “The trial court correctly interpreted Section 1825 (b) (2). By its terms, the statute only prohibits tax liens from attaching to ‘property of the’ FDIC. It is undisputed that the only ‘property of the’ FDIC involved in this case is a mortgage lien on the real estate at 37 Huntington Street. The City’s tax liens did not attach to the FDIC’s mortgage lien, however. Rather, the tax hens attached to the real estate, which is not property of the FDIC. That being the case, nothing in Section 1825 (b) (2)’s plain language prevents the tax hens from attaching to the real property.”


author: SCHALLER, J.

text:
    BASIL E. KEISER v. ZONING COMMISSION OF THE TOWN OF REDDING ET AL.
    (AC 19681)
    Schaller, Pellegrino and O’Connell, Js.
    Argued November 28, 2000
    officially released April 3, 2001

      Nancy Burton, for the appellant (plaintiff).

      Michael N. LaVelle, for the appellees (named defendant et al.).
   Opinion

SCHALLER, J.

The plaintiff, Basil E. Keiser, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant zoning commission of the town of Redding (zoning commission) granting an application for a special permit and site plan approval for the construction of a wastewater treatment facility. On appeal, the plaintiff claims that the court improperly concluded that he did not have standing to appeal pursuant to General Statutes § 22a-19 (a). We agree with the plaintiff and reverse the judgment of the trial court.

The following facts and procedural history are relevant to the issues raised in this appeal. Pursuant to an abatement order issued by the Connecticut department of environmental protection, the town of Redding was required to construct a wastewater treatment facility. The defendant water pollution control commission of the town of Redding (pollution control commission) was charged with locating a proper site for this facility. It chose a 5.97 acre lot that abuts the Norwalk River and is owned by the defendant Gilbert and Bennett Manufacturing Company (G & B).

In August, 1995, the pollution control commission and G & B jointly filed an application with the zoning commission for a special permit and site plan approval for the construction of a wastewater treatment facility. Subsequently, the zoning commission scheduled a hearing to consider the application. Prior to the hearing, the zoning commission properly notified all abutting landowners of the hearing and their right to participate in it. Because the plaintiff did not own land abutting the site for the proposed facility, he was not entitled to participate in the hearing through that method.

The plaintiff, however, held an interest in land located approximately 1.7 miles downriver from the proposed site. To participate in the hearing, the plaintiff properly filed a notice of intervention pursuant to § 22a-19 (a), in which he alleged that the wastewater treatment facility would have the effect of “unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” The plaintiff testified at the zoning commission hearing that the building site for the facility was contaminated with cinder fill and that any disturbance to this site would cause “hazardous” materials to be released into the river. The pollution control commission, however, countered this assertion by providing an engineering report on the site location. Although the engineering report acknowledged the cinder fill contamination, it noted that such materials were not “hazardous” to the environment. The zoning commission found that no unreasonable pollution would be released from the construction and operation of the wastewater treatment facility and, thus, approved the special permit and site plan.

Thereafter, the plaintiff appealed from the zoning commission’s decision to the trial court, claiming that there was no substantial evidence to support the zoning commission’s decision to approve the application for a special permit and site plan. In its February 17, 1999 memorandum of decision, the court found that the plaintiff had neither statutory standing under § 22a-19 (a) nor classical standing to appeal the zoning commission’s decision. Nevertheless, the court went on to find that even if the plaintiff had standing, he could not prevail on the merits of his claim because there was substantial evidence supporting the zoning commission’s decision. This appeal followed.

The plaintiff claims that the court improperly concluded that he lacked standing pursuant to § 22a-19 (a). We agree.

During oral argument to this court, the zoning commission conceded that the case of Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 740 A.2d 847 (1999), is directly on point with regard to this issue. In that case, our Supreme Court held that “[sjection 22a-19 (a) allows any person to intervene so that private citizens are provided a voice in ensuring that the natural resources of the state remain protected. Because the plaintiffs filed a notice of intervention at the commission hearings in accordance with § 22a-19 (a), they had standing to appeal the environmental issues associated with that commission’s decision.” Id., 276 n.9.

