author: Arthur H. Healey, J.

text:
    Herbert C. Gentry et al. v. City of Norwalk et al.
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued March 12
    decision released July 2, 1985

      Frank W. Murphy, for the appellants (plaintiffs).

      James V. Minor, deputy corporation counsel, for the appellees (defendants city of Norwalk, Mary O. Keegan and Norwalk Historic District Study Group).

      James A. Fulton, for the appellee (defendant First Taxing District of City of Norwalk).

      Thomas M. Conroy, for the appellee (defendant Ulla A. Driscoll).
   Arthur H. Healey, J.

This action in which the plaintiffs sought injunctive and declaratory judgment relief was generated by efforts in 1981 to establish an historic district pursuant to Chapter 97a of the General Statutes in the defendant city of Norwalk. The plaintiffs opposed the creation of the proposed historic district.

The proposed historic district, which was to be known as the Norwalk Green Historic District (district), encompassed thirteen parcels of land in the vicinity of the Norwalk Green. One of these parcels, located at 7-9 Park Street, was occupied by the Park Towers Condominium (PTC), a sixty-seven unit condominium. On January 27, 1981, the common council of the legislative body of Norwalk, after its receipt of the report of the Historic District Study Committee (study committee), voted to approve a resolution authorizing balloting for the establishment of the proposed district. On February 23,1981, ballots were issued by the defendant Mary Keegan, town clerk of Norwalk, and March 23,1981, was set as the deadline for submitting them. For that ballot the votes to be exercised were allotted as follows: each property owner of record was assigned one full vote except where joint ownership appeared of record, such joint owners were given a fractional vote. According to the record, each PTC condominium unit owner was given 1/67 of a full vote. When the ballots cast were counted, the statutorily required 75 percent affirmative vote of the owners voting necessary to approve the establishment of the proposed district was not attained.

On May 27,1981, the common council adopted a resolution authorizing the study committee to hold another public hearing for a new referendum at which each PTC unit owner was assigned one full vote. After a public hearing on August 20, 1981, the study committee recommended another balloting to the common council. That legislative body, at its meeting on September 8, 1981, directed that a new referendum be held on October 9, 1981, in accordance with its resolution of May 27, 1981, assigning sixty-seven votes, one to each of the PTC condominium owners. In that referendum, the PTC unit owners who returned their ballots cast fifty-six full votes. After the ballots were counted, Keegan certified that the vote was sixty-two in favor of establishing the proposed district and five against.

After a trial on the merits, the trial court held that General Statutes § 7-147b (g) required that each PTC unit owner was entitled to one full vote. Having so declared, it denied the plaintiffs any injunctive relief. Thus, the necessary 75 percent approval for the establishment of the proposed district was obtained and the historic district was thereafter established. The plaintiffs appealed.

On appeal, the plaintiffs claim that the trial court erred in: (1) determining that each owner of a condominium unit was entitled to one full vote in the historic district referendum; and (2) refusing to enjoin the defendant Norwalk town clerk from certifying the ballots cast in the October 9,1981 historic district referendum. We find error.

On appeal, the plaintiffs argue that, with regard to allocation of voting rights for the purpose of the establishment of the proposed historic district, a consistent reading and interpretation of the historic district statutes, particularly § 7-147b, and of the condominium statute, requires the conclusion that each unit owner in PTC be allocated 1/67 of a vote. In looking to the condominium statutes, they argue that their “common thread” is “to define the real property interest of the condominium unit owner, as the unit itself, which is clearly part of a building, and ‘an undivided interest in the common elements specified’ ” and that, therefore, “it is clear that the ownership of each condominium unit owner in the real property, is the same as the ownership of a tenant in common, in that in addition to the unit the persons’ [sic] ownership includes ‘an undivided interest in the common elements specified.’ ” The statutory scheme, they claim, clearly shows an intent to limit each parcel of land to one full vote regardless of size, value or improvements. The council’s second resolution, in effect, established two separate voting classifications of tenants in common, they argue, “one for condominium unit owners, and one for everyone else.” Giving each unit owner one full vote makes the statutory scheme “irrational” because, they continue, the statutory scheme “is to give each property one vote, divided into its various proportionate shares depending upon the nature of the ownership.” Because the council’s May 27, 1981 resolution did not follow this “one parcel, one vote” interpretation of the plaintiffs, the council, they claim, directed “an illegal method of voting, which should be declared invalid and permanently enjoined.”

On the other hand, the defendants argue that allocating a full vote to each condominium unit owner is not only directed by the plain language of § 7-147b (g) of the historic district statute, but also “is consistent with the legislative intent to award the voting franchise to real property taxpayers.” That statute does not, they claim, grant a fractional vote to a tenant in common in land but rather grants a fractional vote to a “tenant in common of any freehold interest” in land, and the statute thus illuminates the fallacy of the plaintiffs’ claim that the “ ‘entire parcel’ ” at 7-9 Park “is a freehold interest.” (Emphasis added.) Rather, the defendants maintain that there are sixty-seven separate freeholds at 7-9 Park Street because each unit and its undivided interest in the common elements may be conveyed by “an indefeasible title in fee simple absolute,” citing General Statutes § 47-72. Therefore, because “ ‘property is a creature and creation of the law’ ” there are, say the defendants, “67 freeholds now located at 7-9 Park Street, not one, and each unit owner possesses his freehold outright, not in common with his fellow unit owners.”

Over 200 years ago, Lord Mansfield said: “As the usages of society alter, the law must adapt itself to the various situations of mankind.” Barwell v. Brooks, 3 Doug. 371, 373 (1784). This venerable aphorism is appropriate in the resolution of the issues in this appeal. In considering the nature of a condominium unit owner’s interests as it relates to a vote on the establishment of an historic district in which the condominium is located, we keep in mind that, although both relevant statutes are relatively recent in our jurisprudence, each one contains centuries old terms. Some of these terms, tenant in common, freehold interest, joint tenant, property and improvements have been defined by these statutes, while others presumably retain their common law meanings. The historic district statutes; General Statutes §§ 7-147a through 7-147k; were first enacted in this state in 1961, and the condominium act; General Statutes §§ 47-68a through 47-90c; was enacted in 1963.

