author:
Shea, J.
      Covello, J.,

text:
    Lewis A. Lizotte et al. v. Conservation Commission of the Town of Somers et al.
    (13912)
    (13913)
    Shea, Callahan, Glass, Covello and Borden, Js.

      Argued June 1—
    decision released August 21, 1990

      Ronald P. Sherlock, for the appellants in both cases (plaintiffs).

      Edward J. McGuire, for the appellees in both cases (named defendant et al.).

      David H. Wrinn, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (defendant commissioner of environmental protection).

      David B. Losee and Gisele M. Drisdelle filed a brief for the Home Builders Association of Connecticut, Inc., as amicus curiae.
   Shea, J.

The dispositive issue in these appeals is the validity of a regulation adopted by the named defendant, the conservation commission of the town of Somers (commission), prohibiting the location of waste disposal systems and buildings within specified distances of an inland wetland or watercourse. In the factual context presented at trial involving the application of the regulation to tracts of undeveloped land, we conclude that the regulation is valid and, therefore, affirm the judgment of the trial court.

The plaintiffs own undeveloped land, containing wetlands and watercourses, located in the town of Somers, and were, at the time these actions were initiated, engaged in the business of constructing residential developments within the town of Somers. The defendant commission revised its inland wetlands and watercourses regulations on July 5, 1988, adopting a regulation that, in general, establishes distances from the seasonal high water level of a watercourse or inland wetland, inside of which certain construction activities are prohibited. For example, the regulation prohibits, with minor exceptions, any septic system or any building constructed for the purpose of sheltering animals within 150 feet of the seasonal high water level, and prohibits any other building within fifty feet of the same level.

In the first case, the plaintiffs sought to challenge the adoption of the regulation by means of an appeal pursuant to General Statutes § 22a-43. The trial court held, however, that the plaintiffs had not been “aggrieved” by the adoption of § 6.4 of the Somers regulations, since the same restrictions had been adopted in 1986, as part of the zoning regulations of the town of Somers. The trial court reasoned: (1) “The adoption of the new [inland wetlands and watercourses] regulation could not affect the value of the plaintiffs’ properties because the same regulation already was in existence in [the zoning] regulations”; and (2) “[t]he plaintiffs failed to appeal the adoption of the [zoning] regulation in 1986 and having failed to do so, are trying for a ‘second bite from the apple.’ ”

In the second case, the plaintiffs, alleging that the value of their property for development purposes had been “substantially reduced,” challenged the validity of the regulation, seeking declaratory and other relief. The plaintiffs claimed that the regulation: (1) does not conform to the stated purposes and policies of the Inland Wetlands and Watercourses Act (IWWA); see General Statutes § 22a-37; (2) does not conform with regulations promulgated by the commissioner of environmental protection; (3) has no reasonable relation to the stated purpose of the IWWA; (4) contains mandatory restrictions that are not necessary to preserve and protect inland wetlands and watercourses within the town of Somers; (5) detrimentally affects the plaintiffs’ ability to develop their property fully; and (6) is unconstitutional and confiscatory, since it substantially reduces the value of their property without a legitimate reason.

The trial court referred to the following facts and relevant testimony in its memorandum of decision. Section 6.4 of the Somers regulations had as its origin the virtually identical provisions of the zoning regulations adopted previously by the town of Somers. Although restrictions similar to those contained in § 6.4 do not exist in regulations adopted by the department of environmental protection (DEP) pursuant to the IWWA, or in any “model” regulations, § 6.4 was adopted by the commission “to prevent injury to the wetlands.”

Douglas E. Cooper, an employee of the DEP, testified that his department had assisted in the adoption of the Somers regulations, and that it was his, as well as the department’s, opinion that those regulations did comply with the IWWA, even though the IWWA did not set forth any specific set-back requirements for buildings or septic systems. Cooper also stated that the set-back requirement was adopted to avoid pollution of wetlands and watercourses, although he conceded that “there is nothing magic about the 150 foot set back.” Cooper regards wetlands as a “fragile national resource,” and noted that many towns had adopted setback requirements after this court’s decision in Aaron v. Conservation Commission, 183 Conn. 532, 441 A.2d 30 (1981).

Cooper also testified that he had witnessed many septic systems that had failed, even though they had been adequately designed for the use for which they had been intended. He stated that problems could result from a variety of causes, and that, in his opinion, one-half

of all septic systems would fail within twenty years. He said that a town relying on ground water supplies had a significant interest in protecting the quality of the water in those sources, and concluded that the restrictions contained in § 6.4 of the Somers regulations were reasonable, on the basis of his experience at the DEP as well as his observations of problems at the local level.

Steven R. Jacobs, the sanitarian of the town of Somers, testified that he was concerned with the quality of the town’s water sources, since only 5 to 10 percent of the town is serviced by public sewer systems. Jacobs stated that there are two major aquifers in the town of Somers capable of rendering an adequate water supply to the town, and that five of the six wells being operated by the Connecticut Water Company draw their water from these aquifers. According to Jacobs, 20 percent of the town’s 9500 residents are serviced by the water company, while the remainder rely upon private wells. Jacobs stated that about forty septic systems are repaired in Somers each year.

Finally, Simon Lipton, a resident of Somers for over seventy years and chairman of the commission, testified that failed septic systems had been a problem in Somers for many years. Lipton stated that the soil in two areas of the town had a clay base and could not, therefore, handle any sewage runoff from failed septic systems. Lipton testified that these areas of the town were heavily populated and that it had become necessary to install small disposal facilities, since sewage from failed septic systems had run onto lawns, into the streets and then into drainage pipes.

After reviewing this evidence, the trial court concluded, in its memorandum of decision, that the issue before it was whether the regulation’s prohibitions were “rationally related to the protection of the public health, safety and general welfare of the community.” See Beacon Falls v. Posick, 212 Conn. 570, 583, 563 A.2d 285 (1989). Noting that the prohibition of certain activities, by means of zoning regulations, had been upheld by courts of this state, the trial court ruled that, in light of the evidence presented, there was a rational basis for the adoption of § 6.4 of the Somers regulations. The court also concluded that the regulation did not go beyond the limits of the relevant enabling legislation, and, therefore, held that the regulation was “a valid exercise of the police power and [was] entirely consistent with the goals and policies contained in the [IWWA].”

I

In the first case, an administrative appeal from the adoption of § 6.4, the plaintiffs seek to attack the trial court’s conclusion that they had not been aggrieved by the adoption of that amendment to the Somers regulations because the prohibitions it contains were already to be found in the town’s zoning regulations. The basis of the plaintiffs’ argument is that a land owner may, by means of an application for a variance, obtain relief from the prohibitions of the applicable zoning regulations under special circumstances, but, as they maintain, may not “obtain similar relief from [§] 6.4 of the inland wetlands regulation.” We have no need to address this claim, however, because the issues underlying the plaintiffs’ administrative appeal will be rendered moot by our resolution of the appeal in the second case.

In the first case, the plaintiffs challenged the validity of § 6.4 on grounds that were, with one exception, virtually identical to those on which they relied in the second case, in which they sought a declaratory judgment that the regulation was invalid. The sole exception was the allegation, in the complaint in the first case, that the commission’s adoption of § 6.4 was unlawful because it had “[voted] to amend, in its entirety, the Somers Inland Wetlands Regulations without stating on the record at the meeting during which the vote was taken the reasons for the particular changes.” The plaintiffs conceded, during oral argument, that this claim was neither briefed nor presented to the trial court and was, therefore, abandoned before that court. See Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 17 n.4, 523 A.2d 467 (1987). They concede further that the remaining grounds on which they sought to challenge the adoption of § 6.4 will necessarily be decided by our resolution of the issues in the second case. The plaintiffs’ concessions are amply supported by the record and, therefore, the appeal in the first case must be dismissed as moot. See Staples v. Palten, 214 Conn. 195, 202 n.1, 571 A.2d 97 (1990) (Healey, J., dissenting), and cases cited therein.

II

In their appeal in the second case, the plaintiffs claim that § 6.4 of the Somers regulations is invalid because: (1) it exceeds the scope of the relevant enabling legislation, General Statutes § 22a-42; and (2) it is not “necessary”; General Statutes § 22a-42 (c); to effectuate the purpose of the IWWA, “because the regulated activities which are prohibited . . . may or may not have a detrimental impact on . . . wetland areas.”

