author: SPEAR, J.

text:
    CLEMENTINA PRIOLI v. STATE LIBRARY
    (AC 20471)
    Lavery, C. J., and Spear and Dranginis, Js.
    Argued April 4
    officially released July 17, 2001

      Dwight Owen Schweitzer, pro se, the appellant.

      Joshua A. Hawks-Ladds, with whom, on the brief, was Gwen P. Weisberg, for the appellee (plaintiff).
   Opinion

SPEAR, J.

Dwight Owen Schweitzer, trial counsel for the plaintiff, Clementina Prioli, appeals from the decision of the workers’ compensation review board (board), which affirmed the workers’ compensation commissioner’s decision denying Schweitzer’s motion to open and modify an award of attorney’s fees in connection with the plaintiffs case. Schweitzer claims (1) that the commissioner improperly exceeded his authority in determining his fees and (2) that, in the alternative, the provisions of the Workers’ Compensation Act, General Statutes § 31-275 et seq., pertaining to the commissioner’s oversight and approval of attorney’s fees are unconstitutionally vague. We affirm the decision of the board.

The following facts and procedural history are relevant to this appeal. In 1986, Schweitzer agreed to represent the plaintiff in a retaliatory discharge action against her former employer, the Connecticut state library. In 1994 or early 1995, the parties entered into an oral retainer agreement, in which Schweitzer agreed to accept a legal fee of 20 percent for representing the plaintiff. Thereafter, Schweitzer diligently represented the plaintiff in the workers’ compensation proceeding and obtained a finding dated August 2, 1995, establishing the employer’s liability pursuant to General Statutes § 31-290a.

On or about August 15, 1996, Schweitzer requested that the plaintiff sign a document agreeing to increase his fee to one-third of the gross award. Despite her concerns, the plaintiff signed and returned the document to him without consideration or an adequate explanation because she trusted his advice and was pleased with his work. In a note attached to the signed agreement, she praised him for an excellent job and stated that he “deserve[d] every penny” of his fees.

Schweitzer continued to prosecute the plaintiffs claim, and commissioner George A. Waldron issued a finding and award dated February 16,1996. The finding and award ordered reinstatement of the plaintiff to employment similar to the position she held before her termination, remittance of $145,675.60 in back pay ($203,575.84 in lost wages minus an offset of $57,900.24 for wages earned after termination), credit for her accumulated sick time and vacation time, credit for her retirement contributions and a reasonable attorney’s fee of $50,000.

Both parties appealed to this court from the commissioner’s decision, but withdrew their appeals with prejudice and exchanged releases pursuant to a settlement agreement dated July 2, 1996. The agreement was substantially similar to the prior award and provided for the payment of back wages owed to the plaintiff ($146,675.50, minus taxes and retirement contributions that would have been deducted had she continued working) and her reinstatement as an employee with credit for more than ten years of accrued vacation and sick leave. Unlike the prior award, however, the agreement also provided that the plaintiff would be paid “$90,000 in attorney’s fees and in further consideration of her release of any and all claims against the State of Connecticut and [Connecticut state library].”

Under the terms of the settlement, the state paid the plaintiff $236,675.50. After withholding $39,515.58 in federal income taxes, $6014.20 for FICA and $6600.40 in state income taxes, the employer paid the plaintiff a net cash payment of $184,545.32.

Schweitzer then submitted to the plaintiff a document titled “State of Account and Reconciliation of Cash Received.” On the basis of Schweitzer’s accounting, the total value of the plaintiffs award was $390,762.12, consisting of $203,575.84 in back wages (including the credit deducted by the state for wages earned after termination), $50,000 in attorney’s fees, $40,000 in interest, $65,471.20 in retirement benefits, and $31,715.10 in vacation and sick day awards. Schweitzer deducted from the state’s original $236,675.50 cash payment to the plaintiff his attorney’s fee ($130,254.04 pursuant to the one-third contingency fee agreement), an amount for support services and research ($7997.50), state and federal income taxes ($46,115.98) and FICA ($6014.20), leaving the plaintiff with a net cash recovery of only $40,784.72.

Displeased with that accounting, the plaintiff hired separate counsel to contest Schweitzer’s fee. At a hearing before commissioner Stephen B. Delaney, she argued that Schweitzer’s fee should be limited to $50,000, the amount determined in the 1996 award, plus payment for additional time and costs not to exceed a total of $75,000. Schweitzer introduced no evidence to support a higher fee other than the retainer agreement and the plaintiffs expressed satisfaction with his work.

In a ruling dated November 17, 1998, the commissioner rejected Schweitzer’s claims that the commission lacked jurisdiction to determine attorney’s fees in a § 31-290a action and that the contingency fee was reasonable pursuant to In re Estate of Salerno, 42 Conn. Sup. 526, 630 A.2d 1386 (1993). The commissioner awarded Schweitzer a fee of $75,000, inclusive of the previous award of $50,000. The commissioner found that although the amount of attorney’s fees awarded in a § 31-290a action is not the maximum an attorney may accept, Schweitzer did not provide any evidence that his expertise and ability, the time he spent on the case, the results he achieved in that time, the standard billing rate for such a case or the novelty of the legal questions he addressed warranted a higher fee pursuant to General Statutes § 31-327.

Schweitzer filed a motion to open and modify the decision, but the motion was denied. He then appealed from the denial of his motion and from the November 17, 1999 decision. The board affirmed the commissioner’s decision, and this appeal followed.

I

Schweitzer first claims that the board’s affirmation of commissioner Delaney’s decision to “reduce” his attorney’s fees to $75,000 was premised on inferences unreasonably drawn from the facts and an incorrect application of the law. We disagree.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Ser vices, 212 Conn. 441, 449, 562 A.2d 1086 (1989). . . . It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. . . .

“Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, 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. ... As with any issue of statutory inteipretation, our initial guide is the language of the operative statutory provisions.” (Citations omitted; internal quotation marks omitted.) Kelly v. Bridgeport, 61 Conn. App. 9, 13-14, 762 A.2d 480 (2000), cert. denied, 255 Conn. 933, 767 A.2d 104 (2001).

