author: FLYNN, J.

text:
    SEBASTIAN DOUGLAS ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WATERTOWN
    (AC 31626)
    DiPentima, C. J., and Lavine and Flynn, Js.

      Argued October 19, 2010
    officially released March 8, 2011

      Marjorie Shansky, for the appellants (plaintiffs).

      Dov Braunstein, with whom, on the brief, was Paul R. Jessell, for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiff Jonathan Andrew and the intervening plaintiffs, Sebastian Douglas, Gloria Lynn, Elizabeth Wasiutynski, Bohdan Wasiutynski, Angela Maggi, Judith M. Wick and Glenn LaFreniere, appeal from the judgment of the trial court dismissing their challenge to the defendant Watertown planning and zoning commission’s (commission) adoption of a text amendment to the Watertown zoning regulations (text amendment) to create a B-PCD262 zone permitting retail and office development in an existing industrial zone. The text amendment created what the trial court termed an “overlay zone,” which, under specific circumstances and subject to specific preconditions detailed in the text amendment, affected the land bounded by Route 262, Turkey Brook, Echo Lake Road, Connecticut Route 8, and Frost Bridge Road, in Watertown. Andrew (landed plaintiff) appeals as an owner of land located within the newly created zoning district pursuant to General Statutes § 8-8 (a) (l), and the other seven plaintiffs (intervening plaintiffs) each filed verified petitions to intervene in the administrative proceedings before the commission pursuant to General Statutes § 22a-19 (a). On appeal to this court, the landed plaintiff contends that the trial court erred in holding that he did not have standing to challenge the adoption of the text amendment establishing the new zoning district. The intervening plaintiffs contend, inter alia, that the trial court erred in holding that they did not have standing to appeal to the Superior Court from the decision of the commission adopting the new zoning district. We conclude that the trial court improperly dismissed the landed plaintiffs case and reverse the judgment in part with direction to restore the landed plaintiffs case to the docket. As to the intervening plaintiffs, we affirm the judgment of the trial court dismissing their intervening complaint.

The following facts are relevant to our analysis. The landed plaintiff owns land that abuts or is within a radius of 100 feet of the new zoning district, and the intervening plaintiffs own land elsewhere in the town of Watertown. The commission proposed a text amendment to article III — business districts of the Watertown zoning regulations to add a new Section 36 entitled “Draft November 8, 2008, Route 262 Planned Commercial District (B-PCD262).” See Watertown Zoning Regs., § 36. The text amendment added to the previously permitted industrial uses certain commercial uses for the development of “high quality retail and office development.” Section 36.2 of the Watertown zoning regulations provides in relevant part that “[t]he outermost boundaries of the overlay District are Route 262, Turkey Brook, Echo Lake Road, Route 8, and Frost Bridge Road,” consisting of only approximately 150 acres. After hearings, the commission enacted the text amendment on November 10, 2008, and published notice on November 13, 2008, in the newspaper.

The intervening plaintiffs and the landed plaintiff filed the original action, by verified complaint, on January 2, 2009. The intervening plaintiffs were all recognized by the trial court as intervening petitioners during the zoning hearing pursuant to § 22a-19 (a). In their response to the motion to dismiss, the intervening plaintiffs claimed inadequacies in the special permit process and that traffic volume will have a severe environmental impact and thus were aggrieved. The landed plaintiff claimed aggrievement because he is the owner of property that is within, abuts or is within a radius of 100 feet of the 150 acre area identified by the defendant for the overlay zone. All plaintiffs claimed aggrievement because the approval of the amendment was illegal, arbitrary, capricious, in abuse of the commission’s discretion and in violation of its own regulations and applicable statutes. In response, the commission argued that the plaintiffs were not aggrieved and, thus, lacked standing to bring the case. The commission filed a motion to dismiss on February 6, 2009. The commission filed a reply to the plaintiffs’ objection on March 26, 2009. The trial court, Brunetti, J., granted the commission’s motion to dismiss on July 21,2009, by written memorandum of decision. This appeal followed.

We begin by setting forth the legal principles that govern our review. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. ... A determination regarding a trial court’s subject matter jurisdiction 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 and find support in the facts that appear in the record. . . .

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage [of] the proceedings. . . .

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy. . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue.” (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86, 815 A.2d 1188 (2003).

I

We first address the judgment of dismissal as it relates only to the landed plaintiff. The landed plaintiff claims that the trial court erred in holding that he did not have standing to challenge the commission’s adoption of the text amendment to the zoning regulations. Specifically, he argues that he is statutorily aggrieved under § 8-8 (a) (1) because his land abuts or is within a radius of 100 feet of the area affected by the newly created overlay zone. In response, the commission argues that the landed plaintiff does not have standing because the text amendment created a floating zone. Specifically, the commission argues that the zone does not apply to any specific parcel of land, and, therefore, the landed plaintiff is not aggrieved. We agree with the landed plaintiff.

We begin by addressing the defendant’s claim that the text amendment created a floating zone. By definition, a floating zone does not apply to a specifically described parcel of land. Campion v. Board of Aidermen, 278 Conn. 500, 519, 899 A.2d 542 (2006). A floating zone “differs from the traditional ‘Euclidean’ zone [which has definite bounds] in that it has no defined boundaries and is said to ‘float’ over the entire area where it may eventually be established.” Schwartz v. Town Plan & Zoning Commission, 168 Conn. 20, 22, 357 A.2d 495 (1975). In Schwartz, our Supreme Court held that the plaintiffs were not aggrieved by the enactment of floating zone regulations. Id., 25-26. “At the time of [the commission’s] adoption the new districts, designated regional, community, and neighborhood shopping center districts, did not affect any particular area or property within the town.” Id., 22. In examining the Schwartz decision, this court in Hayes Family Ltd. Partnership v. Planning & Zoning Commission, 98 Conn. App. 213, 222 n.9, 907 A.2d 1235 (2006), cert, denied, 281 Conn. 903, 904, 916 A.2d 44 (2007), concluded that Schwartz is distinguishable from cases in which the plaintiff can demonstrate that it, unlike the community as a whole, owned property likely to be affected by a particular regulation. Additionally, the Hayes court noted that there was no indication that the plaintiffs in Schwartz even owned property whose development potential was impacted directly by a specific provision in those regulations. Id. “Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest.” (Internal quotation marks omitted.) Id., 222. “Since the floating zone regulations establish a zone for a type of use with an undetermined location, the zone can technically be applied anywhere in the municipality. It can result in individual preferences and respond to development pressures rather than considering the best area for location of particular uses.” (Emphasis added; internal quotation marks omitted.) Campion v. Board of Aldermen, supra, 519.

