author:
O’Connell, J.
      Dupont, C. J.,

text:
    Federal Deposit Insurance Corporation v. Stephen C. Bombero
    (12074)
    Dupont, C. J., and O’Connell and Lavery, Js.
    Argued September 21, 1994
    decision released April 17, 1995

      Robert C. Pinciaro, with whom, on the brief, was Serge G. Mihaly, for the appellant (defendant).

      Alexander H. Schwartz, with whom was Monte E. Frank, for the appellee (plaintiff).
   O’Connell, J.

The defendant, a judgment lienholder who was mistakenly omitted from foreclosure proceedings brought by the plaintiff’s predecessor, appeals from the trial court’s granting of the plaintiff’s application to discharge cash held in escrow, which had been substituted for the defendant’s judgment lien.

The defendant argues that the trial court should not have granted the plaintiff’s application because (1) there is no cause of action allowing the plaintiff to bring such an application, and (2) even if there was such a cause of action, the trial court improperly found that the defendant’s lien was worthless. We affirm the judgment of the trial court.

The following facts are necessary to a disposition of this appeal. The defendant performed land surveying services for Gary Knauf, for which he was not compensated. The defendant brought suit against Knauf, obtained a $37,985.69 judgment and recorded a judgment lien on Knauf’s property. The judgment lien was recorded subsequent to three previously recorded encumbrances. BankMart held a first mortgage in the principal amount of $500,000 and a second mortgage in the principal amount of $150,000. Saybrook Bank and Trust Company held a third mortgage in the principal amount of $53,000.

BankMart brought a foreclosure but mistakenly failed to name the defendant as a party to the action. Neither the owner of the equity nor any subsequent encumbrancer redeemed, and title became absolute in BankMart on July 27, 1991. BankMart was later declared insolvent, and the plaintiff succeeded to Bank-Mart’s interest in the property.

When the plaintiff learned of the defendant’s omission from the foreclosure proceedings, it brought three actions in rapid succession. The first was instituted pursuant to General Statutes § 49-30, to remedy the omission of the defendant from the foreclosure action.* That action was brought on May 7, 1992, shortly before a sale of the property from the plaintiff to a third party that was scheduled for June 24, 1992. The trial court in the present case found that the § 49-30 action “could not be heard by the court before the scheduled sale.” The § 49-30 action was still pending at the time of oral argument of the present case in this court.

Because of the imminence of the sale date, the plaintiff brought a second action against the defendant. This second action, an application to discharge the judgment lien or to substitute a bond or cash for the lien was commenced on May 20, 1992. In order to clear the title so that the sale could take place, the parties stipulated that $50,000 cash would be substituted for the defendant’s judgment lien in exchange for the defendant’s release of the lien. Following the trial court’s approval of the stipulation, the plaintiff withdrew this second action without a judgment being rendered.

The plaintiff then brought the present action on July 15, 1992, to “discharge or reduce bond given in substitution of judgment lien . . . [because] . . . there . . . [was] not probable cause to sustain the validity of the respondent’s claim or [because] the respondent’s claim . . . [was] excessive.” The plaintiff argued in the trial court that the lien was invalid because, inter alia, it was worthless, and the defendant would not have exercised his right of redemption even if he had been named in the foreclosure action.

The trial court granted the plaintiff’s application to discharge the lien on the ground that, due to the amount of the prior encumbrances on the property, the judgment lien in fact gave the defendant no security interest in the property. The court found that the value of the property was less than the value of the senior liens, and, therefore, even if the defendant had been named in the foreclosure action, he would not have redeemed to protect his judgment lien. Because the court concluded that the judgment lien was worthless as of the date that the defendant could have redeemed the property in the foreclosure action had he been given a law day, it discharged the cash that had been substituted for the lien. The defendant appeals from this decision. We affirm the judgment of the trial court.

I

The defendant argues first that there is no cause of action allowing the trial court to provide the plaintiff with the remedy of a discharge of cash, substituted for a judgment lien, on these facts. The plaintiff responds that its action to discharge the judgment lien on substitution of bond or lien on other property, namely cash, and its subsequent action to release the cash were properly instituted pursuant to General Statutes §§ 52-380e and 49-51, respectively. The plaintiff further claims that the cash should be discharged because there is no “probable cause to sustain the validity of the [defendant’s] claim.”

Section 52-380e provides for substitution of a lien on “other property.” Here, the cash that was deposited with the third party stakeholder constituted the “other property.” Section 49-51 provides for a hearing at which the trial court may determine a lien’s validity. PDS Engineering & Construction, Inc. v. Double RS, 42 Conn. Sup. 460, 470, 627 A.2d 959 (1992). The trial court held the hearing, determined that the lien had no validity, and the defendant appealed.

We conclude that there was a statutory cause of action on which the plaintiff could seek relief.

II

The defendant next contends that the court improperly found that his judgment lien was worthless. We are not persuaded. Section 49-30 provides in part that the “omission . . . to properly foreclose [a] party . . . may be completely cured and cleared by deed or foreclosure or other proper legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title, or his successor in title, and the party . . . thus not foreclosed . . . .” (Emphasis added.)

The purpose of § 49-30 is to provide for a cure in the event that a party is omitted from foreclosure proceedings. This purpose is unambiguously apparent from the statutory language and its delineation of the methods of curing the omission “by deed or foreclosure or other legal proceedings.” General Statutes § 49-30. Under the circumstances, this action constitutes the “other legal proceeding” referred to in the statute.

In deciding that the lien was worthless, the trial court heard the evidence and found that the property was valued at $707,000 at foreclosure and $525,000 at its private sale about one year later. The trial court also considered that, at the time that he would have been called upon to act if he had had a law day, the defendant would have been required to pay $767,181.41 to protect a judgment lien of $37,985.69 and, in exchange, would have received property appraised at $707,000. In other words, the defendant would have paid approximately $60,000 more than the property was worth to protect his lien and would have taken it subject to the prior mortgage to the Saybrook Bank and Trust Company.

On the basis of these findings, the trial court determined that the defendant’s lien was worthless because the property contained no equity to satisfy his lien, and that he would have permitted it to be extinguished during the foreclosure had he been named a defendant in that action. The defendant never testified that he was ready, willing and able to redeem in the foreclosure and, on cross-examination, declined to say that he would have been willing to pay more for property than it was worth. The trial court found that a prudent investor would not have redeemed under these circumstances where the prior encumbrances exceeded the value of the property by approximately $115,000. The defendant did not appeal these factual findings, and, therefore, we are bound by them. See Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 507, 646 A.2d 1289 (1994).

