author: PETERS, J.

text:
    MICHAEL GIAMETTI ET AL. v. INSPECTIONS, INC., ET AL.
    (AC 23059)
    Lavery, C. J., SchaUer and Peters, Js.

      Argued February 11
    officially released April 22, 2003

      Alphonse Bolzano, Jr., for the appellant (defendant Laura L. Zacks).

      CarlE. Secóla, Jr., for the appellee (named plaintiff).
   Opinion

PETERS, J.

Under General Statutes § 20-327b, vendors and purchasers of residential property must execute a residential property condition disclosure report (§ 20-327b report) documenting the vendor’s actual knowledge of the condition of the property. This case concerns the relationship between this statute and the common-law tort of negligent misrepresentation. Specifically, it concerns the actionability of such a common-law claim in light of an independent professional inspection obtained by the purchaser of the property. The trial court concluded that a vendor is liable for damages for negligent misrepresentation although that vendor urged the purchaser to hire a professional inspector and such an inspection uncovered no infestation. We reverse the judgment of the court in favor of the purchaser and direct the entry of judgment for the vendor.

On April 27, 2000, the plaintiffs, Michael Giametti and Elizabeth Giametti, filed their initial complaint against the defendant Laura L. Zacks for having misrepresented the condition of residential property that she had conveyed to them. The alleged misrepresentation concerned a carpenter ant infestation in this house. In a subsequent amended complaint, the plaintiff Michael Giametti specified that the defendant was hable for fraudulent misrepresentation (count five), fraudulent nondisclosure (count six) and negligent misrepresentation (count seven). The plaintiff sought damages for the costs of removing the infestation and repairing associated property damages, as well as punitive damages for knowing and intentional misrepresentation.

In response, the defendant denied the plaintiff’s allegations and asserted two special defenses. The first special defense alleged that the defendant’s representations did not constitute a warranty because of compliance with the requirements of the § 20-327b report. The second special defense alleged that the defendant was not liable because the plaintiff had signed the § 20-327b report and, in accordance with the statutory recommendation, had obtained a clean professional inspection report of the house.

On April 24, 2002, the trial court rendered judgment. The court first found, for the defendant, that she had no actual knowledge of the infestation at the time she signed the § 20-327b report and that she had not fraudulently misrepresented the condition of her property. It further found, for the plaintiff, that the defendant, in the § 20-327b report, had negligently misrepresented that the property was not infested with ants. The court awarded the plaintiff $4600 for the cost of repairs and treatment of the house. The defendant appeals from the judgment in favor of the plaintiff.

The record discloses the following facts. In 1998, the plaintiff and the defendant negotiated the sale of a house located at 8 Wood Terrace in East Haven. The defendant had lived there for approximately a decade prior to the conveyance to the plaintiff. On March 2, 1998, the parties executed a § 20-327b report wherein the defendant indicated that, to the best of her knowledge, the house was not subject to any kind of infestation. On March 12, 1998, the parties executed the contract of sale and transferred title to the plaintiff at a closing in May. At the defendant’s urging, the plaintiff hired a professional inspector, Inspections, Inc., to inspect the dwelling as required by the contract of sale. The inspector did not discover any infestation.

Shortly after taking possession, the plaintiff discovered ants throughout the dwelling. He hired Keith Bode, an exterminator, to treat the house for a possible infestation. As a result, the plaintiff discovered that their kitchen floor was damaged by carpenter ant nests and water damage. The plaintiff had the kitchen floor replaced for $4400. The house was then treated with pesticides for $200.

In the trial court’s memorandum of decision, it found that the defendant had negligently misrepresented the condition of her property in her § 20-327b report. It based this finding on the credibility of the testimony given by Bode. Contrary to the assertion in the plaintiffs brief, the court did not find that the defendant had misrepresented the condition of the house prior to her execution of the § 20-327b report. It made no mention of the inspection conducted by the plaintiffs inspector. It made no explicit finding with respect to the plaintiffs reliance on the defendant’s negligent misrepresentation.

On appeal, the defendant challenges both the factual findings and the legal conclusions of the court. Although the defendant does not articulate the basis for her appeal as clearly as she might have, we construe her claimed errors as follows: (1) the court made improper factual findings of negligent misrepresentation, and (2) the plaintiff could not prevail, as a matter of law, without establishing his reliance on her misrepresentations. The plaintiff urges affirmance of the trial court’s judgment in his favor.

Our standard of review of challenges to the court’s findings of fact and legal conclusions is well established. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

I

The trial court found that the defendant did not intentionally make any misleading statements or withhold information regarding the condition of the house when she executed the § 20-327b report. In making this determination, the court explained why the defendant was not liable under the common-law theories of fraudulent misrepresentation and nondisclosure, but did not address § 20-327b itself. Nonetheless, it found that the defendant had made a negligent misrepresentation in the § 20-327b report when she indicated therein that the dwelling was “free of termites, insects, rodents and infestation problems.”

We, therefore, must first address what cause of action the plaintiff had under § 20-327b. We hold that the plaintiff could have sought relief under this statute only for a knowing misrepresentation in the statutoiy report.

The interpretation of a statute is a question of law. State v. Russo, 259 Conn. 436, 447, 790 A.2d 1132 (2002), cert. denied, 537 U.S. 879, 123 S. Ct. 79, 154 L. Ed. 2d 134 (2002). Our Supreme Court recently clarified the process of statutory interpretation in Stale v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003) (enbanc). “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutoiy language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule.

“In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing so, we attempt to determine its range of plausible meanings and, if possible, narrow that range to those that appear most plausible. We do not, however, end with the language. We recognize, further, that the purpose or purposes of the legislation, and the context of the language, broadly understood, are directly relevant to the meaning of the language of the statute.

“This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.” (Citations omitted; internal quotation marks omitted.) Id., 577-78.

Our legislature enacted § 20-327b, otherwise known as the Uniform Property Condition Disclosure Act, to reduce the risk of miscommunication regarding residential property between a vendor and a prospective purchaser. The statute requires a vendor of such property to provide “a written residential condition report to the prospective purchaser at any time prior to the prospective purchaser’s execution of any binder [or] contract to purchase . . . .” General Statutes § 20-327b (a). Such a report must include a provision informing the purchaser that any representation made by the vendor in the § 20-327b report is limited to the vendor’s actual knowledge. General Statutes § 20-327b (d) (2) (A). The statute requires every report to include a provision that encourages the potential purchaser to have the property inspected by a professional inspector. General Statutes § 20-327b (d) (2) (B). Furthermore, the § 20-327b report must inform the purchaser that any representation made by the vendor does not constitute a warranty by the vendor. General Statutes § 20-327b (d) (2) (D).

At the same time that the legislature enacted this statute, it also enacted §§ 20-327d and 20-327e. These statutes underscore the legislature’s intent with respect to statements in a § 20-327b report. Section 20-327d provides that § 20-327b does not create any new express or implied warranties by the vendor. It states that a vendor is not required to obtain a preconveyance inspection or a test with respect to the physical condition of the property. Moreover, § 20-327e reiterates that the representations made by the vendor are limited to information about which the vendor has actual knowledge.