The trial court held that the landed plaintiff was not aggrieved because no particular area was affected by the text amendment. The court, citing Schwartz v. Town Plan & Zoning Commission, supra, 168 Conn. 23, reasoned that “there can be no aggrievement when the zoning regulations of a municipality are amended in such a way that no particular area or property is affected.” (Internal quotation marks omitted.) In particular, under Schwartz, “[b]efore the floating zone can ‘descend,’ an application must be made for a change of zone and a public hearing must be held.” Schwartz v. Town Plan & Zoning Commission, supra, 24. The trial court also relied on a more recent case, Harris v. Zoning Commission, 259 Conn. 402, 788 A.2d 1239 (2002), in which our Supreme Court further explained that the aggrievement principle set forth in Sheridan v. Planning Board, 159 Conn. 1, 266 A.2d 396 (1969), “stands for the proposition that a prospective, personal and legal interest in the subject matter of a zoning commission’s decision does not satisfy the first prong of the test for classical aggrievement.” Harris v. Zoning Commission, supra, 414 n.12.

In the present case, the parcel of land subject to the commission’s decision does not float over the entire community but has distinct geographical boundaries. The text amendment creates a new zoning district, which the plaintiffs refer to as the “Route 262 Planned Commercial District (B-PCD262)” for specific property bounded by Route 262, Turkey Brook, Echo Lake Road, Connecticut Route 8, and Frost Bridge Road in Water-town. The text amendment defines the specific geographical area to which it relates. The newly created B-PCD262 zoning district permits commercial uses in an IR-80 industrial zone. The text amendment applies to the otherwise industrially zoned area, and the commission identified the area “Route 262, Turkey Brook, Echo Lake Road, Route 8, and Frost Bridge Road” as the boundaries of the new zoning district in § 36.2 of the regulations titled “Overlay District Location.” The parties do not dispute that the area has definite bounds. The area described is bounded on all sides and consists of only approximately 150 acres. Because this particular 150 acre area is affected by the commission’s decision, the area affected has descended to a particular part of the town under the language set forth in Schwartz. We conclude that the text amendment sufficiently defined the specific, limited geographic area to which the text amendment related, and, therefore, the new zoning district cannot be considered a floating zone.

We next address the landed plaintiffs claim that he is statutorily aggrieved because he owns land that abuts or is within a radius of 100 feet of any portion of the land of the particular area to be affected by this newly created zoning district that permits certain commercial uses in an otherwise industrially zoned area. Section 8-8 (a) (1), which governs planning and zoning commission appeals, allows an appeal to be brought by an “ ‘aggrieved person’ . . . [and] includes any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” A person owning property within the designated distance of the land involved in the agency’s decision is called “statutorily aggrieved” and has standing to appeal.

In Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168, 173, 592 A.2d 386 (1991), our Supreme Court held that classical aggrievement in an administrative appeal is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been affected by the action of a zoning authority. Statutory aggrievement, as opposed to classical aggrievement, occurs when a landowner owns land “that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board”; General Statutes § 8-8 (a) (1); and the landowner appeals to the Superior Court. Citing Harris v. Zoning Commission, supra, 259 Conn. 402, the trial court held that the landed plaintiff had “not shown any aggrievement.” However, in Harris, our Supreme Court dealt with classical aggrievement, not statutory aggrievement. See Harris v. Zoning Commission, supra, 413-15 and 415 n. 15. Classical aggrievement requires a twofold showing. “[F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.” (Internal quotation marks omitted.) Id., 410. Neither of these prongs must be proved if a plaintiff is statutorily aggrieved under § 8-8 (a) (1).

In the present case, the trial court dismissed the case of all plaintiffs because they were not aggrieved. In the case of the landed plaintiff, the court dismissed his case for lack of aggrievement although it found that he owned land that abuts or is within a radius of 100 feet of the bounds the commission established as affected by its text amendment to the regulations permitting commercial uses in that area of the municipality, which, prior to the amendment, allowed only industrial uses.

The trial court specifically found that “ [i]n the present case, the landed plaintiff owns land in an area, which the commission added an overlay zone.” This finding is dispositive of our resolution of this claim. “Persons whose land falls within the statutory category need not prove aggrievement independent of their status of owners of property bearing the necessary relationship to property involved in the agency’s action.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2007) § 32.4, p. 147. Our decision in Cole v. Planning & Zoning Commission, 30 Conn. App. 511, 620 A.2d 1324 (1993), is analogous to the present case. In Cole, we held that pursuant to § 8-8 (a) (1), the plaintiffs were aggrieved parties by virtue of their ownership of land within the zone to which the amendment at issue pertained. Id., 514-15. The plaintiffs had appealed from a decision of the Cornwall planning and zoning commission that adopted an amendment to its regulations permitting the operation of a commercial sawmill in certain residential zones. Id., 512. The plaintiffs in Cole owned land within 100 feet of the property on which a permanent sawmill operation was intended to be established in accordance with the new regulation. Id., 515. The court found that the plaintiffs were aggrieved parties by virtue of their ownership of land within the zone to which the amendment pertained. Id. Their appeal, like the appeal in the present case, was from the adoption of the amendment to the regulations, not from the issu-ances of a permit and site plan approval for the actual use. Id., 511. The plaintiffs in Cole alleged that “[a] permanent sawmill [operation] was not permitted on said property under the original regulation but was permitted under the amended regulation.” Id., 515. Similarly, the text amendment in the present case amended the existing bounded parcel of IR-80 industrial zoned property to permit certain new uses, particularly, “high quality retail and office development,” and to exclude other certain enumerated commercial uses, e.g., Laundromats. In both cases, additional limitations to the text amendment were anticipated to be set forth in the permit process. In Cole and the present case, the use was prospective but then was permitted by the new regulation. We conclude, therefore, that the text amendment created a defined, bounded zoning district and that the landed plaintiff is statutorily aggrieved under § 8-8 (a) (1) because his property falls within the particular zone to which the text amendment pertained.

The commission also argues that the landed plaintiff is not aggrieved because there has not been any change to the zoning map, nor have any zoning map change applications been filed. Additionally, the commission argues that further steps in the application process must be taken, such as submission and approval of a conceptual site plan filed in conjunction with a zoning map application, before the text amendment touches or impacts any parcel of land. Whether the zoning map has been changed or further steps in the application process will be taken is immaterial to our determination that the landed plaintiff is statutorily aggrieved. The area is no less bounded than if it were delineated on the zoning map. The landed plaintiff, as an owner of land within the newly created, bounded zoning district, the area to which the text amendment pertains, is an aggrieved party by virtue of § 8-8 (a) (1). See Cole v. Planning & Zoning Commission, supra, 30 Conn. App. 511.

