author: FREEDMAN, J.

text:
    THIERRY ROSIER v. KATHLEEN ROSIER
    (AC 27630)
    Schaller, McLachlan and Freedman, Js.
    Argued March 19
    officially released August 21, 2007

      James H. Lee, for the appellant (defendant).

      Andrew P. Nemiroff, for the appellee (plaintiff).
   Opinion

FREEDMAN, J.

The defendant, Kathleen Rosier, appeals from the judgment of the trial court granting the motion of the plaintiff, Thierry Rosier, to modify child support. On appeal, the defendant argues that the court abused its discretion in ordering a modification of the child support previously ordered pursuant to an agreement of the parties. Although we conclude that the court, which found a substantial change in circumstances, improperly refused to allow the defendant to present evidence concerning the plaintiffs earnings prior to the last court order for purposes of determining earning capacity, we nonetheless determine that this error was harmless. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The marriage of the parties was dissolved on December 18, 2002. The dissolution judgment incorporated by reference the terms of a separation agreement between the parties dated December 16, 2002. The separation agreement conferred legal custody of the parties’ two minor children jointly in both parties with primary physical custody of the children to the defendant. The agreement further provided that “ [commencing on December 1, 2002 . . . the [plaintiff] shall pay to the [defendant] the sum of Two Thousand One Hundred Twenty-Five Dollars ($2,125.00) per child per month as child support for the minor children until each child graduates high school and attains the age of eighteen or reaches the age of 19 whichever shall first occur.” This amount was in excess of the applicable child support guidelines, but the court found that it was equitable and reasonable under the circumstances.

On February 1, 2006, the plaintiff filed a motion to modify child support postjudgment in which he stated that a change in financial circumstances had occurred. Specifically, the plaintiff claimed that his income had been reduced significantly and his expenses had increased so that he could no longer afford the current support order. The plaintiff further expressed his belief that the defendant’s income had increased since the time of the dissolution such that she was able to contribute to the support of the children. Following a hearing, the court granted the plaintiffs motion and ordered the plaintiff to pay the sum of $173 per week for the support of the two minor children. The court further ordered that the unreimbursed medical expenses incurred for the children were to be borne 62 percent by the defendant and 38 percent by the plaintiff. These orders were to become effective on March 1, 2006. The defendant has appealed from this order, claiming that the court, in granting the motion to modify, improperly excluded relevant evidence of the plaintiffs earnings for the five years prior to the last court order.

Before addressing the merits of the defendant’s claim, we must first state the applicable standard of review. “General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. ... A final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Citation omitted; internal quotation marks omitted.) Fish v. Igoe, 83 Conn. App. 398, 406, 849 A.2d 910, cert. denied, 271 Conn. 921, 859 A.2d 577 (2004). “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Aley v. Aley, 101 Conn. App. 220, 223, 922 A.2d 184 (2007).

“Furthermore, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . [B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Internal quotation marks omitted.) Friezo v. Friezo, 84 Conn. App. 727, 733, 854 A.2d 1119, cert. denied, 271 Conn. 932, 859 A.2d 930 (2004).

The following additional facts are necessary in order to address the defendant’s claim that the court improperly excluded relevant evidence of the plaintiffs earnings for the five year period preceding the parties’ divorce. The financial affidavit submitted by the plaintiff at the time of the dissolution reflected an average gross monthly income of $12,500 and a total net monthly income of $6934. This affidavit also reflected assets of $1,124,078.43, liabilities of $312,753.12 and monthly expenses of $17,008.12. The affidavit submitted by the defendant at the time of dissolution reflected an average gross monthly income of $2500 and an average monthly net income of $2000. This affidavit also reflected assets of $994,300, liabilities of $164,432.13 and monthly expenses of $9519.

The plaintiffs financial affidavit dated February 22, 2006, submitted in connection with his motion to modify child support, reflected an average gross monthly income of $4000 and a total net monthly income of $2768. This affidavit also reflected assets of $890,614.38, liabilities of $166,293.16 and monthly expenses of $15,235.79. The defendant’s financial affidavit dated March 15, 2006, also submitted in conjunction with the modification hearing, reflected an average monthly income of $2000 from her employment as an interior designer plus $4250 in child support for a total monthly income of $6250. This affidavit also reflected assets of $1,842,068.37, liabilities of $37,096.76 and monthly expenses of $8561.

At the hearing on the motion to modify, the plaintiff, a wholesaler of interior design products, attributed the reduction in his income to a shift in the industry away from elaborate decor, an increased number of competitors and the fact that the European dollar had risen 25 to 30 percent in the three years prior to the modification hearing, thus making the cost of goods much higher. The court found that because the plaintiffs business involves purchasing merchandise in Europe for resale in this country, his margins had eroded. The plaintiff testified that he did not go to work every day but that he was “exploring other possibilities of occupation.” On cross-examination, the defendant sought to question the plaintiff regarding his income during the five years preceding the parties’ divorce. The court, relying on Borkowski v. Borkowski, 228 Conn. 729, 638 A.2d 1060 (1994), precluded this line of inquiry. According to the court, Borkowski precluded any inquiry that would seek to relitigate the original judgment and would therefore go “behind the judgment.” The court stated that such an inquiry “violates the case law.” The defendant claims, however, that she was not seeking to relitigate the plaintiffs income at the time of the dissolution; rather, the defendant contends that she was seeking to demonstrate that the plaintiffs income at that time was not an anomaly but was representative of his earning capacity. The defendant argues that evidence of the plaintiffs average income during the five years prior to the divorce would have been relevant to establish this fact. We agree that the defendant should have been permitted to question the plaintiff regarding his earning capacity for the five years prior to the divorce. We conclude, however, that any error in this regard was harmless.

In Borkowski v. Borkowski, supra, 228 Conn. 738, our Supreme Court held that in considering a motion to modify or terminate an alimony or support order pursuant to § 46b-86, the court is limited to a comparison between the current conditions and the last court order. “To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. . . . The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ... or to allow the parties to use a motion to modify as an appeal. . . . [The court’s] inquiry is necessarily confined to a comparison between the current conditions and the last court order. To permit the trial court to reconsider all evidence dating from before the original divorce proceedings, in determining the adjustment of [support], would be, in effect, to undermine the policy behind the well established rule of limiting proof of the substantial change of circumstances to events occurring subsequent to the latest [support] order—the avoidance of relitigating matters already settled.” (Citations omitted; internal quotation marks omitted.) Id., 737-38.