The legislative history of § 20-327b reinforces the conclusion that the information to be disclosed is limited to representations of fact about which the vendor has actual knowledge. Representative Mary V. Eberle stated that “[t]his bill will help to resolve many problems of miscommunications which frequently complicate and sometimes prevent residential closings from going forward by making it clear what a seller has disclosed to the buyer about the property.” 38 H.R. Proc., Pt. 19, 1995 Sess., p. 6966. Representative Michael C. Fedele also explained that “this bill will resolve some of the communication issues that occur between a seller and a buyer and hopefully, loss of litigation occurs there . . . .” Id., p. 6969. Additionally, Senator Louis C. DeLuca stated that a § 20-327b report “would be related to the seller’s actual knowledge of the property only.” 38 S. Proc., Pt. 16, 1995 Sess., p. 5893.

In sum, the function of a § 20-327b report is to diminish the risk of litigation by facilitating meaningful communications between a vendor and a prospective purchaser. It does not, however, require a vendor to assume the role of warrantor of conditions of which the vendor was in fact unaware.

The trial court properly concluded, therefore, that the defendant in this case had no statutory liability under § 20-327b. This result follows from the court’s finding that she had no actual knowledge of any ant infestation.

II

The trial court also determined, however, that the defendant was hable for having made a negligent misrepresentation on the § 20-327b report. We turn now to the propriety of the court’s conclusion that the defendant should have discovered and disclosed that her house was infested with ants before she signed the § 20-327b report.

Our inquiry requires us to answer three questions. First, does § 20-327b govern claims of negligent misrepresentation? Second, does the statute preclude such actions? Third, is the court’s conclusion consistent with the common law of negligent misrepresentation and supported by the record? In our view, the answer to all three questions is “no.”

A

We briefly address the question of whether § 20-327b governs negligent misrepresentation actions. The statute, on its face, does not govern such actions. Additionally, the legislative history demonstrates the legislature’s intent not to use the statute as a basis for recovery against vendors who negligently misrepresent the condition of a residential property. Representative Eberle explained that the statute “makes clear that the [§ 20-327b] report represents only the seller’s actual knowledge of the property and does not form the basis for any claim of constructive knowledge on the seller’s part.” 38 H.R. Proc., supra, p. 6963. The plaintiffs have not cited authority to the contrary. Accordingly, we hold that § 20-327b does not govern negligent misrepresentation actions.

B

We turn next to the question of whether § 20-327b precludes common-law actions for negligent misrepresentation. The text of the statute and the statute’s legislative history require the conclusion that the legislature did not intend to preclude preexisting common-law actions for negligent misrepresentation.

The statutory scheme contains no language to suggest that § 20-327b was intended to provide the exclusive remedy that a disappointed purchaser of residential property might have. There is every reason to believe that this omission was deliberate.

The legislative history clearly demonstrates that the legislature did not intend the enactment of § 20-327b to eliminate existing obligations of a vendor under Connecticut law. Senator DeLuca explained that “in no shape or manner does [the bill] relieve [vendors] of any of their current responsibilities. They still must provide any information that they are aware of to the prospective buyer. And if they are found not to, they can lose their license or be sued.” 38 S. Proc., Pt. 9, 1995 Sess., p. 3134. He further explained that the statute “basically . . . obligates the seller to provide written information when selling ... a property to a prospective buyer .... And it would not in any way make Realtors relinquish their responsibility. They would still be responsible.” 38 S. Proc., Pt. 16, 1995 Sess., p. 5892. Similarly, Representative Eberle stated that the statute “makes clear that the report does not release brokers of any disclosure obligations they currently have under existing law.” 38 H.R. Proc., supra, p. 6966.

We are persuaded, therefore, that § 20-327b does not preclude existing common-law actions for misrepresentations made by a vendor regarding the condition of residential property. Accordingly, the court was not authorized by § 20-327b to render judgment for the plaintiff for negligent misrepresentation.

C

We finally turn to the critical question in this case. Is the court’s conclusion that the defendant was hable to the plaintiff for negligently misrepresenting the condition of the house legally correct and supported by the record? We conclude that the court’s judgment is not supported by the record.

To assess the propriety of the court’s judgment, we must turn first to the nature of the common-law duty owed to the plaintiff by the defendant as a vendor of residential property. The existence of a legal duty is a question of law for the court that is subject to our plenary review on appeal. Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002).

Our Supreme Court “has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Citations omitted; emphasis added; internal quotation marks omitted.) D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987); Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 494-95, 705 A.2d 210 (1998). A vendor of residential property is liable to a purchaser for a negligent misrepresentation of the condition of the property to that purchaser if the purchaser would not otherwise have agreed to the terms of the sale. See Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 347, 232 A.2d 307 (1967); Warman v. Delaney, 148 Conn. 469, 473-74, 172 A.2d 188 (1961); Foley v. Huntington Co., 42 Conn. App. 712, 721-22, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

Accordingly, an action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation. See Citino v. Redevelopment Agency, 51 Conn. App. 262, 273-75, 721 A.2d 1197 (1998); see also Maturo v. Gerard, 196 Conn. 584, 589, 494 A.2d 1199 (1985). “Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact.” (Internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn. App. 556, 558, 799 A.2d 1093 (2002).

The court, therefore, as it did, properly could have accepted Bode’s testimony as evidence that the defendant should have known that the house was infested with ants. It did not, however, make an explicit finding as to reliance. Nevertheless, we can infer from the court’s conclusion that it implicitly found for the plaintiff on the issue of reliance when it concluded that the defendant was negligent. Because we find that the court’s application of the law was legally and logically correct, we must determine whether its findings of fact were clearly erroneous. We conclude that the court’s implied factual findings did not meet this test.

It is undisputed that the plaintiff hired an independent professional to inspect the dwelling. The inspection did not uncover any infestation. Moreover, the plaintiff testified that the inspection lasted for only one hour and twenty minutes and that the inspector told him that he was in a rush. It is also undisputed that the plaintiff did not initially want to obtain a professional inspection and that the defendant urged him to do so. Under these circumstances, it is difficult for us to conclude that the record evinces sufficient facts establishing the plaintiffs reliance on the defendant.

Section 20-327b reinforces our conclusion. The statute emphasizes the significance of an independent professional inspection by urging a purchaser to hire a professional to inspect the property despite the representations made on a § 20-327b report. General Statutes §§ 20-327b (d) (2) (B) and 20-327d. Concededly, both parties signed the § 20-327b report containing such a recommendation.

We may invoke § 20-327b even though it does not govern common-law misrepresentation because it is reasonable to conclude that the legislature’s statement of policy has carryover relevance to the common law. We presume that the legislature enacts legislation that “renders the body of the law coherent and consistent, rather than contradictory and inconsistent . . . [and that] courts must discharge their responsibility, in case by case adjudication, to assure that the body of the law — both common and statutory — remains coherent and consistent.” (Citation omitted.) Fahy v. Fahy, 227 Conn. 505, 513-14, 630 A.2d 1328 (1993). Under suitable circumstances, our Supreme Court has relied on statutory policy to inform common-law adjudication. Id., 514; see also Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983). This is another such circumstance.