The commission also argues that the landed plaintiff is not aggrieved because a person owning land within the B-PCD262 zone is not required to join or to have his or her property included in the amendment to the zoning map. Whether a landowner may choose to have his or her property not included in the amendment to the zoning map, a future step in the process, is immaterial to our conclusion because the landed plaintiff is already statutorily aggrieved by virtue of owning land within the newly created B-PCD262 zone. The commission’s argument erroneously presumes that the new zoning district is a floating zone. For the reasons stated earlier in this opinion, the newly created zoning district is not a floating zone because it has defined, definite bounds.

The text amendment created the new B-PCD262 zone, a new zoning district with specifically defined, definite bounds, which permits development that previously was not permitted. In its brief, the commission recognizes that the new text amendment permits development that was not permitted at all in the preexisting zone. Even if the landed plaintiff were somehow able to opt out of the amendment to the zoning map, he is no less statutorily aggrieved because his land still “abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” General Statutes § 8-8 (a) (1). The landed plaintiffs decision to opt out does not affect whether his neighbors decide to opt out and, consequently, whether the lands of such adjoining property owners are still subject to the text amendment. The landed plaintiff, therefore, is no less of an abutter of some adjoining property owner who did not decide to opt out. “Statutory aggrievement exists by legislative fiat, which grants appellants standing by virtue of a particular legislation, rather than by judicial analysis of the particular facts of the case.” (Internal quotation marks omitted.) Cole v. Planning & Zoning Commission, supra, 30 Conn. App. 514-15. The landed plaintiff only had to prove that he owns land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the commission to have standing to appeal by legislative fiat. It was not necessary for the landed plaintiff to prove any specific aggrievement.

The text amendment created a defined, bounded zoning district, and the landed plaintiff is statutorily aggrieved because his property falls within the particular zone to which the text amendment pertained. We conclude, therefore, that the trial court improperly dismissed the landed plaintiffs case and reverse the judgment in part, with direction to restore his case to the docket.

II

We next turn to the question as to whether the trial court properly dismissed the claims of the intervening plaintiffs.

The intervening plaintiffs claim that the court erred in holding that they did not have standing to challenge the conduct of the commission in adopting the text amendment. Specifically, the intervening plaintiffs argue that the commission illegally failed to follow regulations requiring it to submit an environmental impact statement in connection with the text amendment.

“We begin with some well settled principles regarding standing and its aggrievement component, as recently reaffirmed in Windels v. Environmental Protection Commission, 284 Conn. 268, 287-89, 933 A.2d 256 (2007). If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. ... A determination regarding a trial court’s subject matter jurisdiction 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 and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 155, 953 A.2d 1 (2008).

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

On the basis of this expansive language, our Supreme Court previously has concluded that § 22a-19 confers standing on a broad range of individuals, entities and government agencies to intervene in both administrative proceedings and subsequent “judicial review” thereof on appeal. See AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 413-14, 908 A.2d 1033 (2006); Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 733-34, 563 A.2d 1347 (1989). An intervenor’s standing pursuant to § 22a-19 strictly is limited to challenging only environmental issues covered by the statute, and “only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene.” Nizzardo v. State Traffic Commission, 259 Conn. 131, 148, 788 A.2d 1158 (2002).

In Pond View, LLC v. Planning & Zoning Commission, supra, 288 Conn. 143, our Supreme Court reiterated its prior holding that intervening environmental plaintiffs have standing to intervene on environmental issues only. Id., 157. The court held that a person seeking to intervene under § 22a-19 (a) must plead issues to be decided that fall within the ambit of the statute. Id., 159. In the present case, the intervening plaintiffs set out numerous claimed irregularities in the manner in which the commission proceeded. These are set forth in paragraph 24 (a) through (j), inclusive, of the complaint. All of these subparagraphs set out procedural irregularities. Subparagraph (f) comes closest to the required environmental threshold in its claim that the commission voted on the amendment without “defensible standards and without standards protective of water quality, erosion and flooding.” However, even paragraph 24 (f) of the complaint is really a claim of lack of standards in the legislative adoption, thus making it “illegal, arbitrary, capricious, and in abuse of its discretion, and in violation of its own regulations and applicable state statutes.” The Pond View, LLC, court made it clear that the issues that the intervenors ask to be decided must be those properly within the scope of the statute. Pond View, LLC v. Planning & Zoning Commission, supra, 159. Claimed noncompliance with zoning statutes or zoning regulations are not within that scope. Allegations of noncompliance with procedural requirements do not give rise to standing to challenge the commission’s action pursuant to § 22a-19 (a). See Fort Trumbull Conservancy, LLC v. New London, supra, 282 Conn. 797-98 (plaintiffs claim that defendants failed to follow certain procedural requirements in adopting development plan insufficient to establish standing under General Statutes § 22a-16).

The intervening plaintiffs also argue that they have standing to appeal under § 22a-19 because of the reasonable likelihood of environmental harm as a result of the text amendment to the zoning regulations. In support, they argue that their allegations are distinguishable from those that undermined the plaintiffs’ case in Pond View, LLC, a case on which the trial court relied in dismissing their complaint. We disagree with the intervening plaintiffs.

In paragraph 22 of their complaint, the intervening plaintiffs allege various environmental issues, including poor water and air quality, that may arise as a result of the amendment to the zoning regulations. Relying on our Supreme Court’s holding in Pond View, LLC, the trial court found that the conduct of the commission, construed even in the light most favorable to the plaintiffs, cannot be found to be harmful to the environment because the creation of an overlay zone is not conduct that causes environmental harm. “The cases wherein we have permitted standing under § 22a-19 have involved circumstances in which the conduct at issue in the application before this court allegedly would cause direct harm to the environment. See, e.g., Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 730-33 (intervention pursuant to § 22a-19 on ground that proposed development of land would result in the irreversible elimination of major portions of prime agricultural land was proper but agricultural land ultimately determined not natural resource within meaning of statute . . .); Mystic Marinelife Aquarium, Inc. v. Gill, [175 Conn. 483, 485, 490, 400 A.2d 726 (1978)] (appeal from approval of permit to construct floating dock and other structures along river that would harm environment); see also Fort Trumbull Conservancy, LLC v. New London, [supra, 282 Conn. 805-808] (concluding [1] that development plan itself constituted conduct that could cause harm to environment within the meaning of § 22a-16, and [2] that allegation of violation of technical or procedural requirements does not give rise to claim of unreasonable pollution for purposes of standing under § 22a-16).” (Emphasis in original; internal quotation marks omitted.) Pond View, LLC v. Planning & Zoning Commission, supra, 288 Conn. 159-60. In Pond View, LLC, the commission argued, and the court agreed, that a zone change itself did not involve “ ‘conduct’ ” within the meaning of § 22a-19 that could be analyzed for its unreasonable pollution effects on air, water or other natural resources. Id., 154-55.