Borkowski makes it clear that in determining whether there has been a substantial change in circumstances, the court may not look at conditions prior to the last court order. Applying this principle, the court in Bor-kowski held that “by considering evidence of events and conditions antecedent to the last modification, the trial court applied an incorrect legal standard in determining whether there had been a substantial change of circumstances warranting a modification.” Id., 740. If, however, there has been a substantial change in circumstances, “[t]his limitation . . . does not prevent a trial court from considering relevant evidence of a party’s circumstances prior to and subsequent to the last applicable court order if needed for purposes of a reasonable comparison. It is within the trial court’s discretion to ascertain what financial information is relevant.” (Emphasis added.) Denley v. Denley, 38 Conn. App. 349, 352, 661 A.2d 628 (1995). “It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income. . . . Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” (Citation omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007).

In Denley v. Denley, supra, 38 Conn. App. 350, the marriage of the plaintiff and the defendant was dissolved on March 10,1992. On April 21,1993, the plaintiff filed a motion for modification of alimony and support payments, claiming that there had been a substantial change in his financial circumstances since the entry of the decree. Id. Following a hearing on the motion for modification, during which the court considered evidence of the plaintiffs income from 1991, 1992 and part of 1993, the court denied the plaintiffs motion. Id. On appeal, the plaintiff argued that the court should not have allowed evidence of his income from 1991 and 1992 to be introduced and considered. Id., 351. We disagreed with the plaintiffs argument, noting that the court had contrasted his financial information from the last full calendar year prior to the dissolution judgment with the first full calendar year postjudgment. Id., 352. We stated that “[t]he plaintiff is a commissioned salesman whose income varies from month to month. Therefore, it was not an abuse of discretion for the trial court to have reviewed a block of time exceeding that included in the plaintiffs latest financial affidavit to obtain an accurate picture of the plaintiffs financial circumstances. The trial court did not abuse its discretion by comparing the plaintiffs financial condition as it did.” Id., 352-53.

As in Denley, we conclude that the court was permitted to consider evidence of the plaintiffs income prior to the dissolution judgment for purposes relating to earning capacity. We agree that the defendant was not permitted to relitigate the plaintiffs income at the time of the dissolution, nor was she permitted to examine the plaintiffs income prior to the last court order for purposes of determining a substantial change in circumstances. It was, however, within the court’s discretion to allow the defendant to establish the plaintiffs earning capacity for purposes of a reasonable comparison. We further conclude, however, that any error in this regard was harmless. Although the court did not allow evidence of the plaintiffs earning capacity for the five years preceding the parties’ divorce, the court did not exclude evidence of earning capacity from the time of the dissolution in 2002 until the modification in 2006; the defendant, however, did not put forth any evidence to establish the plaintiffs earning capacity during this time period, nor did the defendant submit any evidence to contradict the information contained on the plaintiffs financial affidavit,. At no time did the defendant indicate to the court that she was prepared to demonstrate how the plaintiffs earnings prior to the last court order could be used to establish earning capacity other than that it was higher than it was at the time of the modification hearing. Under these circumstances, we conclude that any error in excluding evidence pertaining to the plaintiffs income for the five years prior to the parties’ divorce was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (a) provides in relevant part that “[a]ny final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .”

       The defendant also contends that the court improperly excluded evidence of the regular contributions from the plaintiffs current spouse. Specifically, the defendant contends that the court improperly excluded photographs of the house in which the plaintiff resides with his current wife. Aside from the general assertion of this claim in the defendant’s brief, however, the defendant has failed to analyze this issue, other than to reference the colloquy that took place in court when the defendant attempted to introduce the photographs into evidence.
      “We are not required to review issues that have been improperly presented to this court through an inadequate brief. ... We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Zbras v. St. Vincent’s Medical Center, 91 Conn. App. 289, 295, 880 A.2d 999, cert. denied, 276 Conn. 910, 886 A.2d 424 (2005).

       The following colloquy took place at the hearing on March 17, 2006:
      “[The Defendant’s Counsel]: So, would you say that prior to 2002, that the income that was indicated on your 2002 financial affidavit of $12,500 a month, was that fairly—was that a fair average of what you would earn in the years up to then?
      “[The Plaintiffs Counsel]: Objection, Your Honor. I—years up to then, that could be twenty years, so I would object on the grounds of relevance and the fact that the question has no framework in time. If he’s just saying up till then and he has been in business twenty years, I don’t think that helps the court to know what happened over a twenty year period prior to 2002.
      “[The Defendant’s Counsel]: I withdraw it, Your Honor. I agree with [the plaintiffs counsel]. . . . How about in the five years prior to 2002?
      “[The Plaintiffs Counsel]: Objection, Your Honor, relevance.
      “The Court: I have a problem with that because Borkowski instructs that number one, you can’t go behind the judgment. Number two, the court on a postjudgment modification must contrast the circumstances that surrounded the entry of the current order with today’s circumstances where the current order is sought to be modified. So, your question violates the case law.
      “[The Defendant’s Counsel]: If I’m not mistaken, Your Honor, the case law also provides, however, that the court is entitled to consider the witnesses for any potential.
      “The Court: That’s right. But I’m not entitled to go behind the judgment, and that’s my ruling, and that’s what I stick to, counsel. Don’t talk about any time frame prior to the entry of judgment, please.
      “[The Defendant’s Counsel]: Okay.”

       The court later stated: “[EJaming capacity only comes into play after you first prove a level of talent that’s not being exercised, and instead of exercising those talents, the person is cutting lawns. That’s the case. And that didn’t happen. There was no evidence indicating that [the plaintiff] was not exercising his talents.”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    KENNETH BOVE v. HOWARD W. BOVE ET AL.
    (AC 28130)
    Schaller, DiPentima and Gruendel, Js.

      Submitted on briefs May 21
    officially released August 21, 2007

      Conrad Ost Seifert filed a brief for the appellant (named defendant).

      John K. Harris, Jr., filed a brief for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

In this partition action, the defendant Howard W. Bove appeals from the denial of his motion to open and to vacate the judgment rendered by the trial court granting the motion of the committee of sale (committee) for approval of the sales of two parcels of real property. On appeal, the defendant claims that the court improperly approved the sales of the properties because (1) the plaintiff, Kenneth Bove, interfered with the sale of one of the properties and did not act in good faith, and (2) mistakes were made that affected the bidding and sales. We affirm the judgment of the trial court.

The present appeal is the third that the defendant has filed with this court. See Bove v. Bove, 77 Conn. App. 355, 823 A.2d 383 (2003) (Bove I); Bove v. Bove, 93 Conn. App. 76, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006) (Bove II). On October 5, 2000, the plaintiff commenced this action for the partition or sale of real estate located in Putnam and Thompson against his brothers, the defendant and Douglas Bove. In Bove I and Bove II, the defendant appealed from the court’s judgment of partition by sale of the two parcels of land. Both appeals involved, inter alia, the defendant’s claim that the court lacked jurisdiction to render judgment. In Bove I, this court agreed that the trial court lacked jurisdiction because the defendant had been served improperly and had not waived the inadequate service of process. Accordingly, we remanded the case to the trial court with direction to open the judgment. Bove v. Bove, supra, 366-67.