The relationship between the policy of § 20-327b and the common law of negligent misrepresentation persuades us that, in the absence of any other evidence of actual reliance by the plaintiff, he cannot prevail in his negligent misrepresentation claim. Indeed, the plaintiffs claim that he relied on the defendant’s statements is further attenuated by the undisputed fact that the defendant advised him not to do so.

We conclude, therefore, that the findings of fact supporting the court’s judgment for the plaintiff were insufficient to support the judgment. Specifically, the record does not reveal any evidence that the plaintiff, despite the professional inspection, was justified in relying on the statements the defendant made on the § 20-327b report.

The judgment is reversed with respect to count seven of the plaintiffs amended complaint and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       General Statutes § 20-327b (a) provides in relevant part: “[EJach person who offers residential property in the state for sale . . . shall provide a written residential condition report to the prospective purchaser at any time prior to the prospective purchaser’s execution of any binder, contract to purchase, option, or lease containing a purchase option. A photocopy, duplicate original, facsimile transmission, or other exact reproduction or duplicate of the written residential condition report containing the prospective purchaser’s written receipt shall be attached to any written offer, binder or contract to purchase. Aphotocopy, duplicate original, facsimile transmission or other exact reproduction or duplicate of the written residential condition report containing the signatures of both seller and purchaser, shall be attached to any agreement to purchase the property.”

       The plaintiffs’ complaint also named Inspections, Inc., as a defendant. The named plaintiff and Inspections, Inc., however, reached a settlement prior to trial. We refer in this opinion to Laura L. Zades as the defendant.

       On October 27, 2000, Elizabeth Giametti withdrew from the action as a plaintiff. We refer in this opinion to Michael Giametti as the plaintiff.

         Bode testified that the defendant should have noticed ants throughout the home because of the size of the nests and of the ants themselves.

       General Statutes § 20-327d provides: “No provision of section 20-327b or 20-327c: (1) Shall be construed to create any new implied or express warranties on behalf of the seller of the property; or (2) shall be construed to require the seller of the property to secure inspections, tests or other methods of determining the physical conditions of the property.”

       General Statutes § 20-327e provides: “The representations made by the seller pursuant to section 20-327b or 20-327c shall be construed only to extend to the seller’s actual knowledge of the property and no constructive knowledge shall be imputed to the seller.”

       The regulations accompanying § 20-327b do not further illuminate the scope of the report. Rather, the regulations focus on the responsibilities of a licensed real estate agent or broker to avoid fraudulent misrepresentations or concealments. See Regs., Conn. State Agencies § 20-328-5a.

       The defendant has not argued that, if her statement on the § 20-327b report was a negligent misrepresentation, that it is not actionable as such because it was made as part of her completion of the form itself.

       We decline to remand this case for a further articulation of the trial court’s factual findings pursuant to Practice Book § 60-5. DiLieto v. Better Homes Insulaton Co., 16 Conn. App. 100, 104, 546 A.2d 957 (1988). The plaintiff introduced no evidence whatsoever about the effect of the inspector’s report on his alleged reliance on the defendant’s misrepresentation. The court’s omission in this case, therefore, did not concern a subsidiary finding of fact. Rather, the court failed to address a necessary condition of law, namely the reasonableness of the plaintiffs’ reliance on the defendant’s alleged misrepresentation.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    GREGORY RADDING v. FREEDOM CHOICE MORTGAGE, LLC, ET AL.
    (AC 22017)
    Dranginis, Bishop and West, Js.

      Argued December 5, 2002
    officially released April 29, 2003

      Jeffrey A. McChrislian, for the appellant (named defendant).

      Christopher M. Reeves, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant Freedom Choice Mortgage, LLC (Freedom), appeals from the judgment of the trial court rendered in favor of the plaintiff, Gregory Rad-ding, in this breach of contract action. The court was called on to determine the effective dates of the plaintiff’s membership in the defendant limited liability company for the puipose of deciding whether the plaintiff was entitled to certain remuneration arising from that membership. The defendant claims that the court improperly concluded (1) that the plaintiff became a nonequity member of Freedom on December 12, 1995, and (2) that the plaintiff did not cease being a member of Freedom on the termination of his employment.

Freedom is a limited liability company that was organized pursuant to the laws of the state of Connecticut on September 26, 1994. Freedom is in the business of providing residential mortgages. Freedom hired the plaintiff as a commissioned loan representative in August, 1995. When the plaintiff began his employment, the terms and conditions of that employment were governed by an oral agreement. The plaintiffs work consisted of fielding telephone calls from persons interested in obtaining a mortgage, either to purchase a residence or to refinance an existing mortgage, and obtaining mortgage commitments from potential customers. The plaintiff was compensated on a commission basis, receiving a percentage of the fees generated on the closing of the mortgage loans.

In December, 1995, Freedom established a production bonus and profit sharing program for certain of its commissioned loan representatives. Freedom subsequently informed the plaintiff and certain other loan representatives about the production bonus and profit sharing program, and delivered to them the following documents: (1) a commissioned loan representative agreement (CLR agreement), (2) a workers’ compensation coverage election form, (3) a copy of the “Operating Agreement of Freedom Choice Mortgage, LLC” (operating agreement), signed September 26, 1994, and (4) a copy of the first amendment to the operating agreement, dated December 12, 1995. The plaintiff signed the workers’ compensation waiver form on December 22, 1995, and the CLR agreement on December 28,1995. Pursuant to paragraph 7.2 of the operating agreement, no member of the company would be eligible to receive income from the production bonus or profit sharing programs until he or she had been a member for one full calendar year.

On December 13, 1996, the plaintiff and Freedom’s principal owner had a heated telephone conversation that resulted in the plaintiffs termination of employment with the company. The plaintiff subsequently filed this action, seeking, inter alia, damages for breach of contract for the company’s refusal to award him production bonus and profit sharing payments. Central to the plaintiffs claims were the dates on which he became a nonequity member of Freedom and when he ceased to be a member.

The court found that Freedom’s amendment of the operating agreement on December 12, 1995, made the plaintiff a nonequity member of the company as of that date. The court further found that the plaintiff continued in his capacity as a nonequity member loan representative following the termination of his employment with the company on December 13, 1996. The parties stipulated that the properly calculated amounts for the disputed bonus and profit sharing would be as follows:

1996 Production Bonus: $6425.64
1996 Profit Sharing: $955.00
1997 Profit Sharing: $394.39
1998 Profit Sharing: $623.98
$8399.01

I

Freedom first claims that the court improperly concluded that the plaintiff became a nonequity member of the company on December 12, 1995. We disagree.

The court found that the operative document for the purpose of establishing the date on which the plaintiff became a nonequity member of Freedom was the first amendment to the operating agreement, dated December 12,1995. The defendant contends that the operative document for establishing the date of the plaintiffs nonequity membership is the commissioned loan representative agreement, which had an effective commencement date of December 21,1995, and which the plaintiff did not sign until December 28, 1995. Under the defendant’s interpretation, the plaintiff would not have been eligible to receive either profit sharing or production bonuses because, since his employment was terminated on December 13, 1996, he would have fallen one week short of the one year membership requirement.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct . . . .” (Citations omitted; internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 235-36, 737 A.2d 383 (1999).