Over the past fifty years all fifty states and hundreds of municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. Penn Central Transportation Co. v. New York, 438 U.S. 104, 107, 98 S. Ct. 2646, 57 L. Ed. 2d 631, reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 198 (1978). Such legislation has been precipitated by two concerns: first, “in recent years, large numbers of historic structures, landmarks and areas have been destroyed without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways”; and, second, “a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all.” Id., 108; see Maher v. New Orleans, 516 F.2d 1051 (5th Cir. 1975), cert. denied, 426 U.S. 905, 96 S. Ct. 2225, 48 L. Ed. 2d 830 (1976); Figarsky v. Historic District Commission, 171 Conn. 198, 368 A.2d 163 (1976); 2 Anderson, American Law of Zoning (2d Ed. 1976) §§ 9.68 through 9.75. In upholding New York City’s landmarks preservation law in Penn Central, the United States Supreme Court stated that “[(legislation designed to promote the general welfare commonly burdens some more than others.” Penn Central Transportation Co. v. New York, supra, 133.

In its statutory context the condominium is of relatively recent origin offering, as it does, a means of shelter affording some of the benefits of property ownership without some of its burdens. The defendants in this case recognize that condominium ownership interests are “unique,” and the plaintiffs concede that these interests “do not fall neatly within any of the categories” stated in the historic district voting provision. See General Statutes § 7-147b (g). This fairly sets the tone. The intermixture of the historic district and condominium statutes on this specific issue of vote allocation generates relevant considerations which, on analysis, do not precisely mesh or accurately fit any analytical mold. Given the argued tension between these two statutes, our construction, which involves seeking legislative purpose, strives for the application of common sense to achieve a sensible result in this case. See, e.g., Aaron v. Conservation Commission, 183 Conn. 532, 548, 441 A.2d 30 (1981); State v. Bello, 133 Conn. 600, 604, 53 A.2d 381 (1947); Rawson v. State, 19 Conn. 292, 299 (1848).

Section 7-147b (g) does not specifically mention condominiums, but the plaintiffs appear to concede that under § 47-73 each condominium unit owner has a “real property interest” which would qualify such an owner to cast “a fractional vote.” We agree that each condominium owner is entitled to a fractional vote in the referendum permitted under § 7-147b. Section 47-73 in the condominium act provides that “[e]ach unit, together with its undivided interest in the common elements, shall for all purposes constitute real property.” Section 7-147b (g) requires the municipal clerk to mail ballots for such a referendum to “each owner of record of real property ... in the proposed district . . . . ” This statute also states that “[a]ny tenant in common of any freehold interest in any land shall have a vote equal to the fraction of his ownership in said interest. Joint tenants of any freehold interest in any land shall vote as if each joint tenant owned an equal, fractional share of such land. ... No owner shall have more than one vote.” The terms “tenant in common” and “freehold interest in any land” in § 7-147b (g) are key in the dispute between the parties. We are urged, inter alia, to attach to such terms definitions and attributes premised on common law origin and evolution that do not fit perfectly into the argued tension between the two recent statutes in resolving the quality of the vote to be given PTC unit owners of record. This lack of a neat coalescence rests in the main on these two statutes, each of which could be said to be sui generis, on the unprecedented nature of the issue as it is presented to us, and on certain language in each of the statutes, some defined and some not. One thing is, however, clear — our resolution must be guided by the intent of the legislature in enacting the historic district statute, and particularly § 7-147b (g).

Such terms as “tenants in common,” “freehold interest” and “joint tenancy” have long been in the common law, and it is argued by the defendants that such terms and definitions when applied to § 7-147b (g) require that one full vote be given to each condominium unit owner. We do not agree. The common law, of course, must change as circumstances change; see State v. Muolo, 118 Conn. 373, 378, 172 A. 875 (1934); and it “must be rational and compatible with present society if it is to be respected and upheld.” (Citations omitted.) Roth v. Bell, 24 Wash. App. 92, 100, 600 P.2d 602 (1979). “In applying the common law to an unprecedented situation, [the court] may properly inquire whether the traditional rule is suited to present conditions.” Secretary of the Commonwealth v. City Clerk of Lowell, 373 Mass. 178, 185, 366 N.E.2d 717 (1977); see Nantucket Conservation Foundation, Inc. v. Russell Management, 380 Mass. 212, 219, 402 N.E.2d 501 (1980). “It is true that technical common law words when used in a statute without definition will generally be construed in that sense unless a contrary intention appears from the context.” (Citations omitted.) Jones v. Magruder, 42 F. Sup. 193, 197 (D. Md. 1941). As the Jones court said in ascertaining the congressional intent underlying the phrase “land, tenements or other realty” in a taxing statute: “It is, however, not probable that Congress intended ... to use the phrase ‘lands, tenements, or other realty’ in the technical nicety of the common law with respect to interests in lands flowing from a system of feudal tenure which did not exist in this country after the American Revolution.” Id., 198. Therefore, sedulous adherence to every common law attribute is not called for here when we are dealing with interests “in any freehold interest in any land” flowing from ownership of a condominium unit where the condominium was unknown in our common law until created recently by statute. Legislative intent is not to be found in an isolated sentence; the whole statute must be considered. Harris Data Communications, Inc. v. Heffeman, 183 Conn. 194, 197, 438 A.2d 1178 (1981); West Haven v. Impact, 174 Conn. 160, 164, 384 A.2d 353 (1978). In ascertaining legislative intent, we may look to the history of the statute, the policy underlying it and the circumstances which brought about its enactment. Lee v. Lee, 145 Conn. 355, 358, 143 A.2d 154 (1958); State v. Cambria, 137 Conn. 604, 606, 80 A.2d 516 (1951). In construing a statute, common sense must be used and we must assume that the legislature intended to accomplish a reasonable and rational result. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). A statute, of course, is not to be interpreted to thwart its purpose. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978). As Judge Learned Hand said in Borella v. Borden Co., 145 F.2d 63, 64 (2d Cir. 1944), aff’d, 325 U.S. 679, 65 S. Ct. 1223, 89 L. Ed. 1865 (1945): “We can best reach the meaning here, as always, by recourse to the underlying purpose, and, with that as a guide, by trying to project upon the specific occasion how we think persons, actuated by such a purpose, would have dealt with it, if it had been presented to them at the time.”