“Following Bove I, the plaintiff filed a motion for first order of notice, which the court granted on June 17, 2003. The plaintiff again attempted service of process on the defendant, this time at his Florida address by certified letter, which was returned as unclaimed. The defendant again filed a limited appearance and motion to dismiss, challenging the court’s jurisdiction. On January 29, 2004, the case was marked off the court’s short calendar for insufficient service.

“On February 10, 2004, the court granted the plaintiffs motion for second order of notice, ordering in hand service to be made on the defendant. A return by proper officer was entered on February 27, 2004. The plaintiff then moved to default the defendant for failure to appear, which the court granted on April 13, 2004. On June 3, 2004, the defendant filed another limited appearance and motion to dismiss. When neither party appeared at the hearing in damages scheduled for June 9, 2004, the court dismissed the action. On July 12, 2004, the court granted the plaintiffs motion to open the judgment of dismissal, and on August 16, 2004, granted the plaintiffs motion for finding of actual notice. Another hearing in damages was held on October 28, 2004, and the court again ordered partition by sale of the properties.” Bove v. Bove, supra, 93 Conn. App. 79-80. The defendant again appealed from the judgment of partition by sale, and this court affirmed the judgment and remanded the case for the purpose of setting a new sale date. Id., 87.

On June 5, 2006, the trial court again ordered a partition by sales of the two parcels of real property, both of which occurred on July 29, 2006. On August 3, 2006, the defendant filed a motion for a judgment to void the sales, and on August 11, 2006, the committee filed a motion for approval of the committee sales. On August 21, 2006, the court, Riley, J., held a hearing on the motions, which resulted in the denial of the defendant’s motion and the granting of the committee’s motion for approval of the sales. On September 1, 2006, the defendant filed a motion to open and to vacate the judgment of approval due to judicial misconduct. After a hearing on the defendant’s motion on September 18, 2006, during which the defendant offered many of the same arguments that he had made during the hearing on his motion for a judgment to void the sales, the court, Hon. Russell F. Potter, Jr., judge trial referee, denied the defendant’s motion in a memorandum of decision dated September 29, 2006. This appeal followed.

We begin by setting forth the applicable standard of review. “The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Cox v. Burdick, 98 Conn. App. 167, 176-77, 907 A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006).

We note that the defendant’s appeal form states that he is appealing from the “[fjinal judgment of September 29, 2006, denying [the defendant’s] Motion to Open and Vacate Judgment.” The defendant’s motion to open and to vacate the judgment alleged that the August 21, 2006 hearing was tainted due to judicial misconduct. On September 18, 2006, the court, Hon. Russell F. Potter, Jr., judge trial referee, conducted a hearing on the defendant’s motion. On September 29, 2006, it denied the motion in a memorandum of decision, which stated that “[t]he defendant ... in his motion to vacate a judgment of partition, has alleged that counsel for the plaintiff admitted on the record, during a hearing held August 21, 2006, that he (plaintiffs counsel) had engaged in an ex parte conversation with the trial judge relative to the case prior to hearing. A review of the record reveals no such admission was made by the attorney for the plaintiff.”

In the defendant’s appellate brief, he offers only a cursory description of the motion to open and to vacate the judgment, which consists of quotations from the September 18, 2006 hearing: “[The defendant] represented [during the hearing] that ‘Judge Riley certified the sale under hostile hearings.’ . . . The defendant described a complaint letter he had written to Governor Rell ‘complaining about Judge Riley’ and stated that the judge and [the plaintiffs attorney] ‘had some conversation about the case,’ implying that Judge Riley’s presiding at the August hearing was tainted and improper.” (Citation omitted.) Apart from the bare recitation of the allegations made during the hearing, the defendant provides no legal analysis to support his appeal. We therefore decline to review the appeal from the denial of the defendant’s motion to open and to vacate the judgment. See Rivnak v. Rivnak, 99 Conn. App. 326, 332 n.4, 913 A.2d 1096 (2007) (“[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly” [internal quotation marks omitted]).

The defendant’s legal arguments, in contrast, involve the court’s denial of his August 3, 2006 motion for a judgment to void the sales. We note that although the defendant’s appeal form merely refers to the denial of his motion to open and to vacate the judgment, we are not decisively precluded from reviewing an appeal from the denial of his prior motion. See, e.g., Pritchard v. Pritchard, 281 Conn. 262, 275, 914 A.2d 1025 (2007) (compliance with appeal forms “need not be perfect; it is the substance that matters, not the form”). Nevertheless, the court filed no memorandum of decision, and the defendant has provided only an unsigned transcript of the proceedings. See Practice Book § 64-1. We are not unmindful that “[o]n occasion, we have reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the court’s findings and conclusions in connection with its decision.” Tisdale v. Riverside Cemetery Assn., 78 Conn. App. 250, 254 n.5, 826 A.2d 232, cert. denied, 266 Conn. 909, 832 A.2d 74 (2003). The unsigned transcript of August 21, 2006, however, does not include the court’s reasoning in denying the motion for a judgment to void the sales. We thus have no vantage point from which to evaluate the legal analysis undertaken by the court.

“It is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . . . [or] to clarify the legal basis of a ruling .... In the absence of any such attempts, we decline to review this issue.” (Internal quotation marks omitted.) Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn. App. 638, 652, 922 A.2d 1131 (2007). Although the legal analysis of the court would be unnecessary if the issues in the appeal were questions of law; see Norwalk v. Farrell, 80 Conn. App. 399, 406 n.10, 835 A.2d 117 (2003); we reiterate that the proper standard of appellate review in this case depends on whether the trial court abused its discretion. See Cox v. Burdick, supra, 98 Conn. App. 176-77. Accordingly, we decline to review the defendant’s claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Douglas Bove, the parties’ brother and co-owner of the properties, also was named as a defendant in this action. Because Douglas Bove did not participate in this appeal, we refer to Howard Bove as the defendant.

       The court ordered that “in hand service be made ... by a proper officer of the sheriffs department of Volusia County, Florida, on or before March 4, 2004. Thereafter, on February 21, 2004, Ben F. Johnson, a Florida sheriff, attempted service on the defendant at his home. The sheriff acknowledged the defendant, but, instead of receiving service, the defendant jogged across the street onto a beach.” Bove v. Bove, supra, 93 Conn. App. 80-81.

       On the same day, the court also granted the committee’s motions for approval of committee deeds, acceptance of committee reports and the allowance of fees and expenses.

         We note that the pro se defendant’s initial appeal was filed timely on October 13, 2006. On December 18, 2006, counsel for the defendant refiled the appeal form with an identical description of the appeal.