At the outset, it is appropriate to note the reasons set forth in General Statutes § 22a-36 for the enactment of the IWWA. The legislature has found that “[t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed” and that “[t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and Safety of the citizens of the state.” General Statutes § 22a-36. The purposes of the act, therefore, are, inter alia, to “protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; maintaining and improving water quality in accordance with the highest standards set by federal, state or local authority .. . and protecting the state’s potable fresh water supplies from the dangers of . . . pollution ... by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn.” General Statutes § 22a-36.

In order to carry out these objectives, the legislature has required each municipality in this state either to “establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of [the IWWA].” General Statutes § 22a-42 (c). Each municipality is expressly authorized through its designated agency to adopt regulations that “are necessary to protect the wetlands and watercourses within its territorial limits”; General Statutes § 22a-42 (c); provided that any regulations adopted are “in conformity with the regulations adopted by the commissioner pursuant to section 22a-39 . . . .” General Statutes § 22a-42 (c). “As we stated in Aaron v. Conservation Commission, supra, 541, ‘[i]t is this broad statutory mandate authorizing regulations on both the state and local levels, with specific legislative findings and declaration of policy, that serves as the setting in which we evaluate the claims of the parties.’ ” Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 560, 552 A.2d 796 (1989). “In doing so, we are mindful that the statutory scheme of this legislation envisages its adaptation to infinitely variable conditions for the effectuation of the purposes of these statutes.” Aaron v. Conservation Commission, supra, 541.

A

The plaintiffs’ principal claim in the second case is that § 6.4 of the Somers regulations is invalid because it is not in “conformity” with the statutory scheme set forth by the legislature in the IWWA. Specifically, the plaintiffs claim that § 6.4 conflicts with the IWWA because regulated activities that might be permitted under the IWWA, after approval of a permit application by the relevant governing agency, are absolutely prohibited by § 6.4. Having concluded in Aaron v. Conservation Commission, supra, 542, that the IWWA authorizes local regulation of activities beyond the actual boundaries of a wetland or watercourse that may be adversely affected by such activities, we must now decide the extent of such regulatory authority with respect to future developments of tracts of land near wetlands and watercourses. More precisely, the question is whether the authority of an agency to regulate activities on land outside the boundaries of a wetland or watercourse may be exercised with respect to new subdivisions by creating a uniform buffer zone rather than by imposing such a condition as each separate application for agency approval is considered.

The IWWA provides that “no regulated activity shall be conducted upon any inland wetland and watercourse without a permit.” General Statutes § 22a-42a (c). “ ‘Regulated activity’ means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40.” General Statutes § 22a-38 (13). “Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland and watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland in question is located.” General Statutes § 22a-42a (c). Finally, “[i]n granting, denying or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in section 22a-41, and such agency shall state upon the record the reason for its decision.” General Statutes § 22a-42a (d).

In support of their claim that the regulation conflicts with the statute, the plaintiffs rely on the language of General Statutes § 22a-42 (e), which states in part: “Any ordinances or regulations [adopted by a municipality or district] shall be for the purpose of effectuating the purposes of sections 22a-36 to 22a-45, inclusive, and, a municipality or district, in acting upon ordinances and regulations shall give due consideration to the standards set forth in section 22a-41.” (Emphasis added.) On the basis of this language, the plaintiffs argue that the standards of General Statutes § 22a-41 must be applied on a case-by-case basis and that § 6.4 of the Somers regulations, which makes no provision for variations of its requirements through the permit process, is invalid because it conflicts with the procedures contemplated by the IWWA. Those procedures include § 22a-41 (a), which requires that “[i]n carrying out the purposes and policies of [the IWWA] . . . the commissioner shall take into consideration all relevant facts and circumstances . . . . ” This broad inquiry must include, but is not limited to, six factors related to the consequences, alternatives to and suitability or unsuitability of any proposed activity. General Statutes § 22a-41; see footnote 13, supra.

In Aaron, we stated that an appropriate test “used to determine whether a conflict exists [between a local ordinance and a statute] is whether the ordinance permits or licenses that which the statute forbids, or prohibits that which the statute authorizes; if so, there is a conflict. If, however, both the statute and the ordinance are prohibitory and the only difference is that the ordinance goes further in its prohibition than the statute, but not counter to the prohibition in the statute, and the ordinance does not attempt to authorize that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict.” Aaron v. Conservation Commission, supra, 544. This test is founded upon the principle that “[a] local ordinance, enacted pursuant to the police power, is not necessarily inconsistent with a state law on the same subject just because the ordinance provides higher standards than the statute.” Id., 543.

We perceive no conflict between § 6.4 of the Somers regulations and the IWWA. First, the IWWA specifically authorizes the rejection of permit applications for conducting regulated activities, so long as the evaluation process set forth in § 22a-41 is complied with. General Statutes § 22a-42a (d). Thus, contrary to the plaintiffs’ claim, the IWWA does not “expressly authorize” that which is prohibited by § 6.4 of the Somers regulations. Second, § 6.4 of the Somers regulations does not prohibit all activity in areas adjacent to wetlands or watercourses, the commission having chosen, instead, to limit the scope of § 6.4 to activities that pose a significant pollution threat to those areas. Other regulated activities, therefore, might be allowed under § 6.4, provided that the permit application is approved by the commission. Finally, we have previously stated that “ ‘[t]he power to regulate . . . entails a certain degree of prohibition’ Blue Sky Bar, Inc. v. Stratford, supra, 20; and have recognized that prohibitions of certain activities within municipalities have been upheld when “the prohibitions were rationally related to the protection of the municipalities’ public safety, health and general welfare.” Beacon Falls v. Posick, supra, 583, and cases cited therein. In light of these considerations, § 6.4 of the Somers regulations can be viewed as a legislative determination that, regardless of the circumstances present in each case, no permits will be issued for the specified activities, since they pose an unacceptable hazard to the wetlands or watercourses within the town of Somers. In this regard, the remaining issue before us is not whether the standards of § 22a-41 must be utilized by municipal authorities on a case-by-case basis for the evaluation of proposed activities adjacent to a wetland or watercourse, but whether the commission considered and applied the statutory standards when it adopted § 6.4 of the Somers regulations.

The plaintiffs have not, however, claimed before this court or the trial court that the commission failed to consider the standards contained in § 22a-41 prior to the adoption of § 6.4 of the Somers regulations. In the absence of any evidence to the contrary, we will presume that the commission fulfilled, when it adopted the regulation, its statutory obligations set forth in §§ 22a-41 and 22a-42 (e). See Carothers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268 (1990). Even if we were to entertain such a claim at this late stage of the proceedings, we note that the trial court had before it evidence regarding why the commission chose, when enacting § 6.4, to adopt a blanket prohibition rather than a process of permit application subject to review and approval or denial. This decision was based in large part on: (1) the poor drainage capability of the soil in Somers; (2) past sewage drainage problems within the town; (3) the town’s reliance on local aquifers for potable water supplies; and (4) the potential pollution hazard posed to the aquifers by the drainage of sewage. Further, the trial court was also furnished a copy of a letter which indicated that the commissioner of the DEP had found the proposed Somers regulations to be in “conformance” with both the IWWA and the applicable regulations enacted by that department. See Regs., Conn. State Agencies § 22a-39-ll. Thus, even if this issue had been presented to the trial court, there was evidence before it from which it could have concluded that the factors specified by § 22a-41 were adequately taken into account prior to the adoption of § 6.4 of the Somers regulations.

Under all of these circumstances, we conclude that the trial court correctly concluded that § 6.4 of the Somers regulations was not in conflict with the IWWA or the regulations adopted by the commissioner of DEP.

B

The plaintiffs also claim that § 6.4 of the Somers regulations is invalid because it is not “necessary to protect the wetlands and watercourses within [the] territorial limits” of the town of Somers and thus does not comply with that criterion for regulations of an inland wetlands agency. General Statutes § 22a-42 (c). We conclude that the plaintiffs have not met the significant burden facing them in making such a challenge.