In ascertaining the nature of the vote to which PTC unit owners are entitled, it is important to recognize that the historic district statute in Chapter 97a of the General Statutes focuses not on people but on “buildings, structures, places or surroundings” that are of “historical significance and architectural merit.” See, e.g., General Statutes §§ 7-147a, 7-147d through 7-147g. The statute can fairly be denominated as “site” oriented and permits a municipality, through following certain procedures, to establish an historic district. The purpose of such a district is “to promote the educational, cultural, economic and general welfare of the public through the preservation and protection of the distinctive characteristics of buildings and places associated with the history of or indicative of a period or style of architecture of the municipality, of the state or of the nation.” General Statutes § 7-147a (b). The statute, consistent with its historic preservation purpose, provides the bases for close control and supervision of the buildings and areas in established historic districts. An enforcement procedure, including monetary fines, is set forth for violations of the statute, of any action or ruling of an historic district commission or of any regulation or ordinance properly adopted. See General Statutes § 7-147h; see also 2 Rohan, Zoning and Land Use Controls (1984) § 7.02. State legislation authorizing the adoption of a local historic district ordinance is the usual vehicle for accomplishing these purposes. See, e.g., Penn Central Transportation Co. v. New York, supra; Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1959); Maher v. New Orleans, 371 F. Sup. 653 (E.D. La. 1974), aff’d, 516 F.2d 1051 (5th Cir. 1975), cert. denied, 426 U.S. 905, 96 S. Ct. 2225, 48 L. Ed. 2d 830 (1976); Opinion of the Justices, 333 Mass. 773, 128 N.E.2d 557 (1955); Sante Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964); 2 Anderson, American Law of Zoning (2d Ed. 1976) §§ 9.69 through 9.70; 82 Am. Jur. 2d, Zoning and Planning § 40 (1976); note, “Land Use Controls in Historic Areas,” 44 Notre Dame Law. 379 (1969); Brenneman, “Historic Preservation Restrictions: A Sampling of State Statutes,” 8 Conn. L. Rev. 231 (1976).

We must look to the site orientation of an historic district, with its strong preservation mission, for guidance on the problem of who should vote on the question of the establishment of such a district. The thoughtful and comprehensive statutory scheme evidenced on the historic district does, as we have pointed out, subject owners of record of real property within such a district to close controls over use of their property. An historic district ordinance is, in practical effect, in the nature of a zoning ordinance. We note that while the historic district statute predated the condominium act, the former statute was substantially amended in 1980 by Public Acts 1980, No. 80-314. That 1980 amendment introduced that portion of § 7-147b (g) we have before us. We deem it no oversight that that comprehensive amendment does not at all refer to condominiums in any respect.

It is an accepted tenet of statutory construction that “[t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them. And it is always presumed to have intended that effect which its action or non-action produces.” (Citations omitted.) New Haven Water Co. v. North Branford, 174 Conn. 556, 565, 392 A.2d 456 (1978). A closer examination of the statutory schemes discloses that the application of common sense in endeavoring to illuminate the legislative intent to bring about a rational result does just that.

Although “unit” is generally defined in the definitional section of the condominium act in § 47-68a, the nexus between that statute and the voting provisions of the historic district statute is found in § 47-73 of the condominium statute. Section 47-73 provides that “[e]ach unit, together with its undivided interest in the common elements, shall for all purposes constitute real property.” (Emphasis added.) As we pointed out earlier, it was “each owner of record of real property” to whom ballots are to be sent under § 7-147b (g). (Emphasis added.)

The language in § 7-147b (g) which provides that “[a]ny tenant in common of any freehold interest in any land shall have a vote equal to the fraction of his ownership in said interest," the defendants argue, should be interpreted to mean that each PTC unit owner is entitled to one full vote. This is so, they argue, because there are sixty-seven separate freeholds at PTC and each unit and its undivided interest in the common elements may be conveyed by “an indefeasible title in fee simple absolute” under General Statutes § 47-73. They maintain that 7-9 Park Street contains not one but sixty-seven separate freeholds “and each unit owner possesses his freehold outright, not in common with his fellow unit owners.” In countering the plaintiffs’ argument that each PTC unit owner has “an undivided ownership interest in the entire parcel of real estate . . .” (at 7-9 Park Street), the defendants say that the plaintiffs “have overlooked the fact that . . . § 7-147b (g) does not grant a fractional vote to a tenant in common in land; it grants a fractional vote to a ‘tenant in common of any freehold interest’ in land.” (Emphasis in original.) We agree with the plaintiffs’ claim that each PTC unit owner is entitled to 1/67 of a full vote under § 7-147b (g).

The use of the terms “tenant in common” and “joint tenant,” in § 7-147b (g) is a legislative recognition of the manner in which title could be held by those “ownerfs] of record of real property” to whom the right to vote was given by statute. The tenancy in common (as also with joint tenants) had to be of “any freehold interest in any land.” General Statutes § 7-147b (g). The noun “interest” here refers to an “interest” in “land.” In this context, the noun “interest” is a word denoting “a legal relation or relations.” See 1 Restatement, Property § 5, p. 11. The term “freehold” is an estate in fee or for life; Black’s Law Dictionary (5th Ed. 1979); and here it is used as an adjective that modifies the noun “interest,” thus defining the nature of the “interest.” The “freehold interest” is “in any land.” (Emphasis added.) General Statutes § 7-147b (g). Unlike “real property” as that term is carried over from § 47-73 and the ownership of record of which is necessary to voter eligibility, § 7-147b (g) now introduces the term “land.” “Land,” unlike some other terms which may be considered generally of common meaning, is not defined in either the historic district or condominium statutes. The use of the term “land” is significant especially because of the prior reference to “real property” in § 7-147b without a single reference to “land” in that statute prior to subsection (g). It is clear that “real property,” quite apart from § 47-73, as used in the Restatement “refers to land.” Lakeshore Financial Corporation v. Comstock, 587 F. Sup. 426, 428 (W.D. Mich. 1984); 1 Restatement, Property § 8. It thus can fairly be said that “land” as used in § 7-147b (g) means real property in the conventional sense; this is further supported by the Restatement comment that “[tjhose interests in land designated [in the Restatement] as ‘real property’ are also referred to as ‘freehold, interests. ’ (Emphasis added.) 1 Restatement, Property § 8, comment a. It is just not “land” in § 7-147b (g) that is referred to but “any land.” (Emphasis added.) “The word ‘any’ has a diversity of meanings and may be employed to indicate ‘all’ or ‘every’ as well as ‘some’ or ‘one.’ ... Its meaning in a given statute depends upon the context and subject matter of the statute.” Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 328, 142 A.2d 524 (1958). We have held it to be too comprehensive a word to receive a narrow construction, and, to find the sense in which it is employed in § 7-147b (g), we look at the wording of the statute, its legislative history and its basic policy. Id., 329; Donohue v. Zoning Board of Appeals, 155 Conn. 550, 556, 235 A.2d 643 (1967). Given our view of the statutory scheme and the application of the principles to be employed to come to a common sense result, we construe “any” to mean “some” in this case. This is particularly so because what the PTC tenant in common (and the joint tenants) has by virtue of his freehold interest in “land” is an undivided interest therein together with the other “unit owner(s).”