       The defendant’s notarized affidavit that he submitted with his motion to open and to vacate stated: “I first went before Judge [Riley] on October 12, 2004 and found him to be friendly, courteous, professional, and polite, but after the hearing he did the opposite of what he stated he would do. On that day he asked me to wait for forty five minutes to see if [the plaintiffs attorney] would arrive, when he didn’t arrive the hearing was held without him.
      “On July 17, 2006, after appeal number II was history, Judge [Riley] appeared to be in another world and uninterested in my arguments. He made me wait for four hours while he ordered [the plaintiffs attorney] to show up and object.
      “On August 21, 2006 after my formal complaint against Judge [Riley] to Governor Rell dated July 23, 2006 was filed, I found Judge [Riley] to be hostile and abusive. He sharply limited my examination of the committee and refused to let me question other witnesses. At the end of the hearing [the plaintiffs attorney] waived a motion to Judge [Riley] and stated that he had talked to Judge [Riley] prior to the hearing about this.”


author: BISHOP, J.

text:
    LORD FAMILY OF WINDSOR, LLC, ET AL. v. INLAND WETLANDS AND WATERCOURSES COMMISSION OF THE TOWN OF WINDSOR ET AL.
    (AC 27906)
    Bishop, Lavine and Pellegrino, Js.

      Argued May 22
    officially released August 21, 2007

      Michael A. Zizka, for the appellants (plaintiffs).

      Richard A. Vassallo, for the appellee (named defendant).
   Opinion

BISHOP, J.

This case addresses whether the stated concerns and apprehensions of an inland wetlands agency amount to substantial evidence sufficient to uphold the agency’s denial of an application to modify a subdivision plan. The plaintiffs, the Lord Family of Windsor, LLC, and Robert Daddario, appeal from the trial court’s judgment denying their appeal from the decision of the defendant inland wetlands and watercourses commission of the town of Windsor (commission), which had rejected the plaintiffs’ application to modify a proposed and previously approved subdivision plan. We conclude that the record does not contain substantial evidence necessary to sustain the commission’s denial. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to our assessment of the plaintiffs’ appeal. On February 1, 2005, the commission granted a permit to the plaintiffs to conduct regulated activities on wetlands and watercourses in connection with a plan for a subdivision on a parcel of land known as 355T Prospect Hill Road in Windsor. The subdivision plan contemplated the construction of three new roads that would access the existing town roads of Prospect Hill Road, Pierce Boulevard and Gary Lynn Lane.

On February 24,2005, the plaintiffs informed the commission of their desire to change the original subdivision plan to eliminate the Gary Lynn Lane access road. The commission discussed the effects of the proposed change with the plaintiffs during a special meeting on March 16, 2005. The certified meeting minutes indicate that in addition to eliminating the Gary Lynn Lane access road, the plaintiffs planned to use an existing partially paved road, the “neck” road, during the initial phase of construction in order to bring equipment and workers onto the site. The neck road crosses the Phelps Brook watercourse by way of a culvert. During the course of the meeting, the commissioners asked many questions about the ability of the culvert to sustain the weight of construction vehicles as well as the potential impact of increased traffic on the Prospect Hill access road.

After the commissioners discussed their concerns with the plaintiffs and their representatives, a motion was made to approve the application pending a favorable report from the town engineer on the culvert. The motion failed. On April 1, 2005, the commission’s agent wrote a letter to the plaintiffs, denying their application to remove the Gary Lynn Lane access road for the following stated reasons: “(1) Increased traffic across bridge to Prospect Hill Road would cause increase of pollutants going into Phelps Brook. It was recommended that a traffic engineer’s report showing effects of increased traffic over the bridge on Phelps Brook from deposition by air, snow removal, or runoff would have been helpful. (2) The Commission previously approved three access points to the subdivision determining it was the most feasible and prudent alternative to minimize the impact on the brook by traffic across the bridge to Prospect Hill Road. (3) The [ten foot] wide partially paved path crosses the brook between two pond areas at a narrow point over a culvert that would need to be evaluated by an engineer. The evaluation needs to include current condition and strength of the culvert, comparison of width of vehicles to the width of the path and strong erosion and sedimentation controls.” Consequently, the plaintiffs appealed to the trial court from the denial of their application to amend their permit.

On appeal to the trial court, the plaintiffs claimed that the commission’s decision was arbitrary, illegal and an abuse of discretion. In response, the court found in favor of the commission, concluding that the commissioners’ concerns about the structural integrity of the culvert and the pollution from the increased traffic were valid reasons for the denial of the proposed modification. This appeal followed.

In this appeal, the plaintiffs claim that the commission’s denial of their proposal to eliminate the Gary Lynn Lane access road was based on speculative concerns rather than substantial evidence. Additionally, the plaintiffs claim that the commission did not have the power to deny their application because the proposed changes to the subdivision plan did not involve a regulated activity.

As an initial matter, we address whether the proposed changes involving the elimination of one access road and the use of the neck road for construction related activities were properly before the commission. The plaintiffs claim, in sum, that because driving a motor vehicle is not itself a regulated activity, the commission had no authority to deny the application on the basis of the movement of vehicles to and from and within the construction site. We are not persuaded. According to General Statutes § 22a-38 (13), a regulated activity is “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . . .” The commission’s regulations incorporate this definition and expand the relevant area of regulation to include a 100 foot upland review area. Windsor Inland Wetlands and Watercourses Regs., § 2.1 (y).

Additionally, pursuant to the authority delegated to municipal inland wetlands agencies by statute, inland wetlands agencies are authorized to promulgate such additional regulations as are necessary to protect the wetlands and watercourses within their municipality. See General Statutes § 22a-42. Under the commission’s regulations, the commission is authorized to evaluate any application which may involve a “significant impact activity” on the wetlands or watercourses. Windsor Inland Wetlands and Watercourses Regs., § 7.3 (q). In relevant part, significant impact activities are defined as “[a]ny activity which causes or has the potential to cause pollution of a wetland or watercourse.” Id., § 2.1 (cc) (6). Here, the plaintiffs planned to build a subdivision on wetlands and watercourses. Therefore, the commission was well within its authority to examine and to evaluate the impact that the construction of the subdivision might have on the wetlands and watercourses.

Having established that the commission had the authority to examine and to evaluate the impact of the plaintiffs’ proposed changes, we now address whether the record shows that the commission had the requisite substantial evidence to deny the plaintiffs’ proposed changes.

We begin by setting forth the applicable standard of review. “[I]n an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision. . . . Even if the agency’s reasons for denying an application are merely speculative, the reviewing court must search the record for reasons to support the agency’s decision . . . and, upon finding such, uphold that decision regardless of the language used by the agency in stating its reasons for the denial.” (Citation omitted; internal quotation marks omitted.) Manatuck Associates v. Conservation Commission, 28 Conn. App. 780, 784, 614 A.2d 449 (1992). “[T]he reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence 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. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency .... The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993).