A

Schweitzer claims that the commissioner has no authority to “reduce” his fees because the fees are contained in a separate award. He argues that the plain language of General Statutes § 31-280 (b) (11) (C) requires the commissioner to issue guidelines for “the maximum fees payable by a claimant”; (emphasis added); for the legal services rendered by an attorney, which means that the commission has authority to approve attorney’s fees only to the extent that the claimant bears the burden of paying the fees. Schweitzer contends that this provision protects a claimant from losing the benefit of her recovery, but that here, the provision does not apply because the plaintiffs employer paid her a separate amount specifically designated for attorney’s fees. We do not agree.

Section 31-290a (b) (2) of the Workers’ Compensation Act provides that any employee who is discharged or discriminated against because he or she has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to them pursuant to the act may file a complaint with the commissioner, and “[a]ny employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. ...” Section 31-327 (a) provides that the commissioner may make an award of such fees “directly in favor of the person entitled to the fees . . . [and] . . . [t]he award may be combined with an award for compensation in favor of or against the injured employee ... or may be the subject of an award covering only the fees and expenses.” Section 31-327 (b) further provides that ‘[a]ll fees of attorneys ... or other persons for services under this chapter shall be subject to the approval of the commissioner.” (Emphasis added.)

“We inteipret the regulations of an administrative body pursuant to the principles of statutory construction. . . . When interpreting a regulation, we must use common sense. . . . Courts must assume that a reasonable and rational result was intended and construe the regulation accordingly. . . . When confronted with two possible interpretations, courts will adopt the interpretation that makes the regulations effective and workable, and not the one that leads to unreasonable results.” (Citations omitted; internal quotation marks omitted.) Day v. Middletown, 59 Conn. App. 816, 821-22, 757 A.2d 1267, cert. denied, 254 Conn. 945, 762 A.2d 900 (2000).

We conclude that the commissioner has statutory authority to approve attorney’s fees contained in a separate award and that the board’s affirmation of the commissioner’s decision cannot be successfully challenged on that ground. Subsection (a) of § 31-327 flatly states that an award of fees to a claimant may be made separately or combined with an award for compensation. Subsection (b) directly follows and modifies subsection (a) , and further provides that all attorney’s fees shall be subject to the commissioner’s approval. Subsection (b) makes no distinction between fees that are awarded separately and fees that are combined with other compensation. In the absence of a statutory exception, we are not persuaded that a separate award of fees is exempt from the commissioner’s approval.

The board itself reached asimilar conclusion in Ayala v. Konover Residential Corp., 14 Conn. Workers’ Comp. Rev. Op. 87, 89 (1995), in which it stated that the “plain language” of § 31-227 (b) makes all attorney’s fees subject to the approval of the commissioner. “[General Statutes § 1-1] requires that, in interpreting our statutes, we construe nontechnical words and phrases ‘according to the commonly approved usage of the language.’ ‘Subject’ is defined by the American Heritage Dictionary (2d Ed. 1982) as meaning ‘[u]nder the power or authority of another: subject to the law. . . . Contingent or dependent: subject to approval.’ Black’s Law Dictionary further defines ‘subject to’ as meaning ‘[liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for.’ It would be inconsistent with both the clear meaning of those definitions and the humanitarian purpose of the Workers’ Compensation Act in general to read § 31-327 (b) as limiting the authority of commissioners to oversee attorney’s fees .... A commissioner should be free to examine all attorney’s fee agreements to be sure that they are consistent with the attorney’s fee guidelines promulgated by the chairman of the workers’ compensation commission in accordance with § 31-280 (b) (11) (C).” (Emphasis added.) Ayala v. Konover Residential Corp., supra, 89; see also Day v. Middletown, No. 3264 CRB-8-96-2 (May 20, 1997); LaPia v. Stratford, No. 3109 CRB-4-95-6 (August 29, 1996), rev’d on other grounds, 47 Conn. App. 391, 706 A.2d 11 (1997). Accordingly, we agree with the board that Schweitzer’s fee was subject to the commissioner’s approval pursuant to § 31-327 (b).

B

Schweitzer also argues that the commissioner does not have statutory authority to approve attorney’s fees paid by a claimant’s employer under the terms of a negotiated settlement agreement between the parties. We decline to review Schweitzer’s claim.

“It is well settled that this court will not review statutory claims that are raised for the first time on appeal.” State v. Smith, 255 Conn. 830, 843, 769 A.2d 698 (2001). We find no basis in the record to consider Schweitzer’s newly raised statutory claim. Schweitzer did not refer to the settlement agreement in his brief to the board; he did not refer to it even in his statement of facts. He argued instead that the plaintiff waived her right to have attorney’s fees approved by the commissioner when she agreed to the contingent fee arrangement. Consequently, as Schweitzer himself now points out in his brief to this court, any discussion of the $90,000 attorney’s fee awarded in the settlement agreement was “conspicuously absent from [the] legal analyses” contained in the rulings of both the commissioner and the board. The board “necessarily could have made no ruling”; (internal quotation marks omitted) id.; and Schweitzer’s claim as to the settlement agreement is, therefore, not reviewable.

II

In the alternative, Schweitzer claims that the provisions of the Workers’ Compensation Act pertaining to the commissioner’s oversight and approval of attorney’s fees are impermissibly vague, and violate his state and federal constitutional due process rights as applied to the facts of this case. He claims that, according to the board, §§ 31-280 (b) (11) and 31-327 confer broad authority on the commissioner to regulate all attorney’s fees, regardless of their source, and even permit the commissioner to modify the fees contained in a settlement agreement between the parties. He argues that, to the extent that this is a proper reading of the statutes, they cannot be enforced. This claim also is raised for the first time on appeal.

“Only in the most exceptional circumstances will this court consider a claim that was not raised [before the trial court]. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 452, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001).

Schweitzer has not requested review of his unpreserved constitutional claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), nor has he requested plain error review. We therefore decline to review his claim.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-30lb provides in relevantpart: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision . . . to the Appellate Court.”
      In Day v. Middletown, 245 Conn. 437, 440, 716 A.2d 47 (1998), our Supreme Court concluded that a law firm retained in the prosecution of a workers’ compensation claim may be considered an aggrieved party under § 31-301b, because, for purposes of that statute, “a party is a litigant with a personal stake in the outcome of the controversy.” (Internal quotation marks omitted.)