“[W]hen a statute authorizes a municipality to regulate a certain activity, a prohibition of that activity will be valid if it is rationally related to the protection of the community’s public health, safety and general welfare.” Beacon Falls v. Posick, supra, 583. In regard to the “necessary” requirement of § 22a-42 (c) for wetland regulations, we have previously stated that “ ‘necessary’ should not be interpreted as meaning indispensable, but rather, as that which is reasonably designed to effectuate the stated purposes of the wetlands statutes.” Cioffoletti v. Planning & Zoning Commission, supra, 561. Although we have recognized that the policy decision to protect wetlands and watercourses must be balanced against the productive use of privately owned land; Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 719, 563 A.2d 1339 (1989); we have also indicated that this balancing process is more appropriately conducted in a legislative rather than a judicial setting. Thus, “[a]n agency which has the authority to enact regulations is vested with a large measure of discretion, and the burden of showing that the agency has acted improperly rests upon the one who asserts it.” Aaron v. Conservation Commission, supra, 537; see Blue Sky Bar, Inc. v. Stratford, supra, 23. “Every intendment is to be made in favor of the validity of the ordinance, and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.” Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960); Blue Sky Bar, Inc. v. Stratford, supra; Aaron v. Conservation Commission, supra.

On the basis of the evidence presented to it, the trial court concluded: “The soil in Somers was basically clay in substance providing very poor drainage; the Town had been faced with severe sewage drainage problems for years; the Town’s basic water supply consisted of two large [aquifers] of water; 80% of the homes depended on well water; and the private water company serves five (5) of its six wells by drawing from the [aquifers].” The court held, therefore, that “the Somers regulation does have a rational basis.” We conclude that the court was justified in reaching its conclusion, since the adoption of § 6.4 of the Somers regulations was “reasonably designed to protect the town’s wetlands and watercourses.” Cioffoletti v. Planning & Zoning Commission, supra, 561. The commission could reasonably have concluded that, regardless of whether a specific prohibited activity may or may not adversely affect the town’s wetlands, the risk of pollution outweighed in all instances the benefits to be gained by allowing case-by-case analysis of each application for a regulated use. The plaintiffs have, therefore, failed to establish the invalidity of the regulation beyond a reasonable doubt.

The judgment is affirmed.

In this opinion Callahan, Glass and Borden, Js., concurred.

Covello, J.,

dissenting. I respectfully disagree with the conclusion that there is “no conflict between § 6.4 of the Somers [Conservation Commission] regulations and the [Inland Wetlands and Watercourses Act. (IWWA)].” I submit that § 6.4 conflicts with the statutory mandate set out in the IWWA that requires a case-by-case balancing of the tension that exists between society’s determination to protect its ecologically fragile wetlands and watercourses and the private landowner’s inalienable right to make productive use of his land. The Somers regulation, by absolutely barring certain activities, subverts the expressly articulated legislative mandate to balance the competing interests involved through a permitting process.

Section 6.4 establishes mandatory separation distances outside of a wetlands area that must exist between the wetlands area itself, and either: (a) any portion of a septic system; or (b) a structure as follows:

A. Septic System

Wetland or Watercourse 100'

B. Building Sheltering Animals

Wetland or Watercourse 150'

C. All Other Buildings

Wetland or Watercourse 50'

Section 6.4 establishes these minimum separation distances irrespective of the effect of the proposed septic system or structure on a particular wetland area. There are no mandatory separation distances in either the IWWA, the Department of Environmental Protection regulations dealing with the IWWA, or the state Model Inland Wetlands Act.

General Statutes § 22a-36 provides that the purpose of the IWWA is to provide “an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn.” (Emphasis added.) An absolute prohibition against all building within arbitrarily established distances from a wetland or watercourse is scarcely consistent with a legislative mandate “to balance the need for the economic growth of the state and the use of its land.”

That the framers of the IWWA envisaged a balancing of these interests on a case-by-case basis is borne out by the fact that General Statutes §§ 22a-36, 22a-38 (13), 22a-41 and 22a-42a (d) all speak in terms of “regulated activities,” activities that may be approved on a permit basis, and may in fact pollute a given wetland or watercourse. In determining if a regulated activity is to be permitted, local inland wetlands commissions are required to consider the specific criteria set forth in § 22a-41. These include a finding of “[t]he suitability or unsuitability of such activity to the area for which it is proposed,” “interference with . . . the reasonable use of property” and, in the event of the issuance of a permit, a finding “that a feasible and prudent alternative does not exist.” Such language that seems to me to call for individualized consideration of each “area,” is hardly consistent with a regulation that in all events prohibits certain activities throughout an entire town.

Further, a local regulation that absolutely prohibits certain “regulated activities” outside of a wetland or watercourse is inconsistent with a statutory protocol that establishes a permit process to allow “regulated activities” within a wetland or watercourse. It seems to me totally illogical that § 6.1 of the Somers regulations authorizes regulated activities within a wetland or watercourse upon receipt of a permit to do so while § 6.4 contains a blanket prohibition against what would otherwise be a “regulated activity” outside of a wetland or watercourse.

“A test frequently used to determine whether a [local ordinance is inconsistent with a state statute] is whether the ordinance . . . prohibits that which the statute authorizes; if so, there is a conflict.” Aaron v. Conservation Commission, 183 Conn. 532, 544, 441 A.2d 30 (1981). The IWWA specifically allows an individual to conduct regulated activities either in or near a wetlands area upon issuance of a permit. By not providing for the permit process and by absolutely forbidding certain regulated activities within prescribed distances from a wetland, § 6.4 prohibits that which the statute has expressly authorized, i.e., the right to apply for a permit to conduct regulated activities within or near a wetland. Since § 6.4 of the Somers regulations clearly exceeds the scope of its enabling legislation, I submit that the enactment is invalid.

Accordingly, I dissent.

       In addition to the named plaintiff, Chester M. Ladd, Richard S. Pollio and Daniel R. Roulier were named as additional plaintiffs in both cases.

       In addition to the named defendant, the town of Somers and the commissioner of environmental protection were named as additional defendants in each case.

       The regulation, § 6.4 of the revised inland wetlands and watercourses regulations of the town of Somers, provides in part: “a. No septic system, tank, leach field, dry well, chemical waste disposal system, manure storage area, or any other pollution source (all hereinafter referred to as ‘system’) shall be constructed or maintained in such a way that the closest point of any such system is nearer than one hundred fifty (150) feet to the nearest edge of the seasonal high water level of a watercourse or inland wetland. No system, at any distance from such watercourse or inland wetland, shall be constructed or maintained in such a manner so as to drain into any such watercourse or inland wetland. The one hundred fifty (150) foot separation may be reduced to one hundred (100) feet for one (1) and two (2) family dwellings and commercial buildings generating less than 225 gallons per day, subject to the provisions of the State of Connecticut Public Health Code and Basic Building Code ....
      “b. No building used for the purpose of sheltering animals shall be constructed in such a way that the closest point to the nearest edge of the seasonal high water level of a watercourse or inland wetland is less than one hundred fifty (150) feet from the watercourse or inland wetland. No other building or structure shall be constructed in such a way that the closest point to the nearest edge of the seasonal high water level of a watercourse or inland wetland is less than fifty (50) feet from said watercourse or inland wetland. An erosion stabilization and sedimentation control plan shall be submitted to the Somers Sanitarian for his review and approval where the building is within one hundred (100) feet of a watercourse or inland wetland . . . .”

       General Statutes § 22a-43 provides in part: “(a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within fifteen days after publication of such regulation, order, decision or action appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district, to said court in any such judicial district, except if such appeal is from a contested case, as defined in section 4-166, such appeal shall be in accordance with the provisions of section 4-183, except venue shall be in the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district.” This statute was amended, effective October 1,1989, by Public Acts 1989, No. 89-356, § 9.

       “[General Statutes] Sec. 22a-37. short title. Sections 22a-36 to 22a-45, inclusive, shall be known and may be cited as ‘The Inland Wetlands and Watercourses Act.’ ”

       The plaintiffs have not pursued any constitutional claims on appeal. Further, although they presented evidence that,.with respect to one proposed subdivision, § 6.4 of the Somers regulations would result in a loss of 25 lots valued at $1,500,000, the plaintiffs do not allege that the regulation, as applied to them, constituted a “taking” of their property. See Cioffoleiii v. Planning & Zoning Commission, 209 Conn. 544, 562-63, 552 A.2d 796 (1989).