“The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used. . . . The words used by the parties must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract. . . . The construction of a contract cannot be varied because of inconvenience to the parties. . . . The intent expressed by the parties must be given effect.” (Citations omitted; internal quotation marks omitted.) Anderson v. Pension & Retirement Board, 167 Conn. 352, 354-56, 355 A.2d 283 (1974).

The admission of members to a limited liability company is governed by the Connecticut Limited Liability Company Act, General Statutes §§ 34-100 through 34-242 (act). General Statutes § 34-179 (a) provides in relevant part: “Subject to subsection (b) of this section . . . a person may become a member in a limited liability company: (1) In the case of a person acquiring a limited liability company interest directly from the limited liability company, upon compliance with the operating agreement or, if the operating agreement does not so provide in writing, upon the written consent of at least a majority in interest of the members . . . .” Section 34-179 (b) provides: “The effective time of admission of a member to a limited liability company shall be the later of: (1) The date the limited liability company is formed; or (2) the time provided in the operating agreement, or if no such time is provided therein, when the person’s admission is reflected in the records of the limited liability company.”

In the present case, the plaintiffs admission clearly is reflected in schedule A to Freedom’s operating agreement, as amended in accordance with the company’s prescribed voting procedures. Paragraph 7.1 of the operating agreement states that “[t]he profits and losses of the company shall be allocated among the members in accordance with their respective percentage interests set forth on Schedule A attached hereto which may be amended from time to time by the majority vote of the members.” Paragraph 7.2 of the operating agreement states that “[n]o person who becomes a member after the date of this Agreement, shall receive or be entitled to receive any distribution of profits until such person has been a member for one (1) full year from the date such person becomes a member which shall be set forth on said Schedule A.” (Emphasis added.)

As originally adopted, schedule A listed only two members, Frank Noe and Lois Noe. At a meeting held on December 12, 1995, the members of Freedom resolved to amend the operating agreement and schedule A to the operating agreement. The first amendment to the operating agreement, signed by both Frank Noe and Lois Noe and dated December 12, 1995, states in relevant part: “Schedule A labeled Members Interest is hereby amended as follows: See Schedule A Amendment dated December 12, 1995.” (Emphasis added.) The amended schedule A fists, in addition to Frank Noe and Lois Noe, six new members, including the plaintiff. Each of the new members is listed as having a 1 percent membership interest.

There is no indication that the amendment is to become effective only on the subsequent ratification of the new members or that the amendment is subject to any other condition precedent. Indeed, such an interpretation would contradict the express language of paragraph 7.1 of the operating agreement, providing for the amendment of schedule A by majority vote of the extant members, as well as the express language of the first amendment to the operating agreement.

Nevertheless, the defendant argues that the amended operating agreement was intended to be read together with the CLR agreement and that the membership of the proposed new members was to be effective only on the signing of the CLR agreement by the respective loan officers. In support of that position, the defendant cites article VI, paragraph 6.1, of the operating agreement. Paragraph 6.1 states: “No member shall receive any salary or compensation of any kind, whether by virtue of being a member, manager or other officer except as shall be payable pursuant to a separate written employment agreement made with the consent of the Company or manager from time to time.” The defendant asserts that the referenced written employment agreement is the CLR agreement.

Even if we were to credit the defendant’s assertion that the operating and CLR agreements were meant to be read together, such an interpretation would not alter the disposition of the defendant’s claim. The CLR agreement does not purport to establish an employee’s status as a member. Paragraph 6.1 of the operating agreement also does not express an intention that membership is to be conditioned on an individual’s signing the referenced written employment agreement. By its express terms, the operating agreement recognizes that the referenced employment agreement operates to establish the terms on which one who already is a member is to be compensated. Membership and the compensation deriving from that membership are treated as two distinct subjects.

Moreover, the conclusion that the plaintiff became a member of Freedom on the date that the operating agreement was amended, and that such membership was independent of the CLR agreement, is further buttressed by the language contained in the workers’ compensation coverage selection form provided to the plaintiff by the defendant on or about December 21, 1995. The relevant language states: “I Gregory S. Rad-ding, a member at Freedom Choice Mortgage LLC located at 30 East Main Street Avon, [CT] 06001, who am also a member, of said LLC, hereby elect to: be excluded from coverage under the Worker’s Compensation law under P.A. 491.” (Emphasis added.) The form is signed and dated December 22, 1995, six days prior to the plaintiffs signing of the CLR agreement.

On the basis of the foregoing, we conclude that the court correctly concluded that the plaintiff became a member of Freedom effective December 12, 1995.

II

The defendant also claims that the court improperly found that the plaintiff did not cease being a member of Freedom following the termination of his employment as a loan representative with the company. We disagree.

As with the previous claim, because there is definitive contract language to guide our disposition of the issue, we are presented with a question of law and, therefore, our review of the present claim is plenary. See Issler v. Issler, supra, 250 Conn. 235-36; Anderson v. Pension & Retirement Board, supra, 167 Conn. 354-56. Paragraph 9.3 of the operating agreement states that “[a] person ceases to be a member of the Company upon the occurrence of any of the events of disassociation set forth in the Connecticut Limited Liability Company Act [§§ 34-100 through 34-242] (the ‘Act’).” General Statutes § 34-180 (a) provides in relevant part: “[A] person ceases to be a member of a limited liability company upon the occurrence of one or more of the following events: (1) The member withdraws by voluntary act from the limited liability company ... (3) the member is removed as a member (A) in accordance with the operating agreement, or (B) unless otherwise provided in writing in the operating agreement, when the member assigns all of his interest in the limited liability company with the written consent or by an affirmative vote of a majority in interest of the members who have not assigned their interests . . . .” Section 34-180 (b) provides that “[t]he members may provide in writing in the operating agreement for other events the occurrence of which result in a person ceasing to be a member of the limited liability company.”

Thus, a member may cease being a member when he (1) voluntarily withdraws from the limited liability company, (2) is removed by a maj ority vote of the extant members or (3) assigns all of his interest in the company. The court found, and we agree, that none of those events applied to the present case.

Freedom argues that the plaintiff was removed as a member as a result of his name being removed from schedule A by Frank Noe. The defendant argues that such action was in accordance with the applicable provisions of the operating agreement, specifically article VII, paragraph 7.1, and article V, paragraphs 5.1 and 5.2. We disagree.

Paragraph 7.1 of the operating agreement states that “[t]he profits and losses of the company shall be allocated among the members in accordance with their respective percentage interests set forth on Schedule A attached hereto which may be amended from time to time by the majority vote of the members.” The defendant argues that because Frank Noe individually held a majority of the membership interest, his unilateral alteration of schedule A effectively operated as a majority vote for the purpose of amending the operating agreement. The defendant’s argument ignores the fact that there is no evidence that any vote of the members actually occurred. Although, given Frank Noe’s majority interest, the outcome of such a vote may have been a foregone conclusion, the voting procedures established by the operating agreement cannot be so cavalierly disregarded. “Parties do not ordinarily insert meaningless provisions in their agreements and, therefore, if it is reasonably possible to do so, every provision must be given effect.” (Internal quotation marks omitted.) Shawmut Bank Connecticut, N.A. v. Connecticut Limousine Service, Inc., 40 Conn. App. 268, 273, 670 A.2d 880, cert. denied, 236 Conn. 915, 673 A.2d 1143 (1996); Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 534, 630 A.2d 115 (1993). In the present case, the operating agreement expressly sets forth the procedures governing member voting. Paragraph 12.1 of the agreement states: “In all matters for which a vote of the members is required by this Agreement or by the Act, each member shall be entitled to the number of votes equivalent to his percentage interest in the company. All members may vote for all matters for which a vote is required by this Agreement or the Act, or for which a vote is requested at any member’s meeting, unless a member’s vote is specifically excluded by the terms of this Agreement.” Because paragraph 7.1 of the operating agreement requires a majority vote of the members to amend schedule A of the operating agreement and no such vote took place, we conclude that the court properly found that the plaintiff did not cease to be a member of Freedom following the termination of his employment as a loan representative.