       General Statutes § 31-290a provides in relevant part: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint .... After the hearing . . . [t]he commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

       The document states in relevant part: “[Yjouare entitled under the statute to ‘Reasonable Attorneys Fees’ in addition to any other damages to which you may be entitled.
      “Whatever amount is awarded for such fees will be added to all other elements of the gross award and my fees will be calculated on the basis of 33 l/3rd% of the entire amount including that amount denominated as ‘reasonable attorneys fees’.”

       The plaintiff testified that she “didn’t want to rock the boat because, after all, this matter wasn’t even finished yet,” and that she had accepted the change after Schweitzer explained it to her without fully understanding the legal basis for it.

       That figure is taken from a document Schweitzer prepared, titled “State of Account and Reconciliation of Cash Received.”

       The settlement agreement did not include any payments for interest, but the accounting statement apparently subtracted this amount from the “$90,000 in attorney’s fees and in further consideration of [the plaintiffs] release of any and all claims against the state of Connecticut and [Connecticut state library],” thus resulting in a figure of $50,000 for attorney’s fees.

       Those figures are taken from the commissioner’s memorandum of decision dated November 17, 1998. The same calculations by the board in its opinion dated January 13, 2000, result in net cash proceeds to the plaintiff of $40,890.76. Schweitzer disagrees with both figures and argues that an accurate calculation results in a net cash reconciliation of $46,293.78.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Lemoine, 256 Conn. 193, 198 770 A.2d 491 (2001). Golding applies to civil as well as criminal cases. Hurtado v. Hurtado, 14 Conn. App. 296, 300, 541 A.2d 873 (1988).

       “[Pjlain error [review] is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.” (Internal quotation marks omitted.) Dubois v. General Dynamics Corp., 222 Conn. 62, 69, 607 A.2d 431 (1992).

       “[I]t is not appropriate to engage in a level of review that is not requested.” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000).


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ELIGIO DELGADO
    (AC 20155)
    Foti, Flynn and Peters, Js.
    Argued May 9
    officially released July 17, 2001

      William B. Westcott, with whom, on the brief, was Michael R. Corsello, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom, on the brief, was Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Eligió Delgado, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (2). On appeal, the defendant claims that the trial court improperly denied his motion for a thirty day continuance or mistrial after the state revealed, following the minor victim’s testimony and in the middle of the testimony of the victim’s mother, that the victim previously had experienced sexual dreams or fantasies. The defendant also claims that the court improperly refused him access to the complaining witness’ treatment records in violation of his right to confrontation under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. We disagree and affirm the judgment of the trial court.

The following factual background is necessary to understand the defendant’s claims that the court improperly denied the requested continuance or mistrial. The minor victim’s mother was a family friend of the defendant and his wife. The victim, her sister and their mother often were invited to the defendant’s home. The charges against the defendant arose out of allegations that the defendant repeatedly engaged in sexual intercourse with the minor victim between August, 1997, and January, 1998, when he was at her home completing construction work in the basement. The victim was eight years old at that time.

In the late summer of 1997, the victim’s mother took her to a physician after the mother noticed an occurrence of vaginal discharge, which she did not believe was normal. After examination, the physician did not find those symptoms remarkable and apparently saw no further need to see or treat the victim. In February, 1998, however, a school nurse learned of the symptoms and advised the victim’s mother that the child could not remain in school unless she was seen by a physician. At that time, Pedro Malave, a pediatrician, examined the victim and performed a culture, which showed the presence of a bacterial organism in the victim’s vagina. Malave determined that the presence of the bacterial organism in a child of the victim’s prepubescent age was an indication that the bacteria had been transmitted through sexual contact. When the mother questioned her, the victim indicated that the defendant had molested her.

During trial, the state commenced its presentation evidence with the testimony of the victim, which was heard fully on July 13, 1999. The victim’s mother then took the witness stand. Before her testimony was complete, however, the state informed the court that, at the lunch recess, it had learned for the first time that an undisclosed medical report written by Malave included statements from the victim’s mother that the young girl had had some dreams concerning killing people and sex. The defendant’s counsel, at that point, stated that he was at “a distinct disadvantage” because he did not know the content of any of those fantasies or dreams or whether those matters would bear on either the victim’s or mother’s credibility. He also indicated that he could not tell at that juncture whether the newly discovered information would be the proper subject of cross-examination for the victim or her mother. He did not fault the state for not disclosing the report earlier, indicating that he had no doubt that the state, too, had just learned of it. He then asked the court for “some kind of a postponement or a mistrial . . . .” The court indicated a willingness to permit the defendant “the discretion to cross-examine [the mother] on reporting that information and the source of it, and what its impact was.” At that juncture, the court observed that Malave had not yet testified.

Defense counsel indicated that he had no opportunity to consult an expert for assistance in preparing pertinent questions and for dealing with the possible array of answers he might obtain in response. The court responded that there was no prohibition against defense counsel calling the victim’s mother as his own witness, if he chose not to cross-examine her. Ultimately, after more dialogue between defense counsel and the court, it became evident that the defendant wanted the court to suspend the case and to wait until defense counsel was prepared to cross-examine the victim’s mother. The court offered the defendant, if he wanted, the right to interrupt the state’s examination of the victim’s mother and to put Malave on the witness stand to inquire about the victim’s prior sexual dreams or fantasies, and then to permit counsel to resume questioning the mother, after which the court would make an intelligent appraisal of the situation.

The court next heard Malave’s testimony, under oath and outside the jury’s presence, concerning the information that the victim’s mother had reported to him. Malave testified that the mother had mentioned that, well before the alleged incidents of abuse, the victim had dreams associated with killing people in a situation where sex was involved. Malave indicated that “when we hear something like this, we are concerned about these kind of dreams because we don’t really hear that very frequently in a kid.” He further testified that one of the first questions that would come to the mind of any pediatrician, when hearing that information, was whether the child had been sexually molested or abused. Malave therefore recommended counseling with a psychologist if the dreams persisted.

After hearing Malave’s testimony, the court took a short recess. When the proceedings resumed, the state advised both the court and defense counsel that, during the recess, the mother had advised him that she had taken the victim to Woodfield Family Services (Wood-field) for counseling and that, during a counseling session, the victim had discussed a situation in which a man named Larry purportedly was going to kill the family and engage in sexual activity. At that juncture, defense counsel asked for a thirty day continuance or a mistrial. The court denied defense counsel’s request, but left the door open by saying, “I have to know why, and right now it is all smoke and mirrors. We will find out maybe here through questioning. I don’t know.” The trial continued, and the jury thereafter returned a verdict of guilty on all counts.