The standard of review for whether the substantial evidence test was correctly applied by the court in its review of a commission’s decision is a question of law and is therefore subject to plenary review. River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70, 848 A.2d 395 (2004). In an appeal from the judgment of a trial court regarding the decision of an inland wetlands agency, this court must determine “whether the trial court correctly concluded that the [agency’s] act was not arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn. App. 162, 165, 855 A.2d 1044 (2004).

“In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the act and in applicable municipal regulations.” River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 72. Our statutes require that a municipal inland wetlands agency “take into consideration all relevant facts and circumstances, including but not limited to: (1) The environmental impact of the proposed regulated activity on wetlands and watercourses; (2) The applicant’s purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses; (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources; (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and (6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.” (Emphasis added.) General Statutes § 22a-41 (a) (1) through (6).

The commission’s regulations incorporate the statutory language and factors elucidated in § 22a-41 (a) and permit the agency to consider the following evidence in its decision: the permit application and its supporting documentation, public comments, evidence and testimony, reports from other municipal agencies and comments from potentially affected adjacent municipalities, regional organizations and state agencies. Windsor Inland Wetlands and Watercourses Regs., § 10.1.

Having identified the relevant law and regulations, we now look to the record to see if substantial evidence supports any one of the reasons given by the commission for the denial of the plaintiffs’ request to amend their permit. According to the letter signed by the commission’s agent on April 1,2005, the commission denied the application because first, the higher traffic volume on the Prospect Hill access road would result in increased levels of pollution in Phelps Brook and, second, the structural integrity of the culvert might be compromised by the weight of construction vehicles resulting in increased levels of pollution and disturbance of the Phelps Brook watercourse. We examine the record separately for probative evidence supporting these reasons for denial.

The factual record consists of the minutes of the commission’s March 16, 2005 special meeting at which the commission discussed the proposed amendment with the plaintiffs and their representatives. The minutes indicate that the commission’s vice chair asked whether the plaintiffs had conducted an impact study on the effect of eliminating the Gary Lynn Lane access road. She expressed concerns that consolidating all of the traffic of the first phase of the subdivision onto one road might contaminate the Phelps Brook watercourse. The plaintiffs’ engineer replied that no traffic study had been conducted but that the plan calls for the Prospect Hill access road to have a system by which all runoff water is collected in a settling basin and passed through a stone filter before being sheet flowed across the wetlands. Both the commission’s agent and the vice chair stated that there might be other pollutants, besides runoff water, created by the increased traffic. Finally, the vice chair indicated that she would not be supporting the proposal because “[i]t doesn’t take a rocket scientist to figure out that sometimes cars drop oil, and salts get into the wetlands and all kinds of things happen.” Notably, the record is devoid of any evidence that the use of either the neck road or the Prospect Hill access road would or was likely to contaminate the water.

When considering pollution, “a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control . . . .” Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980). The commission’s vice chair did not hold herself out as an expert in pollution control. Even if the vice chair was a qualified pollution expert, “[e]vidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence.” River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 71, citing Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). Furthermore, inland wetlands agencies are not “little environmental protection agencies”; air, noise and environmental problems caused by increased traffic are general environmental problems that are not properly within the scope of an inland wetlands agency. Connecticut Fund for the Environment, Inc. v. Stamford, supra, 250-51. The vice chair’s conclusion that passing traffic might drop pollutants into the wetlands fails to satisfy the substantial evidence test.

The second reason for the commission’s denial of the plaintiffs’ proposed changes focuses on the structural integrity of the existing culvert on the neck road. The commission’s agent testified that the road had a steep slope and was particularly narrow where it crossed the culvert making her concerned that heavy trucks might have difficulty traversing the culvert. She also testified that there had been some beaver activity around the culvert, stating that “[w]e don’t know how sound that thing really is. I would hate to have one of your logging trucks end up in the middle of Phelps Brook.”

The credibility of the agent’s testimony is not at issue. See Feinson v. Conservation Commission, supra, 180 Conn. 425. Rather, the issue is whether her testimony amounted to substantial evidence sufficient to support the commission’s denial on the basis of the vulnerability of the culvert. Her statements, compounded with her later recommendation that the town’s engineer should evaluate the culvert for safety purposes, indicate that she was unaware of the actual status of the culvert and was speculating about its strength. The only facts supporting the actual condition of the culvert were those provided by the plaintiffs. The plaintiffs testified that the neck road had successfully supported the removal of 20,000 to 30,000 yards of fill and more recently, the weight of an excavator and its transporting tractor trailer.

The evidence in the record fails to constitute anything more than speculation that the existing culvert might be compromised by the construction vehicles. A mere worry is not substantial evidence. Because the concerns about the structural integrity of the culvert were speculative, the commission’s denial was arbitrary and capricious. See 5 U.S.C. § 706 (2) (A); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-76, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989) (stating that standard of review for agency’s decision is whether decision arbitrary and capricious); see also Horace v. Zoning Board of Appeals, supra, 85 Conn. App. 165.

Relief for appeals from agency decisions has developed unique case law that does not strictly follow statutory provisions. See R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 35.1, p. 319. In the case of inland wetlands agencies, this is due in part to periodic changes in the statutes; id.; and in part to the legislature’s recognition of the irreplaceable and fragile nature of wetlands and watercourses. See generally General Statutes § 22a-36. Generally, “[w]hen agency action is overturned . . . because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration to the agency for further consideration. ... A direct order to the commission is therefore legally unwarranted and the case must be remanded to the commission for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record.” (Citation omitted; internal quotation marks omitted.) Strong v. Conservation Commission, 28 Conn. App. 435, 443, 611 A.2d 427 (1992), appeal dismissed, 226 Conn. 227, 627 A.2d 431 (1993).

The judgment is reversed and the case is remanded with direction to render judgment remanding the matter to the commission for proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The commissioner of environmental protection also was named as a defendant but is not a party to this appeal. We therefore refer in this opinion to the commission as the defendant.

       We decline to parse the method by which construction vehicles enter a construction site from the actual construction of the subdivision when the construction itself is a regulated activity that requires a permit from an inland wetlands agency.

       General Statutes § 22a-41 (a) specifically provides that the factors for consideration are required of the commissioner of environmental protection, but these criteria are also applicable to municipal wetlands agencies pursuant to General Statutes § 22a-42 (f).

       We agree with the court’s reasoning that § 11.1 of the regulations specifically authorizes an agent to act on behalf of the commission, and, therefore, the reasons provided in the letter for the permit denial are lawful and made with the authority of the commission.

