author: Shea, J.

text:
    Ralto Developers, Inc. v. Environmental Impact Commission of the City of Danbury et al
    (14155)
    Shea, Callahan, Glass, Covello and Borden, Js.
    Argued May 31
    decision released August 6, 1991

      Edwin C. Pearson, for the appellant (defendant Tarrywile Neighbors for Sensible Development Association).

      Neil R. Marcus, with whom were David L. Grogins and, on the brief, Thomas S. Human, for the appellee (plaintiff).

      Daniel E. Casagrande, for the appellee (named defendant).
   Shea, J.

The dispositive issue in this appeal is whether General Statutes § 22a-43 (c) authorizes a trial court to approve a proposed withdrawal or settlement of an appeal from a decision of an inland wetlands agency when not all the parties have agreed to that proposed withdrawal or settlement. We conclude that the statute does not permit such approval without the consent of all parties to the appeal and accordingly reverse the judgment of the trial court.

The court reasonably could have found the following facts. The plaintiff, Ralto Developers, Inc. (Ralto), owned a tract of land in Danbury. Ralto filed an application with the named defendant, the environmental impact commission of the city of Danbury (commission), acting as the inland wetlands agency of the city, for permission to conduct a regulated activity on its land, related to the construction of a subdivision of fifty-one dwellings. After holding a series of public hearings, the commission denied the application on July 12, 1989. Ralto appealed to the Superior Court contesting the denial of its application. The defendant, Tarrywile Neighbors for Sensible Development Association (association), made a motion to intervene and become a party to this appeal, which the court, West, J., granted.

While that administrative appeal was pending, Ralto filed a second application with the commission. The association filed a notice of intervention in the application proceedings, pursuant to § 22a-20 of the Connecticut Environmental Protection Act, General Statutes §§ 22a-14 through 22a-20. After another round of hearings, the commission denied the second application on December 18, 1989. Ralto filed a second administrative appeal to the Superior Court, contesting the denial of its second application.

Meanwhile, in September, 1989, Ralto had brought an action against the individual members of the commission pursuant to 42 U.S.C. §§ 1983 and 1988 claiming damages for an unconstitutional taking of its property resulting from the denial of the first application. While this action and the administrative appeals were pending, the commission held four executive sessions commencing in February, 1990, to consider the possibility of settling all this litigation. A proposed stipulation for judgment was eventually drafted and circulated to all parties. A public hearing was held to solicit comments on the proposed stipulation. The stipulation, as ultimately revised, provided for granting a wetlands permit to Ralto to construct a road affording access to its property but imposed numerous conditions as a prerequisite. On June 26, 1990, a motion for judgment in accordance with the stipulation was filed in Danbury Superior Court, pursuant to § 22a-43 (c). The court, Moraghan, J., declined to grant the motion because the association was not then a party to the second administrative appeal.

Later, the court, Karazin, J., granted a motion filed by the association to intervene and become a party to the second administrative appeal and the court, West, J., granted its motion to consolidate the two appeals. Thereafter, Ralto filed a motion to reargue its motion for judgment in accordance with the stipulation and submitted a modified proposed stipulation. After two days of hearings, at which the association objected continually to the terms of the proposed stipulation, the court, Karazin, J., rendered judgment in accordance with the stipulation on August 3, 1990. The effect of the judgment was to withdraw Ralto’s § 1983 action and its first administrative appeal, and to settle the second appeal as provided in the stipulation. The association has appealed from the judgment, raising three issues: (1) whether a trial court may approve the withdrawal and settlement of an appeal from a decision of an inland wetlands agency pursuant to § 22a-43 (c) when an intervening party refuses to consent to the agreement reached between the agency and the applicant developer; (2) whether the court used proper criteria as a standard of review and correctly allocated the burden of proof in conducting the proceeding required for approval of the settlement of such an appeal; and (3) whether the court’s approval of the settlement is adequately supported by the record of the proceeding. We address only the first issue and conclude that § 22a-43 (c) requires the consent of all parties to an appeal before the court may approve a settlement withdrawing an appeal from a decision of an inland wetlands agency when the settlement agreement modifies the decision of that agency. This determination makes it unnecessary to consider the other issues, nor would a discussion of them be likely to serve any useful purpose related to further trial court proceedings.

The association concedes that it did not raise the claim that § 22a-43 (c) does not authorize the stipulated judgment rendered by the court without its consent to the settlement until September 27,1990, when it filed a motion for articulation in the course of appealing from the judgment. The issue was not raised in its memorandum opposing Ralto’s motion for a stipulated judgment that was presented to the court after the hearing that preceded the rendition of judgment on August 3, 1990. The motion for articulation contained one paragraph requesting clarification of “how the [cjourt could have approved the settlement of one administrative appeal and withdrawal of a second administrative appeal, when one of the parties to both administrative appeals did not agree to said settlement and withdrawal.” The court denied that paragraph of the motion explicitly.

“The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 4185. The association’s motion for articulation, pointing to the absence of its consent, having been filed long after judgment, cannot be deemed to have satisfied the requirement of this rule that claims be “distinctly raised at trial.”