I

The defendant first claims that the court improperly denied his request for a continuance or mistrial. We disagree.

We first note that “[t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ” State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987). “To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary.” State v. Hamilton, 228 Conn. 234, 240, 636 A.2d 760 (1994).

Applying those standards to the present case, we conclude that the court did not abuse its discretion in denying the defendant’s request for a thirty day continuance. The delay sought was lengthy. Such a delay, which may have involved recalling the minor witness to the stand after a lengthy period of over four weeks, would not be desirable. We also conclude that the court did not act arbitrarily in its determinations. It offered several alternatives to the defendant, short of the requested thirty day continuance or mistrial. The defendant did not explain to the court why a thirty day continuance was necessary, as opposed to some other period of time. Thirty days would have been a lengthy time to hold over the jury.

Further, the defendant has not shown actual prejudice because he could have requested a shorter or more reasonable period of time, but did not do so, and his legal representation appears to have been adequate subsequent to the trial court’s ruling on the motion for a continuance. See State v. Bronson, 55 Conn. App. 717, 723-24, 740 A.2d 458 (1999), cert. granted on other grounds, 252 Conn. 944, 747 A.2d 523 (2000). We again note that the court offered the defendant the opportunity to interrupt the state’s examination of the victim’s mother so that the defense could question Malave outside the jury’s presence, which the defendant did. We also note that, when the state thereafter called Malave as a witness, defense counsel again cross-examined Malave, but in the presence of the jury, on the same subject matter. Additionally, defense counsel cross-examined the victim’s mother, without accepting the court’s invitation that he might call her as his own witness. Under those circumstances, we cannot say that the court’s rulings substantially impaired the defendant’s ability to defend himself.

Similarly, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a mistrial. Practice Book § 42-43 governs motions for mistrials in criminal matters. That section provides in relevant part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . .” Practice Book § 42-43. It is common that a fact first becomes known during the course of the trial itself. Unless the disclosure of such a fact causes substantial and extreme prejudice to the defendant’s case, a court should not declare a mistrial. See State v. Correa, 241 Conn. 322, 350, 696 A.2d 944 (1997). Here, we already have determined that the defendant failed to show that actual prejudice resulted. We conclude, therefore, that the court properly denied the defendant’s motion for a mistrial.

II

We next address the defendant’s claim that the court improperly deprived him of his right to confrontation and the right to present a defense in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut, when the court refused to disclose the complaining witness’ treatment records from Wood-field. This argument is without merit.

On review, we must determine whether the court’s decision constituted an abuse of discretion. State v. Walsh, 52 Conn. App. 708, 722, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). When the state learned that the victim had consulted at Woodfield, the state offered to subpoena the records and did so. Thereafter, the state asked the court to review them in camera. A court does not violate the confrontation clause by excluding a defendant’s attorney from an in camera review. See State v. Streater, 36 Conn. App. 345, 354, 650 A.2d 632 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995). After it had completed the in camera review, the court denied defense counsel’s request for access to the records and ordered them sealed.

This court has the responsibility to conduct its own in camera review of the sealed records to determine whether the trial court abused its discretion in refusing to release those records to the defendant. State v. Tyson, 43 Conn. App. 61, 70, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996). “While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not any easy one, we are also mindful of the witness’ legitimate interest in maintaining, to the extent possible, the privacy of her confidential records.” State v. Bruno, 236 Conn. 514, 531-32, 673 A.2d 1117 (1996). “The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material ‘especially probative of the ability to “comprehend, know and correctly relate the truth” ’ ... so as to justify breach of their confidentiality . . . .” (Citation omitted.) State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983). “Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” Id.

At this stage in the proceedings, when the court has reviewed the records in camera, access to the records “must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Citation omitted; internal quotation marks omitted.) Id. Upon our own close examination of the challenged records, we conclude that the court reasonably could have found as it did and that it did not abuse its discretion in denying defense counsel’s access to the records.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record indicates that the state disclosed that information as soon as it had learned of it. There is nothing in the record, therefore, to indicate that the state had any previous knowledge of the information, and the defendant does not claim otherwise.


author: HEALEY, J.

text:
    VINCENT PELLICCIONE v. PLANNING AND ZONING COMMISSION OF THE TOWN OF RIDGEFIELD
    (AC 20361)
    Mihalakos, Flynn and Healey, Js.

      Argued February 20
    officially released July 17, 2001

      Thomas W. Beecher, for the appellant (defendant).

      Robert A. Fuller, for the appellee (plaintiff).
   Opinion

HEALEY, J.

The defendant planning and zoning commission of the town of Ridgefield (commission) appeals from the judgment of the trial court sustaining the appeal by the plaintiff, Vincent Pelliccione, from the commission’s denial of his resubdivision application. On appeal, the commission contends that the court improperly (1) concluded that its denial of the plaintiffs resubdivision application was unsupported by the record and (2) substituted its judgment for that of the commission. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the commission’s appeal. On August 26, 1998, the plaintiff, the owner of certain land on Ledges Road in Ridgefield, submitted a resubdivision application to the commission, seeking approval for four building lots. Public hearings for the plaintiffs applications were conducted by the commission on September 22, 1998, and November 17, 1998.

At the September 22, 1998 hearing, the commission expressed concerns regarding the steep slope of the property and the preservation of the existing features of the land. The plaintiff acknowledged that the slope of certain land involved in the resubdivision application was an issue “in particular” that previously had been considered. At that hearing, a letter to the commission, regarding the plaintiffs application, from the Ridgefield conservation commission was read. In part, the letter stated: “[T]he applicant is attempting to put houses on land with grades running 35% to 70%. ” The letter advocated denial of the applications “unless more details] . . . are provided and satisfactorily address the many problems created by the extraordinarily steep grades.” In the same letter, the conservation commission wrote about what it called the “very steep” condition on the property and stated that “extraordinary measures will be required to stabilize these slopes.”