Put another way, because the “common elements” are “all portions of the condominium other than the units,” and each “unit owner” has “an undivided interest in the common elements,” then each unit owner, whether as a tenant in common or joint tenant, has an undivided interest in some “land.” The quality of that undivided interest is freehold in nature, yet each such unit owner owns less than all the freehold at 7-9 Park Street. Each such unit owner is therefore entitled to a vote proportionate to his freehold interest in the “land” there, and that in this case is 1/67 of a vote. The interaction of the historic district and the condominium statutes in this appeal, we point out, will not constrain us in deciding how condominium interests may be characterized in other contexts.

We are not persuaded otherwise by the claim of the defendants that the legislature intended to make the grand list the “focal point of the voting franchise.” Although it is true that the legislative preconditions for voting are set out in the statute, the quality of that vote — be it one full vote per unit owner or a fraction of one full vote for each unit owner — is not. When we balance all the interests, i.e., common sense, a rational result and most of all the carrying out of the statutory purpose, they warrant the result we reach today. As we have said, the interpretation and parsing of terms of common law tenure are not appropriate here in these unprecedented and unanticipated circumstances. While on the New York Court of Appeals, Justice Cardozo said: “Life has relations not capable always of division into inflexible compartments. The moulds expand and shrink.” Glanzer v. Shephard, 233 N.Y. 236, 241, 135 N.E. 275 (1922). This appeal has presented issues, the resolution of which does not neatly fit into any “inflexible compartments.”

There is error, the judgment is set aside, and the case is remanded with direction to enter orders consistent with this opinion.

In this opinion the other judges concurred.

       There are three plaintiffs in this action. The plaintiff Herbert C. Gentry owns a parcel in the proposed historic district. The plaintiffs Dennis B. Ross and Graham Helmendach own another as tenants in common.

       One of the parcels is the Norwalk Green which is owned by the defendant first taxing district of the city of Norwalk (district). Although the district was allowed to intervene in this action, it was ineligible to vote on the matter of the establishment of the proposed historical district.

       The Park Towers Condominium is a modern four-story structure originally constructed as an apartment house in 1967 and later converted into a condominium on August 28, 1974.

       “[General Statutes] Sec. 7-147b. . . . (i) If seventy-five per cent of all property owners voting cast votes in the affirmative, the legislative body of the municipality shall by majority vote take one of the following steps: (1) Accept the report of the committee and enact an ordinance or ordinances to create and provide for the operation of an historic district or districts in accordance with the provisions of this part; (2) reject the report of the committee, stating its reasons for such rejection; (3) return the report to the historic district study committee with such amendments and revisions thereto as it may deem advisable, for consideration by the committee. The committee shall submit an amended report to the legislative body within sixty-five days of such return. The committee need not hold a public hearing other than the one provided for in subsection (d) of this section, notwithstanding any changes in its report following such hearing, unless the legislative body has recommended a change in the boundaries of the proposed district or districts. The legislative body of the municipality need not authorize ballots of the owners within a proposed district or districts to be cast, other than the balloting provided for in subsection (g) of this section, notwithstanding any changes in the proposed ordinance following such balloting, unless the boundaries of the proposed district in which the owners’ property is situated are changed.”

       Prior to the October 9, 1981 referendum, the plaintiffs instituted this action seeking injunctive and declaratory judgment relief. Although the plaintiffs sought a preliminary injunction against this referendum, the trial court did not grant that relief but reserved decision pending a full trial on the merits. It did, however, order the defendant Norwalk town clerk, the defendant Mary Keegan, to count the ballots of the PTC unit owners separately from the ballots of the other property owners voting.
      On October 9,1981, the Norwalk town clerk tallied the ballots as follows:
      A. Votes of property owners exclusive of Park Towers condominiums: 6 yes; 5 no.
      B. Votes of Park Towers condominium unit owners: 56 yes; 0 no.

       General Statutes § 7-147b is entitled “Procedure for establishment of historic district.” Subsection (g) of that statute provides: “The legislative body shall, not later than sixty-five days from receipt of such report, authorize the clerk of the municipality, or his designee, to mail ballots to each owner of record of real property to be included in the proposed district or districts on the question of creation of an historic district or districts, as provided for in sections 7-147a to 7-147k, inclusive. Only an owner who is eighteen years of age or older and who is liable, or whose predecessors in title were liable, to the municipality for taxes on an assessment of not less than one thousand dollars on the last-completed grand list of the municipality on real property within the proposed district, or who would be or would have been so liable if not entitled to an exemption under subdivision (7), (8), (10), (11), (13), (14), (15), (16), (17), (20), (21), (22), (23), (24), (25), (26), (29) or (49) of section 12-81, may vote, provided such owner is the record owner of the property, thirty days before the ballots must be returned. Any tenant in common of any freehold interest in any land shall have a vote equal to the fraction of his ownership in said interest. Joint tenants of any freehold interest in any land shall vote as if each joint tenant owned an equal, fractional share of such land. A corporation shall have its vote cast by the chief executive officer of such corporation or his designee. No owner shall have more than one vote.”

       The plaintiffs maintain that this position is confirmed by the “Declaration and Bylaws of Park Towers Condominiums.”

       Although the condominium has been regarded as innovative by some, Professor Berger points out that the concept has existed for centuries. Berger, “Condominium Shelter on a Statutory Foundation,” 63 Col. L. Rev. 987 (1963).

       The defendants point out that the condominium units are “separately identified” on the grand list and unit owners are made liable for real property taxes.

       Such an owner must also be “eighteen years of age or older . . .” and must be liable “to the municipality for taxes on an assessment of not less than one thousand dollars on the last-completed grand list of the municipality on real property within the proposed district . . . . ” General Statutes § 7-147b (g)

       The defendants in these claims hone in on the Restatement of Property (1936), particularly with respect to “freehold interests.” The Restatement, of course, was propounded long before either the condominium act or the historic district statutes were enacted and defendants have not referred us to any language that even suggests that work considered the concepts laid out in either statute. The Restatement of Property (1936) does, as the defendants point out, provide that there are five types of freehold interests: “(1) Estate in fee simple, (2) Estate in fee simple absolute, (3) Estate in fee simple defeasible, (4) Estate in fee simple conditional and estate in fee tail, and (5) Estate for life. Restatement Of Property, §§ 8,14-18 (1936).”