The inteivening plaintiffs distinguish the intervenors’ allegations in Pond View, LLC, on the ground that they were not environmental. It is not necessary for us to address this argument because the distinction, if any, is immaterial to our conclusion. The inclusion of environmental issues in the complaint does not per se provide the intervening plaintiffs standing under § 22a-19 or allow them to avoid application of our court’s holding in Pond View, LLC. The language in Pond View, LLC, clearly states that a zone change is a legislative action which does not directly threaten the environment. Id., 157, 160-61. “[A]ny environmental harm to the ‘air, water or other natural resources of the state’ necessarily would result from the [commission’s] conduct in actually developing the property, not from the zone change . . . .” Id., 160-61. The court in Pond View, LLC, further stated that the proper forum to challenge alleged environmental harm and related procedural issues under § 22a-19 was in an appeal from the commission’s decision granting a special exception permit or, more specifically, approving the site plan. Id., 161. “It is this application that actually involves the ‘conduct’ . . . that might lead to adverse environmental impacts that standing pursuant to § 22a-19 is meant to guard against.” Id. For these reasons, as to the intervening plaintiffs, we affirm the judgment of the trial court.

We conclude that the trial court improperly dismissed the landed plaintiffs case and reverse the judgment in part, with direction to restore the landed plaintiffs case to the docket. As to the remaining plaintiffs, we affirm the judgment of the trial court dismissing their intervening complaints.

In this opinion the other judges concurred.

       General Statutes § 8-8 (a) provides in relevant part: “As used in this section: (1) ‘Aggrieved person’ means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board. ...”

       Section 36.1.1 of the Watertown zoning regulations provides that the intent of the B-PCD262 zone is to: “Provide an opportunity for high quality commercial development near Route 8 along a portion of Route 262 and Echo Lake Road east of Turkey Brook within a Planned Commercial District overlay zone to be adopted in accordance with a Zoning Map petition on the existing IR-80 zoning District. The primary objectives of the District are to expand retail, office, and other compatible use options within the Town of Watertown, as defined in Sections 36.9 and 36.10, and to increase the diversity of the town’s tax base.” See also § 36.9 of the Watertown zoning regulations (permitted uses).

       Section 36.2 of the Watertown zoning regulations provides: “Overlay District Location: The Commission may adopt and may amend an overlay zoning District, hereinafter defined as ‘District’, ‘Planned Commercial District’, or ‘B-PCD262’, to an IR-80 District in accordance with the procedures, guidelines, standards and conditions specified in Section 81 and these Regulations. On a lot or lots within the overlay District, only buildings, other structures, and site improvements associated with uses consistent with Section 36.9 and Section 36.10 are permitted. The outermost boundaries of the overlay District are Route 262, Turkey Brook, Echo Lake Road, Route 8, and Frost Bridge Road. The Commission may amend the Zoning Map to include all or a portion of land within said boundaries to be the B-PCD262 overlay District. A lot or any portion of a lot not within the adopted overlay District, as District is defined on the Zoning Map, is not in the District. The Planned Commercial District may be one or several lots, however, the Commission encourages all lots in the District to be developed as if one parcel. No lot may be developed inconsistent with the provisions and intent of Section 36, as determined by the Commission. The location, orientation, structure, texture, materials, landscaping, and other features shall be consistent with the character of the District, character of the neighborhood, character of the Town, the Zoning and Subdivision Regulations, the Zoning Map, and the Plan of Conservation and Development, all as interpreted by the Commission. Development of a parcel should demonstrate high quality design merit.”
      The trial court refers to the new zoning district as “in the area generally described as land north of Route 262, south of Echo Lake Road and west of Route 8 . . . .” Each description refers to the same bounded area creating the new zoning district. For the purpose of this opinion, we use the description of the bounds defined in § 36.2 of the regulations. This minor difference in language is immaterial because the specific boundaries are adequately defined in both descriptions and the bounds are not in dispute.

       The trial court refers to the newly created zoning district as an overlay zone. Citing Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 216-18, 779 A.2d 750 (2001), the trial court stated that “[a]n overlay zone has been considered a ‘floating zone,’ which is a zone that floats ‘over the entire area where it may eventually be established’ or a ‘special permit.’ ” The trial court found that “the floating zone is a more proper designation [of the area in the present case], as this overlay zone is alleged to create a zone which will allow for zoning changes.” The trial court dismissed the case based on a finding that no particular area or property was affected, the quintessential attribute of a floating zone. Despite the trial court’s reference to this area as an overlay zone, whether the area in question properly can be considered a floating zone is relevant to our resolution of this claim.

       See footnote 4 of this opinion.

       See also Stauton v. Planning & Zoning Commission, 271 Conn. 152, 160, 856 A.2d 400 (2004) (“we must interpret the phrase ‘land involved’ in § 8-8 (a) (1) in light of the legislature’s intent to relieve a narrow class of landowners who are presumptively affected by the zoning commission’s adverse decision because of their close proximity to a projected zoning action from the arduous burden of proving classical aggrievement” [emphasis added]); Lewis v. Planning & Zoning Commission, 62 Conn. App. 284, 286, 296, 771 A.2d 167 (2001) (by virtue of statute defining aggrieved person to include “any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board,” owners of 277 acres of town’s 4121 acres of subdividable land were statutorily aggrieved parties entitled to appeal decision of town planning and zoning commission to amend two sections of town subdivision regulations governing lot area calculations, to increase required lot size in cases in which ponds, lakes, or slopes were present); Swiconek v. Zoning Board of Appeals, 51 Conn. Sup. 190, 978 A.2d 1174 (2009) (site plan submitted with zoning variance application showed that landowner’s and trust’s properties were abutting, and thus trust’s property fell within zone of statutory aggrievement as required for standing to contest grant of variance).