The rule provides further, however, that “[t]he supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. It is only in rare cases that this exception to the requirement for seasonable assertion of claims in the trial court may be invoked. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). “We have noticed plain error in the failure of a trial court to apply a clearly relevant statute to the case before it.” Id., 88; State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, reh. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980).

In the present case the court did not entirely overlook § 22a-43 (c), because, in rendering its decision from the bench, it specifically referred to the hearing requirement of the statute. The court thoroughly reviewed the stipulation on its merits and approved it as “fair and equitable to the applicant and the public interest.” The association had contested the motion for a stipulated judgment and had presented the testimony of abutting owners opposing Ralto’s proposed development at the hearing on the motion. The court must have been aware of the absence of the association’s consent, but must have overlooked the provision of the statute that refers to a “settlement [agreement] between the parties to any such appeal” as a prerequisite to approval of a settlement involving the withdrawal of such an appeal.

We conclude that the circumstances of this case are appropriate for plain error review. The failure of the court to recognize that § 22a-43 (c) requires the approval of all the parties to an appeal, before a settlement agreement modifying the agency decision that is the subject of the appeal may be approved, qualifies as an “obvious” error. State v. Hinckley, supra. Particularly in a case such as this, involving the public interest in land use and environmental concerns, our failure to rectify such an evident oversight may undermine “public confidence in the judicial proceedings.” Id., 87-88.

Relying on the failure of the association to raise the issue at trial, Ralto has not argued the merits of the claim that § 22a-43 (c) did not authorize approval of the settlement agreement between Ralto and the commission without the association’s consent thereto. We must, nevertheless, apply standard principles in construing the statute. “To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further.” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991); University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991).

Section 22a-43 (c) provides that “[n]o appeal [from an inland wetlands agency decision] shall be withdrawn and no settlement between the parties to any such appeal shall be effective” without court approval of “such proposed withdrawal or settlement” after a hearing. (Emphasis added.) The legislative intent is clear that a settlement agreement “between the parties” to the appeal is a condition precedent for approval of any settlement involving withdrawal of the appeal. The association had intervened in both pending appeals and, therefore, was a party. It follows that no “settlement between the parties” could be reached without the association’s consent. Accordingly, § 22a-43 (c) did not empower the court to approve the settlement and to render judgment pursuant thereto.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 22a-43 (c) provides as follows: “No appeal taken under subsection (a) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the superior court and such court has approved such proposed withdrawal or settlement.”

       This regulated activity consisted of a proposal to construct a road across certain wetland areas and drain water into Tarrywile Lake.

       The second application was virtually the same as the first except for changes haade to the proposed configuration of the road.

       It is possible to argue that the use of “between” rather than “among” indicates that the legislature intended that the agreement of only two parties, the aggrieved appellant and the agency, would be necessary for a settlement pursuant to General Statutes § 22a-43 (c). This inference is refuted by contemporary lexicographers. “The OED [Oxford English Dictionary] gives a warning against the superstition that [between] can be used only of the relationship between two things, and that if there are more among is the right preposition. ‘In all senses between has been, from its earliest appearance, extended to more than two. . . . It is still the only word available to express the relation of a thing to many surrounding things severally and individually; among expresses a relation to them collectively and vaguely: we should not say the space lying among the three points or a treaty among three Powers.’ ” (Emphasis in original.) H. Fowler, Modem English Usage (2d Ed.) p. 57. The following examples of approved usage of “between” are cited by Webster’s Third New International Dictionary: “the fortune was divided [between] the four grandchildren”; “the food was shared [between] three families.”


source: Caselaw Access Project

license: Public Domain

text:
    Darlene M. Dinan et al. v. Board of Zoning Appeals of the Town of Stratford
    (14208)
    Peters, C. J., Shea, Callahan, Glass, Covello, Borden and Santaniello, Js.

      Argued May 1
    decision released August 13, 1991

      John A. Florek, town attorney, with whom was Benjamin S. Proto, Jr., assistant town attorney, for the appellant (defendant).

      Christopher J. Smith, for the appellees (plaintiffs).

      Dwight H. Merriam, James P. Horan and Philip D. Tegeler filed a brief for the Connecticut Civil Liberties Union Foundation et al. as amici curiae.
   Shea, J.

The plaintiffs, James and Darlene Dinan, appealed from a decision of the defendant board of zoning appeals of the town of Stratford (board) sustaining a cease and desist order of the zoning enforcement officer that directed them to terminate the use of their property, which is located in a single-family residence zone of Stratford, as a rooming house. The trial court sustained the appeal, holding, inter alia, that the definition of “family” in § 1.18 of the Stratford zoning regulations as “[a]ny number of individuals related by blood, marriage or adoption, living together as a single housekeeping unit” was invalid because: (1) it exceeded the authority conferred on municipalities to establish zoning districts; and (2) violated the due process and equal protection clauses of our state constitution “in that [it] discriminate[s] against individuals based on biological or legal relationships.”