Dainius L. Virbickas, an engineer from Tyree Engineering, P.C., the firm that prepared the plans filed by the plaintiff, also spoke at the September 22, 1998 meeting. When asked by a commission member about the plans to stabilize the steep slopes on the property, Virbickas replied, “Right now, we have just shown one to one slopes to be stabilized with riprap, but as one of the letters had mentioned, we probably will encounter ledge and probably will have that to face as our slope.” A commission member also questioned Virbickas about whether borings had been conducted to determine the extent of the ledge that might be encountered. Virbickas answered, “Not yet, not yet. The only machines that we have had out there were backhoes for septic system testing.”

At the conclusion of the hearing, the commission directed the plaintiff to two sections of the subdivision regulations of the town of Ridgefield, appendix A, ait. IV, §§ 4-18 and 4-31, which were read in full into the record. The commission decided to continue the hearing until a later date to enable the plaintiff to more fully address concerns raised with regard to the slope of the land, pursuant to § 4-18, and the preservation of existing features of the land, pursuant to § 4-31. The commission further instructed the plaintiff to provide more detailed information about the slope of the land and preserving the existing features, including the need for additional drawings, “at a minimum, twenty-scale drawings of each site, very detailed [including] landscaping necessary to stabilize the slopes.” The hearing was then adjourned until November 17, 1998.

At the November 17, 1998 hearing, the plaintiff presented Mark Komhaus of Tyree Engineering, P.C., who had the “renderings” that the commission had requested earlier. The plaintiff also introduced additional counsel. The plaintiff, in discussing the maps and the property involved, as they were displayed before the commission, stated, “We are going to [explain] to you the grades on these lots. The driveway grades are actually fairly gentle, even though, of course, the slope of the property is fairly steep as it goes up from the road, as you know.” (Emphasis added.)

Kornhaus also addressed the issue of the slope of the lots on behalf of the plaintiff and stated that as to ledge, they were “anticipating” that “we are going to hit rock on this site. In fact, it is very evident that there is ledge; there are actual outcrops there [which could be handled by] shelving it off at one to one and creating a retaining wall.” When asked by the commission how he could determine the nature of the ledge present on the lots so as to know to “do a one on one, and [whether] it is all just ledge, solid right through,” Komhaus replied, “When you are dealing with ledge, you never really know what you are going to get into until you actually uncover it. And what I am talking about is a fractured type of ledge [as distinguished from] something that is very solid, your granite type of bedrock.” The commission then read to Komhaus the last sentence of § 4-18 of the regulations and asked him whether “ledge rock and fractured rock” meant the same thing, to which Kornhaus answered, “Absolutely.”

There appears to be no question that there were visible ledge outcroppings on the application site. The commission expressed concern, however, that the resubdivision application as presented apparently called for grading areas of a slope that exceeded the maximum provided in § 4-18. The commission also stressed to the plaintiff that it had reservations because there were locations on the new plans that indicated grades of a slope of two on one where a one on one slope was proposed. The commission observed that “there is quite a difference between one on one and two on one, and two on one is what we require unless ledge rock prevents [that]. And I am having a problem now with what you expect to find there.” Komhaus stated, however, that he was “very confident that we are going to hit rock there. It is going to be a rock slope.”

After that exchange, a commission member asked Komhaus, “Just for the record, did you not say that you might find either solid, almost like granite type ledge or highly fractured ledge,” and Komhaus replied, “Right, that is a possibility." (Emphasis added.) After some further questioning and discussion, the chairman closed the public hearing.

On December 22, 1998, the commission denied both applications and gave written reasons for its denial. One of the reasons given for denying the plaintiffs resubdivision application was that “[t]he applicant has not demonstrated that ‘cuts, fills and grades necessary to utilize the lots will not result in unsafe driveways or adversely affect adjacent properties, and that graded areas shall have a slope not exceeding one foot vertical in 2 feet horizontal, unless ledge rock prevents,’ as required by Section 4-18 of the Subdivision Regulations. No empirical evidence was offered to support the applicant’s assertion that grading to a 1:2 slope would be prevented by ledge rock. The nature of the ledge rock and soils of the slope is unknown since the applicant stated that no borings were taken at the depth proposed for excavation.”

The plaintiff appealed to the trial court from the commission’s denial of his resubdivision application. The court sustained the plaintiffs appeal. In sustaining the plaintiffs appeal on the resubdivision application, the court reasoned that the commission’s conclusion “that no evidence was offered to support the assertion that ledge rock was present on the property or that ledge rock affected the grading ... is not supported by the record.” This appeal followed.

The commission claims that the court improperly concluded that its decision to deny the plaintiffs subdivision application was unsupported by the record. Further, the commission contends that the court improperly substituted its judgment for that of the commission in reversing the denial of the plaintiffs application. We agree with the commission.

“It is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administralive capacity and is limited to determining whether the plan complies with the applicable regulations. ... It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission. . . . The conclusions of the commission must stand if even one of the stated reasons is reasonably supported by the record.” (Citations omitted.) R. B. Kent & Sons, Inc. v. Planning Commission, 21 Conn. App. 370, 373, 573 A.2d 760 (1990). It is within the province of the commission to interpret and apply its zoning regulations. Gorman Construction Co. v. Planning & Zoning Commission, 35 Conn. App. 191, 195, 644 A.2d 964 (1994).

“The evidence, however, to support any such reason must be substantial .... This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.” (Citation omitted; internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 540, 738 A.2d 1157 (1999).

“The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. . . . The trial court can sustain the [plaintiffs] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal . . . .” (Citations omitted; internal quotation marks omitted.) Gorman Construction Co. v. Planning & Zoning Commission, supra, 35 Conn. 195. “In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [commission] should be overruled.” (Internal quotation marks omitted.) Daw v. Zoning Board of Appeals, 63 Conn. App. 176, 180, 772 A.2d 755, cert. denied, 256 Conn. 931, 776 A.2d 1145 (2001).

With those principles in mind, we now address the issue of whether the court improperly concluded that the commission’s decision was not supported by substantial evidence in the record. In connection with that issue, we also will resolve the commission’s claim that the court improperly substituted its judgment for that of the commission.

In overturning the commission’s denial of the plaintiffs resubdivision application, the court stated that “[t]he commission concluded that no evidence was offered to support the assertion that ledge rock was present on the property or that ledge rock affected the grading.” After thoroughly reviewing the record, we conclude that the court misinterpreted the commission’s rationale in denying the plaintiffs application. We will discuss that further, but we state here that the court’s statement is wide of the mark. The commission concluded that the plaintiff failed to present sufficient evidence to demonstrate that ledge rock prevented compliance with the slope requirements of § 4-18 and not that the plaintiff failed to present evidence that ledge rock existed in the first place.