       Paragraph 24 of the complaint states: “The plaintiffs/appellants ... are also aggrieved because the action of the Commission in approving the Amendment was illegal, arbitrary, capricious, and in abuse of its discretion, and in violation of its own regulations and applicable state statutes in that: (a) The commission failed or refused to follow its own Regulations (b) Notice was defective, misleading, and incomplete; (c) the Commission revised the proposed Amendment after the close of the Public Hearing and did not re-expose the materially changed Amendment to public hearing as required by law; (d) the [commission] failed to follow the mandates of the Connecticut General Statutes; (e) the Commission failed to consider or make requisite findings relating to the allegations of the Petitioning intervenors; (f) The Commission voted on an Amendment without defensible standards and without standards protective of water quality, erosion and flooding; (g) The conduct of the Public Hearing was fundamentally unfair; (h) A Commissioner who recused himself from the proceedings remained in the hearing room commenting, clapping, and otherwise participating in the proceedings; (i) The Commission approved an Application that materially failed to demonstrate consistency with the Plan of Conservation and Development; (j) The decision of the [commission] is not supported by substantial evidence and does not find a basis in fact or law.”

       Paragraph 22 of the complaint states: “The plaintiffs/appellants . . . are aggrieved by the decision of the [commission] because they were all recognized as intervening petitioners pursuant to the provisions of . . . § 22a-19 (a) by the Commission during the Public Hearing upon their allegations of reasonable likelihood of unreasonable pollution to natural resources within the jurisdiction of the Commission as a result of the amendment to the Zoning Regulations because: (a) The combination of environmentally sensitive resources, liberal provisions on the amount of impervious cover permitted (up to 75%) and inadequately-defined Special Permit process and criteria leaves the subject property open to gross development that can adversely affect water quality [through] erosion and inadequate storm water management directives and create down-stream flooding without meaningful review; (b) Traffic volumes associated with the uncontrolled scale of permitted uses will create dangerous traffic conditions, poor air quality and introduce pollutants in runoff adding non-point source pollution to the likely unreasonable impacts of permitted development in this environmentally sensitive location. The traffic will unavoidably and chronically deposit polluting residues of more than 17 known contaminants on the roads, driveways, and parking surfaces including, but not limited to asbestos and copper, chloride, biochemical oxygen demand chromium, zinc, volatile solids, rubber, grease, and the like; (c) Pollution from automobile tailpipes increases the risk of asthma, lung cancer, leukemia and other ailments, particularly in people who live near busy roads. The proposed Overlay District relieves an applicant from providing mitigation for increased congestion as a result of development, expressly counter to the Commission’s mandate under Connecticut law, [General Statutes] § 8-2, that is, ‘to lessen congestion in the streets.’ ”

       The pleadings and circumstances in Red Hill Coalition, Inc., and Mystic Marinelife Aquarium, Inc., allege direct harm to the environment and are distinguishable from the present case. In Red Hill Coalition, Inc., the pleadings alleged direct harm to agricultural land which was the subject of a favorable report of the Glastonbury conservation commission. Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 730. Further, the commissioner of agriculture and the commissioner of environmental protection were granted permission to file a brief as amici curiae in support of the plaintiffs. Id., 729 n.3. The trial court concluded that because the planning and zoning commission considered environmental issues by reviewing the conservation commission’s report, the intervention in the zoning commission hearing was appropriate under § 22a-19 (a). Id., 733 n.7. The intervenors in the present case did not raise such issues. In Mystic Marinelife Aquarium, Inc., the § 22a-19 intervenors appealed from a decision of the commissioner of the department of environmental protection granting a permit to erect a floating dock directly in the Mystic River. Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 483. The intervenors pleaded direct environmental harm under General Statutes § 25-7b, which “places upon the commissioner the duty of regulation of the erection of structures in tidal, coastal or navigable waters with regard to be had to certain considerations set out in that statute.” Id., 495. Again, the intervenors in the present case did not raise such an issue. Instead, the intervening plaintiffs argue that the commission illegally failed to follow regulations requiring it to submit an environmental impact statement in connection with the text amendment.

       In Pond View, LLC, the intervenors alleged that they had standing to bring their claims under § 22a-19 because concerns related to the preservation of natural resources underlying the town’s plan of conservation and development provided a basis for the commission’s denial of the proposed zone change and thus bring the issues in the appeal within the scope of that statute. Pond View, LLC v. Planning & Zoning Commission, supra, 288 Conn. 154-55.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    REUBEN T. SPITZ v. BOARD OF EXAMINERS OF PSYCHOLOGISTS
    (AC 31846)
    Robinson, Alvord and Schaller, Js.

      Argued December 6, 2010
    officially released March 8, 2011

      Jeffrey J. Mirman, for the appellant (plaintiff).

      Kerry Anne Colson, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Reuben T. Spitz, appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant, the board of examiners of psychologists (board). The board suspended the plaintiffs license for two years, with such suspension immediately stayed, and placed him on probation for conduct in violation of the applicable standard of care, codified in § 10.08 of the American Psychological Association (APA) ethical code. On appeal, the plaintiff claims that the court committed reversible error in (1) concluding that he was provided with adequate notice of the charges, (2) determining that he failed to prove bias against him, (3) upholding the final decision of the board notwithstanding that the board violated the Freedom of Information Act (FOIA), General Statutes § 1-200 et seq., and (4) concluding that the board’s decision was supported by substantial evidence. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On September 27, 2007, the department of public health (department) filed a statement of charges (charges) with the board against the plaintiff, a practicing psychologist. The charges consisted of five counts that alleged a number of instances in which the plaintiff had “ ‘acted negligently, incompetently or wrongfully in the conduct of his profession’ ” and stated that such actions “constitute[d] grounds for disciplinary action pursuant to [General Statutes] § 20-192 . . . .” The factual basis for each of the five counts may be summarized as follows: (1) the plaintiff treated a male patient, R.B., and the plaintiff began a personal and sexual relationship with R.B.’s wife, L.B., within one year of ceasing R.B.’s treatment; (2) the plaintiff also treated L.B., and the plaintiff began a personal and sexual relationship with her within one year of ceasing her treatment; (3) the plaintiff provided L.B. with Xanax and/or amphetamines; (4) the plaintiff conveyed confidential information about at least three of his other patients to L.B.; and (5) the plaintiff treated E.B., L.B.’s minor son, and began a personal and sexual relationship with L.B. within one year of ceasing E.B.’s treatment.