Nothing has transpired since the foreclosure that would have imparted value to the judgment lien. In fact, the opposite is true. This issue originated when the plaintiff posted cash so that a private sale for $525,000 could take place two days later. It was thus obvious that the property, which had been valued at $707,000 at the time of foreclosure, had depreciated by $182,000 when the plaintiff posted the cash.

In this case, we need not decide whether the trial court should have valued the defendant’s lien at the time of foreclosure or at the time of the stipulation. The lien was worthless at either time. If, for example, there were evidence that the property had appreciated in value, an argument might plausibly be made that we should remand for a hearing to determine the value at the time the cash was posted. That is not, however, the factual scenario in the present case. Here, the property declined steeply in value and, on the basis of its selling price, which is indicative of value, was worth only $525,000 when the cash was posted. New England Savings Bank v. Lopez, 227 Conn. 270, 280, 630 A.2d 1010 (1993). Simply put, the defendant’s judgment lien attached to no equity, and, because the deposit was substituted for the lien, it can have no greater value than the lien it replaced.

The defendant argues that the purpose of § 49-30 is to penalize the foreclosing plaintiff for missing him in its original foreclosure action. We are not persuaded. We find no justification for reading a penalty connotation into § 49-30. To the contrary, the statute’s language unambiguously declares that it provides for a cure for the omission of an encumbrancer. “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .” General Statutes § 1-1 (a). In common parlance as well as case law, “cure” means to restore to a prior state of health or soundness. In re Laguna, 114 B.R. 214, 218 (Bankr. 9th Cir. 1990); In re Stokes, 39 B.R. 336, 340 (Bankr. E.D. Va. 1984); In re Estate of Correll, 178 Kan. 618, 627, 290 P.2d 1050 (1955). We conclude that the legislature intended this statute to provide a means of restoring the title to the condition that would have existed had the encumbrancer not been omitted.

One text writer posits that § 49-30 creates an opportunity for an omitted lienholder to reap a substantial windfall. D. Caron, Connecticut Foreclosures (Sup. 1993) § 24.03A. We cannot accept Caron’s reasoning that a windfall, or any other appreciation of a worthless judgment lien, is created by § 49-30. This theory would elevate the defendant’s judgment lien to a priority immediately below the foreclosing bank. We see no reason why senior encumbrancers who have been foreclosed out should suddenly find that a mistake on the part of the foreclosing bank’s attorney has promoted a junior encumbrancer over them. Foreclosure is an equitable remedy and such an elevation of a junior encumbrancer is not equitable.

The plaintiff argues that the trial court properly balanced the equities to meet the needs of justice. We agree. To permit the defendant to assert his judgment against the plaintiff would result in the defendant’s being unjustly enriched at the plaintiff’s expense because the plaintiff was never indebted to the defendant. Moreover, the defendant has not demonstrated that he has been harmed.

The record indicates that the defendant is not a neophyte in matters of this sort. He testified that he had been a land surveyor for forty years and had been a registered land surveyor for the past twenty-six years. Over the many years in which he had been involved in land related matters, he had developed extensive contact with real estate developers and had individually owned eight to ten parcels of real estate as investments.

We will not speculate on the defendant’s motives in stipulating to the posting of cash, nor will we attempt to estimate the nuisance or negotiating value of the defendant’s position. The fact remains that the trial court has determined that the lien had no value, and there was sufficient evidence to support this decision. No further proceedings could change these figures. The practical effect of the trial court’s decision is to declare that the defendant’s judgment lien still has no value.

Foreclosure is an equitable action, permitting the trial court to examine all matters to ensure that “complete justice may be done.” Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). Thus, “[t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).

It is also a basic principle of law that common sense is not to be left at the courtroom door; State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Perez, 10 Conn. App. 279, 291, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987); and judges need not be more naive than other people. Watts v. Indiana, 338 U.S. 49, 52, 69 S. Ct. 1347, 93 L. Ed. 1801 (1949); State v. Chisolm, 29 Conn. Sup. 339, 344, 287 A.2d 389 (1971). The trial court exercised common sense as well as law and equity when it determined that even if he had had a law day, the defendant would not have redeemed and that the deposit substituted for his judgment lien should be discharged. We will not disturb a trial court’s discretion unless it has been “manifestly abused.” Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 541, 506 A.2d 1054, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986). In the present case, the trial court did not abuse its discretion because its decision complies with the law and conforms to an equity court’s duty to do justice.

The judgment is affirmed.

In this opinion Lavery, J., concurred.

Dupont, C. J.,

dissenting. I respectfully dissent.

General Statutes § 49-30 provides that the “omission ... to properly foreclose . . . may be completely cured and cleared by deed or foreclosure or other proper legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title, or his successor in title, and the party . . . thus not foreclosed . . . .” (Emphasis added.) The intent of the statute, to cure and to provide a remedy for the omission of a party from foreclosure proceedings, is apparent from its language. The type of cure is also apparent. The cure can consist of foreclosure, conveyance or other legal proceedings.

The majority agrees that the remedy for the omission in this case is a legal proceeding other than foreclosure or conveyance and implies that money damages would have been appropriate if the defendant’s lien had value. In deciding that the defendant’s lien had no value in this case, the majority concludes that the defendant would not have redeemed the property had he been named in the foreclosure proceeding, nor would he have redeemed if the foreclosure action had taken place at the time he executed the stipulation with the plaintiff.

I disagree with the majority’s conclusion because the majority considers only redemption in determining the value of the defendant’s lien and, having assumed that redemption is the remedy, then considers the amount of the encumbrances senior to the defendant in determining whether the defendant would have redeemed the property. The remedy of redemption is no longer possible in this case, and, even if it were, § 49-30 does not allow other lienholders whose interests were previously foreclosed to participate in the statutory action. In my opinion, the question to be resolved to determine the value of the defendant’s lien is not whether the defendant would have redeemed the property, either at the time of the foreclosure or at the time of the stipulation, but whether the lien had any value as of the date the parties stipulated that cash could be substituted for it in exchange for the defendant’s release of the lien.