       According to the trial court’s memorandum of decision, Cooper testified that some of these “problems were caused by excessive numbers of persons living in the house, luxurious use of water, painting debris from cleaning brushes and rollers in the bathtubs, hazardous materials thrown into the house drains [wreaking] havoc with biological aspects of the systems and the disposal of fats and greases and excessive use of garbage disposals for items that should not go down the drains.”

       Cooper testified for both the plaintiffs and the defendants. The plaintiffs also offered the testimony of Sebastian Amenta, a registered engineer and employee of a group that was assisting the plaintiffs in their development projects, who was of the opinion that fixed set-back requirements were unwarranted, and that all distances should be based on technical information concerning each proposed site.

       General Statutes § 22a-42 provides in part: “(a) To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.”

       General Statutes § 22a-42 (e) provides in part: “Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits.” (Emphasis added.)

       General Statutes § 22a-39 provides in part: “The commissioner shall
      “(f) Adopt such regulations, in accordance with the provisions of chapter 54, as are necessary to protect the wetlands or watercourses or any of them individually or collectively . . .

       General Statutes § 22a-40 specifies not only those uses that will be permitted as of right in a wetland or watercourse, but also activities that will be considered as “nonregulated uses . . . provided they do not disturb the natural and indigenous character of the wetland or watercourse . . . The plaintiffs do not claim that § 6.4 of the Somers regulations is in conflict with this portion of the IWWA.

       General Statutes § 22a-41 provides in part: “(a) In carrying out the purposes and policies of [the IWWA], including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability or unsuitability of such activity to the area for which it is proposed.”

       The issue of whether the prohibitions contained in § 6.4 of the Somers regulations are rationally related to the protection of the public health, safety and general welfare inevitably merges with the plaintiffs’ claim that § 6.4 is not “necessary” to protect the wetlands and watercourses within the town of Somers. See Part II B of this opinion; Beacon Falls v. Posick, 212 Conn. 570, 584-85, 563 A.2d 285 (1989).

       Section 22a-39-ll of the Regulations of Connecticut State Agencies provides in pertinent part: “[§ 22a-39-ll.l] All regulations . . . promulgated or amended by local wetlands agencies, pursuant to the Act, shall be submitted to the Commissioner not later than ten (10) days after their adoption.
      “[§ 22a-39-11.2] The Commissioner shall examine such regulations, including maps and amendments, to determine their conformity with the Act and with these regulations in terms of a) procedural safeguards, b) completeness of wetland and water course coverage, c) adequacy of enforcement machinery and information gathering procedures, and d) substantial adherence to the policies and goals of the Act.”

       General Statutes § 22a-38 (13) provides: “ ‘Regulated activity’ means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40.”

       General Statutes § 22a-41 provides: “factors for consideration of COMMISSIONER. FINDING OF NO FEASIBLE OR PRUDENT ALTERNATIVE, (a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability or unsuitability of such activity to the area for which it is proposed.

        “(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

       “Somers Conservation Commission Regulations,
      Section 2 DEFINITIONS
      2.1 As used in these regulations
      * # *
      W. ‘REGULATED ACTIVITY’ means any operation within or use of a wetland or watercourse involving removal, relocation, or deposition of material; or any obstruction, construction, alteration, or pollution of such wetlands or watercourse, but shall not include the specified activities of Section 4 of these regulations.”

       “Somers Conservation Commission Regulations,
      Section 6
      REGULATED ACTIVITIES TO BE LICENSED
      6.1 No person shall conduct or maintain a regulated activity in or affecting a regulated area of the Town of Somers or shall proceed with a proposal on which land contains a wetland or watercourse which may or may not be affected, without first obtaining a permit for such activity from the Conservation Commission of the Town of Somers.”


source: Caselaw Access Project

author:
Shea, J.
      Callahan, J., with whom Covello, J., joins,

license: Public Domain

text:
    Farmers and Mechanics Savings Bank v. Martin F. Sullivan et al.
    (13629)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Borden, Js.

      Argued January 31 and May 29—
    decision released August 21, 1990

      Robert W. Heagney, with whom were Thomas C. Austin, Jr., and, on the brief, Ronald P. Sherlock, for the appellants (named defendant et al.).

      Rodger C. Boe, with whom, on the brief, was Donna M. Case-Rossato, legal intern, for the appellees (defendant Peter H. Wirtz et al.).

      Gregory M. Harris, for the appellees (defendant Michael F. Sullivan et al.).

      Stanley M. Krupa, for the appellee (plaintiff).
   Shea, J.

The dispositive issue in this appeal is whether the trial court erred when it denied a motion to open and modify a judgment of strict foreclosure pursuant to General Statutes § 49-15.* We conclude that the motion should have been granted and accordingly reverse.

The relevant facts are not in dispute. On May 15, 1986, the defendants Martin F. and Patricia M. Sullivan (younger Sullivans) executed a mortgage deed on their property located in East Hampton to the plaintiff, Farmers and Mechanics Savings Bank, to secure a promissory note in the amount of $72,000. In December, 1986, the defendants Peter H. and Laura B. Wirtz (Wirtzes) recorded in the land records a contract to purchase the property for $116,000. In February, 1987, the defendants Michael F. and Cleasse G. Sullivan (elder Sullivans) recorded a mortgage deed of the property to secure a purported $60,000 loan to the younger Sullivans. Later that month the Wirtzes recorded a lis pendens and a certificate of attachment for $30,000 which related to an action brought by the Wirtzes against the younger Sullivans for breach of the contract for sale of the property.

On October 6, 1987, the plaintiff bank commenced an action to foreclose its mortgage. On November 23, 1987, a default was entered against the younger Sul-livans, the owners of the equity, for failure to appear. On the same day the plaintiff filed a motion for a judgment of strict foreclosure. On January 19, 1988, the trial court granted the plaintiffs motion and set law days of February 29,1988, through March 4,.1988. The court found that the fair market value of the property was $170,000 and the debt owed to the plaintiff was $80,663.91. At this point, the younger Sullivans still had not appeared in the action.

On February 8, 1988, the elder Sullivans filed a motion to open and modify the judgment of strict foreclosure. Their motion was not heard prior to the passing of the law days. On March 4, 1988, the Wirtzes satisfied the judgment by paying the plaintiff $82,013.91 in order to redeem their interest. Thereafter the plaintiff filed a satisfaction of judgment. The younger Sullivans filed their appearance on March 14, 1988, and, at the same time, filed a motion to open and modify the judgment of strict foreclosure. Later, on May 20,1988, they filed a motion to set new law days. All the motions of both the younger and elder Sullivans were heard on June 2, 1988, and denied by the trial court on July 22, 1988. On August 11, 1988, the younger Sullivans appealed the denial of their motions and the judgment of strict foreclosure rendered January 19, 1988, to the Appellate Court. The elder Sul-livans, however, did not appeal. The Wirtzes filed a motion to dismiss the appeal, which was denied by the Appellate Court on November 3,1988. We thereafter transferred the appeal to this court pursuant to Practice Book § 4023. We conclude that the trial court should have granted the younger Sullivans’ motion to open the judgment of strict foreclosure and remand the case with direction to open the judgment and to order a foreclosure by sale.

The trial court denied the motion to open the judgment of strict foreclosure on three grounds: (1) the exercise by the Wirtzes of their right to redeem by payment of the mortgage debt on March 4, 1988, under the terms of the judgment, vested them with absolute title to the property, so that § 49-15 thereafter prohibited opening the judgment; (2) the failure of the elder Sullivans to have their motion acted upon before the law days had passed rendered their motion ineffective to activate the automatic stay provided by Practice Book § 4046; and (3) a strict foreclosure was appropriate because it was the only way to protect the Wirtzes’ right to specific performance of their contract to purchase the property. On appeal the Wirtzes advance essentially the same reasons for affirming the judgment, but also claim that the delay of the younger Sul-livans in filing their motions until after the Wirtzes had redeemed should bar relief under the doctrine of laches.