       Chapter 97a of the General Statutes is entitled “Historic Districts and Historic Properties.” Part I of that section, which includes § 7-147b (g) is entitled “Historic Districts” and Part II is entitled “Historic Properties.” See New York, N.H. & H. R. Co. v. Orange, 91 Conn. 472, 479, 100 A. 25 (1917).

       Public Acts 1980, No. 80-314, now codified as General Statutes § 7-147b, made significant amendment to the then-existing historic district statute. Subsection (g) of that public act, now General Statutes § 7-147b (g), was amended as follows: “(g) The legislative body [after reviewing the report of the historic district study committee] shall, NOT LATER THAN SIXTY-FIVE DAYS FROM RECEIPT OF SUCH REPORT, [cause] AUTHORIZE THE CLERK OF THE MUNICIPALITY, OR HIS DESIGNEE, TO MAIL ballots to [be taken of the owners] EACH OWNER of record of [all] real property to be included in the proposed district OR DISTRICTS on the question of [the adoption of an historic district ordinance and, if seventy-five per cent of all such owners voting thereon vote affirmatively by such ballots, shall take one of the following steps: (1) Reject the report of the committee, stating its reasons therefor; (2) accept the report of the committee and enact an ordinance, to carry out the provisions of sections 7-147a to 7-147k, inclusive; (3) return the report to the historic district study committee with such amendments and revisions thereto as it may deem advisable, for consideration by the committee and a further report to the legislative body within ninety days of such return.] CREATION OF AN HISTORIC DISTRICT OR DISTRICTS, AS PROVIDED FOR IN THIS ACT, ONLY AN OWNER WHO IS EIGHTEEN YEARS OF AGE OR OLDER AND WHO IS LIABLE, OR WHOSE PREDECESSORS IN TITLE WERE LIABLE, TO THE MUNICIPALITY FOR TAXES ON AN ASSESSMENT OF NOT LESS THAN ONE THOUSAND DOLLARS ON THE LAST COMPLETED GRAND LIST OF THE MUNICIPALITY ON REAL PROPERTY WITHIN THE PROPOSED DISTRICT, OR WHO WOULD BE OR WOULD HAVE BEEN SO LIABLE IF NOT ENTITLED TO AN EXEMPTION UNDER SUBDIVISION (7), (8), (10), (11), (13), (14), (15), (16), (17), (20), (21), (22), (23), (24), (25), (26), (29) OR (49) OF SECTION 12-81, MAY VOTE, PROVIDED SUCH OWNER IS THE RECORD OWNER OF THE PROPERTY THIRTY DAYS BEFORE THE RAT,LOTS MUST BE RETURNED. ANY TENANT IN COMMON OF ANY FREEHOLD INTEREST IN ANY LAND SHALL HAVE A VOTE EQUAL TO THE FRACTION OF HIS OWNERSHIP IN SAID INTEREST. JOINT TENANTS OF ANY FREEHOLD INTEREST IN ANY LAND SHALL VOTE AS IF EACH JOINT TENANT OWNED AN EQUAL, FRACTIONAL SHARE OF SUCH LAND. A CORPORATION SHALL HAVE ITS VOTE CAST BY THE CHIEF EXECUTIVE OFFICER OF SUCH CORPORATION OR HIS DESIGNEE. NO OWNER SHALL HAVE MORE THAN ONE VOTE.”

       The Condominium Act includes the following definitions in General Statutes § 47-68a: “(a) ‘Condominium’ means real property and any incidents thereto and interest therein, lawfully submitted to this chapter by the recordation of condominium instruments pursuant to the provisions of this chapter.
      “(b) ‘Unit’ means a part of the property including one or more rooms or designated spaces located on one or more floors or a part or parts thereof in a building, intended for any type of independent use, and with a direct exit to a public street or highway or to common elements leading to such street or highway.
      “(c) ‘Unit owner’ means the person or persons owning a condominium unit or leasing a unit in a leasehold condominium, as hereinafter provided, and an undivided interest in the common elements specified and established in the declaration and the heirs, executors, administrators, successors and assigns of such person or persons, and a mortgagee or lienholder holding both legal and equitable title.
      “(e) ‘Common elements’ means all portions of the condominium other than the units.
      “(Í) ‘Property’ means and includes the land, all buildings, all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, which have been or are intended to be submitted to the provisions of this chapter.”

       We recognize that it is a proper exercise of the legislative function to define the words contained in a statute. See Neptune Park Assn. v. Steinberg, 138 Conn. 357, 362, 84 A.2d 687 (1951); 1A Sands, Sutherland Statutory Construction (4th Ed. 1972) § 20.08; but cf. United Interchange, Inc. v. Spellacy, 144 Conn. 647, 654-55, 136 A.2d 801 (1957).

       For purposes of this case, it is sufficient to say that General Statutes § 47-72 in providing that a conveyance from a “declarant” to a purchaser of a “unit” shall be “by warranty deed or lease, conveying to the purchaser of such unit an indefeasible title in fee simple absolute or leasehold estate to the unit and to the percentage of undivided interest in the common elements appertaining to the unit. . .” (emphasis added) refers to the quality of the estate that the grantee receives.

       See footnote 11, supra.

       The Condominium Act specifically defines such terms as “property,” “building,” and “improvements.” General Statutes § 47-68a. We do note that § 47-68a in defining “property” states that that “means and includes the land, all buildings, all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto ....’’ (Emphasis added.)

       We see no conflict between the term “real property” in § 47-73 and defining “land” in § 7-147b (g) as “real property” in the conventional and Restatement sense.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    Robert S. Weiss & Company v. Gerald Mullins et al.
    (12449)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued April 3
    decision released July 9, 1985

      John E. Terzis, for the appellants (defendants).

      Frank H. D'Andrea, Jr., with whom, on the brief, was Brian D. Rosenfeld, for the appellee (plaintiff).
   Santaniello, J.

This appeal concerns the existence of a right-of-way that the plaintiff, Robert S. Weiss & Company, claims it has over land owned by the defendants, Gerald and Dorothy Mullins. The plaintiff claimed a declaratory judgment determining whether or not it has a right-of-way over the defendants’ land and, if so, the location of the right-of-way and the extent of its permissible user. The plaintiff also sought a temporary and permanent injunction restraining the defendants from obstructing the use of the right-of-way by the plaintiff. The defendants filed an answer in which they denied the plaintiff’s allegations and raised twenty-nine special defenses. They also filed a cross complaint claiming a right-of-way in their favor over the plaintiff’s property and seeking declaratory and injunctive relief. The trial court found that the plaintiff has “a right-of-way over the defendants’ land which lies immediately to and adjoining the west of the plaintiff[’s] property measuring 10 feet wide, more or less, by 151 feet long, more or less,” and enjoined the defendants from obstructing the plaintiff’s use of this right-of-way. Since the defendants did not pursue their cross complaint at trial, the court rendered judgment for the plaintiff on both the complaint and the cross complaint, from which the defendants have appealed. We find no error.