Either an omitted party or a party who foreclosed, or their successors, may bring a § 49-30 action to cure a situation created solely by the foreclosing party. The purpose of a § 49-30 action is to extinguish the interest that was not foreclosed. Its language does not put omitted parties in the position they would have been in had they been part of the foreclosure proceedings. Because all of the interests of the mortgagees other than that the first mortgagee were extinguished by the time of this § 49-30 proceeding, no holder of those mortgages can play a part in the statutory action. D. Caron, Connecticut Foreclosures (Sup. 1993) § 24.03A. When title vests upon the failure of other encumbrancers to redeem the property, title is free of all the foreclosed interests. First Bank v. Simpson, 199 Conn. 368, 373-74, 507 A.2d 997 (1986). Essentially, the interest of the omitted lienholder survives foreclosure. See R. Bowmar, “Mortgage Foreclosure in New York: Omitted Lienors,” 22 Real Property, Probate and Trust Journal 509, 516 (1987); see also Loomis v. Knox, 60 Conn. 343, 350, 22 A. 771 (1891). Because the presence in a § 49-30 action of the other parties whose interests were foreclosed by the foreclosure judgment is not required by the statute, the original foreclosure proceeding cannot be reconstructed. Also, a § 49-30 action is brought after a judgment of foreclosure has been rendered, when the fair market value of the property might be very different. The purpose of the statute is to cure the omission and to provide a remedy to the lienholder who was omitted from a proceeding in which he had a right to participate. It does not attempt to reconstruct the past.

The right to redeem in a foreclosure action is not the only right lost by omitted lienholders. Such lienholders have also lost the right to move for foreclosure by sale pursuant to General Statutes § 49-24, if they determine that a sale may provide funds out of which payment of their liens may come. First Bank v. Simpson, supra, 199 Conn. 374. Also, in the event a sale takes place, a junior encumbrancer may be entitled to costs.

One authority has stated that an omitted lienholder acquires, pursuant to § 49-30, “the potential for reaping a substantial windfall,” since the omitted lienholder would need only to pay off the debt of the first mortgage to acquire title to property that may have been valued in excess of the first mortgage. See D. Caron, Connecticut Foreclosures, supra, § 27.03A. For example, in this case, the principal of the first mortgage debt was $500,000 and the property was valued at $707,000 as of the date of the foreclosure action, and was sold nearly one year later for $525,000. Caron’s conclusion assumes that the remedy being provided to the omitted lienholder is redemption. The statute, however, provides three different remedies in most instances, namely deed, foreclosure or other proper legal proceedings. The trial court would probably exercise its discretion to choose a remedy other than foreclosure in the event that redemption would provide the omitted lienholder a substantial windfall.

In this case, the title to the real estate is no longer in the plaintiff and the lien no longer exists. The defendant, after having released his lien, could no longer be given the remedy of redemption, nor could the cure for the omission any longer be redemption. The remedy of “by deed” also no longer existed, and, therefore, the defendant’s remaining recourse for his omission, for which he could also have instituted suit pursuant to § 49-30, is money damages.

Section 49-30 gives the trial court broad equitable jurisdiction to entertain such questions as are necessary to do complete justice. Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). The determination of the amount of damages due the defendant should be based on considerations such as (1) the length of time between the original foreclosure action and the § 49-30 action, (2) whether the omitted lienholder relied on or changed his position in reliance on the existence of the lien, (3) whether the foreclosing party received proceeds from a title insurance policy because of the omission, (4) whether the omitted lienholder expended funds for legal fees, and (5) whether the real estate depreciated or appreciated in value due to improvements or a fluctuation in the market.

I would reverse the judgment and remand the case for a hearing to determine the value of the defendant’s lien as of the time he agreed to release it, taking into account the factors previously discussed.

       General Statutes § 49-30 provides: “When a mortgage or lien on real estate has been foreclosed and one or more parties owning any interest in or holding an encumbrance on such real estate subsequent or subordinate to such mortgage or lien has been omitted or has not been foreclosed of such interest or encumbrance because of improper service of process or for any other reason, all other parties foreclosed by the foreclosure judgment shall be bound thereby as fully as if no such omission or defect had occurred and shall not retain any equity or right to redeem such foreclosed real estate. Such omission or failure to properly foreclose such party or parties may be completely cured and cleared by deed or foreclosure or other proper legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title, or his successor in title, and the party or parties thus not foreclosed, or their respective successors in title.”

       Query as to whether § 49-30 creates a cause of action or whether it merely declares the rights of the parties vis-a-vis the omitted encumbrancers and prescribes who must be party to any action brought to cure the defect of omitting an encumbrancer.

       The $50,000 was deposited with a third party stakeholder.

       The Federal Deposit Insurance Corporation claimed that the lien was both invalid, because it did not conform to technical statutory requirements, and worthless, because of prior encumbrances. The trial court held that the lien was worthless and granted the application to discharge the case bond, without discussing the merits of the invalidity claim.

       Specifically, the trial court held that “[the defendant] would not have redeemed the property to protect his judgment lien for $37,985.69. No reasonable business person would have done so. His lien was worthless .... Here, the worth of the property was less than the senior liens. [The defendant’s] security interest would have been extinguished.”

       The defendant also argues that the trial court had no authority to allow substitution of cash for his lien. Because the defendant stipulated to this substitution, that argument has no merit.

         General Statutes § 52-380e provides: “When a lien is placed on any real or personal property pursuant to section 52-355a or 52-380a, the judgment debtor may apply to the court to discharge the lien on substitution of (1) a bond with surety or (2) a lien on any other property of the judgment debtor which has an equal or greater net equity value than the amount secured by the lien. The court shall order such a discharge on notice to all interested parties and a determination after hearing of the sufficiency of the substitution. The judgment creditor shall release any lien so discharged by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the judgment debtor.” (Emphasis added.)

       General Statutes § 49-51 provides in pertinent part: “discharge of invalid lien, (a) Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor ... to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien . . . . If the lien is not discharged within thirty days of the notice, that person may apply to the superior court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. . . .”

       The plaintiff did not cite these statutes in its application. The confusion and uncertainty concerning the statute under which the plaintiff brought this action could have been avoided if the plaintiff had complied with Practice Book § 109A which provides in pertinent part that “[wjhen any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number.” See Steele v. Stonington, 225 Conn. 217, 227 n.7, 622 A.2d 551 (1993).

       The plaintiff had complied with the written notice requirement of § 49-51.