Like the plaintiffs in Branhaven Plaza, LLC, the plaintiff in the present case properly filed a notice of intervention at the zoning commission hearing in accordance with § 22a-19 (a). Accordingly, we conclude that he has standing to appeal environmental issues related to the zoning commission’s decision.

The judgment is reversed and the case is remanded for a hearing on the merits.

In this opinion the other judges concurred.

       The other defendants in this case are the Gilbert and Bennett Manufacturing Company and the water pollution control commission of the town of Redding.

       The plaintiff also claims that the court improperly determined that the zoning commission had substantial evidence before it to support its approval of the special permit and site plan. Although the court found that the plaintiff lacked standing, it nonetheless reviewed the merits of the plaintiffs claim. “Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 346, 573 A.2d 1222 (1990). “[0]nce the trial court found that it lacked subject matter jurisdiction to hear the appeal ... it was without authority to decide the case on the merits.” Cole v. Planning & Zoning Commission, 30 Conn. App. 511, 513 n.l, 620 A.2d 1324 (1993). “No principle is more universal than that the judgment of a court without jurisdiction is a nullity.” Samson v. Bergin, 138 Conn. 306, 312, 84 A.2d 273 (1951). We cannot, therefore, review a nullity. See Cole v. Planning & Zoning Commission, supra, 513 n.l.

       General Statutes § 22a-19 (a) provides: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, coiporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       The plaintiffs interest in this land derives from a trust instrument. The trustee, however, is not a party to this action.

       We note that the trial court did not have the guidance of Branhaven Plaza, LLC, as the case was not decided at the time of the hearing.

       The plaintiff also claims that the court improperly found that he lacked standing under the classical aggrievement theory. Because we determine that the plaintiff has statutory standing to raise environmental issues associated with the zoning commission’s decision and because he raises only those issues, we see no need to address this claim.


author: O’CONNELL, J.

text:
    CHARLES B. DORE v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19656)
    Schaller, Spear and O’Connell, Js.

      Argued January 23
    officially released April 3, 2001

      Norman B. Teague, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

O’CONNELL, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commissioner of motor vehicles (commissioner) suspending his license to operate a motor vehicle pursuant to General Statutes (Rev. to 1997) § 14-227b (b). The plaintiff claims that the court improperly determined that § 14-227b (j) does not limit the type of evidence that a person can present at an implied consent hearing and (2) relied on evidence that was not permitted by § 14-227b (b) in reaching its decision at the hearing. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. At approximately 9:07 p.m. on July 24, 1998, Officer Peter A. Bosco of the Naugatuck police department observed a Ford automobile traveling northbound on Route 8 in the vicinity of exit 29. The vehicle was weaving back and forth between the slow and fast lanes, almost striking another vehicle that was attempting to pass it. The car then made a hard right turn to take exit 29 and struck a partial median on the left side of the ramp. It continued on the ramp approaching Old Waterbury Turnpike with the left front and rear tires traveling over the partial median. Bosco activated his lights and siren, and the Ford drove off the road with the rear of the car jutting out into the roadway. As Bosco approached the vehicle, the driver, who proved to be the plaintiff, yelled, “What the hell did I do wrong?”

Bosco observed that the plaintiffs eyes were extremely glossy and bloodshot, and that he had a strong odor of alcohol on his breath. When Bosco explained why he had stopped him, the plaintiff replied, “Well, don’t you think that’s a stupid place to put a median?” His words were heavily slurred, and he admitted to having consumed “a few beers.” Bosco inquired whether he had any illnesses, medical problems or handicaps that would prevent him from performing field sobriety tests. The plaintiff replied, “No, I should be all set,” and then proceeded to fail the field sobriety tests. Bosco placed him under arrest, charged him with operating a motor vehicle under the influence of alcohol in violation of General Statutes § 14-227a and transported him to the Naugatuck police station.