On October 12, 2007, the department served a notice of hearing and charges on the plaintiff by certified mail. The plaintiff filed an answer, special defenses and a motion for a more definite statement of charges pursuant to General Statutes § 4-177, which was denied. The board also denied the department’s motion for summary suspension of the plaintiffs license in accordance with General Statutes §§ 19a-17 (c) and 4-182 (c).

Administrative hearings to adjudicate the charges were held on November 28, 2007, and February 1 and April 18, 2008. The board members present at those hearings consisted of three psychologists and one layperson. The department presented three witnesses: R.B., L.B. and an investigator with the practitioner investigations unit of the department, who had produced an investigative report for the department. The plaintiff was represented by counsel and given the opportunity to respond to the charges, to cross-examine the board’s witnesses, to present evidence, to testify and to argue each of the factual issues involved in the case. The plaintiff did not deny having a personal and sexual relationship with L.B., or treating R.B. and E.B., but rather disputed whether L.B. was ever a patient of his or if he had a psychologist-patient relationship with her.

The board concluded that the department had sustained its burden of proof by a preponderance of the evidence as to counts two and five. With regard to count two, the board found that the plaintiff had breached the “applicable standard of care, codified in § 10.08 of the APA ethics code, [which] prohibits a psychologist from engaging in sexual intimacies with former clients/ patients for at least two years after termination of therapy.” The board stated that, with respect to count two, “on the basis of its specialized professional knowledge . . . because L.B. was present in the [plaintiffs] office in his home during a therapy session, a psychologist-patient relationship existed .... Additionally, L.B. testified that she received treatment from the [plaintiff].” With regard to count five, the board found that “ [r] elying on its specialized professional knowledge, the board concludes that in the practice of psychology, when a minor is treated, the parent is part of the treatment. This conclusion reflects a recognized principle within the practice of psychology. . . . Therefore, a psychologist-patient relationship between the [plaintiff] and L.B. existed. . . . Thus, [the plaintiffs] conduct in having a sexual relationship with L.B. less than two years after the termination of that psychologist-patient relationship violated the applicable standard of care, as codified in § 10.08 of the APA ethics code.” (Citation omitted.)

Based on its findings, the board suspended the plaintiffs license for two years, stayed immediately, subject to the plaintiffs compliance with the terms and conditions of probation for two years. The terms required that, inter alia, the plaintiff undergo regularly scheduled therapy, his practice be supervised at all times by a licensed psychologist, he inform the department of any address changes and he cover any costs associated with these requirements.

The plaintiff appealed from the board’s decision to the trial court pursuant to General Statutes § 4-183, claiming, inter alia, that (1) he was not provided with adequate notice of the charges, (2) two of the board members were biased, (3) the board violated the FOIA and (4) the board’s decision was not supported by substantial evidence. After reviewing the record and the parties’ briefs and hearing oral argument, the court dismissed the plaintiffs appeal. The court found that (1) the plaintiff had adequate notice and the board’s reliance on its own expertise in making certain findings was a proper function of the board, (2) the plaintiff failed to meet his burden of establishing actual bias with respect to either board member, (3) the freedom of information commission (commission) had the authority to remedy a violation and the court would not provide the plaintiff with a result he could not obtain from the commission, and (4) there was substantial evidence to support the board’s findings. The plaintiff appealed to this court. Additional facts will be set forth as necessary.

First, we set forth the applicable standard of review. “We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.] .... Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . [Constrained by a narrow scope of review] [n] either this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of facts. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide [s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Internal quotation marks omitted.) Towbin v. Board of Examiners of Psychologists, 71 Conn. App. 153, 162-63, 801 A.2d 851, cert, denied, 262 Conn. 908, 810 A.2d 277 (2002).

The present appeal is from the decision of the trial court. We review that decision only to determine whether it was rendered in accordance with the UAPA. See id., 163.

“[A]s to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 139-40, 680 A.2d 1329 (1996).

I

The plaintiffs first claim is that the trial court committed reversible error in concluding that the plaintiff was provided with adequate notice of the charges. Specifically, he argues that notice was inadequate because he was not informed of which specific acts amounted to “negligence, incompetence or wrongful conduct” as alleged in the charges and because the final decision relied on “specialized professional knowledge” or “recognized principles” that were not mentioned in the charges or during the hearing. He contends that he was not provided notice that (1) L.B.’s attendance at one session at which her husband was being treated would constitute the development of a psychologist-patient relationship between L.B. and the plaintiff, and (2) his treatment of the minor, E.B., could be considered treatment of the minor’s mother, L.B. The trial court found, inter alia, that the charges put the plaintiff on notice that the board would be asked to consider the appropriateness of his conduct in engaging in a sexual relationship with a former patient, who was also the wife and mother of two of his former patients, and that there was no variance between the allegations of the department and the conclusions reached by the board. We agree.

“[D]ue process [in the administrative hearing context] requires that the notice given must . . . fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law. . . . [T]he fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought. . . . [N]otice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing ....

“Due process in the administrative context is prescribed by the UAPA. General Statutes § 4-177 (b) requires that notice of a contested hearing include the following: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; and (4) a short and plain statement of the matters asserted.” (Citations omitted; internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 823-24, 955 A.2d 15 (2008).

The following additional facts are relevant to our resolution of the plaintiffs claim. Prior to the administrative hearing, in addition to being served with the charges, the plaintiff was provided with a detailed investigative report prepared by the department’s practitioner licensing and investigations section that summarized the conduct that formed the basis of the charges and the allegations of the parties and set forth the applicable sections of the APA ethical code. Appended to the report were a number of exhibits, including (1) L.B.’s and R.B.’s civil complaints against the plaintiff containing the same allegations as those in the present case; (2) the expert opinions supporting the claims made in the civil complaints, in which the experts, inter alia, specifically alleged violations of a number of APA ethical rules, including § 10.08, which rule the plaintiff was ultimately found to have violated; (3) a sworn statement from L.B. stating that she was a former patient of the plaintiff; (4) numerous e-mails between the plaintiff and L.B. substantiating the personal and sexual relationship; (5) a letter from the plaintiff’s attorney responding to the allegations; and (6) a May 6, 2007 letter from Donna H. DiCello, a psychologist, opining that the plaintiffs conduct raised a number of serious ethical violations and stating that “[i]t would be expected that a psychologist would not commence a sexual relationship with a patient (APA Ethics Section 10.05), nor a former patient (APA Ethics Section 10.08) for at least two years after termination of therapy.