       The defendant’s $36,705.69 judgment was rendered pursuant to a written stipulation with the defendant in that action that expressly stated that the defendant’s judgment lien would be recorded subject to the two mortgages to BankMart and the mortgage to Saybrook Bank and Trust Company, the total of which he understood to be $703,000. The defendant here personally signed this stipulation.

       See footnotes 4 and 5.

       The stipulation was entered into on June 22,1992, and the closing on the private sale was scheduled for June 24, 1992.

       A factor such as the degree of sophistication of the lienholder would be irrelevant because the statute concerns the omission not the identity of the lienholder. Nor would it matter why the lienholder was omitted. Milici v. Ferrara, 133 Conn. 141, 144, 48 A.2d 562 (1946).


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Diane Dadiskos v. Connecticut Real Estate Commission
    (13312)
    Dupont, C. J., and Foti and Spear, Js.

      Argued January 12
    decision released May 9, 1995

      Kathleen D. Stingle, for the appellant (plaintiff).

      Megan O’Neill, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Robert M. Langer, assistant attorney general, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the trial court judgment dismissing the administrative appeal that she brought pursuant to General Statutes § 4-183. The plaintiff’s administrative appeal was from a decision of the defendant state real estate commission, revoking her real estate broker’s license pursuant to General Statutes (Rev. to 1991) § 20-323. The plaintiff claims that the trial court improperly (1) found that the commission correctly applied the provisions of § 20-323 to the facts, (2) determined that the commission did not improperly rely on an ex parte communication in violation of General Statutes § 4-181,* * and (3) determined that the plaintiff’s substantial rights were not prejudiced even if the commission violated the provisions of § 4-180 (c).

The following facts are relevant. The plaintiff is a licensed Connecticut real estate broker. On June 15, 1992, the plaintiff was convicted, after pleading guilty, in the United States District Court for the judicial district of Connecticut, of three counts of violating 31 U.S.C. §§ 5313 (a) and 5324 (3), which make it a felony to structure financial transactions so as to avoid federal reporting requirements. The crimes took place in 1987, during which time the plaintiff was a licensed real estate sales agent. As part of her plea, the plaintiff admitted that the purpose in structuring two monetary transactions was to avoid the federal reporting requirements for cash transactions in excess of $10,000. On July 23,1992, the commission received a certified copy of the notice of the plaintiff’s conviction from the clerk of the United States District Court. The commission immediately notified the plaintiff, by certified mail, of the forfeiture of her license pursuant to General Statutes § 20-323. The plaintiff thereafter requested a hearing for purposes of reconsideration of that forfeiture. On October 1,1992, the commission held a formal hearing to allow the plaintiff the opportunity to show cause why her license should not remain revoked. At the hearing, the plaintiff personally appeared and presented her resume, four letters of reference and her version of what had transpired leading to her conviction. On November 25,1992, the plaintiff was notified by written decision of the revocation of her broker’s license and notified of her right to appeal the decision pursuant to § 4-183.

As a preliminary matter, we must address the commission’s claim that this appeal should be dismissed for lack of subject matter jurisdiction. The commission claims that § 20-323 does not require a hearing prior to a forfeiture, and the fact that one was given does not create a contested case pursuant to § 4-166 (2), and, therefore, there is no right to appeal. We agree.

The right to appeal from a decision of an administrative agency is created by statute. See Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993). Pursuant to General Statutes § 4-183 (a), a person aggrieved by a final decision may appeal to the Superior Court. A final decision is defined as “the agency determination in a contested case.” General Statutes § 4-166 (3) (A); Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 802, 629 A.2d 367 (1993). A contested case is defined in General Statutes § 4-166 (2) as “a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . (Emphasis added.) No statutory right to appeal exists “unless the commissioner was statutorily required to determine the plaintiff’s legal right or privilege . . . in a hearing. . . .” Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 802. If a hearing is not statutorily mandated, even if one is gratuitously held, a “contested case” is not created. Id., 807-809; see also Fraenza v. Keeney, 43 Conn. Sup. 386, 390, 655 A.2d 1113 (1994), aff'd, 232 Conn. 401, 655 A.2d 1112 (1995).

It is not disputed that the plaintiff’s license was revoked pursuant to § 20-323, and that the provisions of that section are of a summary nature relieving the commissioner of the obligation to conduct a hearing upon notice of conviction of a crime as enumerated in subdivision (8) of § 20-320 or conviction of an offense like those enumerated. The plaintiff argues, however, that this does not eliminate the necessity for a hearing. She argues that once a revocation under § 20-323 occurs, the notice of automatic forfeiture to the licensee gives her the right to request a hearing, which is mandated, pursuant to General Statutes § 4-182 (c). We do not agree that the provisions of § 4-182 (c) create a requirement that the commission hold a hearing. Subsection (c) of § 4-182 requires notice by mail giving the licensee the facts or conduct warranting the action proposed, and gives that licensee “an opportunity to show compliance with all lawful requirements for dhe retention of the license.” This section of our statutes clearly deals with a situation in which a revocation, suspension, annulment or withdrawal of any license is contemplated. The opportunity for a showing of compliance may be by conference or otherwise and does not constitute a hearing. Such cannot be found to create a “contested case.” We agree with the trial court that General Statutes § 20-323 requires an automatic revocation of a real estate license under these facts and that the revocation is summary.

While a § 4-182 (c) compliance conference generally satisfies the requirements of the Uniform Administrative Procedure Act (UAPA), most agencies have statutory mandates that supersede it. General Statutes § 20-321 provides that “[b]efore . . . revoking any license . . . the Real Estate Commission shall give notice and afford opportunity for hearing as provided in the regulations established by the commissioner of consumer protection.” This section does not provide for a hearing when the commission invokes § 20-323. “ ‘In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). Section 20-321 requires a hearing before the revocation of any license, but does not apply to § 20-323 and the automatic nature of the forfeiture contained therein.

Because § 4-166 (2) limits “contested case status to proceedings in which an agency is required by statute to provide an opportunity for a hearing to determine a party’s legal rights or privileges”; (emphasis in original) Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 811; and because § 20-323 does not mandate a hearing, we conclude that no contested case existed. Therefore, there was no final decision from which the plaintiff had a right to appeal pursuant to § 4-183 (a).