I

As the trial court noted, § 49-15, which allows the opening of a judgment of strict foreclosure “upon the

written motion of any person having an interest therein, and for cause shown,” provides that “no such judgment shall be opened after the title has become absolute in any encumbrancer.” We have held that to open a judgment after the time fixed in the statute is erroneous but that the error may be waived. Ferguson v. Sabo, 115 Conn. 619, 622-23,162 A. 844 (1932). If title had become absolute in the Wirtzes as a result of their payment of the mortgage debt on March 4, 1988, the trial court would not have been authorized, without a waiver, to grant a motion to open the foreclosure judgment after that date.

Because the elder Sullivans filed their motion to open the judgment within the twenty days allowed for an appeal, however, “the period of time for filing an appeal [would] commence from the issuance of notice of the decision upon the motion.” Practice Book § 4009. The filing of that motion also activated the automatic stay under Practice Book § 4046, providing that “proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired.” The effect of these provisions was to stay the enforceability of the foreclosure judgment until the motion of the elder Sullivans was decided on July 22, 1988. Because of this automatic stay, the Wirtzes could not have acquired title to the property pursuant to the judgment when they paid the mortgage debt.

This court has often recognized that the law days established in a foreclosure judgment are ineffective while an appeal is pending. In Zinman v. Maislen, 89 Conn. 413, 94 A. 285 (1915), the holding of the court is summarized in the headnote as follows: “The seasonable filing of a notice of appeal . . . operates as a stay of further proceedings under a judgment of foreclosure; and therefore, pending such appeal, the parties respondent are not obliged to redeem on or before the expiration of the law-day fixed by the judgment, nor can the plaintiff, under such circumstances, acquire title absolute under a certificate of foreclosure.” “Upon the filing of [the defendant’s] appeal . . . Practice Book [1934] § 366, became operative to stay further proceedings under the judgment . . . precluding the passage of title upon any of the law days provided for in that judgment.” Milford Trust Co. v. Greenberg, 137 Conn. 277, 278, 77 A.2d 80 (1950). “Because of delays incident to the legal process of appeal, the judgment of the trial court became ineffective in an essential respect, and what is in effect a new judgment became necessary.” Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 222, 487 A.2d 528, cert, denied, 474 U.S. 875,106 S. Ct. 135, 88 L. Ed. 2d 111 (1985). Practice Book § 340 recognizes the necessity for setting new law days or other dates for performance of acts specified in a judgment that is affirmed on appeal. “This court has on occasion itself set new law days in similar situations,” but ordinarily leaves this to the trial court on remand. Tilden v. Century Realty Co., 112 Conn. 439, 442, 152 A. 707 (1930). The view of the trial court that the law days established by the foreclosure judgment in this case, which were stayed while the motion of the elder Sullivans was pending, could be given effect, and that title had already vested in the Wirtzes by the time that motion was heard is wholly at variance with these precedents as well as the express provisions of our rules of practice.

II

The trial court declared that the failure of the elder Sullivans to have their motion to open heard and decided before the law days had passed meant that those law days remained in effect. The court relied on this statement in a treatise: “A critical factor to be recognized in connection with a motion to reopen a judgment of strict foreclosure is that the motion must be heard, and not merely filed, prior to the vesting of title.” D. R. Caron, Connecticut Foreclosures (2d Ed.) § 9.01C. This observation would be correct if limited to a motion made after the expiration of the time to appeal from the initial foreclosure judgment, because no automatic stay would result from its filing. In a later section of his treatise, the same commentator confirms the general understanding of the bar that, when a timely motion to open the judgment is filed, “any redemption . . . would be violative of the automatic stay, and any title derived through such stayed proceedings would be subject to defeasance.” Id., § 17.06.

Apart from the plain applicability to the elder Sul-livans’ motion of § 4046, which automatically stays proceedings “to enforce or carry out the judgment,” it must be remembered that an attempt to schedule a hearing on the motion was made before the law days had run, but the hearing was postponed until afterward with the full knowledge of the Wirtzes. After the younger Sullivans had filed their motion to open, the court requested a transcript of the earlier proceeding, which resulted in delaying the hearing until June 2, 1988. It does not appear that either the elder Sullivans or the Wirtzes objected to this delay. All parties were entitled to assume, therefore, that the law days set in the initial judgment would be ineffective while the motions were pending, because of the automatic stay provided by § 4006.

Ill

The Wirtzes claim that lack of reasonable diligence to protect their interests on the part of the younger Sullivans, who failed to appear in the foreclosure action until March 14, 1988, after the Wirtzes had paid the mortgage debt, under the equitable doctrine of laches, should preclude granting the relief sought in their motion to open the foreclosure judgment. The trial court did not refer in its memorandum to laches as a basis for its decision and made no findings on that subject. The record does not disclose whether laches was raised in the trial court as a ground for denying the younger Sullivans’ motion.

“Laches consists of an inexcusable delay which prejudices the defendant.” Danaher v. C. N. Flagg & Co., 181 Conn. 101, 107, 434 A.2d 944 (1980). “First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.” Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955). “A conclusion by the trial court that a party has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law.” Danaher v. C. N. Flagg & Co., supra. In this case the absence of any findings relevant to the issue of laches limits our review to determining whether laches must be found upon the record as a matter of law.

We need not decide whether the delay of the younger Sullivans in filing their motion until ten days after the Wirtzes had attempted to redeem the property was sufficiently flagrant as to be inexcusable, because we are convinced that the record does not establish as a matter of law that the delay was prejudicial. This delay cannot reasonably be regarded as prejudicial to the Wirtzes, because the motion of the elder Sullivans, which was timely filed, was still pending. That motion invoked the automatic stay provisions of § 4046, which resulted in vitiating the law days for redemption upon which the Wirtzes erroneously relied. The delayed entry of the younger Sullivans into the foreclosure action did not worsen the predicament the Wirtzes had created by assuming they could acquire title pursuant to a judgment not then enforceable. The Wirtzes do not claim that they would have acted differently if the younger Sullivans, like the elder Sullivans, had filed their motion before the law days set in the judgment. Nor does the failure of the elder Sullivans to appeal mean that the delay of the younger Sullivans has now resulted in prejudice to the Wirtzes that was not extant previously. Whether the Wirtzes were prejudiced by the delay of the younger Sullivans must be resolved on the basis of the record at the time of the trial court’s ruling. The circumstance that only the younger Sullivans appealed is irrelevant to that determination.

IV

Before considering whether the trial court’s denial of the younger Sullivans’ motion was justified on the merits, we must examine the procedural vehicle used to present their claim to the trial court.

Section 49-15 has the remedial purpose of providing relief to property owners and their creditors when this can be done without jeopardizing the security interest of the foreclosing mortgagee. It has often been utilized in the trial courts to extend law days or to convert a strict foreclosure to a foreclosure by sale when, at the time of the decision upon the motion to open, it appeared that a modification of the terms of the original judgment would produce a more equitable result. See City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 26, 179 A. 339 (1935). Frequently strict foreclosures are ordered, despite a property appraisal substantially higher than the mortgage debt, because the owner believes he will be able to redeem and he seeks to avoid the additional expense involved in a foreclosure by sale. An owner, who subsequently seeks modification to allow a foreclosure by sale, after his hopes of redemption have not been realized, is not barred from relief under § 49-15 simply because the original judgment may be unassailable, based upon the circumstances existing when it was rendered. The design of § 49-15 is to authorize a court, before a redemption pursuant to a strict foreclosure has occurred, to modify the terms of the judgment in order to achieve an outcome fairer to the parties than provided by the original judgment in light of conditions as they appear when the motion to open is decided.

Unlike General Statutes § 52-212, which provides for opening default judgments generally and requires a defaulted defendant to show that he had a good defense that he was prevented from making by “mistake, accident or other reasonable cause,” § 49-15 prescribes only four conditions for opening a judgment of strict foreclosure: (1) that the motion be in writing; (2) that the movant be a person having an interest in the property; (3) that the motion be acted upon before an encum-brancer has acquired title; and (4) that “cause,” obviously good cause, be shown for opening the judgment.