The judgment is affirmed.

In this opinion the other judges concurred.

       Frank Noe, the principal owner of Freedom, also was named as a defendant. The action against him subsequently was withdrawn. We therefore refer in this opinion to Freedom as the defendant.

       Although the court never expressly stated that the plaintiff did not cease being a member of Freedom, that conclusion is implicit in the court’s finding that he never withdrew his membership and in the judgment awarding him unpaid profit sharing for the period through the end of 1998.

       Because production bonuses, though not profit sharing, were calculated on the basis of the amount of business each individual loan officer closed on during the previous year, the plaintiff concedes that he is not entitled to any production bonus for the time period following the termination of his employment, when he ceased to conduct business for the company.

       The parties stipulated to a total of $8409.01. That figure is a miscalculation of the total of the annual payments by $10.

       To reflect the 6 percent distribution of membership interest to the new members, Frank Noe’s membership interest was reduced proportionately and is listed as 93.90 percent.

       Despite the inclusion on schedule A of a column for the date of membership of the listed members, dates were never added. The only date included on the page is December 12, 1995. The defendant concedes, however, that all of the listed members did in fact become members at some point, although it argues that the effective date of that membership was subsequent to December 12, 1995. The defendant’s failure to note the date of any subsequent admission to membership belies its argument.

       See footnote 2.

       We note that this is a different ground than that presented at trial. At trial, the defendant argued that the plaintiff ceased to be a member of the company as a result of his voluntary termination of his employment with Freedom. The court concluded that such action did not comport with the requirements of the act because the plaintiff did not provide written notice of his intention to withdraw from membership in the company.

       Paragraphs 5.1. and 5.2, covering management of the company, provide no assistance to the defendant. Paragraph 5.1 states: “The management and general overall supervision of the business and affairs of the Company shall be vested in a manager who shall be the chief executive officer of the Company.”
      Paragraph 5.2 states: “The manager shall take all such action or actions to carry out the business, affairs, and purposes of the Company which the manager deems to be in the best interest of the Company or as permitted by Connecticut law.”
      It is beyond peradventure that those clauses cannot be read to convey authority to do that which is in contradiction to the express requirements of other clauses of the agreement. See Shawmut Bank Connecticut, N.A. v. Connecticut Limousine Service, Inc., 40 Conn. App. 268, 273, 670 A.2d 880 (contract clauses must be construed in such a way as to reconcile apparent inconsistencies “because it cannot be assumed that the parties intended to insert inconsistent and repugnant provisions”), cert. denied, 236 Conn. 915, 673 A.2d 1143 (1996). A contrary reading would render paragraph 12.1 superfluous.

       Compare the requirements of article III, providing that the termination of the company may be effected on the “written consent of at least a majority in interest of the members.” (Emphasis added.)


author: DUPONT, J.

text:
    12 HAVEMEYER PLACE COMPANY, LLC v. ALLAN S. GORDON
    (AC 22376)
    Lavery, C. J., and Mihalakos and Dupont, Js.
    Argued November 19, 2002
    officially released April 29, 2003

      Eric D. Grayson, with whom, on the brief, was Juris V. Zauls, for the appellant (plaintiff).

      David W. Rubin, for the appellee (defendant).

      Gail Sassos, assistant town attorney, filed a brief for the town of Greenwich as amicus curiae.
   Opinion

DUPONT, J.

The plaintiff lessor, 12 Havemeyer Place Company, LLC, appeals from the judgment of the trial court rendered in favor of the defendant lessee, Allan S. Gordon, in this summary process action in which the plaintiff sought eviction of the defendant lessee on the ground that their lease was illegal and, therefore, that the tenancy was void or voidable. The basis for the court’s judgment was that the plaintiff was not entitled to evict the defendant from sixteen leased parking spaces because the lease of those spaces was legal and because “equity abhors forfeiture.” The plaintiff claims on appeal that (1) the lease in question was illegal ab initio and, therefore, unenforceable, and (2) the court improperly based its decision on relief from forfeiture because that was not pleaded as a special defense or argued at trial. We conclude that the lease was legal and, therefore, affirm the judgment of the trial court.

This dispute relates to the parties’ interests in sixteen parking spaces located in an underground parking garage, which currently is owned by the plaintiff, at 60 Arch Street in the town of Greenwich. The basic facts underlying the issues of this appeal are not disputed, and we are presented with questions of law for which our review is plenary. Feldmann v. Sebastian, 261 Conn. 721, 725, 805 A.2d 713 (2002).

The defendant leases the sixteen parking spaces from the plaintiff for the benefit of a building owned by the defendant at 71 Arch Street. The following transactional history is relevant to our discussion of this appeal. In 1980, John Jay Ginter Development and Construction, Inc., the then owner of both 60 Arch Street and 71 Arch Street, filed a site plan for 60 Arch Street with the town of Greenwich planning and zoning commission (commission). The commission approved the site plan, which showed a three story office retail building with a total of fifty-eight parking spaces. The preliminary site plan approval application, dated November 12, 1980, designated forty-eight of the spaces for 60 Arch Street and ten for 71 Arch Street. This designation, however, was deleted from the application for final site plan approval, dated December 8, 1980, which merely proposed fifty-eight spaces without any reference to 71 Arch Street. In a subsequent site plan, dated December 10, 1980, the designation of forty-eight spaces required for 60 Arch Street and the ten spaces for 71 Arch Street reappeared.

By 1988, Greenwich Cove Associates (Greenwich Cove), a predecessor of both the plaintiff and the defendant, had acquired both 60 Arch Street and 71 Arch Street. In August, 1988, Greenwich Cove negotiated the sale of 60 Arch Street to Skanska, Inc. As a final negotiated term of the sale, Skanska, Inc., the new owner of 60 Arch Street, leased sixteen of 60 Arch Street’s fifty-eight parking spaces to Greenwich Cove for use by 71 Arch Street, thereby increasing the number of spaces for 71 Arch Street as described in the site plan by six spaces. This left 60 Arch Street’s tenants with the use of only forty-two parking spaces, six fewer than required by the site plan. The lease had a term of fifty years, was renewable thereafter in five year increments and was recorded in the town of Greenwich land records. It is this lease, to which neither the defendant nor the plaintiff originally were parties, which is the subject of this appeal.