As an initial matter, we reject in its entirety the plaintiffs claim that he was never provided notice that a single meeting that L.B. attended could be the basis of the finding that he and L.B had a psychologist-patient relationship. This was not the basis of the board’s finding. The board did not rest its finding solely on a single meeting but also credited L.B.’s testimony that she regularly received treatment from the plaintiff. Credibility of witnesses is a matter within the province of the administrative agency. See Prioleau v. Commission on Human Rights & Opportunities, 116 Conn. App. 776, 787, 977 A.2d 267 (2009). The charges alleged in count two that L.B. was a former patient, and, therefore, the plaintiff cannot sustain a claim of inadequate notice as to the board’s conclusion based on that allegation.

The plaintiff also was given satisfactory notice of wrongful conduct resulting from his treatment of E.B. in conjunction with his treatment of L.B. In count five, the charges specifically alleged that wrongful conduct occurred as a result of the plaintiffs treatment of E.B. In the charges, the department’s investigative report and the attached exhibits, the plaintiff was apprised of the possibility of ethical issues arising from the psychological care of E.B.

The purpose of administrative notice requirements is to allow parties to prepare intelligently for the hearing. Goldstar Medical Services, Inc. v. Dept. of Social Services, supra, 288 Conn. 823-24; see also Fleischman v. Board of Examiners in Podiatry, 22 Conn. App. 181, 191, 576 A.2d 1302 (1990) (stating that “[t]he test of whether one is given adequate notice is whether it apprises him of the claims to be defended against, and on the basis of the notice given, whether [the] plaintiff could anticipate the possible effects of the proceeding” [internal quotation marks omitted]). Here, the charges specifically alleged violations of § 20-192 and included a description of the facts supporting those violations. The investigative report supplemented those factual allegations underlying the charges. Accordingly, we conclude that the plaintiff was accorded his due process rights with respect to the adequacy of notice.

II

The plaintiff next claims that the trial court committed reversible error in concluding that he failed to establish that two of the board members were biased. Specifically, he contends that the chairperson of the board (chairperson), a licensed psychologist, demonstrated bias by (1) allowing the witnesses to be referred to by their initials without according the plaintiff the same protection and (2) asking L.B. leading questions during cross-examination. In addition, he claims that the layperson member of the board (board member) demonstrated bias by requesting that the board go into executive session, in which the board member solicited clarification from legal counsel as to whether the board could at that time institute summary suspension. See footnote 8 of this opinion. We conclude that the plaintiff failed to show actual bias on the part of either the chairperson or the board member.

The following additional facts are relevant to our resolution of this claim. On January 31, 2008, before the second hearing, the plaintiff moved to disqualify the chairperson. The plaintiff claimed bias as a result of the chairperson’s decision to refer to the witnesses only by their initials and his “interruption” of the plaintiffs cross-examination of L.B. Subsequently, the plaintiff also moved to disqualify the board member, claiming bias as a result of the board member’s motion to go into executive session to inquire from the board’s counsel whether the board could initiate summary process proceedings. The board denied both motions to disqualify.

“The applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification. . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator. . . . Moreover, there is a presumption that administrative board members acting in an adjudicative capacity are not biased. ... To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable. . . . The plaintiff has the burden of establishing a disqualifying interest.” (Internal quotation marks omitted.) Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 262, 967 A.2d 1199 (2009).

We cannot conclude, upon a review of the record, that the board and trial court were incorrect in holding that the plaintiff had presented insufficient evidence to meet his burden.

m

The plaintiffs next claim is that the trial court committed reversible error in upholding the final decision of the board notwithstanding a violation of the FOIA. The trial court declined to provide the plaintiff with a remedy that he was unable to obtain from the commission. We agree with the court.

In the present case, the plaintiff previously availed himself of the statutory process under General Statutes § 1-206 (b), which provides the exclusive remedy for the violation of a right conferred by the FOIA. Pane v. Danbury, 267 Conn. 669, 680, 841 A.2d 684 (2004), overruled in part on other grounds by Grady v. Somers, 294 Conn. 324, 349, 984 A.2d 684 (2009). The plaintiff prevailed and was provided relief for the FOIA violation. He had the ability to appeal from the commission’s decision pursuant to § 1-206 (d), were he dissatisfied with the relief provided. Accordingly, we will not disturb what the commission deemed to be the proper remedy for the board’s violation of the FOIA.

IV

The plaintiffs final claim is that the court improperly dismissed his appeal upon concluding that the board’s decision was supported by substantial evidence. The plaintiffs claim fails because there is substantial evidence in the record to support the board’s conclusion that he engaged in a sexual relationship with L.B. in violation of the APA ethical code.

“The substantial evidence standard is satisfied if the record provides a substantial basis of fact from which the fact in issue can be reasonably inferred. ... In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency’s assessment of the credibility of witnesses. . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Citations omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, 228 Conn. 651, 668, 638 A.2d 6 (1994).

On the basis of our review of the record, we conclude that the court properly declined to set aside the board’s conclusion that L.B. was a patient of the plaintiff. The board’s conclusion is supported by substantial evidence and the board’s assessment of the more credible of the conflicting testimony. Specifically, the court noted that “L.B. and R.B. both testified that they attended joint marriage counseling sessions with the [plaintiff]. . . . In addition, as noted by the board in its decision, there was evidence, including testimony from L.B., that she received treatment from the [plaintiff] beyond those sessions she attended with her husband and son. ” (Citation omitted.) Furthermore, the court found that “[w]hile the [plaintiff] denied treating L.B., he admitted to treating R.B. and E.B. and to engaging in a sexual relationship with L.B. [The plaintiff] also admitted that L.B. was present during two sessions with R.B.” (Citation omitted.) The trial court acknowledged but dismissed the absence of medical records for the treatment of L.B. because the evidence showed that the plaintiff “was concerned about other clinicians learning of his contact with L.B. outside [of] treatment sessions” and therefore had motivation to omit her treatment from his records. We cannot conclude on the basis of this record that the trial court’s determination that substantial evidence existed to support the board’s findings and conclusions was improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 10.08 of the Ethical Principles of Psychologists and Code of Conduct provides in relevant part: “Sexual Intimacies with Former Therapy Clients/Patients: (a) Psychologists do not engage in sexual intimacies with former clients/patients for at least two years after cessation or termination of therapy.”