In its appeal from that judgment, the defendant board presents as the principal issue the propriety of the ruling that a zoning restriction limiting the use of residences in single-family zones solely to families composed of persons related by blood, marriage or adoption is not authorized by the enabling act and violates our state constitutional provisions concerning due process of law and equal protection. We conclude that, as applied in this instance to the occupancy of each floor of the plaintiffs’ two-family house by a group of five unrelated persons, § 1.18 of the Stratford zoning regulations is not ultra vires of the zoning authority given to towns by the enabling act and does not offend our state constitution. We also resolve the remaining issues in favor of the board. Accordingly, we reverse the judgment and remand the case with direction to dismiss the plaintiffs’ appeal.

The memorandum of decision contains no finding of subordinate facts, but the statements of facts in the briefs are unchallenged and we rely upon them. The plaintiffs own a two-family house located in a single-family residence zone, which, as the board concedes, satisfies the requirements for a legal nonconforming use as a residence for two families. Each of the two floors of the house is occupied by five unrelated persons, each occupant having a separate rental arrangement with the plaintiffs, who do not reside on the premises. The two floors of the building constitute separate apartments or housekeeping units within which the occupants share common cooking and bathroom facilities. There are eleven striped parking spaces on the property which are available to the ten occupants.

On January 20, 1989, the Stratford zoning enforcement officer ordered the plaintiffs to cease using their property as a rooming house rather than as a residence for two families. The plaintiffs appealed from this order to the board, claiming that the definition of “family” in § 1.18 of the zoning regulations is unauthorized by the enabling act and violates our state and federal constitutions. The board denied the appeal and upheld the zoning enforcement officer in his interpretation of the regulations.

The plaintiffs appealed from the decision of the board to the Superior Court, raising the ultra vires and constitutional issues set forth in their application to the board as well as some additional issues. The trial court sustained the appeal, declaring the definition of “family” in § 1.18 to be invalid as beyond the statutory zoning authority given to municipalities and violative of our state constitution. The court also concluded that § 4.1.4 of the zoning regulations, which allows “[t]he letting of rooms to not more than two persons in addition to the family of the occupant of the family dwelling unit” and “a total of not more than five persons” as roomers “without table board” with the permission of the planning and zoning commission, was inapplicable to the property of the plaintiffs, who do not reside on the premises. On this basis the actions of the board were characterized as “arbitrary, capricious and illegal.”

On the grant of certification by the Appellate Court pursuant to General Statutes § 8-8 (o), the board filed an appeal in that court, which we have transferred to this court. General Statutes § 51-199 (c); Practice Book § 4023. In addition to the principal issue of the validity of the provision of the regulation defining “family” to include only related persons, the board also challenges certain conclusions that the court may have reached, not contained in the memorandum of decision, which relate to whether the plaintiffs’ property is being operated as a rooming house.

I

The trial court concluded that the definition of “family” in § 1.18 of the zoning regulations “is invalid in that it is not related to any objective established” by General Statutes § 8-2, which sets forth the subjects that a zoning commission of a municipality may regulate, establishes standards for such regulations and states various objectives and concerns to be weighed in their enactment. “Under our law, a municipality, as a creation of the state, has no inherent powers of its own.” Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 490, 547 A.2d 528 (1988). The power to enact a particular zoning regulation must be found in the zoning enabling statute, § 8-2. Id.

The plaintiffs do not challenge the authority of the town to establish districts or zones to be used only for single-family residences, such as the zone in which their property is located. “The . . . limitation that a residence may not be used by more than one family is not uncommon in zoning jurisprudence” and has been upheld implicitly by this court. Planning & Zoning Commission v. Synanon Foundation, Inc., 153 Conn. 305, 308, 216 A.2d 442 (1966). Their attack upon the validity of § 1.18 is confined for the most part to its restriction of the term “family” to persons “related by blood, marriage or adoption,” thus excluding groups of unrelated persons that may possibly function in the same manner as a traditional family of related persons so far as the community is concerned. This claim, however, is more directly related to due process concerns involving the rationality of zoning classifications than to the ultra vires question of the scope of the enabling act. If there is a reasonable basis to support the separate treatment for zoning purposes of families of related individuals as compared to groups of unrelated individuals, the broad grant of authority conferred by § 8-2 to adopt regulations “designed ... to promote . . . the general welfare” must be deemed to sanction a zoning regulation reflecting that distinction in the uses permitted in different zoning districts.

Single-family residence districts have been justified as “manifestly in furtherance” of the zoning objective of controlling population density in residential districts. Planning & Zoning Commission v. Synanon Foundation, Inc., supra, 310. Section 8-2 expressly authorizes regulation of “the density of population” and the adoption of provisions “designed . . . to avoid undue concentration of population.” The creation of single-family residence districts is one method of achieving this objective and, therefore, is within the authority granted by § 8-2. It can hardly be disputed that some definition of the term family is appropriate and is implicitly authorized by the statute. Whether the definition of “family” in a zoning regulation can be limited to include only related persons, therefore, involves the enabling act only in the sense that the legislature must be presumed never to have intended to authorize irrational classifications wholly unrelated to zoning objectives or violative of constitutional rights. Accordingly, we conclude that the ultra vires question of whether § 1.18 exceeds the grant of authority contained in § 8-2 depends upon our resolution of the issue of the reasonableness of the distinction made between a traditional family and any other group occupying a residence, which is similar to the constitutional question of equal protection of the law.