The judgment dismissing the plaintiff’s appeal after review of the merits is reversed and the case is remanded with direction to render judgment dismissing the appeal for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       General Statutes § 4-183 provides in relevant part: “(a) 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. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes (Rev. to 1991) § 20-323, as amended by 1991 Public Acts, No. 91-229, § 13, provides: “Any licensee or certification holder convicted of a violation of any of the offenses enumerated in subdivision] (8) of section 20-320 [as amended by No. 91-229, § 11, of the 1991 Public Acts] shall incur a forfeiture of his license or certification and all moneys that may have been paid therefor. The clerk of any court wherein such conviction has been had shall forward to the appropriate commission without charge a certified copy of such conviction. Said commission, upon the receipt of a copy of the judgment of conviction, shall, within ten days thereafter, notify the licensee or certification holder, in writing, of the revocation of his license or certification, as the case may be, which notice shall be conclusive of the revocation thereof. Application for reinstatement of such license or certification shall be subject to the provisions of section 46a-80.”
      Subdivision (8) of General Statutes § 20-320 enumerates “forgery, embezzlement, obtaining money under false pretenses, larceny, extortion, conspiracy to defraud, or other like offense or offenses . . . .”

       General Statutes § 4-181 provides: “(a) Unless required for the disposition of ex parte matters authorized by law, no hearing officer or member of an agency who, in a contested case, is to render a final decision or to make a proposed final decision shall communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or, in connection with any issue of law, with any party or the party’s representative, without notice and opportunity for all parties to participate.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a member of a multimember agency may communicate with other members of the agency regarding a matter pending before the agency, and members of the agency or a hearing officer may receive the aid and advice of members, employees, or agents of the agency if those members, employees, or agents have not received communications prohibited by subsection (a) of this section.
      “(c) Unless required for the disposition of ex parte matters authorized by law, no party or intervenor in a contested case, no other agency, and no person who has a direct or indirect interest in the outcome of the case, shall communicate, directly or indirectly, in connection with any issue in that case, with a hearing officer or any member of the agency, or with any employee or agent of the agency assigned to assist the hearing officer or members of the agency in such case, without notice and opportunity for all parties to participate in the communication.
      “(d) The provisions of this section apply from the date the matter pending before the agency becomes a contested case to and including the effective date of the final decision. Except as may be otherwise provided by regulation, each contested case shall be deemed to have commenced on the date designated by the agency for that case, but in no event later than the date of hearing.”

       General Statutes § 4-180 (c) provides: “A final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency’s findings of fact and conclusions of law necessary to its decision. Findings of fact shall be based exclusively on the evidence in the record and on matters noticed. The agency shall state in the final decision the name of each party and the most recent mailing address, provided to the agency, of the party or his authorized representative. The final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested. The final decision shall be effective when personally delivered or mailed or on a later date specified by the agency.”

       See footnote 1.

       The commission notified the plaintiff that in “accordance with Section 4-183 of the Connecticut Statutes, you may appeal this decision.” Subject matter jurisdiction may not be conferred on this court. Colby v. Colby, 33 Conn. App. 417, 420, 635 A.2d 1241 (1994). This court does have jurisdiction, however, to review decisions of the Superior Court and administrative bodies to determine whether they had jurisdiction. O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 431, 655 A.2d 1121 (1995). In this case, we must first decide if the real estate commission had jurisdiction to revoke summarily the plaintiff’s license under General Statutes § 20-323. The plaintiff claims that § 20-323 does not apply because (1) she was convicted in a federal, not a state, court and (2) the federal crimes that she committed were not offenses “like” those enumerated in § 20-320. We conclude that the commission had jurisdiction in this case because § 20-323 refers to the “offenses enumerated in subdivision] (8)” of § 20-320 and not to the court in which the licensee was convicted, and that 31 U.S.C. §§ 5313 (a) and 5324 (3) were offenses like those enumerated in § 20-320 because fraud or dishonesty in money matters is common to the enumerated crimes and the plaintiff’s crimes.


author: Lavery, J.

text:
    John C. Jones v. Slawomir S. Parzych
    (13409)
    Laveky, Hennessy and Freedman, Js.
    Argued January 12
    decision released May 9, 1995

      Dennis F. McCarthy, for the appellant (defendant).

      Christopher G. Santarsiero, with whom, on the brief, was Leonard M. Crone, for the appellee (plaintiff).
   Lavery, J.

The defendant appeals from the denial by the trial court of his motion to open a judgment to receive evidence regarding collateral sources. The defendant claims that the trial court improperly denied the motion because General Statutes § 52-225a (b) requires the trial court to receive evidence of collateral sources before it enters judgment. We agree and reverse the judgment of the trial court.

The pertinent facts are as follows. The plaintiff filed suit against the defendant seeking damages for injuries arising out of an altercation in the Arm’s Cafe in the Oakville section of Watertown. The complaint alleged assault, intentional infliction of emotional distress based on the assault, and negligence. The defendant filed an answer and special defense.

The jury returned a verdict for the plaintiff on the negligence claim finding economic damages of $3271.89 and noneconomic damages of $2000. The jury found that the percentage of negligence attributable to the defendant was 100 percent. According to the docket summary, the jury verdict was accepted and judgment entered thereon on August 27, 1993. A review of the file and transcript discloses that no motion to set aside the verdict was filed, nor did the defendant request that a hearing be scheduled on collateral sources.

On September 15, 1993, the defendant filed a “Motion to Re-Open Judgment to Receive Evidence Regarding Collateral Sources pursuant to General Statutes § 52-225a.” The plaintiff objected to the motion to open arguing that no evidence of the amount, if any, of collateral source benefits was introduced at trial and the defendant did not make a timely motion to set aside the judgment. On October 13, 1993, the plaintiff filed a motion for additur predicated on the granting of the defendant’s motion to open the judgment and seeking that the verdict be raised to $15,271.89. The defendant filed an objection to the motion for additur. The motion for additur was denied on February 10, 1994.

On February 15, 1994, the trial court filed a memorandum of decision, dated February 14,1994. The trial court noted that the defendant sought to open the judgment for the purpose of receiving evidence of collateral sources pursuant to General Statutes § 52-225a. The court stated that General Statutes § 52-225a (b) provides: “Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.” The trial court held that since the defendant did not seek to introduce evidence of collateral sources prior to judgment, he is now barred from introducing such evidence. The trial court denied the motion to open from which denial this appeal was taken.

In Smith v. Otis Elevator Co., 33 Conn. App. 99, 102-103, 633 A.2d 731 (1993), we said: “General Statutes § 52-225a was enacted as part of a tort reform act. Subsection (a) of § 52-225a provides in relevant part that ‘[i]n any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages ... by an amount equal to the total of amounts determined to have been paid under subsection (b) . . . .’ Subsection (b) provides in pertinent part that ‘[u]pon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence . . . concerning the total amount of collateral sources . . . .’ ” (Emphasis in original.)