       The board acted pursuant to the authority vested in it by General Statutes §§ 19a-17 and 20-192.
      Section 19a-17 (a) provides in relevant part: “Each board or commission [such as the board of examiners of psychologists] . . . may take any of the following actions, singly or in combination, based on conduct that occurred prior or subsequent to the issuance of a permit or a license upon finding the existence of good cause ... (2) Suspend a practitioner’s license or permit ... (5) Place a practitioner or permittee on probationary status and require the practitioner or permittee to: (A) Report regularly to such board, commission or department upon the matters which are the basis of probation; (B) Limit practice to those areas prescribed by such board, commission or department; (C) Continue or renew professional education until a satisfactory degree of skill has been attained in those areas which are the basis for the probation . . . .”
      Section 20-192 provides in relevant part: “The board may take any action set forth in section 19a-17, if the license holder ... [is found] to have acted negligently, incompetently or wrongfully in the conduct of his profession .... Notice of any contemplated action under said section, of the cause therefor and the date of hearing thereon shall be given and an opportunity for hearing afforded . . . .”

       During the administrative hearing, the chairperson of the defendant decided that it was reasonable to refer to the witnesses only by initials to protect their identities while their mental health records were discussed in the public forum, with media and video coverage. As the presiding officer, the chairperson, pursuant to § 19a-9-25 of the Regulations of Connecticut State Agencies, may set the procedures and make such rulings in the underlying proceeding before the board. In accordance with that ruling, the names of the witnesses involved in this appeal are not disclosed.

       The department withdrew this allegation during the administrative hearing held on February 1, 2008.

       General Statutes § 4-177 provides in relevant part: “(a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice, (b) The notice shall be in writing and shall include: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (8) a reference to the particular sections of the statutes and regulations involved; and (4) a short and plain statement of the matters asserted. If the agency or party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished. ...”

       General Statutes § 19a-17 (c) provides: “Such board or commission or the department where appropriate may summarily suspend a practitioner’s license or permit in advance of a final adjudication or during the appeals process if such board or commission or the department finds that a practitioner or permittee represents a clear and immediate danger to the public health and safety if he is allowed to continue to practice.”

       General Statutes § 4-182 (c) provides in relevant part: “If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. ...”

       On November 28, 2007, at the close of the hearing, upon motion of a board member, the remainder of the meeting was held in executive session, closed to the public. The plaintiffs counsel did not object to the motion.
      The plaintiff subsequently complained to the freedom of information commission (commission) that the board violated the FOIA by convening in executive session and requested that (1) the commission declare the board’s proceedings null and void and that such proceedings be terminated, (2) the board be required to attend a FOIA workshop and (3) the board be ordered to disclose the content of the communications during the improper executive session. The commission found, inter alia, that the board was in violation for failure to state the reasons for the executive session and that none of the exceptions to the requirement of stating on the record the reasons for the session applied.
      Despite these findings, the commission declined to declare null and void the proceedings and instead ordered, inter alia, that the board amend the minutes of the November 28, 2007 meeting to include the purpose of the executive session and to reconstruct the substantive discussion held during the executive session.

       General Statutes § 4-183 provides in relevant part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal. . . .”

       General Statutes § 4-183 (j) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       The plaintiffs insufficient notice claim focuses on the adequacy of the statement of charges and the notice of the administrative hearing. The plaintiff cites § 4-182 (c) in his brief. Pursuant to the plain language of § 4-182 (c) and our Supreme Court’s decision in Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 855 A.2d 174 (2004), notice of the formal revocation hearings, after institution of the agency proceedings, must comply with § 4-177, not § 4-182 (c). Thus, we review this claim under § 4-177.

       We agree with the court’s finding that it was the proper function of the board to apply its specialized knowledge under the facts of this case. See General Statutes § 4-178 (providing in relevant part that “the agency’s experience, technical competence, and specialized knowledge may be used in the evaluation of the evidence”); see also Pet v. Dept. of Health Services, 228 Conn. 651, 667, 638 A.2d 6 (1994) (“The trial court correctly held that the board had not abused its discretion with regard to the standard of professional care employed .... It was not improper for the board to utilize its own expertise in reaching its conclusions regarding . . . professional conduct”).

       Not only did the plaintiff have access to DiCello’s summary, he also called her as a witness, examined her and inquired as to the violations about which she opined.

       Count two of the statement of charges provides in relevant part:
      “7. In about September 2003, [the plaintiff] began treatment with RB’s wife, LB. [The plaintiffs] treatment of LB ended in about May 2004.
      “8. In about September 2004 [the plaintiff] began a personal relationship with RB’s wife, LB. The personal relationship between [the plaintiff] and LB became asexual relationship in about February 2006. The sexual relationship between [the plaintiff] and LB ended in about May 2006.
      “9. The above described facts constitute grounds for disciplinary action pursuant to the General Statutes of Connecticut, § 20-192, specifically [the plaintiff] ‘. . . acted negligently, incompetently or wrongfully in the course of his profession . . . .’”

       Count five of the statement of charges provides in relevant part:
      “18. In about October 2003 [the plaintiff] began treatment with RB and LB’s minor son, EB. [The plaintiffs] treatment of EB ended in about June 2004.
      “19. In about September 2004 [the plaintiff] began a personal relationship with RB’s wife, LB. The personal relationship between [the plaintiff] and LB became a sexual relationship in about February 2005. The sexual relationship between [the plaintiff] and LB ended in about May 2006.
      “20. The above described facts constitute grounds for disciplinary action pursuant to the General Statutes of Connecticut, § 20-192, specifically [the plaintiff] ‘. . . acted negligently, incompetently or wrongfully in the course of his profession ....’”

       In fact, this court previously has concluded that a plaintiff received adequate notice pursuant to § 4-177 (b) where notification of charges cited only the relevant chapter of the General Statutes and generally referenced issues to be considered because the plaintiff was not misled as to the nature of the hearing. See Rivera v. Liquor Control Commission, 53 Conn. App. 165, 173, 728 A.2d 1153 (1999).

       We acknowledge the plaintiffs explanation that he is not, in fact, alleging an action pursuant to the FOIA but, rather, alleging a violation of the UAPA procedural requirements arising from the violation of the FOIA. This argument is unavailing under the facts of this case. If for some reason he was dissatisfied with the relief provided by the commission (i.e., reconstruction of the record), the plaintiff could have appealed from the commission’s decision to the Superior Court under General Statutes § 1-206 (d).

       The commission found a violation of the FOIA, and despite this finding, the commission declined to declare null and void the proceedings and instead ordered, inter alia, that the board amend the minutes of the November 28, 2007 meeting to include the purpose of the executive session and to reconstruct the substantive discussion held during the executive session.

       General Statutes § 1-206 (d) provides in relevant part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. . . .”