II

The plaintiffs limit their constitutional attack upon § 1.18 to the claim that its restriction of the term “family” to include only traditional families of related persons violates the due process clause of article first, § 8 and the equal protection clause of article first, § 20 of the Connecticut constitution. They do not invoke the parallel provisions of our federal constitution because authoritative precedent construing those provisions appears unfavorable to their position. Although the plaintiffs claim no significant difference in the text of the pertinent clauses of our state and federal constitutions, it is well established that federal precedent is not controlling when this court undertakes the interpretation of similar language in our state constitution. “Federal law, whether based upon statute or constitution, establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984). In construing our state constitution, however, it is useful to consider the judicial gloss placed upon the corresponding language of article fourteen, § 1 of the amendments to our federal constitution, even though it is not dispositive of the issue before us.

The United States Supreme Court has considered zoning ordinances restricting the use of residences to families of related persons in two significant cases. In Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974), the court upheld an ordinance restricting land use to single-family dwellings and defining “family” to mean only persons related by blood, marriage or adoption unless the occupants number two or less. The court concluded, in the context of the application of the ordinance to prohibit the use of a house by six unrelated students at a nearby college, that the restriction of property for use by a single traditional family was a permissible exercise of the legislative line drawing function that falls within the police power. “The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Id., 9.

In Moore v. East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977), the zoning ordinance defined “family” to include some traditional family relationships but not others. As applied to prevent a grandchild, after his mother’s death, from living with his grandmother, the court invalidated the ordinance as violating due process “by slicing deeply into the family itself.” Id., 498. “Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.” Id., 504.

The plaintiffs rely on several decisions of courts of other jurisdictions that have interpreted their state constitutions as extending to nontraditional families the special status with respect to zoning classification given to traditional families by Belle Terre and Moore under the federal constitution. Santa Barbara v. Adamson, 27 Cal. 3d 123, 610 P.2d 436, 164 Cal. Rptr. 539 (1980) (ordinance defining “family” to include an individual, two or more persons related by blood, marriage or adoption, or a maximum of five unrelated persons, excluding servants, as applied to twelve adults, including the owner, occupying a twenty-four room, six bathroom house, violates California’s constitutional provision concerning right of privacy); Delta v. Dinolfo, 419 Mich. 253, 351 N.W.2d 831 (1984) (ordinance limiting occupancy of single-family dwellings to an individual or two or more persons related by blood, marriage or adoption and not more than one other unrelated person violates due process clause of Michigan constitution as applied to families consisting of husband and wife, their children and six unrelated single adults residing together in fulfillment of a religious belief); State v. Baker, 81 N.J. 99, 405 A.2d 368 (1979) (ordinance prohibiting more than four unrelated persons from sharing a single housing unit as applied to two nuclear families seeking to reside together partly for religious reasons violates rights of privacy inherent in the due process clause of the New Jersey constitution); McMinn v. Oyster Bay, 66 N.Y.2d 544, 488 N.E.2d 1240, 498 N.Y.S.2d 128 (1985) (ordinance limiting occupancy of single-family homes to persons related by blood, marriage or adoption or to two unrelated persons sixty-two years of age or older violates due process clause of New York constitution).

Not all interpretations of state constitutions, however, have taken this view. Other state courts, relying on Belle Terre have upheld zoning ordinances restricting single-family homes to occupancy by any number of related persons in contrast to numerical limits placed on occupancy by unrelated groups. Rademan v. Denver, 186 Colo. 250, 526 P.2d 1325 (1974) (single-family restriction upheld as applied to occupancy of dwelling by two married couples and also two unrelated persons seeking to live together as a communal family); Association for Educational Development v. Hayward, 533 S.W.2d 579 (Mo. 1976) (such an ordinance upheld as applied to exclude occupancy of single-family house by group of laymen seeking to live together as members of a religious society); Durham v. White Enterprises, Inc., 115 N.H. 645, 348 A.2d 706 (1975) (such an ordinance upheld as constitutional when applied to renting a house by seven to ten college students on a semester basis).

“This court does not embark upon the resolution of questions involving the validity of [legislation] in the absence of a practical necessity for their determination in the case presented and a sufficient factual background for their adjudication.” State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985). In deciding the case before us, therefore, we need consider the application of the definition of “family” in § 1.18 only with respect to the constitutional rights of the plaintiffs as owners of a two-family house, each floor of which is rented to five unrelated persons who have made separate rental arrangements with the plaintiffs. A party “cannot mount a constitutional challenge to a statute on the basis of its possible applications in circumstances not presented by his own case, unless first amendment freedoms are affected, a situation not claimed to exist here.” Id., 106. The plaintiffs, therefore, can assert only their own right to constitutional protection of their economic interest in maximizing the income from their property, and may not raise such interests as the ten occupants of the property may have arising possibly from some undisclosed associational bond among them. “[Jjudicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.” Poe v. Ullman, 367 U.S. 497, 504, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961); see Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 589, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 373 (1986). “We have uniformly resisted the efforts of litigants to assert constitutional claims of others not in a direct adversarial posture before the court.” Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 522, 468 A.2d 574 (1983).