“In construing a statutory provision, we first look to its language, and if that language is plain and unambiguous, ‘we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature.’ ” Samperi v. Inlands Wetlands Agency, 226 Conn. 579, 590, 628 A.2d 1286 (1993); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). General Statutes § 52-225a clearly indicated that the trial court must receive evidence concerning collateral source payments before entering judgment. The judgment should not have been entered until the collateral source payment issue had been decided.

In light of Smith v. Otis Elevator Co., supra, 33 Conn. App. 99, the trial court in the present case should not have entered judgment on August 27, 1993, the date the verdict was received. Rather, as the trial court did in the Smith case, the trial court in the present case should have ordered an evidentiary hearing on collateral source payments made to the plaintiff. Id., 101. Not having ordered such a hearing, the trial court in the present case should have opened the judgment it entered on August 27,1993. This would have addressed the clear and unequivocal language of General Statutes § 52-225a, which requires the trial court to receive collateral source evidence after the verdict but before entering final judgment.

The denial of the motion to open the judgment is reversed and the case is remanded with direction to open the judgment and to hold a hearing as required by statute on collateral source payments before entering final judgment.

In this opinion the other judges concurred.

       General Statutes § 52-225a (b) provides: “Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.”


author: Dupont, C. J.

text:
    National Associated Properties v. Planning and Zoning Commission of the Town of North Branford
    (13367)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued February 7
    decision released May 9, 1995

      JohnM. Gesmonde, town attorney, for the appellant (defendant).

      Roy H. Scha/rf for the appellee (plaintiff).
   Dupont, C. J.

This appeal arises from the defendant’s denial of the plaintiff’s affordable housing application. The plaintiff appealed that denial to the trial court, which sustained the appeal and ordered the defendant to grant the plaintiff’s application. We affirm the judgment of the trial court.

Certain facts are relevant to this appeal. The plaintiff partnership, National Associated Properties, filed an application with the defendant partnership North Branford planning and zoning commission to create a new zoning designation in North Branford entitled “affordable housing district” and, further, to change the town’s zoning map by applying the newly created zoning designation to 12.4 acres of land owned by the plaintiff.

The property owned by the plaintiff is zoned, in part, B-2 (central business) and, in part, RG-A (residence garden apartment). The site contains fifty-four rental units and is served by public water and sewer. The proposed changes would allow the plaintiff to add forty new units to the property, for a total of ninety-four units, 20 percent of which would be rented at or below affordable levels.

The defendant held a public hearing on the application and denied the plaintiff’s application. The defendant sent the plaintiff a letter stating that “[a]t its Regular Meeting of November 5,1992, the North Bran-ford Planning and Zoning Commission voted to deny [the plaintiff’s application] . . . for reasons stated in the adopted resolution dated November 5, 1992 enclosed herewith.”

The resolution, attached to the letter, listed ten findings and concerns of the defendant, including the following: “2. The proposed amendment, which is formulated for a specific site, contains language which is inconsistent with the intended goals of the affordable housing strategy for the Town of North Branford. Specifically, the proposed text amendment would permit the following: (A) Ability to construct an additional 40 dwelling units for a combined total of 95 dwelling units on the site. (B) A minimum of ten (10) percent of the total site acreage to be preserved as open space (as opposed to thirty (30) percent under existing affordable regulations). (C) A minimum of twenty (20) percent of the dwelling units to be restricted as affordable dwelling units (as opposed to twenty-five (25) percent under existing affordable regulations.) (D) A minimum length of twenty years as the set aside period for the affordable dwelling units (as opposed to perpetuity under existing affordable regulations).

“The introduction of new regulations and the elimination of the noted preferred language has a detrimental impact on the intended objectives of affordable housing regulations. Accordingly, the Commission is concerned with a proposed regulation that does not adequately protect the public health, safety, and welfare.”

The resolution also stated: “After thorough review and discussion of each of the findings and concerns noted above [the commission denies the application].”

The plaintiff then appealed pursuant to General Statutes § 8-30g, the affordable housing land use appeals procedure statute. After hearings and the submission of briefs, the trial court informed the parties of its intention personally to view the land at issue. Neither counsel objected to the trial court’s intentions and both counsel were present at the time of the viewing.

The trial court then rendered judgment reversing the decision of the defendant. The court found that the reasons the defendant asserted for denying the plaintiffs application were not supported by sufficient evidence in the record. Further, the court found that the defendant had failed to sustain its burden of proof as to any of the considerations that would support a denial of the plaintiff’s application under § 8-30g.

The defendant then petitioned this court for certification, which we granted. The defendant argues on appeal that (1) the plaintiffs application does not qualify as an affordable housing application because it contains no provision concerning the sale of the affordable housing units, (2) the trial court should have denied the application because the plaintiff did not have approval from the water pollution control authority for the proposed development, and (3) the trial court improperly viewed the property.

I

The defendant first argues that the plaintiffs application is not an “affordable housing application” as defined by General Statutes § 8-30g because the application does not indicate that the plaintiff intended to restrict, by deed, the sale of the housing units.

Section 8-30g (a) (2) defines an affordable housing application as “any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing . . . .” An affordable housing development is defined by § 8-30g (a) (1) as “a proposed housing development (A) which is assisted housing or (B) in which not less than twenty per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that such dwelling units be sold or rented at, or below, prices which will preserve the units as affordable housing, as defined in section 8-39a, for persons and families whose income is less than or equal to eighty per cent of the area median income, for at least twenty years after the initial occupation of the proposed development. . . .”

The defendant argues that the plaintiffs application should not be considered an affordable housing application, under the definition provided in § 8-30g, because the narrow language the plaintiff used to describe the restrictions to be placed in the deed did not include a restriction for the sale of the units.