It is clear that the motion of the younger Sullivans was in writing. From our previous discussion of the automatic stay created by § 4046, which became effective when the elder Sullivans filed their motion to open, it follows that the younger Sullivans have continued to retain an ownership interest in the property, the law days set in the judgment being of no force as a result of the stay. Consequently, title had not become “absolute in any encumbrancer” at the time the trial court acted upon their motion to open.

In compliance with the final requirement of § 49-15 for a showing of good cause to open the foreclosure judgment, the younger Sullivans alleged facts supported by the record, none of which have been disputed. As the trial court had found, the fair market value of the property was $170,000, while the mortgage debt with attorney’s fees and other expenses amounted to $82,013.91, leaving a balance of $87,986.09 available for the younger Sullivans and their creditors. The motion pointed out that, if the Wirtzes were permitted to redeem by paying the mortgage debt, as the strict foreclosure judgment provided, they would receive a windfall of approximately $34,000, because they would acquire for $82,013.91 property for which they had agreed in the bond for deed to pay $116,000. The younger Sullivans also alleged that, in allowing the Wirtzes to redeem the property on the basis of the bond for deed they had filed in the land records, which was in litigation between the parties thereto, the strict foreclosure judgment gave the property to the Wirtzes “at a bargain price without having to prove the validity of their claim at all.”

In the memorandum of decision and later articulation thereof denying the motions of both the elder and younger Sullivans, the trial court, in addition to relying upon the procedural grounds relating to redemption of the property by the Wirtzes that we have rejected, concluded that the motions should be denied on the merits. The court indicated that the strict foreclosure had been ordered because it was the only way in which the contractual right of the Wirtzes to purchase the property for $116,000 could be preserved. The court feared that if a foreclosure by sale were ordered, the Wirtzes would not be able to purchase the property at the appraisal price of $170,000 that might result from such a sale. The memorandum, however, offers no explanation for permitting the Wirtzes to acquire for $82,013.91 property they had agreed to purchase for $116,000 and for ignoring the interests of the younger Sullivans and their creditors in receiving the fair market value of the property that a foreclosure by sale might have achieved. No mention is made of the problems created by giving a right of redemption to a purchaser under a bond for deed that is the subject of litigation still to be resolved.

Since a mortgage foreclosure is an equitable proceeding, either a forfeiture or a windfall should be avoided if possible. “In a foreclosure proceeding the trial court must excercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owner.” Fidel ity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988). “In Connecticut, the law is well settled that whether a mortgage is to be foreclosed by sale or by strict foreclosure is a matter within the sound discretion of the trial court.” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 184, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). This discretion, however, is a legal one that must be exercised in accordance with equitable principles in fairness to all the parties without impairment of the security of the foreclosing mortgagee. We recently found an abuse of such discretion in the failure to order a foreclosure by sale when a sale would have resulted in making approximately $10,000 available to a subsequent encumbrancer and thus reduced the indebtedness of the owner. Fidelity Trust Co. v. Irick, supra, 488-89.

In this case it is undisputed that the fair market value of the foreclosed property exceeded the mortgage debt by approximately $88,000. The only justification offered by the trial court for allowing this forfeiture to occur was to preserve the right of the Wirtzes to specific performance of their contract to purchase the property. Under the strict foreclosure judgment, however, the Wirtzes were allowed to acquire the property for approximately $34,000 less than provided in the purchase agreement, the enforceability of which had not been determined. Even if there had been no such dispute, the equitable remedy of specific performance is not automatic but rests within judicial discretion. 3 Restatement (Second), Contracts § 357, comment c. “[I]t is subject to principles of common sense [and] a court may take into consideration the public interest.” Id. In a foreclosure proceeding in which several parties have an interest in the property, the rights of a contract purchaser cannot be exalted over those of others.

Good cause for opening a foreclosure pursuant to § 49-15, however, cannot rest entirely upon a showing that the original foreclosure judgment was erroneous. Otherwise that statute would serve merely as a device for extending the time to appeal from the judgment. Unlike the elder Sullivans, whose motion to open, filed within the time allowed for an appeal from the original judgment, extended their time to appeal from that judgment until twenty days after the decision on their motion; Practice Book § 4009; the younger Sullivans could no longer have appealed from the original judgment at the time they filed their § 49-15 motion. Although they purport to have appealed from that judgment as well as the judgment denying their motion to open, only the latter appeal is viable. First National Bank v. Ferguson, 129 Conn. 374, 377, 28 A.2d 87 (1942).

Although the trial court denied the motion of the elder Sullivans for a foreclosure by sale at the time the judgment of strict foreclosure was rendered, the younger Sullivans, the owners of the property, had then neither filed such a motion nor appeared. A court might well have assumed from their inaction that they had no objection to a strict foreclosure. When their motion to open was heard, however, it was evident that they sought a foreclosure by sale because they had “not the means to redeem” as their motion alleged. The fact that the owners were seeking a foreclosure by sale because they were unable to redeem was a circumstance not previously considered by the court that warranted a fresh evaluation of the situation, which § 49-15 authorized the court to conduct. Whatever the merits of the original judgment at the time it was rendered, the court was not justified in adhering to it unless a strict foreclosure was still warranted. Thus the younger Sullivans did satisfy the requirement of § 49-15 for a showing of good cause not based wholly upon the impropriety of the original judgment. We conclude that the trial court abused its discretion by refusing to open that judgment to provide for a foreclosure by sale.

Upon remand we direct the trial court to modify the judgment to order a foreclosure by sale, unless the court should determine that there is insufficient equity above the first mortgage to justify the additional expense involved under current market conditions. In allocating the proceeds of such a sale, the trial court must take into account the equitable position of the Wirtzes by virtue of their payment of the mortgage debt and any improvements or other expenses that have benefited the property and enhanced its market value, subject to a fair allowance for their occupancy of the property.

The judgment of the trial court is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Peters, C. J., Glass, Hull and Borden, Js., concurred.

Callahan, J., with whom Covello, J., joins,

dissenting. The granting of relief pursuant to General Statutes § 49-15 lies within the sound discretion of the trial court. Here the trial court, in the exercise of its discretion, refused to open its judgment of strict foreclosure. The trial court exercised its discretion in this fashion only after it had determined that the younger Sullivans had failed to assert any ground to open the judgment that could not have been brought to its attention before judgment entered and the Wirtzes redeemed. Because, on this record, I feel that the court’s action was a reasonable exercise of its discretion, I cannot agree with the majority opinion.

The record reveals that the bank commenced this foreclosure proceeding on October 6,1987. On November 23,1987, the younger Sullivans were defaulted for failure to appear. On January 19,1988, the trial court granted the plaintiff’s motion for summary judgment and ordered a strict foreclosure. The trial court scheduled the law days for February 29 through March 4, 1988, in order to allow for the passage of the appeal period and to give the parties “a reasonable period of time to make any arrangements that are necessary.” On their law day of March 4, 1988, the Wirtzes redeemed. It was only after all this had transpired that the younger Sullivans appeared, on March 14,1988, for the first time and filed their motion to open the judgment.

Further, the transcript of the June 2, 1988 hearing on the Sullivans’ motions to open clearly reveals that the elder Sullivans’motion “was never heard or scheduled prior to the original law days. ” (Emphasis added.) The trial judge stated, “I waited for a call and nobody followed through to set up a date for a hearing on it; that’s my recollection.” The elder Sullivans’ attorney stated, “There was, as Your Honor recalls, an abortive attempt to schedule it before [the law days] had run, and an attorney [for the Wirtzes] was down here that day but it was never heard or scheduled prior to the original law days.” It was not until after the younger Sullivans had belatedly filed their motion to open the judgment after the law days had passed, that the court requested a “copy of the transcript with regard to the motion for summary judgment which was held on January 19th, 1988.” Although the record does not reflect why the elder Sullivans failed to schedule an earlier hearing, it does reflect that the Wirtzes “were always ready, willing and able to argue the motion.”