In affirming the cease and desist order, the board implicitly adopted the characterization by the zoning enforcement officer of the existing use of the plaintiffs’ property as a “rooming house.” At the hearing before the board, the plaintiffs contended that they were not operating a rooming house because they did not reside in the house and each floor constituted a separate housekeeping unit of five occupants, who share such common facilities as the kitchen, the bathroom and a common storage area in the cellar, but have exclusive possession of a bedroom. Our decision does not turn upon whether the cease and desist order employed the appropriate nomenclature in referring to the plaintiffs’ property. The five persons who occupy one floor of the plaintiffs’ two-family house may well constitute a single housekeeping unit within the meaning of § 1.18, an issue we need not decide. Nevertheless, we perceive little distinction in the impact on a neighborhood of single-family homes from the plaintiffs’ use of their property and that from a rooming house, or a dwelling such as that in Belle Terre leased to six college students, which the United States Supreme Court regarded as sufficiently objectionable to justify its exclusion from a single-family zone. “The regimes of boardinghouses . . . and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds.” Belle Terre v. Boraas, supra, 9.

Although the record does not contain any indication that the plaintiffs use their property as a boarding house or fraternity house, their provision for eleven parking spaces available to their tenants suggests the likelihood that more cars are parked on their property than are ordinarily found on the site of a single-family or two-family house. Apart from this difference in the physical appearance of their property as compared to other homes in the neighborhood, the separate rental arrangements that the plaintiffs make with each tenant indicate a lack of cohesion within both five person groups that negates the claim that each group constitutes a family of five unrelated individuals. Even though common facilities are shared, and possibly even meals, there is no indication of any tie among the plaintiffs’ tenants that is likely to outlast their separate occupancies of the premises.

Traditional families are united not merely by the legal, relationships among them but also by the deep affection that arises from a lifetime of sharing not just common facilities or meals in a home, but every aspect of experience. Nontraditional families may have a similar basis for their unity. Such lasting relationships are likely to generate the interest of a family not only in the home it occupies, but in the neighborhood, its schools, parks and other accouterments of urban living. The transient and separate character of residency by the plaintiffs’ tenants is not as likely to stimulate on their part similar concerns about the quality of living in the neighborhood for the long term.

The municipal legislative body empowered to adopt zoning regulations in Stratford could reasonably have concluded that roomers or such occupants as the plaintiffs’ tenants are less likely to develop the kind of friendly relationships with neighbors that abound in residential districts occupied by traditional families. While the plaintiffs’ tenants continue to reside on the property, they are not likely to have children who would become playmates of other children living in the area. Neighbors are not so likely to call upon them to borrow a cup of sugar, provide a ride to the store, mind the family pets, water the plants or perform any of the countless services that families, both traditional and nontraditional, provide to each other as a result of longtime acquaintance and mutual self-interest. The fact that both families and individuals differ with respect to their habits and conduct in relation to the community does not render invalid the legislative judgment that the probable effect of the kind of occupancy the plaintiffs seek to maintain would be detrimental in a neighborhood of single-family homes.

We agree with Belle Terre that the police power may be used constitutionally to promote “family values” and “youth values” that contribute to creating “a sanctuary for people.” In authorizing municipalities to adopt zoning regulations “designed ... to promote . . . the general welfare,” § 8-2 permits the consideration of all factors relevant to the quality of living when classifying the uses to be allowed in various zones. In this instance Stratford has chosen to create a zoning district permitting “one-family dwellings” to be occupied by “[a]ny number of individuals related by blood, marriage or adoption, living together as a single housekeeping unit,” but allowing also two roomers In addition to the family of the occupant or, with the necessary approval, a total of not more than five roomers. Stratford Zoning Regs. §§ 4.1.1, 1.18, 4.1.4. “A boarding or rooming house” is a permitted use in a two-family zone. Stratford Zoning Regs. § 5.1.

The restriction of the definition of “family” to related persons is an exercise in legislative line drawing that serves to provide an element of cohesion not to be found in the occupancy of the plaintiffs’ property by ten individuals with separate rental agreements and no common bond of significant duration. That the line is imperfect in that it may exclude some unrelated groups that may function in the community in essentially the same manner as a traditional family, insofar as zoning objectives are concerned, does not render it invalid. “[Ejvery line drawn by a legislature leaves some out that might well have been included.” Belle Terre v. Boraas, supra, 8. As previously noted, the plaintiffs can prevail only if their own constitutional rights as property owners are violated and cannot rely on possible applications of the regulation to other groups that may possess characteristics relevant to zoning objectives in substantially the same degree as traditional families.

The only constitutional rights the plaintiffs can assert in this case are economic in nature and do not involve such suspect classifications as race or gender. “We deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause . . . .’’Id. Section 1.18 is valid as applied to the plaintiffs, if there is a rational basis for excluding from a zone established for occupancy by single families a group of ten unrelated individuals with no mutual link other than their occupancy of the same dwelling under separate rental arrangements with the plaintiffs. We conclude that there are sufficient reasons relevant to the objectives of zoning set forth in § 8-2 to justify the distinction made by § 1.18 between a family of related persons and the group of ten unrelated individuals who occupy the plaintiffs’ property.