There is substantial evidence in the record that reasonably supports the commission’s conclusion that the plaintiff did not demonstrate that the exception, “unless ledge rock prevents,” in § 4-18 applied here. To begin with, the plaintiffs application, including the new plans, delineated areas of grading that would have slopes in excess of the maximum of one foot vertical and two foot horizontal ratio permitted by § 4-18. It was the plaintiffs burden to demonstrate either that such areas met the requirements of § 4-18 or that he was within the “unless ledge rock prevents” exception from compliance with § 4-18.

It also is clear from § 4-18 that the mere presence of ledge rock is not dispositive, despite the court’s suggestion, in demonstrating compliance with the regulation in obtaining the relief afforded the plaintiff by satisfying the exception of where ledge rock “prevents” compliance with the slope requirement of § 4-18. The court’s concern with the mere presence of ledge rock is ill founded. In focusing solely on the presence of ledge rock, the court effectively ignored the “unless ledge rock prevents” language in the regulation in a factual context that clearly invokes it — and where, as the commission perceived, it was the only route for the plaintiff, under the circumstances of this case, to qualify for relief under § 4-18.

In his brief, the plaintiff claims that “[t]he testimony of the engineer and the maps are clear evidence of ledge, allowing greater grading in those areas than one to two [foot] slopes if that could not be otherwise achieved during construction. On the other hand, there was no credible evidence supporting the absence of ledge.” We do not agree with the plaintiff that his engineer, Komhaus, stated during the hearing that the presence of ledge rock “prevented” compliance with the one foot to two foot slope requirement of § 4-18. Moreover, the plaintiff fails to point to any statement or credible evidence from which it could be reasonably inferred that the presence of ledge rock on the lots prevented compliance with the § 4-18 requirements.

In reference to the ledge rock, Komhaus, the plaintiffs expert engineer, stated that “there is apparent ledge and it is very evident here.” He stated that “in the back of that house [there] is definite ledge. It is about to five to six feet down ... it is coming out of the ground in outcrops.” As to another site, he stated, “In fact, it is very evident that there is ledge; there are actually outcrops there.” Komhaus also stated, “I am very confident that we are going to hit rock there. It is going to be a rock slope.” Again, this merely shows that there is ledge rock outcropping in various areas on the site of the lots in the application. When asked by the commission, however, “[j]ust for the record, did you not say that you might find either solid, almost like granite type ledge, or highly fractured ledge?” Komhaus answered, “Right, that is a possibility.'” In the context of safety and stabilization vis-a-vis grading, one commission member stated that he assumed that it would be stable because of the rock. Kornhaus replied, “Right, because it is rock. Maybe these are some areas that might not be.” (Emphasis added.)

The engineer’s testimony was essentially conjectural and surmise. Contrary to the plaintiffs claim that there is no countervailing evidence to that of the engineer, the commission, as the judge of credibility, “is not required to believe any witness, not even an expert.” Monor Development Corp. v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980); see Laufer v. Conservation Commission, 24 Conn. App. 708, 716, 592 A.2d 392 (1991). It was properly within the discretion of the commission to reject the engineer’s evidence. In any event, Komhaus never provided, nor can it be fairly implied that he stated, that the presence of ledge rock prevented compliance with § 4-18. Simply put, the expert Komhaus’ testimony did not give the commission any definitive information on the central issue of whether the presence of ledge rock prevented compliance with § 4-18.

Furthermore, the commission, during the November 17, 1998 hearing, reminded the plaintiff that at the earlier public hearing, it had cautioned him about the need for more specific answers and notified him about its problems understanding the nature of the ledge on the property. More than once, the commission stressed the need for meaningful presentation in light of the language, “unless ledge rock prevents,” in § 4-18.

In the challenged reason for denying the plaintiffs subdivision application, the commission stated the following: “No empirical evidence was offered to support the applicant’s assertion that a grading to a 1:2 slope would be prevented by ledge rock. The nature of the ledge rock and soils of the slope is unknown since the applicant stated that no borings were taken at the depth proposed for excavation.” The word “empirical” is defined as “[o]f, relating to, or based on experience, experiment, or observation.” Black’s Law Dictionary (7th Ed. 1999). It means “capable of being confirmed, verified, or disproved by observation . . . .” Webster’s Third New International Dictionary.

The plaintiff had made some borings on those lots earlier, concerning septic systems, but no “borings were done at the depth proposed for excavation.” At the first public hearing in September, 1998, Virbickas, the original engineer for the plaintiff, when asked if any borings had been taken concerning ledge rock responded, “Not yet, not yet.” Although some seven weeks expired between the first and second public hearings, there was no evidence that any further borings had been taken at all between the two public hearings. There was no empirical data or evidence offered by the plaintiff.

In examining the conclusion of the court, we review the facts on which the commission based its decision, keeping in mind that the reasons given for the commission’s denial involved pertinent considerations required by the regulation § 4-18. We conclude that there was substantial evidence in the record to support the commission’s findings and conclusion that the plaintiff had not sustained his burden of demonstrating that the exception to the slope requirement of § 4-18 applied to his application.

In addition, we conclude that the court improperly perceived its function in its review of the commission’s decision on appeal when it substituted its judgment for that of the commission. The court’s function was “to determine on the basis of the record whether substantial evidence has been presented to the [commission] to support its findings.” Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn. App. 204, 209, 644 A.2d 401 (1994); see Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). Furthermore, a reviewing court cannot substitute its judgment as to the weight of the evidence before the commission and on factual issues material to the reasons for the commission’s decision because it is within the province of the commission to determine the credibility of witnesses. Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 523, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). Not only is a reviewing court prohibited from substituting its judgment for that of the commission, but the decision of the commission must be sustained if an examination of the record discloses evidence that supports any one of the commission’s reasons. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 629, 711 A.2d 675 (1998); Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 539-40. “The question is not whether the trial court would have reached the same conclusion but whether the record before the [commission] supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979).” Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983).

In this case, the court improperly substituted its judgment for that of the commission. It weighed the evidence and concluded that the evidence was sufficient to satisfy the requirements of § 4-18, despite the substantial evidence in the record supporting the commission’s conclusion that the evidence was not sufficient to permit an exception to the slope requirements of that regulation.