From the evidence adduced at trial, the trial court found the following facts: On November 19,1982, the plaintiff acquired title to property located at 16 West Park Place in Stamford. The plaintiff’s property is immediately adjacent to 12 West Park Place, a tract of land owned by the defendants since February 18, 1982. On the defendants’ land is a driveway that adjoins the plaintiff’s property.

The grantor deeds in the plaintiff’s chain of title, dating from January, 1955, all contain language to the effect that the property now owned by the plaintiff was conveyed together with “all the right, title and interest of the Grantors in and to the driveway adjoining said premises on the west.” William J. Fitzpatrick, one of the plaintiff’s predecessors in title, testified that he, his tenants and his employees used the driveway from the time he acquired title in July, 1959, until 1979, when he sold the property now owned by the plaintiff. Throughout this period, the driveway was owned by the defendants’ predecessors in title. From this testimony, the court found that Fitzpatrick had “used the driveway for approximately twenty years, openly, visibly, uninterruptedly and as a claim of right.” Although the defendants offered testimony to show that the use of the driveway was not uninterrupted or continuous, the trial court found that the witnesses for the defense “ranged from vague and uncertain, to reluctant and clearly evasive. This was so to such an extent that the trier could not accept their testimony as credible.”

The court further found that the use made by the plaintiff and its predecessors in title of the driveway now owned by the defendants had been visible, open and continuous and without recognition of the rights of the owner, and that such use dated from 1955 through the present. On the basis of these facts, the court held that the plaintiff had satisfied the applicable requirements of General Statutes § 47-37, and that it was therefore entitled to a right-of-way over the defendants’ driveway.

At the outset, we note that several of the issues raised by the defendants on appeal were not brought to the trial court’s attention through available and appropriate means, such as objections, exceptions and pretrial and post trial motions. Nor were any of these claims listed in the defendants’ preliminary statement of issues as required by Practice Book § 3012. “Pursuant to our rules of practice, we are not ‘bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .’ Practice Book § 3063. In addition, issues that an appellant wishes to present to this court on appeal must be included in a preliminary, or amended preliminary statement of issues, filed with the chief clerk. Practice Book § 3012; see Presutti v. Presutti, 181 Conn. 622, 625-26, 436 A.2d 299 (1980).” Bielaska v. Waterford, 196 Conn. 151, 156, 491 A.2d 1071 (1985). Due to the defendants’ failure to preserve and present these claims, in accordance with our settled rules of appellate procedure, they will not be considered.

Three of the four remaining claims raised by the defendants essentially challenge the trial court’s factual findings and its determinations regarding the credibility of the witnesses. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, [1985], § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

To acquire a right-of-way by prescription, the party claiming the right must prove a use which is open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. General Statutes § 47-37; Reynolds v. Soffer, 190 Conn. 184, 187, 459 A.2d 1027 (1983); Klar Crest Realty, Inc. v. Rajon Realty Corporation, 190 Conn. 163, 168, 459 A.2d 1021 (1983). “Whether the requirements for such a right have been met in a particular case presents a question of fact for the trier of facts. Wadsworth Realty Co. v. Sundberg, [165 Conn 457, 464, 338 A.2d 470 (1973)]; Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951).” Swenson v. Dittner, 183 Conn. 289, 294-95, 439 A.2d 334 (1981). In such cases, the trier’s determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached. D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 180, 455 A.2d 833 (1983).

After a review of the entire transcript and all the exhibits in this case, we cannot conclude that the trial court’s finding of a prescriptive easement in the plaintiff’s favor over the defendants’ driveway was clearly erroneous. The plaintiff introduced into evidence six deeds in the chain of title to 16 West Park Place dating from January, 1955. Each deed conveyed to the grantee all of the right, title and interest of the grantor in and to the driveway adjoining 16 West Park Place. This evidence furnished prima facie proof that the use of the driveway was adverse, that is, under a claim of right. Reynolds v. Soffer, supra, 188. Although none of the deeds in the defendants’ chain of title refers specifically to a right-of-way, two of the deeds offered into evidence by the defendants contain a general provision that the property was conveyed subject to “any easements that may appear.” Furthermore, the defendants’ actual knowledge of the existence of the right-of-way is not a necessary element of the plaintiff’s proof. “That a claim was actually made and brought to the attention of the owner of the fee is not essential in order to establish that the user was made under a claim of right. Nothing more is required than a user ‘as of right,’ that is, without recognition of the rights of the owner of the servient tenement.” (Citations omitted.) Zavisza v. Hastings, 143 Conn. 40, 45-46, 118 A.2d 902 (1955). It is only in a case “ ‘[wjhere the use of a right of way is in common with the public .. . [that] the individual user must, in order to establish an independent prescriptive right, perform some act to the knowledge of the servient owner clearly-indicating his individual claim of right.’ ” (Citations omitted.) Klar Crest Realty, Inc. v. Rajon Realty Corporation, supra, 168. There was no evidence in this case that the defendants’ driveway was ever used as a right-of-way by the general public. Thus, the plaintiff was not required, as the defendants contend, “to perform some act to the knowledge of the servient owner clearly indicating its claim of right.”

The plaintiff presented testimony at trial through two of its predecessors in title, William Fitzpatrick and James Colgan; an employee of Fitzpatrick, Wilbur Parham; a former tenant of Fitzpatrick, Edward Wright; and Robert Weiss, the plaintiff corporation’s sole stockholder. These witnesses testified that the owners of 16 West Park Place, as well as their tenants, employees and service people, had used the driveway now owned by the defendants to reach a parking area in the rear of the plaintiff’s property. The driveway also provided access to Whittaker Place, a public street, via another right-of-way located on property immediately adjacent and to the north of the defendants’ land. The court expressly found from Fitzpatrick’s testimony that he had used the driveway for approximately twenty years, openly, visibly, uninterruptedly and under a claim of right. The evidence adduced at trial amply supports the court’s conclusion that the plaintiff satisfied the requirements of General Statutes § 47-37, and the consequent determination of a right-of-way in its favor over the defendants’ driveway.