Ill

In addition to the issue of the validity of § 1.18 as applied to prohibit the plaintiffs’ current use of their property, the board in its appeal claims that the trial court improperly concluded that § 4.1.4 of the zoning regulations was inapplicable to the plaintiffs’ property. The court declared that § 4.1.4, which allows “[t]he letting of rooms to not more than two persons in addition to the family of the occupant” or, with permission of the planning and zoning commission, “to a total of not more than five persons,” was not pertinent because “you don’t have a family of an occupant here” and “[tjhat applies to a situation where you have a single-family house in a single-family zone and it’s to allow the people who live there to have a couple of boarders.” Our determination in Part I that the restriction of “family” use of a dwelling to occupancy by a traditional family of related persons is not invalid as applied to the plaintiffs and that the ten persons presently occupying the property do not qualify as such a family makes it unnecessary to address this issue, because the plaintiffs cannot prevail in this case whether or not relief may be available through § 4.1.4.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs’ appeal.

In this opinion the other justices concurred.

       The trial court announced its decision from the bench on August 9,1990, in which it found aggrievement on the part of the plaintiffs and also stated certain conclusions. A memorandum of decision finding aggrievement and restating the court’s conclusions was filed on August 10, 1990.

       “[Stratford Zoning Regulations §] 4.1.4. The letting of rooms to not more than two persons in addition to the family of the occupant of the family dwelling unit, provided that the commission, may with the approval of the health officer, grant permission for the letting of rooms without table board, to a total of not more than five persons. All dwelling units legally occupied by more than 5 but not more than 8 roomers at the time of adoption of these regulations may be continued as nonconforming uses at the same locations.”

       General Statutes § 8-2 provides in part: “The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses as defined in section 22a-93, and the height, size and location of advertising signs and billboards. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity. Zoning regulations shall be made with reasonable consideration for their impact on agriculture. . . .”

       The plaintiffs also claim that § 1.18 of the Stratford zoning regulations is invalid under the enabling act because it improperly regulates the identity of the users rather than the uses of property. We agree that the identity of the user is irrelevant to zoning, but user terminology may be employed to describe particular uses. A regulation permitting a hotel or retail store in a certain zone is indistinguishable from one that permits property in such a zone to be used for a hotel or retail store. The issue in this case would be no different if the regulation permitted the plaintiffs’ property to be used only for such purposes and in such a manner as a traditional family of related persons would ordinarily use it.

       Article first, § 8 of the Connecticut constitution provides in part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”

       Article first, § 20 of the Connecticut constitution provides in part: “No person shall be denied the equal protection of the law . . . .”

       The ordinance in Belle Terre v. Boraas, 416 U.S. 1, 2, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974), defined “family” to mean “ ‘[ojne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.’ ”

       The special status given to traditional families, both extended and nuclear, by Moore v. East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977), raises a federal constitutional question of the validity of proposals for zoning regulations that restrict the number of occupants of a building on the basis of floor area as applied to such families. This method of controlling population density has been advocated by some courts and commentators as an alternative to zoning restrictions based on occupancy by a single traditional family. Santa Barbara v. Adamson, 27 Cal. 3d 123, 610 P.2d 436, 164 Cal. Rptr. 539 (1980); State v. Baker, 81 N.J. 99, 405 A.2d 368 (1979); see note, “Single Family Zoning: The Ramifications of State Court Rejection of Belle Terre on Use and Density Control,” 32 Hastings L.J. 1687, 1708-1709 (1981).


author: F. X. Hennessy, J.

text:
    Commissioner of Revenue Services v. David J. Peska, Executor (Estate of Elise P. Williams), et al.
    (14211)
    Peters, C. J., Shea, Callahan, Borden and F. X. Hennessy, Js.

      Argued April 30
    decision released August 13, 1991

      Robert L. Eddy, Jr., tax attorney II, with whom, on the brief, were Richard Blumenthal, attorney general, and Albert E. Sheary, first assistant commissioner of revenue services, for the appellant (plaintiff).

      Frank S. Berall, for the appellees (defendants).

      Frank S. Berall filed a brief for the Connecticut Bar Association, Estates and Probate Section, as amicus curiae.
   F. X. Hennessy, J.

The sole issue in this appeal is whether a partial release in 1942 of a pre-1942 testamentary general power of appointment is a taxable transfer as contemplated by General Statutes §§ 12-345c (a) (2) and 12-341b (d). The plaintiff, the commissioner of revenue services for the state of Connecticut (commissioner), appealed to the Superior Court from an order and decree of the Probate Court of the district of Clinton finding that the interest of the decedent, Elise P. Williams, in the Charles Dards trust (trust) was not subject to the Connecticut succession tax. The trial court affirmed the order and decree of the Probate Court and dismissed the commissioner’s appeal. From that decision the commissioner appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We affirm the judgment.

The relevant facts are not disputed. On January 3, 1921, Charles A. Dards, the decedent’s grandfather, executed a will that established a trust, the net profits and income of which were to be paid to the decedent during her lifetime, and empowered her, upon reaching the age of twenty-one, to dispose of the trust remainder in fee by her will “among such persons and in such proportion and manner as . . . she may desire.” In the event of the decedent’s failure to exercise her power of disposal, the Dards will provided that the remainder would pass to the decedent’s lawful issue living at the time of her death.