        In Feinson v. Conservation Commission, supra, 180 Conn. 429, the court held that the defendant conservation commission’s failure to provide a timely opportunity for rebuttal of its finding compounded the lack of substantial evidence, thereby running afoul of the plaintiffs due process rights.

       It seems to be a matter of common sense that the plaintiffs also would share the commission’s concern about their trucks falling off the culvert into the Phelps Brook watercourse and would be careful to assess its soundness before proceeding to bring heavy trucks over it.


author: PER CURIAM.

text:
    ROBERT GRANT v. COMMISSIONER OF CORRECTION
    (AC 27253)
    Bishop, Harper and Lavine, Js.
    Submitted on briefs May 25
    officially released August 21, 2007

      Mark M. Rembish, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, and Prolog K. Das and Richard J. Rubino, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Robert Grant, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion by failing to grant certification to appeal and (2) improperly concluded that his trial counsel did not render ineffective assistance. We dismiss the appeal.

The petitioner is incarcerated pursuant to his 1990 conviction for accessory to murder in violation of General Statutes §§ 53a-8 and 53a-54a. His conviction was upheld on appeal in State v. Grant, 219 Conn. 596, 594 A.2d 459 (1991). In 1994, the petitioner filed a petition for a writ of habeas corpus, alleging that he was denied (1) the effective assistance of (a) trial counsel and (b) appellate counsel, and (2) due process as a result of prosecutorial misconduct. The habeas court, Fuger, J., denied the petition for a writ of habeas corpus. This court affirmed that judgment in Grant v. Commissioner of Correction, 86 Conn. App. 392, 861 A.2d 1191 (2004), cert. denied, 273 Conn. 903, 868 A.2d 744 (2005). The petitioner filed the subject petition for a writ of habeas corpus in December, 2003, in which he alleged that he (1) was denied the effective assistance of habeas counsel and (2) is actually innocent. The habeas court, Elgo, J., denied the petition for a writ of habeas coipus and denied the petition for certification to appeal.

“[A] disappointed habeas corpus litigant [may] invoke appellate jurisdiction for plenary review of the decision of the habeas court upon carrying the burden of persuasion that denial of certification to appeal was an abuse of discretion or that injustice appears to have been done. Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994) .... The Supreme Court adopted this test in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994) . . . and stated that the petitioner must first show that the habeas court’s decision was an abuse of discretion. To establish an abuse of discretion, the petitioner must demonstrate that the issues 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. . . . Rivera v. Commissioner of Correction, 254 Conn. 214, 227, 756 A.2d 1264 (2000); see also Simms v. Warden, supra, [616-17]. If the appeal meets one of the criteria set forth in [Simms v. Warden, supra, 608], the habeas court’s failure to grant certification to appeal constitutes an abuse of discretion. After successfully demonstrating the existence of an abuse of discretion, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms v. Warden, supra, [612]. . . .

“In deciding whether the petitioner has established a clear abuse of discretion in the court’s denial of his request for certification, we must determine whether, in fact, a certifiable issue exists.” (Citations omitted; internal quotation marks omitted.) Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 822, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003). On the basis of our review of the record and Judge Elgo’s thoughtful memorandum of decision, we conclude that there are no certifiable issues on appeal and that the court did not abuse its discretion by denying the petition for a writ of habeas corpus. The petitioner has failed to demonstrate to this corut what evidence was presented at the habeas trial that would lead another court to reach a different conclusion or that there is a question that deserves further proceedings to resolve.

The petitioner claimed that his habeas counsel rendered ineffective assistance by failing to call certain witnesses. The court concluded that habeas counsel made a strategic decision not to call certain witnesses and that that decision was entitled to a strong presumption that counsel’s conduct fell within the wide range of reasonable professional conduct. See Ancona v. Commissioner of Correction, 100 Conn. App. 283, 289, 918 A.2d 283, cert. denied, 282 Conn. 918, 925 A.2d 1099 (2007). The petitioner failed to produce any evidence to overcome the presumption that his habeas counsel’s performance was not deficient. Furthermore, in order to prevail on a claim of actual innocence, a petitioner must present newly discovered evidence that was not available at the time of the criminal trial. See Johnson v. Commissioner of Correction, 101 Conn. App. 465, 470-71, 922 A.2d 221 (2007). The petitioner failed to do so.

The appeal is dismissed.


text:
    LEO GOLD ET AL. v. TOWN OF EAST HADDAM
    (AC 27952)
    Bishop, Gruendel and Mihalakos, Js.
    Argued June 4
    officially released August 21, 2007

      Leo Gold, for the appellants (plaintiffs).

      John S. Bennet, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiffs, Leo Gold, Joan S. Levy and Harold Bernstein and Joseph Lieberman, executors of the estate of Bernard Manger, filed this action seeking to enjoin the defendant, the town of East Haddam, from acquiring their property by eminent domain on the ground that the defendant did not timely file its statement of compensation with the trial court. The plaintiffs appeal from the summary judgment the trial court rendered in favor of the defendant. On appeal, the plaintiffs contend that the court improperly found that the defendant sought to take their property for solely school purposes and, therefore, was not bound by the time limitation for the acquisition of property as set forth in General Statutes § 48-6. Because an issue of fact exists as to the puipose of the taking, we conclude that the court improperly rendered summary judgment.

The court found the following undisputed facts. “[The plaintiffs] were . . . the owners of real property in the town of East Haddam. On June 17,2004, the [defendant] held a special meeting for the purpose of considering and discussing the acquisition by purchase or eminent domain of the plaintiffs’ property. On June 24, 2004, the governing body of the condemner by town meeting voted to acquire the plaintiffs’ property. The referendum vote was, in relevant part, on the question of: T. Shall the Town of East Haddam appropriate $24,500,000 for the New Middle School Project including, but not limited to, (a) the acquisition by purchase or eminent domain of approximately 226 ± acres of real property located off Clark Gates Road, East Haddam on the following parcels: Map # 74, Lot 3, Map # 73, Lot 20-1, Map # 74, Lot 009A, provided, however approximately 30 ± acres be used for the New Middle School Project, approximately 50 ± acres be used for general purposes and the remaining real property of approximately 146 ± acres be designated as open space, (b) the construction of a new middle school of approximately 96,000 square feet to house grades 4-8, (c) the construction of parking areas and drives, ball fields and soccer fields, (d) site improvements and (e) all alterations, repairs and improvements in connection therewith . . . and authorize the Board of Selectmen to acquire such real property.’ On or about January 6, 2006, the [defendant] filed a statement of compensation in the Superior Court ... by which it seeks to take by condemnation the plaintiffs’ real property.”