The plaintiff counters that the court’s decision should be upheld because the commission improperly interpreted applied § 4-18 of its own subdivision regulations. The plaintiff contends that, as to § 4-18, “[a] standard requiring proof sufficient to satisfy the commission is not a valid basis for refusing to approve an application.” In similar fashion, he posits that “[a]n applicant does not have to present sufficient information as the agency members may require because that is a subjective standard without any reasonable parameters.” Further, the plaintiff argues that the “cutting, filling and grading . . . applies to actual development of an approved lot and not to initial approval of lots in a subdivision. The grades are not determined until the lot is used and improved. [It is only at] that point [that] the necessary slope is obtained in graded areas.”

We consider the plaintiffs suggestion, directed to § 4-18, that “[a] standard requiring proof sufficient to satisfy the commission is not a valid basis for refusing to approve an application” and that “[a]n applicant does not have to present sufficient information as the agency members may require because that is a subjective standard without any reasonable parameters.” The plaintiff, in discussing the two sentences that comprise § 4-18, claims that they must not be read so as to give the commission discretion to veto a lot at the subdivision approval stage because the applicant “who is not [actually] developing the lot at that stage, has not conclusively proved that grading during construction can obtain a 1 to 2 slope or that ledge rock will be encountered in all graded areas in sufficient amounts to allow a lesser grade.” (Emphasis added.)

The subdivision regulations on which the commission, acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature and must conform to the principle that a regulation, like a statute, cannot be too general in its terms. Smith v. Zoning Board of Appeals, 29 Conn. App. 28, 38, 614 A.2d 464 (1992), rev’d on other grounds, 227 Conn. 71, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994). “A commission’s regulations must be reasonably precise in subject matter and reasonably adequate and sufficient to give both the commission and those affected by its decision notice of their rights and obligations.” (Internal quotation marks omitted.) Id.

In discussing that issue, it is well to remember that “[a] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances.” (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 46 Conn. App. 566, 571, 700 A.2d 67, cert. denied, 243 Conn. 936, 702 A.2d 640 (1997). Although the position of the commission is entitled to some deference, the interpretation of provisions in the regulations is a question of law for the court. Coppola v. Zoning Board of Appeals, 23 Conn. App. 636, 640, 583 A.2d 650 (1990).

“A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. ... A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance.” (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 46 Conn. App. 571. “The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms.” Coppola v. Zoning Board of Appeals, supra, 23 Conn. App. 641. “The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant.” Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 571.

We disagree with the plaintiff’s interpretation of § 4-18. The first sentence of § 4-18 provides that “[t]he lot arrangement shall be such as to minimize foreseeable difficulties, for reasons of topography or other conditions, in securing building permits to build on all lots in compliance with the applicable zoning regulations and sanitary regulations, and in providing safe driveway access to buildings on such lots.” The intent of the regulation is to reduce in degree or extent difficulties of the nature set out thereafter in the first sentence. The associated “difficulties” that are “foreseeable” are quite clear, especially given the acceptable meaning of “foreseeable” as “being such as may reasonably be anticipated . . . .” Webster’s Third New International Dictionary. It does not speak only to foreseeable difficulties in providing safe driveway access, but also to property or other conditions, and on the securing of building permits in compliance with zoning and sanitary regulations. The “foreseeable” difficulty as to the ledge rock is taken into consideration by the drafters of § 4-18 by providing relief from the two to one slope requirement where ledge rock “prevents” compliance with that ordinance.

The second sentence of § 4-18 provides that “[t]he applicant must demonstrate to the Commission that cuts, fills and grades necessary to utilize the lots will not result in unsafe driveways or adversely affect adjacent properties, and that graded areas shall have a slope not exceeding one foot vertical in 2 feet horizontal, unless ledge rock prevents.” (Emphasis added.) First, we point out that the applicant “must demonstrate” to the commission that certain activities on the lots will not result in unsafe driveways or adversely affect adjacent properties and also “demonstrate” that graded areas will have a slope not exceeding one foot vertical in two feet horizontal except where it is demonstrated that ledge rock prevents attaining the required slope. “Demonstrate” means “to make evident or reveal as true by reasoning processes, concrete facts and evidence, experimentation, operation, or repeated examples . . . .” Webster’s Third New International Dictionary. “Demonstrate” is synonymous with “prove, show.” Id.

We are persuaded that in the context within § 4-18, to demonstrate indicates futurity and not certainty. After all, in building development, developers accept, as part of the business, that land use agencies require tests of various natures so as to be reasonably assured that certain problems will not be encountered. “The law favors rational and sensible statutory construction. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an [ordinance] is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable.” (Citation omitted.) Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984).

That reasoning also applies to the plaintiffs apparent claim that the commission views § 4-18 as structured so that it requires an applicant, at the subdivision approval stage, to be faced with a “veto” of his application unless he has “conclusively proved” that “grading construction can obtain a one to two slope or that ledge rock will be encountered in all graded areas in sufficient amounts to allow a lesser grade.” (Emphasis added.) Section 4-18 does not state that. First, the plaintiffs “conclusively proved” standard is ill chosen; this is civil litigation, and such a standard is not applicable. Nor is such language warranted by the “must demonstrate” requirement; that simply informs him that he must adduce evidence on his application at the public hearing of such a nature that demonstrates or proves and places in the record substantial evidence in support of his application.

“Substantial evidence,” as defined by the cases that we previously have discussed, is hardly within the probative stratum of “conclusive proof. ” See Beizer v. Dept. of Labor, 56 Conn. App. 347, 357, 742 A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000). For example, “ [substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” Id. The commission’s factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole. Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 225 Conn. 744; Beizer v. Dept. of Labor, supra, 357.

In sum, we do not agree with the plaintiff that § 4-18 lacks a standard that affords a valid basis for the commission to use in passing on the propriety of a resubdivision application and that it leaves the fate of such applications to the subjective views of commission members. The regulation provides that an applicant must demonstrate, i.e., prove, certain matters. Those include that cuts, fills and grades necessary to use the lots will not result in unsafe development or adversely affect adjacent properties,” and that “graded areas shall have a slope not exceeding one foot vertical in two feet horizontal, unless ledge rock prevents.” (Emphasis added.) There is no issue raised about the plaintiffs and the commission’s understanding about what “unsafe driveway” means, nor is anyone attacking the language about use of those lots “adversely affecting adjacent properties.” Those words are plain and clear.