The defendants claim that the trial court’s evaluation of the credibility of the witnesses was clearly erroneous. In its memorandum of decision, the court credited the evidence presented by the plaintiff, while explicitly stating that it could not accept as credible the testimony of the defendants’ witnesses. After thoroughly reviewing the entire record in this case, we cannot conclude that the trial court abused its broad discretion in evaluating the witnesses’ credibility. “The sifting and weighing of evidence is peculiarly the function of the trier. ‘[Njothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.’ Steinman v. Maier, 179 Conn. 574, 576, 427 A.2d 828 (1980), quoting Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). ‘The rare occasion where testimony supporting a fact is such that the court could not reasonably disbelieve it; Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 489, 356 A.2d 117 (1975); is not present in this case.’ Steinman v. Maier, supra.” Swenson v. Dittner, supra, 293.

The defendants challenge the trial court’s finding of a right-of-way “measuring 10 feet wide, more or less, by 151 feet long, more or less,” on the ground that the plaintiff failed to establish with reasonable certainty the boundaries of the prescriptive easement. They assert that “there was not one iota of proof to support the court’s conclusion” regarding the measurements of the right-of-way. We disagree.

It is well settled that “[a] prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty.” Reynolds v. Soffer, supra, 190, quoting Kaiko v. Dolinger, 184 Conn. 509, 511, 440 A.2d 198 (1981). In this case, there was adequate evidence to support the trial court’s determination regarding the dimensions of the right-of-way. The plaintiff’s witnesses testified to having used the entire length of the driveway now owned by the defendants. The specific measurements of the driveway are set forth on several maps admitted into evidence. The witnesses identified their use of the driveway by referring to these maps during their testimony. The boundaries set out in the court’s memorandum of decision are in accordance with the testimony and exhibits presented at trial, and the right-of-way is defined in terms of its boundaries with reasonable certainty.

Finally, the defendants claim that the trial court’s failure to rule specifically on the six special defenses remaining in the case at the time of trial constitutes reversible error. In their answer to the plaintiff’s complaint, the defendants raised twenty-nine special defenses. At the commencement of trial, counsel for both parties agreed that all but six of these special defenses would be stricken. “[W]hen a party seeks a further articulation of the factual basis of the trial court’s decision or the inclusion in the memorandum of decision of the trial court’s rulings on claims of law properly presented, he should file a motion with the trial court under Practice Book, [1985], § 3082 setting forth the specific factual issues he seeks to have resolved and the claims of law he seeks to have included.” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 222 n.5. The defendants filed no such motion with the trial court, and have thus failed in their duty as appellants to provide this court with an adequate appellate record. Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982). In any case, it is apparent from the record that all six of the remaining special defenses were merely factual allegations aimed at contradicting the plaintiff’s claim of an open, continuous, uninterrupted use of the driveway under a claim of right. Not one of the six defenses presented a legal claim for the court’s decision. The court’s ruling in favor of the plaintiff and the factual findings set out in its memorandum of decision clearly indicate that it found against the defendants on each of the special defenses.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.”

       The claims set out in the defendants’ appellate brief that have not been properly presented for our review are summarized as follows: (1) whether the trial court erred in rendering judgment for the plaintiff when a material variance allegedly existed between the allegations of the complaint and the evidence adduced at trial; (2) whether the court employed the proper standard of proof in determining the existence of the right of way; (3) whether the court’s questioning of three defense witnesses indicated that it had prejudged their credibility and decided the case before its completion; and (4) whether the court erroneously granted injunctive relief when the plaintiff purportedly failed to allege and prove irreparable harm and the lack of an adequate remedy at law.


author: Shea, J.

text:
    Geraldine P. Carofano et al. v. City of Bridgeport et al. John Doe et al. v. City of Bridgeport et al.
    (9574)
    (9575)
    (9578)
    Peters, C. J., Shea, Dannehy, Santaniello and F. Hennessy, Js.

      Argued April 9
    decision released July 9, 1985

      J. Daniel Sagarin, with whom, on the brief, was William B. Barnes, for the appellants (named plaintiffs et al.).

      Ernest C. LaFollette, for the appellants (intervening plaintiffs in the second case, John Fiorini and Larry Morgan).

      Thomas K. Jackson, for the appellees (defendants in each case).
   Shea, J.

These consolidated appeals present as principal issues (1) the constitutionality of our “mandatory binding arbitration” statute, General Statutes § 7-473C, which governs the resolution of disputes between municipalities and the representatives of their employees over the terms of collective bargaining agreements when negotiations have reached an impasse, and (2) the constitutionality of a provision contained in an arbitration award issued pursuant to § 7-473c that requires current and future members of the Bridgeport police department, as a condition of such employment, to maintain a bona fide residence within the city of Bridgeport. We conclude that neither the arbitration procedure established by the statute nor the challenged award violates any provision of either the federal or the state constitutions. Accordingly, we find no error in the judgment for the defendants rendered by the trial court in these actions challenging enforcement of the residency requirement for Bridgeport police officers.

On February 20,1933, the defendant city adopted an ordinance, § 1-13, requiring all of its officers and employees to reside in Bridgeport. This ordinance was reenacted on July 6, 1959. Until 1975, however, no action was taken to enforce the ordinance, except for the termination of one fire department employee in 1965 for violation of a departmental regulation requiring city residency. In December, 1975, the city legislative body adopted a resolution to enforce the ordinance, giving each nonresident employee until July 1, 1976, to acquire a residence in the city or be terminated from employment. Early in 1976, city employees were requested to execute affidavits of residence. The defendant John Mandanici, mayor of the city, on May 17,1976, sent letters to nonresident civil service employees advising them that, unless they complied with the residency ordinance, they would be discharged.

On February 19, 1976, seventeen members of the Bridgeport police department began an action to enjoin the city and its officials from enforcing the ordinance. A temporary injunction restraining such enforcement pending a full determination of the merits of the cause was issued on July 1,1976, by the court, Bums, J., following a hearing. When the defendants, nevertheless, initiated proceedings to dismiss the plaintiffs for failure to comply with the residency requirement, a further temporary injunction was ordered on July 20, 1976, prohibiting such proceedings.