The following language was included by the plaintiff in its proposed zoning amendment. “Promptly upon adoption of [the article] by The Planning & Zoning Commission there shall be recorded in the North Branford land records a document entitled ‘Affordable Housing Development Restrictions/ executed by the owner of the AHD, dated, witnessed and acknowledged in the manner required for deeds, containing a real estate description of the AHD substantially in accordance with Schedule A attached hereto, and containing substantially the following language:

“ ‘Not less than twenty percent of the dwelling units in the Affordable Housing District herein described shall be rented at, or below, rents which will preserve units as affordable housing, as hereinafter defined, for persons and families whose income is less than or equal to eighty percent of the area median income for North Branford, as determined by the United States Department of Housing and Urban Development, for twenty years after adoption by the North Branford Planning & Zoning Commission of Article 36 of the Zoning Regulations, or as to any building within said zone the building permit for which is issued after such adoption of Article 36, twenty years from the initial occupation thereof.

“ ‘The owner of the land and buildings within the affordable housing district may, during such twenty year period, change the designation of which units within the affordable housing district shall be maintained as affordable, provided that the minimum twenty percent set aside shall be maintained and the affordable housing district as a whole shall continue to comply with the provisions of these restrictions.

“ ‘Affordable housing means housing for which persons and families pay thirty percent or less of their annual income where such income is less than or equal to the area median income for North Branford as determined by the United States Department of Housing and Urban Development.

“ ‘These restrictions may be enforced by the Housing Authority of the Town of North Branford.’ ”

The defendant argues that there is nothing in these restrictions, or anywhere else in the proposed zoning regulation, that would preclude the plaintiff from converting the units into individual condominium units, which could be sold without restriction as to affordability. The defendant argues that in order to prevent the plaintiff from garnering a windfall through the sale of the units, we should interpret that part of § 8-30g (a) (1) (B) reading “sold or rented” as automatically requiring provisions in the deed for both the sale and rental of units. We need not decide this issue, however, because the language of the proposed deed, here, already restricts both the rental and the sale of the housing units.

“[I]n determining the effects of a deed or a written contract where the language is fairly susceptible of but one interpretation, the inquiry is not what the parties impliedly intended but what is the intent which is expressed, and that intent must be given effect. . . . The intention of the parties, gathered from their words, is gathered not by reading a single clause of the covenant but ... by reading its entire context. ... It is only where more than one interpretation is permissible that it is necessary for this court to seek the intent of the doubtful language in the light of surrounding circumstances presumably considered by the parties.” (Citations omitted.) Moore v. Serafín, 163 Conn. 1, 10-11, 301 A.2d 238 (1972).

The unambiguous language of the proposed deed here states: “Not less than twenty percent of the dwelling units in the Affordable Housing District herein described shall be rented at, or below, rents which will preserve units as affordable housing . . . for . . . twenty years . . . .” This explicitly requires that 20 percent of the entire complex be available for rent at affordable rates. The subsequent language in the deed refers to, “[t]he owner of the land,” rather than the “owners of the land,” and the words “as a whole” modify the words “the affordable housing district.” We conclude, therefore, that the deed restriction should be interpreted to mean that there must be one owner for the entire complex. Thus, according to the plain and unambiguous language of the deed, the affordable housing district should always be sold as a block to one owner who must maintain 20 percent of the units as rental units at affordable rates for twenty years.

Any other interpretation but the plain and unambiguous one would be unworkable. The deed restriction was proposed by the applicant and does not attach to any particular 20 percent of the units and because the 20 percent is variable and capable of being applied to any 20 percent of the units, the applicant cannot divest himself of title to anything less than the whole. This must be so because if there is more than one owner, it would be unknown which of the owners would be responsible for maintaining 20 percent of the units as affordable housing rentals. This deed, therefore, already contains restrictions for the rental and sale of the dwelling units and the defendant’s concern is unfounded.

II

The defendant next claims that the trial court should have upheld the decision of the defendant because the plaintiff had failed to obtain approval from the water pollution control authority prior to submitting its application to the defendant. The trial court, in its memorandum of decision, commented that it would not review this issue because this reason was not included in the official statement of reasons why the defendant denied the plaintiffs application. The defendant claims that there was no formal, official, collective statement of reasons for the commission’s actions, and, therefore, it was improper for the trial court not to have reviewed the entire record, including the issue of sewer approval. The plaintiff counters that the resolution, attached by the defendant to the letter of rejection, contained the official statement of reasons why the defendant denied the application and that the court need not search the record for additional reasons that would support the denial.

It is well established that “where a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision. . . . Where, however, the zoning commission fails to present a formal collective statement of reasons the court must search the entire record to find a basis for the corn-mission’s decision . . . .” (Citations omitted; internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513-14, 636 A.2d 1342 (1994).

The defendant sent a letter to the plaintiff that stated that the defendant denied the application “for reasons stated in the adopted resolution dated November 5, 1995.” The resolution attached to the letter, provided ten reasons why the defendant denied the application, and stated that “[a]fter thorough review and discussion of each of the findings and concerns noted above [the commission denies the application].”

The defendant claims that the resolution was not a formal, official, collective statement of reasons for the defendant’s denial of the plaintiff’s application because the defendant did not adopt the resolution in its final motion. Rather, for the final motion, committee member Joseph Faughnan stated, “I move to deny [planning and zoning] Application 92-2, petition of National Associated Properties to amend the North Branford Zoning Regulations, by adding to Article III, Special Districts, a new district entitled Section 36, Affordable Housing District.”

Prior to the vote on the final motion, however, the “draft resolution,” as it was called at that time, was read into the record as the defendant’s findings and concerns about the plaintiff’s application. Chairman Dennis Hrabchak stated: “This is the findings, concerns. Do you have any other findings, concerns that we want to discuss.” The committee members discussed other topics but did not amend the resolution, although they could have moved to do so prior to the vote. The defendant then sent the plaintiff the letter and resolution.

A letter of this type can constitute the kind of official, collective statement necessary for a trial court to review the reasons for a commission’s action. See generally Caserta v. Zoning Board of Appeals, 226 Conn. 80, 86, 626 A.2d 744 (1993). Here, the representations in the letter and resolution clearly indicate that the defendant intended the resolution to be a collective list of why it denied the plaintiff’s application. Therefore, it was proper for the trial court to limit its review to those reasons listed in the resolution.

The defendant next argues that even if the resolution is considered to be the formal, official, collective statement of the commission, the trial court should have reviewed the issue of sewer approval because the defendant expressed concern in the resolution that the plaintiff’s application, as written, did not adequately protect the public health, safety and welfare.

Although the defendant did express concerns about public health, safety and welfare, we interpret that language in the context in which it was used. Immediately before the public health and safety language, the resolution mentions an increase in density and a conflict with the town’s previously established affordable housing regulation. The resolution then indicates that these factors could have a detrimental effect on the public health, safety and welfare.