On December 24,1942, the decedent executed a partial release of the power given to her by her grandfather’s will, reserving the right to dispose of the remainder of the trust estate by her will only to persons and corporations within a designated class. At the time of the decedent’s death on November 30, 1984, the value of the trust remainder was $211,000. In her will, the decedent partially exercised her reduced power to dispose of the trust estate by appointing a total of $10,000 to two individuals. The balance, $201,000, passed to her issue under the default provision of her grandfather’s will.

On January 10,1986, the defendants, the executors of the decedent’s estate, filed a succession tax return reporting her interest in the trust as a nontaxable special power of appointment. The commissioner, rejecting the defendants’ characterization of the decedent’s interest, maintained that it was subject to the succession tax. This appeal is the result of the trial court’s affirmance of the Probate Court’s determination that the decedent’s interest in the trust was exempt from succession tax.

The commissioner’s argument that the decedent’s interest is subject to the succession tax focuses on her retention of a life income interest in her grandfather’s testamentary trust, when she partially released her general power of appointment over the remainder of the trust estate. This retained life income interest, according to the commissioner, prevents the application of the exemption from succession tax of partially released general powers of appointment otherwise provided in § 12-345c (a). The commissioner contends that a reading of § 12-345c in conjunction with § 12-341b (d), to which § 12-345c refers, requires the conclusion that the decedent, by retaining her life income interest, became a transferor for succession tax purposes at the time she reduced her general power of appointment. We are not persuaded by the commissioner’s argument and disagree with his interpretation of the statutes in issue.

Section 12-345c, which was modeled after § 2041 (a) of the Internal Revenue Code, provides in subsection (a) (2) that, for succession tax purposes, a decedent shall be deemed to have made a taxable transfer of any property with respect to which a general power of appointment, created on or before October 21, 1942, is exercised by the decedent by a disposition which is of such nature that if it were a transfer of property owned by the decedent, such property would be taxable under the provision of subsections (c) or (d) of section 12-341b. Section 12-345c (a) (2) also provides, as does its federal counterpart, that if a general power of appointment created on or before October 21,1942, has been partially released prior to November 1,1951, so that it is no longer a general power of appointment, the exercise of such power shall not be deemed to be the exercise of a general power of appointment and therefore shall not be subject to the succession tax. See Ellis v. United States, 280 F. Sup. 786, 793 (D. Md. 1968) (stating that “[i]n enacting § 2041, Congress clearly intended to permit the donee of a general power of appointment . . . to escape estate tax liability even though exercising the power, provided that he complied with the provisions of the statute as to partial release within the time specified”); Estate of Anna J. Lombard, 46 T.C. 310, 317 (1966) (stating that “[t]he statutory-purpose of the partial release provisions in section 2041 (a) (1) (B) was to provide a tax-free shelter for donees of powers who disabled themselves from exercising a power for the economic benefit of other than those in the exempt class”).

We have consistently held that when our tax statutes refer to the federal tax code, federal tax concepts are incorporated into state law. Skaarup Shipping Corporation v. Commissioner, 199 Conn. 346, 351, 507 A.2d 988 (1986); Harper v. Tax Commissioner, 199 Conn. 133, 139, 506 A.2d 93 (1986). That principle is no less true when the language of one of our tax statutes is nearly identical to a federal tax law. Without a clear indication from the legislature to the contrary, we may therefore look to federal decisional law to guide our interpretation of § 12-345c (a). Compare Estate of Morse, 9 Cal. App. 3d 411, 415, 88 Cal. Rptr. 52 (1970).

While the commissioner acknowledges that § 12-345c is modeled after a federal statute and that the dates required for the application of § 12-345c have been met, he contends that this court is required to follow a different course from that which would be followed under federal law in determining whether the decedent’s interest in the trust is subject to tax. We disagree with the position of the commissioner that the decedent became a transferor for succession tax purposes in 1942 when she released her general power of appointment while retaining her life income interest in the trust.

The commissioner concedes that had the decedent been granted only a general power of appointment, which she had later partially released, the exemption available under § 12-345c would have applied. The commissioner argues, however, that because the grant of a general power of appointment to the decedent had been accompanied by the grant of a life income interest in the trust and because the decedent had retained that life income interest at the time she partially released her general power, her partial release became a transfer “by gift or grant intended to take effect in possession or enjoyment at or after the death of the transferor,” as provided in § 12-34lb (d). The commissioner contends that at the time of the partial release, the decedent became a transferor by limiting the class of beneficiaries who would possess and enjoy that interest subject to the reduced power of appointment at the time of the decedent’s death.

In support of this argument, the commissioner relies on Miller v. Connelly, 142 Conn. 144, 112 A.2d 202 (1955), and Heffernan v. Freedman, 177 Conn. 476, 418 A.2d 895 (1979). These cases, however, are factually distinguishable from the case now before us, for, although both of those cases applied § 12-341b (d) to determine the taxability of transfers in trust, neither case involved the partial release of a general power of appointment.