In 1989, the defendant purchased 71 Arch Street from Greenwich Cove, thus obtaining the benefit of the lease, as a successor lessee. The defendant testified that the lease, which provided him with sixteen parking spaces in the 60 Arch Street garage, for his tenants at 71 Arch Street, was a major factor for the purchase. In 2000, the plaintiff, which was fully aware of the recorded lease, purchased 60 Arch Street from Skanska, Inc., and became the successor lessor. The purchase price paid by the plaintiff was less than it would have been had there been forty-eight parking spaces allocated to 60 Arch Street instead of forty-two spaces.

The dispute involved in this appeal arose when the plaintiff, as the new owner of 60 Arch Street, inquired of the town of Greenwich about the recorded lease, which left 60 Arch Street with forty-two parking spaces, and about the possible conflict of the lease with the site plan, which required forty-eight spaces for 60 Arch Street. In the preceding twelve years, no tenant, neighbor or predecessor in title of either building had complained to any zoning authority of any site plan violation as it related to parking. The town’s zoning enforcement officer responded to the plaintiffs inquiry by stating that he believed there was a violation of a zoning regulation.

Thereafter, in January, 2001, the plaintiff rejected the defendant’s tender of rent and informed the defendant by letter that it was of the opinion that the lease was void or voidable because it violated the site plan. In February, 2001, in a separate action, the defendant in this case instituted an action against the plaintiff in this case seeking a declaratory judgment as to the enforceability of the lease, injunctive relief and damages. The plaintiff also claimed damages for tortious interference with his leases with his tenants, which leases granted the tenants the right to use the parking spaces at 60 Arch Street. The defendant lessee, the plaintiff in that case, on the record, withdrew his application for a temporary restraining order against his lessor in exchange for the plaintiffs agreement to seek a variance of the site plan. The zoning board of appeals denied the application for a variance because a hardship was not demonstrated, but the lessor, the plaintiff in this case, did not appeal to the Superior Court from the denial.

After the variance was denied, the zoning enforcement officer cited the plaintiff for the reduction of on-site parking as a violation of § 6-16 of the municipal building code regulations and directed the plaintiff to restore the forty-eight parking spaces as provided in the site plan.

Subsequently, the plaintiff served the defendant with a notice to quit and then brought the summary process action for immediate possession of the sixteen parking spaces, which is the subject of this appeal. The defendant asserted three special defenses to the summary process action. He alleged that the lease was not illegal or void, that equity barred the plaintiffs claim “by virtue of, among other things, the facts set forth at length in its Complaint dated February 14, 2001, in the action [Gordon v. 12 Havemeyer Place Co., LLC, Docket No. CV 01-0184544S] and the doctrines of equitable estoppel, laches, unclean hands and unjust enrichment,” and that the plaintiff failed to state a claim on which relief could be granted. The court rendered judgment in favor of the defendant.

The precise question we must answer, for which we could find no appellate decisional authority in Connecticut or elsewhere, is whether a lessor, on the ground of illegality, may gain possession of leased premises from a lessee solely on the ground that the recorded lease varied the requirements of a site plan, when the lessee has not breached any covenant of the lease and the town has not cited the lessee for a violation or ordered the lessee to take any corrective action.

The plaintiff claims that the lease was illegal ab initio. Specifically, it argues that the terms of the lease expressly and illegally violated the site plan and, therefore, the lease is unenforceable. We disagree.

The following are the relevant portions of the subject lease of the parties: “WHEREAS, pursuant to requirements of the Planning and Zoning Commission of Greenwich, Connecticut, ten (10) parking spaces at the [60 Arch Street] Premises must be set aside for the use and benefit of tenants of 71 Arch Street; and WHEREAS, the parties hereto wish to execute this Lease and provide six additional parking spaces upon the Premises for the tenants of 71 Arch Street ....

“NOW, THEREFORE, the parties hereto agree as follows:
“1. Lease of Parking Spaces. Lessor [formerly Swan-ska, now the plaintiff] hereby leases to Lessee [formerly Greenwich Cove, now the defendant] the sixteen (16) parking spaces at the Premises ... on the terms and conditions set forth herein.
* * *
“4. Use. Lessee shall use and occupy the Parking Spaces, and have the rights provided for herein with respect to the Parking Spaces and the Premises, for no purpose other than parking for the tenants of 71 Arch Street. Lessee, the tenants of 71 Arch Street and their agents, employees, or invitees shall comply with all reasonable rules and regulations provided in writing by Lessor to Lessee regarding the use of the Parking Spaces.
“5. Requirements of Law. The manner of use of the Parking Spaces by Lessee, the tenants of 71 Arch Street and their agents, employees, or invitees shall comply with, and Lessor, in other respects, shall comply with, all statutes, ordinances, rules, orders, regulations and requirements of the federal, state and city government and of any and all other departments and bureaus applicable to the Parking Spaces.
^ ^
“16. This lease may not be terminated without the written consent of both Lessor and Lessee.”

The lease, thus, does not facially provide that any parking spaces in excess of ten violates the Greenwich zoning regulations. It provides that the lessor is responsible for compliance with regulations of government and it provides that the lease may not be terminated without the consent of both parties.

In rendering our decision, we are mindful of the well recognized principle that “no court will lend its assistance in any way toward carrying out the terms of a contract, the inherent purpose of which is to violate the law.” (Internal quotation marks omitted.) Solomon v. Gilmore, 248 Conn. 769, 785, 731 A.2d 280 (1999). It is also true that “[t]he principle that agreements contrary to public policy are [unenforceable] should be applied with caution and only in cases plainly within the reasons on which that doctrine rests . . . .” (Internal quotation marks omitted.) Id., 790. It is a general rule that contracts entered into voluntarily by competent persons should be held valid and enforceable in the courts. Collins v. Sears, Roebuck & Co., 164 Conn. 369, 377, 321 A.2d 444 (1973). Thus, “[t]he impropriety injurious to the interests of society which will relieve a party from the obligation he has assumed must be clear and certain before the contract will be found void and unenforceable.” Id.

To support its claim of illegality, the plaintiff primarily relies on Sippin v. Ellam, 24 Conn. App. 385, 588 A.2d 660 (1991). The defendant argues that Sippin is distinguishable from the present case. In Sippin, this court was asked to determine whether there was sufficient evidence to support the trial court’s finding that a lease was illegal, and that, therefore, the plaintiff lessor could not recover for rent or for the fair rental value for use and occupancy because “[a] lease agreement entered into in violation of the law creates no rights in the wrongdoer.” Id., 392.

The lease in Sippin specifically provided that “the premises were to be occupied only for offices for conducting any and all operations as they relate to a real estate operation.” (Internal quotation marks omitted.) Id., 387 n.l. The plaintiff lessor’s deed to the leased real estate contained a restrictive covenant prohibiting any commercial use, but the defendant tenant was unaware of that restriction in the plaintiffs deed. Id., 387. Approximately one year after the execution of the lease, the local zoning enforcement agency ordered the defendant tenant “to cease and desist the operation of his business because the premises were located in a residential zone.” Id. The defendant subsequently vacated the premises and the plaintiff initiated suit to recover rent arising from a breach of the covenant to pay rent, or, in the alternative, the fair rental value of the premises, as well as damages for repairs and waste. Id., 387-88.