These factors were addressed at length in the trial court’s memorandum of decision. The court was not required to go behind the reasons listed by the defendant to examine every potential health and safety issue raised by the proposed amendment. See DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970). Rather, the trial court appropriately discussed the actual issues raised in the resolution, the increased density and the difference between the existing affordable housing regulation and the proposed affordable housing regulation. The defendant makes no claim on appeal relating to the trial court’s findings concerning these issues.

Finally, the defendant claims that approval from the water pollution control authority is critical to zone change approval regardless of the standard of review used by the trial court, and, therefore, as a matter of law, an applicant must have approval from the water pollution control authority prior to seeking zone change approval. We disagree.

“The language of § 8-30g . . . assumes that many different types of applications will be brought to many different types of agencies, as it broadly applies to ‘any application made to a commission in connection with an affordable housing development’ (emphasis added); General Statutes § 8-30g (a) (2); and as it defines ‘commission’ as any ‘zoning commission, planning commission, planning and zoning commission, zoning board of appeals or municipal agency exercising zoning or planing authority.’ General Statutes § 8-30g (a) (4).” Kaufman v. Zoning Commission, 232 Conn. 122, 137, 653 A.2d 798 (1995). Section 8-30g does not list any order in which these applications must be brought and we will not read into the statute a requirement that a zone change application cannot be approved without prior approval from the water pollution control authority.

Ill

Finally, the defendant argues that the trial court’s examination of the property constituted an impermissible taking of additional evidence. The defendant failed to preserve this issue because it did not object to the trial court’s statement that it intended to view the premises. See State v. Beliveau, 36 Conn. App. 228, 241, 650 A.2d 591 (1994), cert. granted on other grounds, 232 Conn. 910, 654 A.2d 354 (1995); State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). “The purpose of requiring trial counsel to object properly is not merely formal: it serves to alert the trial court to purported error while there is time to correct it . . . .” (Internal quotation marks omitted.) State v. Beliveau, supra, 241. We will not afford review of this unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although current zoning regulations permit only forty-four dwelling units on the site, the defendant was granted a variance, at an earlier time, to build fifty-four dwelling units.

       The other nine findings and concerns listed by the defendant are as follows:
      “1. The North Branford Planning and Zoning Commission at their December 5, 1991 meeting adopted the Town’s first affordable housing regulation. This regulation was carefully formulated to meet the goals and objectives of the affordable housing strategy for the Town of North Bran-ford. Furthermore, the Commission approved a 42 Lot affordable housing development at their May 7,1992 meeting which acknowledges the Commissions commitment and leadership role.
      * ** *
      “3. Because the applicant chose not to use the preferred language and petitioned to establish new regulations inconsistent, with the Town’s strategy, [it] is the position of the Commission that the general public health interests cannot be protected by attempting to make reasonable modifications to the subject petition.
      “4. The proposed text amendment, while intending to enable the Town to meet it’s affordable housing obligation, conflicts with the Town’s housing strategy which encourages the development of small scale projects scattered throughout the community.
      “5. The proposed text amendment is inconsistent with the goals and objectives of the Plan of Development which encourages affordable housing opportunities which are compatible and harmonious with the use and enjoyment of nearby residential properties. Area residents at the public hearing expressed concern and opposition with traffic congestion associated with a development of this size.
      “6. The maximum potential number of dwelling units permitted under the proposed regulation can place a negative impact on schools and other public services. The Superintendent of Schools in his letter to the Commission dated July 1, 1992 expressed concern with affordable housing developments which exceed current permitted size limits and fall within the same geographical areas of Town.
      “7. It was noted by an area resident and documented by the Commission that the existing apartment complex currently contains 55 dwelling units which exceed the density permitted as of right for this particular piece of property. Because a variance was already granted to allow a higher density, the introduction of new regulations allowing a substantially higher density would only exasperate traffic and visual impacts to the neighborhood.
      “8. The Commission noted for the record that a site Development Plan approval for a commercial shopping center was granted for the front portion of the property on July 27, 1989.
      “9. The South Central Regional Council of Governments in their letter dated October 9,1992 reported that the proposed amendment is inconsistent with the standards developed by the Commission.
      “10. The petition conflicts with the proposed goals and objectives of the North Branford Center, Town Design District overlay in that no architectural standards and other site controls are provided in the proposed text which ensures new construction is compatible with historic and architecturally unique buildings in the center.

       General Statutes § 8-30g provides in pertinent part: “affordable housing land use appeals PROCEDURE, (a) As used in this section: (1) ‘Affordable housing development’ means a proposed housing development (A) which is assisted housing or (B) in which not less than twenty per cent of the dwelling units will be conveyed by deeds containing covenants or restrictions which shall require that such dwelling units be sold or rented at, or below, prices which will preserve the units as affordable housing, as defined in section 8-39a, for persons and families whose income is less than or equal to eighty per cent of the area median income, for at least twenty years after the initial occupation of the proposed development; (2) ‘affordable housing application’ means any application made to a commission in connection with an affordable housing development by a person who proposes to develop such affordable housing ....
      “(b) Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units, specified in subparagraph (B) of subdivision (1) of subsection (a) of this section, contained in the affordable housing development, may appeal such decision pursuant to the procedures of this section. . . .
      “(c) Upon an appeal taken under subsection (b) of this section, the burden shall be on the commission to prove, based upon the evidence in the record compiled before such commission that (1) the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record; (2) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (3) such public interests clearly outweigh the need for affordable housing; and (4) such public interests cannot be protected by reasonable changes to the affordable housing development. If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.”

       We assume that this means affordable housing development.

       Although the deed restriction does not have to duplicate exactly the language of the proposed deed description, it must be substantially the same, and, therefore, there can be no allowable deviation from the restriction allowing the applicant to designate which of the ninety-five units shall be reserved as affordable housing units.

       The defendant also raised the question in his brief of whether an exact copy of the deed or document to be placed on the land records must be submitted to the commission with the affordable housing application. The defendant, however, did not analyze this issue. “Both this court and our Supreme Court have declined to review . . . claims, deeming them to have been abandoned, when the defendant has not briefed and analyzed the claim.” (Citations omitted.) State v. Harrison, 30 Conn. App. 108, 122-23, 618 A.2d 1381 (1993), aff'd, 228 Conn. 758, 638 A.2d 601 (1994). We choose not to review this claim.