We conclude that these cases do not assist us in a proper construction of § 12-345c. We agree with the defendants’ argument that the commissioner is incorrect that the retention of the decedent’s life income interest was tied to the terms of the release. The partial release executed by the decedent in 1942 neither spoke of her life interest in the trust income nor was it required to do so. The decedent’s right to the trust income, a right independent of her general power of appointment, was created and given to her by her grandfather. Given the language of the Dards will in this case, the partial release of her general power cannot be construed as a transfer, and without a transfer there is no tax.

Furthermore, the commissioner’s argument ignores the clear language of § 12-345c. That section provides that a decedent shall be deemed to have made a taxable transfer of any property with respect to which a general power of appointment is exercised by the decedent. The statute further provides that “[i]f a general power of appointment . . . has been partially released so that it is no longer a general power of appointment, the exercise of such power shall not be deemed to be the exercise of a general power of appointment . . . The statute does not link the possession of a life estate to a partial release of a general power of appointment so as to make such a partial release a taxable transfer. To construe the statute to imply such a linkage would, in a practical sense, almost totally eviscerate the statutory tax exemption provided for the exercise of partially released powers of appointment whenever the donee of a power retained a life estate. Absent a clear directive from the legislature to the contrary, we conclude that § 12-345c is to be read and interpreted as is its federal counterpart.

The decedent was granted a general power of appointment, which was created prior to October 21, 1942. Prior to November 1,1951, the decedent partially released that power of appointment so that it was no longer a general power of appointment, and at the time of her death the decedent partially exercised her reduced power to dispose of the trust estate by appointing a total of $10,000 to two individuals. Given those facts, we conclude that the trial court correctly concluded that no succession tax was due on the value of the decedent’s interest in the trust.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 12-345c. taxable transfer made, when. For purposes of the tax imposed by this chapter, a decedent shall be deemed to have made a taxable transfer of any property with respect to which (a) a general power of appointment created on or before October 21, 1942, is exercised by the decedent (1) by will, or (2) by a disposition which is of such nature that if it were a transfer of property owned by the decedent, such property would be taxable under the provisions of subsection (c) or (d) of section 12-341b; but the failure to exercise such a power or the complete release of such a power shall not be deemed an exercise thereof. If a general power of appointment created on or before October 21,1942, has been partially released so that it is no longer a general power of appointment, the exercise of such power shall not be deemed to be the exercise of a general power of appointment if such partial release occurred before November 1, 1951, or if the donee of such power was under a legal disability to release such power and such partial release occurred not later than six months after the termination of such legal disability; or (b) the decedent has at the time of his death a general power of appointment, created after October 21, 1942, irrespective of whether he has exercised such power of appointment, or with respect to which the decedent has at any time exercised or released such a general power of appointment by a disposition which is of such nature that if it were a transfer of property owned by the decedent, such property would be taxable under the provisions of subsection (c) or (d) of section 12-341b. A disclaimer or renunciation of a general power of appointment shall not be deemed a release of such power. For purposes of this section, the power of appointment shall be considered to exist on the date of the decedent’s death even though the exercise of the power is subject to a precedent giving of notice or even though the exercise of the power takes effect only on the expiration of a stated period after its exercise, whether or not on or before the date of the decedent’s death notice has been given or the power has been exercised; or (c) the decedent (1) by will, or (2) by a disposition which is of such nature that if it were a transfer of property owned by the decedent such property would be taxable under the provisions of subsection (c) or (d) of section 12-341b, exercises a power of appointment created after October 21,1942, by creating another power of appointment which can be validly exercised so as to postpone the vesting of any estate or interest in such property, or suspend the absolute ownership or power of alienation of such property, for a period ascertainable without regard to the date of the creation of the first power.”

       General Statutes § 12-341b provides in pertinent part: “The transfers enumerated in section 12-340 shall be taxable if made . . . (d) by gift or grant intended to take effect in possession or enjoyment at or after the death of the transferor. Such a transfer as last mentioned shall include, among other things, a transfer under which the decedent retained for his life, or for any period not ascertainable without reference to his death, or for a period of such duration as to evidence an intention that he should retain for his life (1) the possession or enjoyment of, or the right to the income from, the property . . . .”

       “[Internal Revenue Code] § 2041 [1982] powers of appointment
      (a) IN GENERAL
      The value of the gross estate shall include the value of all property.

        (1) POWERS OF APPOINTMENT CREATED ON OR BEFORE OCTOBER 21, 1942
      To the extent of any property with respect to which a general power of appointment created on or before October 21, 1942, is exercised by the decedent—
      (A) by will, or
      (B) by a disposition which is of such nature that if it were a transfer of property owned by the decedent, such property would be includible in the decedent’s gross estate under sections 2035 to 2038, inclusive; but the failure to exercise such a power or the complete release of such a power shall not be deemed an exercise thereof. If a general power of appointment created on or before October 21, 1942, has been partially released so that it is no longer a general power of appointment, the exercise of such power shall not be deemed to be the exercise of a general power of appointment if—
      (i) such partial release occurred before November 1, 1951 or
      (ii) the donee of such power was under a legal disability to release such power on October 21,1942, and such partial release occurred not later than 6 months after the termination of such legal disability.”