In like manner, the last portion of the second sentence in § 4-18, the provision that states “that graded areas shall have . . . unless ledge rock prevents”-, (emphasis added); which is focal in this appeal, is also unambiguous in its meaning. The “unless” clause provides an applicant with the opportunity for relief from the slope requirement. That, of course, is subject to the plaintiff, demonstrating that the ledge rock prevents compliance by “substantial evidence,” which, as pointed out, is not at all the “conclusively proven” standard of proof of which the applicant complains. The standard in § 4-18 is thus reasonably sufficient fairly to apprise the applicant, the commission and the public of the circumstances under which an exception will be permitted. We therefore not only disagree with the plaintiffs claim regarding the standard applicable to § 4-18, but also his argument that the commission misread that regulation.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs appeal from the denial of his resubdivision application.

In this opinion the other judges concurred.

       The resubdivision application was combined with an inland wetlands application concerning an intermittent watercourse draining to Ledges Road in Ridgefield, which was heard at the same time as the resubdivision application. Both the resubdivision and inland wetlands applications simultaneously were denied on December 22, 1998. The denial of the inland wetlands application, however, is not part of this appeal.

       Appendix A, art. I, § 1-2, of the Ridgefield subdivision regulations provides in relevant part that “[n]o subdivision of land shall be made until a plan for such subdivision has been approved by the Commission. . . .”

       Prior to the public hearing, members of the commission held a site walk on the subject property on September 13, 1998.

       Pursuant to appendix A, art. IV, § 4-18, of the Ridgefield subdivision regulations, “[t]he lot arrangement shall be such as to minimize foreseeable difficulties, for reasons of topography or other conditions, in securing building permits to build on all lots in compliance with the applicable zoning regulations and sanitary regulations, and in providing safe driveway access to buildings on such lots. The applicant must demonstrate to the Commission that cuts, fills and grades necessary to utilize the lots will not result in unsafe driveways or adversely affect adjacent properties, and that graded areas shall have a slope not exceeding one foot vertical in 2 feet horizontal, unless ledge rock prevents.”

       Appendix A, art. IV, § 4-31, of the Ridgefield subdivision regulations provides in relevant part that “[t]he commission may require that existing features which would add value to the development or to the town as a whole, including, but not limited to, trees, watercourses, ridge tops or ridge lines and similar irreplaceable assets, shall be preserved through harmonious design of the subdivision. The commission may make reasonable modifications in standards for layout of streets and lots to accomplish such purposes, including protective screening. . . . Slopes and ledges not suitable for such treatment shall not be disturbed and shall remain in their natural state.”

       That new counsel, Robert A. Fuller, made the presentation for the plaintiff at the November, 1998 hearing and is the plaintiffs counsel on this appeal now before us.

       A commission member then stated: “But the retaining wail, of course, isn’t a wall. It is just solid rock.”

       The “new” plans, introduced by the plaintiff at the hearing of November 17, 1998, according to Kornhaus, were “new plans [that] address all the issues you have raised.”

       During that hearing, certain commission members indicated their concern with what aggressive site disturbance would mean to the lots and to compliance with § 4-31 of the regulations.

       In sustaining the plaintiffs appeal, the court further stated: “The applicant specifically addressed the grading plans and the need for a 1.1 slope .... Furthermore, evidence was offered concerning the one to one slope and the presence of ledge rock .... The commission concluded that no evidence was offered to support the assertion that ledge rock was present on the property or that ledge rock affected the grading. This conclusion is not supported by the record. All accessway grades and driveway grades comply with all subdivision regulations, consistent with § 14-12 of the Ridge-field subdivision regulations. In the absence of specific information indicating a violation of the subdivision regulations, coupled with definite finding of ledge rock requiring the grade adjustment, a standard requiring proof sufficient to ‘satisfy’ the commission, cannot provide the basis for a denial of the plaintiffs submission. Helbig v. Zoning Commission, 185 Conn. 294, 314, 440 A.2d 940 (1981). The plaintiffs appeal from the denial of his resubdivision application is therefore sustained.” (Citations omitted.)

       The court’s review was based on the record, which included the knowledge of commission members that was gained through personal observation of the site. See Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983). In this case, the commission did “site walk” the premises involved.

       We assume here that the plaintiff refers to Komhaus, the engineer for the plaintiff who spoke at the November 17, 1998 hearing.

       At that time, the commission read §§ 4-18 and 14-31 of the regulations aloud and indicated that they should be kept in mind in future presentations relative to the applications.

       It is somewhat anomalous that the new plans showed some plantings intended for some of the very areas that allegedly held ledge rock in disputed slope areas. One commissioner indicated that from the kind of the rock he had heard described, “I wouldn’t expect those things would take hold at all.”

       We do not mean to suggest that additional borings were the only type of “empirical” evidence that was acceptable. The point is that no other empirical evidence of any sort, as we have defined that term, was even attempted to be offered to the commission.

       Appendix A, art. IV, § 4-18, of the subdivision regulations has only two sentences.

       The clear implication of this branch of the plaintiffs claim is that it is not necessary, at the stage of the approval of his resubdivision application, for the commission to be concerned about the issue of slopes. The plaintiff fails to provide any analysis or authority for this bifurcated claim that consideration of this issue must await actual development of the lot. Accordingly, we reject that claim.

       The word “foreseeability” is defined as the “quality of being reasonably antieipatable. . . .” Black’s Law Dictionary (7th Ed. 1999).

       The plaintiff apparently insists, as he interprets § 4-18, that the commission requires the applicant to present evidence on matters that he simply is not in a position to present. On this record he evinces no persuasive reason for such a position. His seeming bifurcation of those matters that he is reasonably required to address now on his application and his site plans, as opposed to that which he says he only has to demonstrate at the actual development stage, cannot be accepted.

       The plaintiff further posits that § 4-18, considered as a whole, was designed for “providing safe driveway access to the buildings on such lots” and that because the proposed driveways on the lots meet all of the standards set forth in the regulations, the commission should have approved his plan. A plain reading of the unambiguous language of § 4-18 does not support the plaintiffs claim here.