In Sippin, “[t]he trial court specifically found that “[t]here is no question but that the lease was illegal pursuant to the restrictive covenant against any commercial use. It is therefore clear that such an undertaking is illegal and voids the agreement. [The plaintiff] is therefore not entitled to recover rent under the lease.” (Emphasis added; internal quotation marks omitted.) Id., 389 n.4. The court, in discussing the plaintiffs claim in quantum meruit to obtain the fair rental value for use and occupancy concluded that the “[tjhing to be done here and which was prohibited by the covenant, was the suffering of the premises in question to be used for commercial purposes.” (Emphasis added; internal quotation marks omitted.) Id., 390. Thus, the trial court rested its judgment, which was affirmed by us, on the plaintiffs violation of the restrictive covenant rather than on any violation of the zoning laws.

Although we noted in Sippin that “[t]here is absolutely no question here that the lease was being illegally maintained because of both the operative zoning laws and the restrictive covenant contained in the warranty deed”; id., 388; our holding was not dependent on any illegality arising from the violation of a zoning regulation. Thus, the holding in Sippin is not determinative of the holding in this case.

We are not, nor was the Sippin court, concerned with a town’s admitted right to enact zoning regulations and enforce them, but rather with whether an illegality existed at the time the lease was executed. The most significant distinction between Sippin and this case is that the former involved the illegality of a lease that nullified a recorded restrictive covenant in a deed and the latter involves the alleged illegality of a lease that nullified a zoning regulation. A restrictive covenant in a deed runs with the land and restrains the use to which land may be put in the future, as well as the present, and may affect its value. Dick v. Sears-Roebuck & Co., 115 Conn. 122, 125, 160 A. 432 (1932). Unlike a zoning regulation, for which there is a procedure for a variance from the regulation, the covenant, if not against public policy, remains in effect, indefinitely, in accordance with its terms. In Sippin, the covenant trumped the terms of the lease. In our case, the question is whether the site plan trumps the lease. Other differences in Sippin and our analysis of other cases, lead us to a different conclusion than that of Sippin.

Sippin concerned a breach of lease and was a case in which the lessor argued that the lease was legal in order to obtain rent. In our case, there is no breach of any covenant of the lease by the lessee, and the lessor argues that the lease was illegal in order to obtain possession. In Sippin, the lessee was ordered by the town to stop using the premises for business purposes, whereas in our case, it was the lessor that was cited by the town. In Sippin, no argument was made that the violation was curable, whereas in the present case, the defendant lessee argues that it was curable, by among other things, the obtaining of a variance. In Sip-pin, the lease required the lessee to conform to rules and regulations; in the present case, the lease required the lessor to comply with all ordinances of the city government, without any requirement on the part of the lessee to do so.

The parties in this case do not dispute that the lease increases the number of parking spaces for the defendant, as provided by the site plan or the zoning regulations. The plaintiff claims that the decrease in parking for its tenants renders the lease illegal and equates that deficiency with the use of premises for a business purpose in a residential zone.

Generally, agreements contrary to public policy, that is those that negate laws enacted for the common good, are illegal and therefore unenforceable. Contractual rights arising from agreements are subject to the fair exercise of the power of the state to secure health, safety, comfort or the general welfare of the community. Elida, Inc. v. Harmor Realty Corp., 177 Conn. 218, 223, 413 A.2d 1226 (1979). The question to be resolved is whether the site plan in this case is a zoning regulation involving the common good or a regulation that has as its overriding purpose a private goal that does not contravene the common good.

There are gradations of violations of statutes ranging from per se violations, that is, those manifestly in total derogation of a particular statute, to those that affect fewer persons in limited circumstances; see id., 228-31; or which are minor in nature. Minor violations of zoning do not lead to a conclusion that the violation causes a lease to be invalid. See Diamond Housing Corp. v. Robinson, 257 A.2d 492 (D.C. 1969); see also Rowe v. Wells Fargo Realty Services, Inc., 166 Cal. App. 3d 310, 212 Cal. Rptr. 374 (1985); Bennett v. Waffle House, Inc., 771 So. 2d 370 (Miss. 2000); Kearns v. Barney’s Clothes, Inc., 38 Misc. 2d 787, 239 N.Y.S.2d 318 (1963).

Claims that contracts are void because of a violation of public policy as embodied in a statute are considered against the backdrop of the particular statute. See, e.g., Burkle v. Car & Truck Leasing Co., 1 Conn. App. 54, 57-58, 467 A.2d 1255 (1983). The particular facts involved in the claim that a contract is against public policy also temper the conclusion as to whether illegality exists. See Williams v. Vista Vestra, Inc., 178 Conn. 323, 328, 422 A.2d 274 (1979).

The basic purpose of zoning is to restrict certain classes of buildings and uses to certain localities within the community. See Weyls v. Zoning Board of Appeals, 161 Conn. 516, 519, 290 A.2d 350 (1971). Zoning divides a community into geographical zones, such as residential, business and industrial, to ensure that the uses on the individual properties within the zones are compatible with each other. A site plan, on the other hand, is a plan for the proposed use of a particular site, indicating all of the information required by the regulations for that site. SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 15 Conn. App. 561, 566 n.4, 545 A.2d 602 (1988), affd, 211 Conn. 331, 559 A.2d 196 (1989). A site plan may be modified at the discretion of a planning and zoning commission to provide for a lesser number of parking spaces than the number required by the zoning regulations. See McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 71-72, 282 A.2d 900 (1971).

“Whether a contract is unlawful is usually determined as of the time of its making and is not affected by subsequent changes of facts.” 17A C.J.S., Contracts § 197 (1999). The preponderance of the cases make it clear that, if a variance is possible, a lease is not necessarily void and unenforceable. See annot., Rights Between Landlord and Tenant as Affected by Zoning Regulations Restricting Contemplated Use of Premises, 37 A.L.R.3d 1018 (1971). A lease is not necessarily void if, reasonably, the prohibition can be made legal through administrative or judicial action. Id., 1044. A lease does not have an unlawful purpose if the zoning laws incorporate a procedure by which a variance from the letter of the law may be obtained. Entrepreneur, Ltd. v. Yasuna, 498 A.2d 1151 (D.C. 1985).

“Parties may bind themselves to a contract that calls on its face for a use of property that violates the zoning laws because, due to the possibility of obtaining a varianee, such a bargain is not against public policy or public morals.” (Internal quotation marks omitted.) Id., 1158; see also McNally v. Moser, 210 Md. 127, 135, 122 A.2d 555 (1956); Verschell v. Pike, 85 App. Div. 2d 690, 691, 445 N.Y.S.2d 489 (1981); 37 A.L.R.3d 1018, 1039-44. “A lease providing for a use of premises which is prohibited by the zoning law is not necessarily illegal where it appears that an appeals board has the authority to permit a variance.” (Internal quotation marks omitted.) Entrepreneur, Ltd. v. Yasuna, supra, 498 A.2d 1159 n.5; see also Young v. Texas Co., 8 Utah 2d 206, 209, 331 P.2d 1099 (1958).

The parties to the lease in this case contemplated that the number of parking spaces for 71 Arch Street would be sixteen. The zoning laws at the time of the execution, and at the present time, incorporate a procedure by which variances from the letter of the zoning law may be obtained.