I

At the hearing before the trial court on June 2,1988, the Wirtzes objected to the younger Sullivans’ motion to open the judgment, asserting that: (1) they had paid the bank and had secured their own mortgage; (2) they had made improvements to the property; (3) the elder Sullivans should have pressed their motion to open prior to the passing of the law days; and (4) the younger Sul-livans had not filed their motion to open the judgment until after the law days had passed and after they had redeemed. In view of the Wirtzes’ objections, the trial court perceived a “laches problem” because the younger Sullivans failed to cite a single legitimate reason as to why they had not appeared or why the elder Sullivans’ “motion wasn’t pressed and heard before the law days.” The trial court stated, “That’s one of the big problems with the case. You see, Mr. Heagney [the younger Sullivans’ attorney] comes in here after everything has happened and that’s the major problem he has.”

“One who seeks equity must also do equity and expect that equity will be done for all.” LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983). “Because a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done. City Savings Bank v. Lawler, 163 Conn. 149, 155, 302 A.2d 252 (1972); Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966).” Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). “The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981); Reynolds v. Ramos, supra. “When we review the exercise of discretion by the trial court, every reasonable presumption will be given in favor of the correctness of its ruling.” Reynolds v. Ramos, supra, 320-21.

“It is a well-established principle that courts of equity will not relieve against the operation of judgments rendered through the negligence or inattention of the party claiming to be aggrieved . . . Jarvis v. Martin, 77 Conn. 19, 21, 58 A. 15 (1904); Norwich v. Lebanon, 193 Conn. 342, 349 n.6, 477 A.2d 115 (1984); Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982); Duncan v. Milford Savings Bank, 134 Conn. 395, 402, 58 A.2d 260 (1948). All of the facts set forth in the younger Sullivans’ motion to open the trial court’s judgment were available to them prior to the rendition of the judgment. Their arguments, on the basis of those facts, could have and should have been made to the court before it entered judgment. The unexplained' failure of the younger Sullivans to move to open the judgment of strict foreclosure in a timely fashion “is an insufficient ground upon which to open the judgment at a later date.” Hartford Federal Savings & Loan Assn. v. Stage Harbor Corporation, 181 Conn. 141, 144, 434 A.2d 341 (1980) (denial of motion to open the judgment of strict foreclosure). The theory underlying the rules governing the opening of judgments is the equitable principle that once a judgment is rendered it is to be considered final; see In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); 2 E. Stephenson, Conn. Civ. Proc. § 207, p. 863; and “should be left undisturbed by post-trial motions except for a good and compelling reason. 2 Restatement (Second), Judgments § 78, comment c.” Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). There is no such reason here.

II

The majority purports to find an abuse of discretion in the trial court’s refusal to open the judgment of strict foreclosure because it claims that the court ignored the “interests of the younger Sullivans and their creditors in receiving the fair market value of the property that a foreclosure by sale might have achieved.” This view, however, ignores pertinent portions of the trial court's memorandum of decision.

First, the “creditors” that the trial court purportedly ignored are the elder Sullivans. After the Wirtzes recorded the bond for deed in the land records, however, all subsequent encumbrancers, including the elder Sullivans, had notice of the Wirtzes’ contractual right to purchase the property for $116,000. Having recorded their bond for deed before the elder Sullivans’ mortgage, the Wirtzes’ contract claim had priority over the secured interest of the elder Sullivans. The trial court stated: “At the time [the elder Sullivans] granted the $60,000 mortgage to their son, they were well aware that Farmers & Mechanics Savings Bank had a mortgage for well over $70,000 and they were also well aware that their son had already contracted to sell the home to the [Wirtzes] for $116,000, thereby indicating equity of much less than $60,000.”

Further, contrary to the majority’s assertion, the trial court, in its memorandum of decision, recognized and considered the problems of ordering a strict foreclosure rather than a foreclosure by sale. The trial court determined, however, that if it ordered a foreclosure by sale the Wirtzes might lose their right to purchase this particular piece of property if they were not the highest bidder. The trial court stated: “The Wirtzes and the Sullivans entered into a contract to sell a home for a specific price as referenced in the bond for deed. There has been no evidence presented to indicate that this was not an [arm’s] length transaction. If the Wirtzes were prevented from buying that specific piece of property for the specific price agreed to, by an order of a sale foreclosure it would be apparent that the equitable interests of the Wirtzes would not be properly protected.”

The trial court also stated: “At first sight there is a discrepancy . . . between the price paid by the Wirtzes, $82,013.91 and the purchase price agreed to of $116,000. This [difference] is the amount that [the elder Sullivans] may have reasonably expected they had a right to when they gave a mortgage to [the younger Sullivans]. Pursuant to the judgment of strict foreclosure, [the elder Sullivans] have lost none of the just rights they acquired in granting the mortgage to their son, due to the fact that they still have every right to recover the [$34,000 differential] by subrogating themselves to the rights of [the younger Sullivans] under the contract [the younger Sullivans] had with the Wirtzes to sell the house for $116,000.”

Although the contract action was not before the court as part of the foreclosure proceedings, the record reveals that the contractual rights of the respective parties impacted the trial court’s analysis of the equities. If the Wirtzes are obligated to pay the balance due on the contract price, as the trial court believed, the younger Sullivans are not barred from collecting the $34,000 difference between the contract price and the figure the Wirtzes had paid to redeem.

Although further litigation may be necessary to resolve this issue, neither the younger Sullivans nor the elder Sullivans have challenged this portion of the trial court’s analysis of the situation on appeal. Absent even an argument that the trial court’s reasoning was faulty and that the Sullivans could not recover the difference between the redemption figure and the contract price, I find it difficult to say that the trial court abused its discretion in ordering a strict foreclosure.

In summary, the majority finds an abuse of the trial court’s discretion solely on the basis of the windfall the Wirtzes will supposedly receive because of the excess monetary equity in the property. It completely fails, however, to refer to the trial court’s analysis of the possible distribution of the contract price or to give deference to the court’s balancing of the other equities. “In reviewing this exercise of judicial discretion with such a heavy hand, the majority usurps the function of the trial court and fails to accord reasonable deference to its evaluation of the factors involved.” Picketts v. International Playtex, Inc., 215 Conn. 490, 517, 576 A.2d 518 (1990) (Shea, J., dissenting). Indeed, I find it remarkable that the majority ignores the trial court’s analysis and will allow the younger Sullivans, the breaching defendant in the contract action and the dilatory party here, to reap the benefit of any increase in the market value of the property.

Ill

The majority acknowledges that “[g]ood cause for opening a foreclosure pursuant to § 49-15 . . . cannot rest entirely upon a showing that the original foreclosure judgment was erroneous. Otherwise that statute would serve merely as a device for extending the time to appeal from the judgment.” The majority then asserts that a mere allegation by the younger Sullivans that “they had ‘not the means to redeem’ ” was sufficient to allow them to open the judgment. This is hardly a revelation that previously could not have been brought to the attention of the trial court had the younger Sullivans acted with a reasonable, indeed any, degree of diligence.

The younger Sullivans do not explain why it took them nearly two months from the date of the judgment to decide that they could not afford to redeem on their law day. Nor do the younger Sullivans explain why they were unable to make an appearance in court or to file a motion, prior to the expiration of the law days, to inform the court that they were having difficulty in securing financing to redeem. By allowing the younger Sullivans to open the judgment belatedly, without any explanation as to why they did not appear, the majority allows the younger Sullivans to utilize § 49-15 “as a device for extending the time to appeal from the judgment,” a use to which it says § 49-15 should not be put.

I find it intolerable that the elder Sullivans, who were aware of the law days and inexplicably failed to have their motion heard prior thereto, are able to thwart the court’s judgment and extend the time to file motions and the appeal period indefinitely, not only for themselves, but also for a party who had been defaulted for failure to appear. The delay in hearing the elder Sul-livans’ motion was not caused by “delays incident to the legal process of appeal,” as the majority would have it, but rather by the indecisiveness and inattentiveness of the parties filing the motions. The majority’s sanctioning of such lackadaisical practices in foreclosure actions could wreak havoc upon the finality of judgments and the effectiveness of our system of real estate recording.