At the station, the plaintiff waived his Miranda rights in writing and stated that he had begun drinking at approximately 3 p.m. and had consumed his last beer at 8 p.m. When asked what type of alcoholic beverages he had been drinking, he replied, “Whatever they put in front of me.” He advised the police that he was neither injured nor ill, and that he was not taking medication and needed no medication at that time. He also declined to contact an attorney and in response to the police reading the implied consent advisory to him, he stated, “You know I’m going to refuse whatever test you ask. I beat it last time by refusing, I’ll beat it again.” He added, “If you [the police] could write a good report the first time, you wouldn’t have had to worry about me driving on the streets.” When asked to provide a breath sample, he replied, “I am not going to blow; you’re wasting your time.”

The police reported to the commissioner the plaintiffs refusal to take the chemical alcohol test, and the commissioner initiated a license suspension action. The plaintiff thereafter requested an administrative hearing after which the commissioner, acting through his hearing officer, suspended the plaintiffs driver’s license. Pursuant to General Statutes § 4-183, the plaintiff appealed to the Superior Court, which dismissed the appeal on the merits.

The plaintiffs claim at the hearing, as well as on appeal, is that he was exempt from submitting to a Breathalyzer test pursuant to § 14-227b Q), which provides that “ [t]he provisions of [§ 14-227b] shall not apply to any person whose physical condition is such that, according to competent medical advice, such test would be inadvisable.” In support of his contention that he qualified for an exemption under § 14-227b (j), he submitted to the hearing officer a letter from James E. O’Brien, a physician, to the plaintiffs counsel.

The commissioner does not contend that O’Brien’s letter does not constitute competent medical advice. O’Brien’s letter unequivocally states that it would have been medically inadvisable for the plaintiff to attempt to perform a Breathalyzer test and sets forth the facts on which his opinion is based together with a thorough medical analysis. The dispositive issue is whether the hearing officer should have found that the plaintiffs physical condition was such that, according to competent medical advice, taking a Breathalyzer test was inadvisable pursuant to § 14-227b (j).

The hearing officer in this case faced the dilemma of two diverse factual predicates. The first was the police officer’s scenario, which describes an operator whom he observed driving on Route 8, whom he pulled over by use of his siren and red lights, and who expressly denied having any illnesses, medical problems or handicaps. O’Brien’s letter recites the second factual predicate, which describes a plaintiff who pulled over to the side of the road because he was suffering an asthmatic attack resulting in part from the inhalation of fine dirt particles shortly before the stop. According to O’Brien’s letter, the plaintiff was already stopped on the side of the road when the police officer approached. The letter was based on facts and assumptions that were contested.

Should the hearing officer have accepted the police officer’s version of having pulled an operator over to the side of the road, or should he have accepted the scenario in O’Brien’s letter describing an operator parked on the side of the road having an asthmatic attack? It is the function of the hearing officer to resolve conflicts in the evidence. Schallenkamp v. DelPonte, 229 Conn. 31, 41, 639 A.2d 1018 (1994). The hearing officer was free to believe the police version of the facts and to disbelieve totally the plaintiffs version.

“Factual determinations of the commissioner must be upheld if there is substantial evidence in the record to support such a finding. ... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule. ... In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Internal quotation marks omitted.) Lomen v. Commissioner of Motor Vehicles, 61 Conn. App. 213, 218, 763 A.2d 676 (2000).

The plaintiff argues that § 14-227b (j) requires the hearing officer to consider only O’Brien’s medical report and bars consideration of the police report. That contention is contrary to firmly established precedent. “Basically, an agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.” (Internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 400, 700 A. 2d 807, cert, denied, 245 Conn. 917, 717 A. 2d 234 (1998).

The hearing officer was not bound to consider only the competent medical advice required under § 14-227b (j). Rather, the hearing officer may consider evidence presented by any witness and make his decision in view of all of the evidence. Id., 401.

“Pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., the court may not substitute its judgment for that of the commissioner and must affirm the commissioner’s decision unless it is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record .... General Statutes § 4-183 (j). In the present case, the court properly concluded that substantial evidence existed to support the commissioner’s findings.” (Internal quotation marks omitted.) Tompkins v. Commissioner of Motor Vehicles, 60 Conn. App. 830, 834, 761 A.2d 786 (2000).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 14-227b (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.”

       In 1998, the legislature amended General Statutes (Rev. to 1997) § 14-227b and redesignated subsection (j) as subsection (1) effective January 1, 1999. See Public Acts 1998, No. 98-182, §§ 20, 22. We refer to the subsection as (j) throughout this opinion.

       The trial court relied on those facts in its memorandum of decision.

       General Statutes § 14-227a provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. . . .”

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The hearing officer made the following subordinate findings:
      “1. [The plaintiff] refused to attempt to give a breath test.
      “2. [The plaintiff] further stated, ‘You know I’m going to refuse whatever test you ask. I beat it last time by refusing, I’ll beat it again.’
      “3. [The plaintiff] was asked if he was ill, required medication or was injured and answered no to all questions . . . .”

       O’Brien’s letter stated:
      “Dear Attorney [Norman B.] Teague:
      “I evaluated Mr. Charles Dore in Farmington on September 21, 1998. In addition, I have also reviewed Mr. Dore’s medical records consisting of the office records of Dr. George Rubin and Cortland Brown, III, M.D., the Gaylord Hospital Pulmonary Clinic reports and the medical records of St. Vincent Medical Center in Bridgeport regarding his hospital admission dated July 3, 1993 to August 8, 1993. I have also considered the circumstances and activities of Mr. Dore surrounding his arrest on July 24, 1998 for allegedly driving under the influence of alcohol.
      “It is my understanding that on July 24th Mr. Dore was suffering an asthmatic attack and because of shortness of breath and wheezing he pulled to the side of the road. Subsequently he was approached by a police officer who, believing Dr. [sic] Dore might be intoxicated, requested that he perform the standard field sobriety tests. Mr. Dore explained that because of his medical problems he could not perform the tests. He was then arrested and taken to the police station and requested to submit to the Intoxilyzer 5000 test. Mr. Dore, who was experiencing severe shortness of breath in part due to transporting dirt prior to the stop, refused to take the breathalyzer test. Mr. Dore, who weighed 200 pounds at the time, had been drinking beer earlier in the day and states he had three 12 ounce beers, one at 1200 hours, one at 1500 hours and the last at 1800 hours.
      “In regards to your inquiry as to what effect, if any, Mr. Dore’s pulmonary disease would have on his ability to perform the Intoxilyzer test, Mr. Dore’s pulmonary disease would make performance of such tests most difficult and medically inadvisable. This is based on his severe pulmonary disease which is further complicated by paralysis of his diaphragm and restrictive airway disease and inhalation of fine dirt particles shortly before the stop.
      “Mr. Dore’s severe pulmonary disease as documented in the above records are the consequence of a gunshot wound to the chest which resulted in severe restrictions of his vital capacity and an expiration flow rate of merely 120 liters per minute. This is due to both obstructive airway disease and diaphragmatic weakness and partial paralysis. The presence of his symptomatic dyspenia at the time surrounding the incident is attested to by review of pharmacy records showing his use of a Serevent Inhaler, Albuterol Inhaler and a Vaneeril Inhaler in the period surrounding the incident. Review of the records also show a FEV, of only 47% of the expected value and forced vital capacity of 74% of normal with a FEV, FVO of 53% normal. These values together with the other clinical data and physical exam, attest to the fact that Mr. Dore does indeed have severe lung disease and particularly when wheezing should not attempt to perform the tests.
      “In summary, because of severe pulmonary disease as documented in the records and the findings noted above it would be medically inadvisable for Mr. Dore to attempt to perform a breathalyzer test.”