By complaint dated February 6, 2006, the plaintiffs filed this action, claiming that the defendant failed to commence the condemnation proceeding within six months after the vote authorizing the acquisition of the property as required by § 48-6 and that the vote, therefore, was void. The defendant subsequently filed a motion for summary judgment, claiming that General Statutes § 10-241a, which does not have a time limitation, governs the acquisition of property by condemnation for school purposes, and, because the defendant was taking the plaintiffs’ property to build a school, the six month time limitation did not apply. The plaintiff filed a cross motion for summary judgment, claiming that because the voters approved the land acquisition not only for school purposes but also for other municipal and open space purposes, § 48-6, and not § 10-241a, applied. The court found that the plaintiffs’ property was being acquired solely for school purposes and that the time limitation of § 48-6 therefore did not apply. Accordingly, the court granted the defendant’s motion for summary judgment and denied the plaintiffs’ motion for summary judgment. This appeal followed.

As an initial matter, we set forth the applicable standard of review. “Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. . . . The law governing summary judgment and the accompanying standard of review are well settled. 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. . . .

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.” (Citation omitted; internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn. App. 781, 785, 919 A.2d 525, cert. denied, 283 Conn. 904, 927 A.2d 917 (2007). “In ruling on a motion for summary judgment, the court is not to decide issues of fact; its function is to determine whether there are genuine issues of material fact.” Vaillancourt v. Latifi, 81 Conn. App. 541, 544 n.4, 840 A.2d 1209 (2004).

Here, the defendant claims that it sought to take the plaintiffs’ property solely for the school project. In opposition to the defendant’s motion for summary judgment, the plaintiffs submitted the referendum question put before the voters that stated that part of the plaintiffs’ property would be used for the school project, a larger part would be used for general municipal purposes and the majority would be designated as open space. In support of its motion for summary judgment, the defendant presented affidavits from James Ventres, the defendant’s land use administrator, and Bradley Parker, the first selectman. In his affidavit, Ventres stated that the plaintiffs’ property was sought for “the sole purpose of development of the middle school facility project and accessories thereto.” He stated that the project, as currently planned, would consume approximately sixty-one acres, including building location, access roadways, necessary sloping and fill along the access ways at the school site, and for septic fields and playing fields. He stated that another approximately twenty-two acres constituted land that might be developed into additional playing fields or related school facilities in the future. Ventres stated that “the entire balance of the site is either not subject to development or is substantially constrained by the location of wetlands, ponds, steep slopes and other similar constraints.”

In his affidavit, Parker reiterated that the only planned use for the plaintiffs’ property was the school project. Parker explained that “[t]he [Resolution put before the voters ... by [Referendum describes three elements of the property to be acquired for purposes of the school project simply as a way to inform the voters ... of how the property acquired would be adapted to the use for the public school project and future expansion and buffer of adjacent neighborhoods.” Although the affidavits submitted by the defendant support the claim that it sought the plaintiffs’ property solely for the school project, the language of the referendum question submitted to the voters, when viewed in a light most favorable to the plaintiffs, suggests that only a portion of the property was being taken for school purposes and that other portions were being taken for general purposes or designated as open space. The affidavits, read together with the referendum notice, create a factual question as to whether the taking was intended solely for school purposes or also included general municipal purposes. In the face of this unresolved issue, we conclude that there was a question of material fact and that summary judgment was, therefore, inappropriate.

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

In this opinion the other judges concurred.

       General Statutes § 48-6 (a) provides: “Any municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property, within the corporate limits of such municipal corporation, and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void.” (Emphasis added.)

       General Statutes § 10-241a provides in relevant part: “Any local or regional school district may take, by eminent domain, land which has been fixed upon as a site, or addition to a site, of a public school building, and which is necessary for such purpose or for outbuildings or convenient accommodations for its schools, upon paying to the owner just compensation, provided such taking is with the approval of the legislative body of the town, and in the case of regional school districts, subject to the provisions of section 10-49a, and in each case in accordance with the provisions of sections 8-129 to 8-133, inclusive. The board, committee or public officer empowered to acquire school sites in such school district shall perform all duties and have all rights prescribed for the redevelopment agency in said sections with respect to such taking. . . .”


author: McLACHLAN, J.

text:
    HARRY MELNICK v. ZONING AND PLANNING COMMISSION OF THE TOWN OF SUFFIELD
    (AC 27519)
    McLachlan, Gruendel and Berdon, Js.
    Argued April 25
    officially released August 28, 2007

      Robert A. Fuller, for the appellant (plaintiff).

      Carl T. Landolina, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, Harry Melnick, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant, the zoning and planning commission of the town of Suffield, approving a zone change for the plaintiffs property from a residential zone to a light industrial zone. On appeal, the plaintiff claims that the court improperly concluded (1) that the administrative record supported the defendant’s stated reasons for the zone change, (2) that the defendant did not change the zone for the improper purpose of precluding residential development of his property, (3) that the defendant’s approval of the zone change placing the rear portion of his property in the industrial zone without any road frontage on or access through industrially zoned land was not illegal and (4) that the zone change did not amount to an inverse condemnation of his rezoned property. We agree with the plaintiffs third claim and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. Since 1962, the plaintiff has been the owner of a parcel of land located on the east side of East Street South in Suffield consisting of approximately twenty-nine acres. The vacant land is assessed as one parcel of land and has approximately 200 feet of frontage on East Street South. The town of Suffield owns three parcels of land contiguous to the plaintiffs property. Subsequent to the plaintiffs purchase of his property, the town constructed a sewage treatment plant on one of its parcels. Prior to January, 2005, all four parcels, totaling approximately fifty-four acres, were located in an R-25 residential zone.

In 2004, the defendant completed a comprehensive review of its zoning regulations and enacted substantial amendments to those regulations and the zoning map. The zoning classification of the four parcels as residential did not change at that time. In August, 2004, the plaintiff listed his property for sale with real estate brokers. In September, 2004, an interested purchaser, Landquest, LLC, contacted the town planner, Philip Chester, to discuss possible development of the property as an active adult community. Chester confirmed that such a use was permitted by special permit in a residential zone. In December, 2004, Landquest, LLC, signed a contract with the plaintiff to purchase the property for development as an active adult community. Landquest, LLC, scheduled another meeting with Chester for December 13, 2004. At that meeting, Chester indicated that the defendant was initiating a zone change for the plaintiffs property.

By application dated November 19, 2004, the defendant, acting through Chester, requested the rezoning of the four parcels owned by the plaintiff and the town from R-25, a residential zone, to PDIP, a planned development industrial park zone. A public hearing commenced on December 20, 2004, and was continued to January 24, 2005. At that hearing, Chester spoke in favor of the application and admitted that he decided to recommend the zone change only after interest had been expressed in developing the plaintiffs property residentially as an active adult community. The plaintiff, represented by counsel, opposed the application as it applied to his property and filed a protest petition as the owner of more than 20 percent of the land involved in the proposed change pursuant to General Statutes § 8-3 (b).