IV

“[A] motion to open is not a substitute for an appeal. A motion to open filed beyond the expiration of the appeal period will not preserve for appeal issues pertaining to the earlier final judgment. Governors Grove Condominium, Associates, Inc. v. Hill Development Corporation, 187 Conn. 509, 510 n.2, 446 A.2d 1082 (1982).” Crozier v. Zaboori, 14 Conn. App. 457, 462, 541 A.2d 531 (1988). The younger Sullivans could have properly extended their time to file an appeal from the judgment of strict foreclosure by filing a request for an extension of time pursuant to Practice Book § 4040, or by filing any of the motions designated in § 4009 within the appeal period. The younger Sullivans cannot, however, belatedly extend their own appeal period by attempting to piggyback another non-appealing party’s timely motion. Because their motion to open was filed more than twenty days after the judgment was entered, they are precluded from appealing the foreclosure judgment itself. Yanow v. Teal Industries, Inc., 196 Conn. 579, 582 n.3, 494 A.2d 573 (1985). While in the proper instance a motion to open a judgment may operate to extend the applicable appeal period, it will not “serve to revive rights which were lost before the motion was made.” Daland’s Application, 81 Conn. 249, 252, 70 A. 449 (1908).

Therefore, the trial court’s denial of the younger Sul-livans’ motion to open the judgment is the only claim properly before this court on appeal. Because I would affirm the trial court’s decision to deny the younger Sullivans’ motion to open, there is no need to address the remaining claims. There is nothing, therefore, to prevent giving effect to the judgment of strict foreclosure and the law days set by the trial court. Pursuant to that judgment, title should have vested in the Wirtzes, the redeeming party. This court should not disturb the finality of that judgment to accommodate the indifference of the defendants. Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 713; see also General Statutes § 49-15.

       “[General Statutes] Sec. 49-15. opening of judgments of foreclosure. Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.”

       “[Practice Book] Sec. 4009. (Formerly Sec. 3007). time to appeal.
      “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012; but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment notwithstanding the verdict, the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion or the expiration of the time within which a remit-titur is ordered filed. . . .
      “The time for filing the appeal or for taking any of the steps necessary to prosecute or defend the appeal, as hereinafter provided, may be extended in accordance with the provisions of Sec. 4040.”

       “[Practice Book] Sec. 4046. (Formerly Sec. 3065). [automatic stay of execution] —in general
      “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment in the supreme court, until ten days after the decision is announced; but if the judge who tried the case is of the opinion that an extension to appeal is sought or the appeal is taken only for delay or that the due administration of justice so requires that judge may at any time, upon motion and hearing, order that the stay be terminated. This section shall not apply to actions concerning attorneys pursuant to chapter 2, to periodic alimony and support orders, as well as to custody or visitation orders in domestic relations matters brought pursuant to chapter 17, to criminal matters brought pursuant to chapter 22 through 30 or to juvenile matters brought pursuant to chapters 31 through 40. . . .”

       “[Practice Book (1934)] Sec. 366. stay of execution
      “In all civil actions, execution shall be stayed for two weeks after final judgment; and if an appeal be filed, or a notice of appeal as provided in Sec. 368, then execution shall be stayed until the final determination of the cause; but if the judge trying the same is of the opinion that the appeal is taken only for delay, or that the due administration of justice requires it, he may order execution at any time upon motion and hearing.
      “If a stay of execution has been ordered by a trial court and this court shall, upon appeal, advise that no new trial be granted, or decide that there has been no error, any judge of the court which ordered the stay may release it by giving a written order to that effect to the clerk, who shall file it with the papers in said cause, and thereupon issue such execution.
      “Such stay applies to every judgment in a civil action providing for the recovery of damages or requiring the performance of an act.”

       “[Practice Book] Sec. 340. modifying judgment after appeal
      “If a judgment fixing a set time for the performance of an act is affirmed on appeal by the supreme court and such time has elapsed pending the appeal, the court which rendered the judgment appealed from may, on motion and after due notice, modify it by extending the time.”

       “If a motion to reopen judgment is filed during the appeal period, the time for filing the appeal then commences from the issuance of notice of the decision on the motion, as provided in P.B. § 4009 (Rules of the Supreme Court). This rule can have profound effects on a foreclosure decree, since P.B. § 4046 stays‘proceedings to enforce or carry out the judgment. . . . until the time to take an appeal has expired.’ Thus, law days in a strict foreclosure cannot run, or a sale cannot take place, if a motion to reopen was filed during the appeal period but has yet to be ruled upon; any redemption or auction under such circumstances would be violative of the automatic stay, and any title derived through such stayed proceedings would be subject to defeasance.” D. R. Caron, Connecticut Foreclosures (2d Ed.) § 17.06.

       For the same reason, the reference in the dissenting opinion to “[ojvercrowded dockets” and “justice delayed”; In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1887 (1983); are inappropriate. The filing of the younger Sullivans’ motion never produced any trial court delay beyond that resulting from the pendency of the motion of the elder Sullivans, which had been timely filed.

       The strict foreclosure judgment contained the standard language that upon payment of the mortgage debt “by any defendant, after all subsequent parties in interest have been foreclosed, the title to the premises shall vest absolutely in the defendant making such payment, subject to such unpaid encumbrances, if any, as precede the interest of the redeeming defendant.” It is far from clear that, if the Wirtzes had redeemed effectively, they would have remained liable on their contract to pay the difference between the contract price and the sum paid to redeem the property, as the trial court and the dissenting opinon assume. It would be inappropriate to address this question at this time, especially in view of the unresolved litigation concerning the enforceability of the contract of sale.

       In First National Bank v. Ferguson, 129 Conn. 374, 376, 28 A.2d 87 (1942), this court, in considering whether an appeal may be taken from the refusal of a trial court to open a judgment of strict foreclosure, declared: “If an appeal would lie from such a ruling, it would be because the grounds upon which relief was claimed arose after the time to appeal from the original judgment of foreclosure had passed.” The per curiam opinion does not refer to General Statutes § 49-15 and appears to rely primarily dfupon Daland’s Application, 81 Conn. 249,70 A. 449 (1908), a case decided before the enactment of § 49-15 in 1923, in which an appeal from the denial of a motion to open filed after expiration of the time to appeal from the original foreclosure judgment was dismissed.
      We regard § 49-15 as establishing a statutory right, independent of the right to appeal from the original foreclosure judgment, from the erroneous denial of which a party may appeal as from any final judgment. See Melillo v. Spiro, 187 Conn. 333, 445 A.2d 921 (1982) (deciding appeal from denial of motion to extend law day on merits). Although such an appeal cannot be entirely congruent with an appeal from the original foreclosure judgment and must in part be based upon circumstances not previously presented, the essential question in such an appeal remains whether a modification of the original judgment was warranted in light of the situation existing at the time the motion to open was heard. The terms of the original judgment necessarily must be considered in making this determination, whether or not that judgment may have been erroneous when rendered.

       “[General Statutes] Sec. 49-15. opening of judgments of foreclosure. Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.” (Emphasis added.)

       “ ‘Overcrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. . . . Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. . . ” Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 32-33, 474 A.2d 787 (1984), quoting In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983).

       I do not “assume,” as the majority indicates in its footnote 9, that the Wirtzes would remain liable to pay the difference between the contract price and the sum they paid to redeem the property. In view of the trial court’s observation, however, I do not understand how, without that issue being resolved, the majority automatically balances the equities in favor of the younger Sullivans. As the moving party, the burden was on them to demonstrate that they would not receive the contract price. The contract cannot be ignored, in the absence of any showing that it was invalid, simply because it was in litigation.

       The trial court stated: “And the reality as far as the owners are concerned is that they agreed to sell their property for $116,000 before they realized it was worth $180,000, at least according to the appraisal—$170,000.”

       At the commencement of the hearing on the younger Sullivans’ motion to open on June 2, 1988, the court asked the attorney for the elder Sullivans, “And I take it, Mr. Harris, that you have abandoned your motion to reopen?” The attorney responded that while the elder Sullivans had not abandoned the motion, it was not on for June 2,1988, and he did not wish to have it heard. He stated, “I don’t know where we’re going to be going with the case. ” (Emphasis added.) It was only after the trial judge demanded that the elder Sullivans act upon their motion that they reluctantly acquiesced to a hearing on it.

       The judgment stated, “that upon payment of these sums, interest and costs by any defendant, after all subsequent parties in interest have been foreclosed, the title to the premises shall vest absolutely in the defendant making such payment, subject to such unpaid encumbrances, if any, as precede the interest of the redeeming defendant.”