In this case, the plaintiff, pursuant to its agreement with the defendant in open court, applied to the zoning board for a variance, which admittedly was not wanted by the plaintiff and which was denied. The denial of the variance has not yet been tested by the courts because the plaintiff did not appeal. The plaintiff cannot rely on the alleged illegality at the time of the execution of the lease because the lease could have been made legal reasonably at the time of its execution through administrative or judicial action. We do not know the contents of the plaintiffs application for a variance or the specific reasons for the denial, other than the terse phrase, “lack of a hardship.” We cannot predict, therefore, whether a second application for a variance is possible, or if so, whether it would be granted. “[T]he construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.” Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). We cannot conclude, therefore, with any certainty, without a judicial determination, whether the variance should have been granted.

On the particular facts of this case, the plaintiff is not entitled to possession because we hold that the violation of the zoning laws with regard to the parking required by the site plan was not sufficient to render the lease illegal as against public policy.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the plaintiff did not seek damages or injunctive relief from the continued use by the defendant of the leased premises, but sought only possession of the premises. Moreover, the plaintiff does not claim possession on the ground that the defendant breached a provision of the lease.

       The court’s oral decision in relevant part was as follows: “In this case for eviction, the plaintiff seeks to evict the defendant from sixteen parking spaces which are based — which are included in a lease. The court concludes, based upon the testimony I’ve heard, that the lease itself was not illegal as claimed by the plaintiff, but rather, there may have been an illegal nonconforming use.
      “The court further is convinced that the plaintiff had the opportunity to ciue the zoning violation, to change the manner of use. I doubt the reasoning of [the defendant’s attorney] that the plaintiff could have cured the illegality if — the illegal nonconforming use by reducing the square footage or by changing the use, all of which were in his grasp.
      “It is important for the court in making this ruling to express that equity abhors forfeiture. That being so, I think it be would unjust for this court, ... to take sixteen spaces away from the defendant when the defendant had the right to ten of those spaces, certainly by that site plan.
      “I don’t think it would be appropriate and just for this court, to do that. I think that the lease was legal. If I were to rule otherwise, all I could see is that the plaintiff would reap a tremendous advantage off the back of the defendant, who had nothing to do with creating any illegality in the situation, even the nonconforming use.
      “And searching the title for the premises, the defendant was under no obligation to search the land records for the building across the street. Accordingly, judgment shall enter in favor of the defendant. No eviction is ordered by the court,.”

       We need not reach the plaintiffs second claim in view of our conclusion that the lease was legal. We note, however, that the defendant asserted special defenses resting on equitable principles, and that defenses and counterclaims dependent on equitable principles implicating the right to possession can be determined in a summary process action. Fellows v. Martin, 217 Conn. 57, 61-63, 584 A.2d 458 (1991).

       The town filed an amicus curiae brief in which it agreed with the position of the plaintiff as to the illegality of the lease. The town’s brief does not address the equitable issue of whether forfeiture of the lease should have resulted because it violated the town’s zoning regulations. The town is not a party to this case, nor did it seek to intervene as a party. This case concerns two private parties and is not a case in which a town brings an action to prevent a claimed illegality from continuing; see Johnson v. Murzyn, 1 Conn. App. 176, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984); or one brought against a town’s zoning officials to assert rights of private property owners arising from a claimed illegality allowed to exist by the officials; see Scoville v. Ronalter, 162 Conn. 67, 291 A.2d 222 (1971); or a case in which the town sought to intervene as a party plaintiff. See Mida, Inc. v. Harmor Realty Corp., 177 Conn. 218, 413 A.2d 1226 (1979).

       At that time, unapproved site plan changes were not specifically prohibited by the town’s building zone regulations, but they were subject to sanctions prohibiting the issuance of building permits or certificates of occupancy. Effective February 7, 2001, the regulations were amended, expressly prohibiting unapproved site plan changes.

       See Greenwich Municipal Code §§ 6-16 and 6-158. A site plan is a plan for the proposed use of a particular site, purporting to indicate all of the information required by the regulations for the use. SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 15 Conn. App. 561, 565 n.4, 545 A.2d 602 (1988), affd, 211 Conn. 331, 559 A.2d 196 (1989).

       The length of time that a use not permitted by zoning regulations has existed without the institution of court action to enforce the regulations can be a factor in determining whether the use may be continued. See General Statutes § 8-13a (b). No claim of laches can be asserted as to a town. West Hartford v. Rechel, 190 Conn. 114, 120, 459 A.2d 1015 (1983).

       The action, Gordon v. 12 Havemeyer Place Co., LLC, Docket No. CV 01-0184544S, is still pending, although a notation in that court file indicates that no decision will be made as to it because of the action that is the subject of this appeal.

       It is unclear from the transcript of the lessor’s agreement to seek a variance, if the agreement included an appeal to the Superior Court in the event of a denial of a variance.

       The plaintiffs principal testified in this case that he did not want the variance granted.

       Even if the plaintiff were to prevail in its argument that the lease was unenforceable because it illegally provided the defendant with the use of six more spaces than the site plan allowed, the defendant could not be evicted from all sixteen parking spaces without negating the site plan under which he was entitled to ten spaces.

       This language could be read to mean that the planning and zoning commission required a minimum of ten spaces for the tenants of 71 Arch Street as opposed to a maximum of ten spaces. In any event, the parties to a lease are presumed to know the zoning restrictions of a property because that knowledge is imputed to them. See Entrepreneur Ltd. v. Yasuna, 498 A.2d 1151, 1159 (D.C. 1985).

       It is noted that paragraph five requires the lessee, its agents, employees or invitees to comply with the “manner of use of the [pjarking [sjpaces” and the lessor “in other respects” to comply with city regulations. (Emphasis added.) Neither the plaintiff, nor the defendant argue that the lease imposed a requirement on the lessee to abide by city regulations.

       In Sippin, the original lease was between the plaintiff and two defendants, Ellam and Longo. Prior to the lawsuit, the defendant Ellam left the premises and left the business, but his signature remained on the lease. Sippin v. Ellam, supra, 24 Conn. App. 387. For the purpose of this decision, we will use the singular “defendant” to refer to Longo, the defendant who remained in possession of the premises and vacated the premises due to the cease and desist order.

       The trial in Sippin court awarded the plaintiff one dollar in damages on his claim for waste and damages for repairs; Sippin v. Ellam, supra, 24 Conn. App. 388; but the plaintiff did not challenge that portion of the judgment on appeal.

       On appeal to this court, the Sippin plaintiff argued that the trial court could not conclude that the defendants’ operations involved a purpose that violated the restrictive covenant, and was therefore illegal. Sippin v. Ettam, supra, 24 Conn. App. 389. It does not appear from the briefs in the Sippin case that either party in the trial court, or in this court argued the legality of the lease because it violated a zoning regulation, but instead argued the legality on the basis of the restrictive covenant. The trial court rested its judgment solely on illegality arising from the restrictive covenant.

       The legality of a contract is usually tested as of the date of its execution. See Hatcho Corp. v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985); 17 C.J.S., Contracts § 15 (1999).

       The plaintiffs failure to take an appeal was not surprising because its self-interest, did not lie in obtaining a variance or in success on appeal.