The defendant approved the application to rezone all four parcels by a five to one vote on January 24, 2005, and notice of the approval was published in the Journal Inquirer newspaper on January 27, 2005. The plaintiff appealed to the court from the defendant’s decision to rezone his parcel. By motion dated May 12, 2005, the plaintiff requested permission to present evidence on his claims of predetermination or predisposition and inverse condemnation pursuant to General Statutes § 8-8 (k). The defendant did not object, and the court granted the motion. A hearing was held on August 9, 2005. On October 14, 2005, the court issued its memorandum of decision and dismissed the plaintiffs appeal. The court concluded that the record supported the reasons given by the defendant for the zone change, that the defendant did not vote for the zone change on the pretext of precluding development of the plaintiffs property for adult housing, that there was no evidence of predetermination with respect to the approval of the zone change and that the plaintiff failed to establish his financial loss as a result of the zone change.

On October 27, 2005, the plaintiff filed a motion for reargument and reconsideration of the court’s decision. The plaintiff requested, inter alia, that the court address the issue that the zone change eliminated road frontage on a public street for the industrial land, thereby precluding legal access to his rezoned property. In a subsequent memorandum of decision dated January 10,2006, the court noted: “The plaintiffs claim has a semblance of validity. Generally, under zoning law, residentially zoned land cannot be devoted to the accessory use of providing access to industrially zoned land. However, the plaintiff neglects to take into account that he can apply for a variance to obtain access across his residen-tially zoned land to the industrially zoned land. The defendant cites previous instances where the Suffield zoning board of appeals has granted such a variance.” The court then affirmed its judgment dismissing the plaintiffs appeal. Having obtained certification to do so, the plaintiff filed the present appeal.

The defendant was acting in its legislative capacity when it amended its zoning map by changing the zone of the four parcels from residential to industrial. See Cottle v. Planning & Zoning Commission, 100 Conn. App. 291, 293, 917 A.2d 1030 (2007). “Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally.” (Internal quotation marks omitted.) Campion v. Board of Aldermen, 278 Conn. 500, 527, 899 A.2d 542 (2006).

Here, the plaintiff claims that the defendant acted illegally by rezoning a portion of his parcel from residential use to industrial use. Before the zone change, the plaintiffs entire parcel was located in the R-25 residential zone and had 200 feet of frontage on East Street South. The zone change to industrial use affected only a portion of that parcel, the zone line being 300 feet back from East Street South, thereby leaving the portion of the plaintiffs parcel with the road frontage in the residential zone. The plaintiff argues that access to the rear of the property, now zoned industrial, has been precluded because the town’s zoning regulations do not permit access to industrial property through a residential zone. We agree.

The plaintiffs claim requires an interpretation of the town’s zoning regulations, which is a question of law. See Thomas v. Planning & Zoning Commission, 98 Conn. App. 742, 745, 911 A.2d 1129 (2006). When the plaintiff raised the issue of access at the public hearing before the defendant, it requested a legal opinion from its counsel and was advised that there was nothing in the zoning regulations that would prohibit such a use. The court, in reviewing the defendant’s decision, found that the plaintiffs claim had a “semblance of validity” but that the plaintiff could apply for a variance to obtain access to his industrially zoned property through the portion of his property that remained residentially zoned.

Although a commission’s interpretation of its regulations is entitled to some deference, we are not bound by the defendant’s legal interpretation. See Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998). Likewise, our review of the court’s interpretation of the zoning regulations is plenary. Balf Co. v. Planning & Zoning Commission, 79 Conn. App. 626, 635, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003).

After a thorough review of the town’s zoning regulations, we conclude that they do not permit access to industrial property through residentiaily zoned land. Section I (C) of the regulations provides: “Within the Town of Suffield, no land, building, structure or portion thereof shall hereafter be used, and no building, structure or portion thereof shall be constructed, reconstructed, enlarged, located, extended, moved or structurally altered except in conformity with the Zoning Regulations. The Zoning Regulations are intended to state the uses of land and/or buildings and structures that are permitted within the Town of Suffield. USES NOT STATED ARE PROHIBITED:" (Emphasis in original.) Section III (A) provides: “Except as specifically provided herein: (1) No land, building or premises, or part thereof shall hereafter be used and no building or part thereof or other structure shall be constructed, reconstructed, extended, enlarged, moved or altered except in conformity with the regulations herein prescribed for the zone in which it is located. ’’(Emphasis added.) Uses permitted by right and by special permit in residential zones are listed in § IV (D) of the regulations. Nothing permits access to industrial property through a residential zone. Further, uses permitted by right and by special permit in planned development industrial park zones are listed in § IV (J) of the regulations. Again, there is no language permitting access to such a zone through a residential zone. If a use is not permitted, it is prohibited. Because the regulations expressly list the uses permissible in each zone and affirmatively prohibit all uses not specifically permitted, we conclude that access to the rear portion of the plaintiffs industrially zoned property is not permitted over the front portion of the plaintiffs property that remains in a residential zone. See Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 708, 546 A.2d 823 (1988).

The challenged change of zone with respect to the plaintiffs property violates the town’s zoning regulations. The plaintiff does not have access to the rear portion of his property. Because the action of the defendant was illegal, the court improperly dismissed the plaintiffs appeal.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiff’s appeal and vacating the zone change as to the plaintiffs property.

In this opinion the other judges concurred.

Appendix

      A map of the proposed zone change is reproduced in the appendix to this opinion.

       General Statutes § 8-3 (b) provides in relevant part: “If a protest against a proposed [zone] change is filed at or before a hearing with the zoning commission, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change . . . such change shall not be adopted except by a vote of two-thirds of all the members of the commission.”

       General Statutes § 8-8 (k) provides in relevant part: “The court . . . shall allow any party to introduce evidence in addition to the contents of the record if ... it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. . . .”

       Because the resolution of that issue is dispositive of the appeal, we do not reach the plaintiffs remaining claims.

       Other cases support this conclusion. In Gordon v. Zoning Board, 145 Conn. 597, 145 A.2d 746 (1958), our Supreme Court invalidated a zone change in which the board attached the condition that ingress to and egress from the subject commercially zoned property was limited exclusively to a private road passing through a residential area. The court concluded that the board’s action was illegal because the town’s zoning regulations, which prohibited any use that was not specifically permitted, did not permit access to a commercial district through an RA-1 residential area. Id., 604.
      Similarly, in Crabtree Realty Co. v. Planning & Zoning Commission, 82 Conn. App. 559, 845 A.2d 447, cert. denied, 269 Conn. 911, 852 A.2d 739 (2004), this court upheld the denial by the defendant, the planning and zoning commission, of a site plan application to construct an access road between the plaintiffs two properties on the ground, inter alia, that the proposed road crossed a residential zone and was not permitted because it represented a commercial use in a residential zone. Id., 567.