While the temporary injunctions remained in force, the collective bargaining agreement with the policemen was being renegotiated for an additional period. The policemen’s union, Local 1159 of the American Federation of State, County and Municipal Employees, AFLCIO, and the city proceeded through the various stages of negotiation, factfinding and mediation as provided by General Statutes §§ 7-469, 7-473, and 7-473b. The city insisted upon inclusion of a residency clause in the agreement and the union resisted. In order to resolve the dispute the union finally requested binding “last best offer” arbitration under § 7-473c. On June 14, 1978, the arbitrators made an award that selected for inclusion in the collective bargaining agreement the city’s proposal of a residency requirement as a condition of employment, allowing 120 days for compliance from the date of implementation of the agreement.

After the award had been made, the city moved for dissolution of the temporary injunctions that had been issued in 1976 upon the ground that they interfered with implementation of the collective bargaining agreement. A suit was commenced on August 14, 1978, by eleven more members of the Bridgeport police department to enjoin enforcement of the residency clause of the agreement. This case was consolidated with the earlier action, a joint stipulation of facts was filed and the cases were tried together. The court found the issues in both cases for the defendants and rendered judgment accordingly.

In this appeal the plaintiffs claim the trial court erred in concluding: (1) that the plaintiffs, by requesting binding arbitration pursuant to § 7-473c, had waived the right to challenge the constitutionality of that statute and of the residency provision contained in the award; (2) that the municipal employment binding arbitration statute was constitutional; (3) that the residency requirement of the award as well as the residency ordinance did not deprive the plaintiffs of “equal protection of the laws” under our Connecticut constitution; and (4) that the city was not estopped from enforcing the residency requirement.

I

We disagree with the conclusion of the trial court that, because it was the union representing the plaintiffs as members of the Bridgeport police department in the collective bargaining process that requested binding arbitration pursuant to § 7-473c after an impasse had been reached in negotiations with the city, the plaintiffs must be deemed to have waived any challenge to the constitutionality of that statute. The court relied upon the principle that “one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens.” 16 Am. Jim. 2d, Constitutional Law § 209. “Nor can one who avails himself of the benefits conferred by a statute deny its validity.” Buck v. Kuykendall, 267 U.S. 307, 316, 45 S. Ct. 324, 69 L. Ed. 623 (1925). This court has applied this estoppel doctrine to bar a party who has sought the relief provided in an ordinance or statute from later in the same proceeding raising the issue of its constitutionality. Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38, 74 A.2d 462 (1950); Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300 (1929).

The rule is plainly inapplicable to the situation presented by this case. The union’s request for binding arbitration was made three weeks before such arbitration would have been automatically imposed on the parties by the terms of § 7-473c (a): “If, within ninety days after the expiration of the current collective bargaining agreement . . . neither the municipal employer or the municipal employee organization has requested the arbitration services of the state board of mediation and arbitration, said board shall notify the municipal employer and municipal employee organization . . . that binding and final arbitration is now imposed on them . . . The union, therefore, did not voluntarily seek the benefit of the statute it now challenges but merely recognized that the arbitration procedure provided was mandatory and, in view of the intransigence of the parties on the residency clause issue, inevitable. Although, by making the request, the union may have advanced the arbitration process three weeks, its action cannot result in the implied waiver found by the court. The plaintiffs thus are not precluded by estoppel from challenging the constitutionality of § 7-473c or of the residency clause imposed upon them as a condition of employment by the award of the arbitrators pursuant to that statute.

II

The plaintiffs attack the constitutionality of § 7-473c upon two grounds: (1) that it violates the “home rule” provision of our state constitution, article tenth, § 1; and (2) that it constitutes an invalid delegation of legislative power. We reject both of these contentions.

A

The first part of the home rule provision of our constitution authorizes the General Assembly by general law to delegate “such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions,” but reserves to that body the determination of the maximum terms of office of local elected officials. This part has been implemented by the Home Rule Act; General Statutes §§ 7-187 through 7-194; which sets forth the procedure for adopting, revising or repealing municipal charters. The second part of the constitutional provision prohibits the General Assembly, subject to specified exceptions not pertinent to this case, from enacting “special legislation relative to the powers, organization, terms of elective offices or form of government of any single town, city or borough . . . .” “Our constitutional home rule provision . . . prohibits the legislature from encroaching on the local authority to regulate matters of purely local concern, such as the organization of local government or local budgetary policy.” Shelton v. Commissioner, 193 Conn. 506, 521, 479 A.2d 208 (1984); Caulfield v. Noble, 178 Conn. 81, 90-91, 420 A.2d 1160 (1979).

In Caulfield v. Noble, supra, we held that a state statute of general application requiring the use of surplus funds by a town at the end of its fiscal year to reduce the taxation rate for the following year could not, by virtue of the autonomy given to towns in the matter of real property taxation, override a home rule charter provision allowing the surplus to be retained in a special unallocated account. From this precedent the plaintiffs argue that setting conditions of employment for municipal employees is also a matter of purely local concern that can be delegated only to the municipality under the home rule constitutional provision and not to “politically unaccountable private arbitrators.” Unlike Caulfield, however, the plaintiffs point to no specific provision of the Bridgeport charter that conflicts directly with either the arbitration procedure followed or the outcome thereof in the form of a residency clause. Presumably they rely upon the general authority of the governing officials of the town to establish the conditions of employment as well as the great impact this determination has upon such governmental functions as municipal taxation and budget making. Thus it is claimed that the compulsory arbitration statute, § 7-473c, deprives local officials of the responsibility concerning such matters vested in them by the charter as well as the electorate.

It is clear that § 7-473c, being a statute applicable to every municipality in this state, does not violate the prohibition against “special legislation relative to the powers of any single town. . . . ” The remaining consideration is whether its purpose or its operation involves subjects of purely local concern, as in Caulfield. The evident purpose of the compulsory arbitration feature of § 7-473c is to avoid strikes and their attendant disruptions of municipal services by providing a mechanism to resolve by arbitration those issues concerning which the parties to an expiring municipal collective bargaining agreement have been unable to reach agreement by negotiations. Such possible disruptions, at least where such vital services as those performed by policemen are involved, are matters of statewide concern not only because their impact is seldom confined exclusively to the residents of one municipality, but also because the state as parens patriae has the ultimate responsibility for protecting the safety of the inhabitants of even a single community whose own resources are inadequate for the task. Accord General Statutes §§ 29-5, 29-7. The avoidance of strikes by municipal employees that might occasion state intervention to protect the inhabitants of a community is unquestionably a matter of statewide concern and § 7-473c, therefore, does not violate the home rule provision of our state constitution.

B

The plaintiffs also attack § 7-473c as an unconstitutional delegation of legislative power because: (1) the arbitrators are not public officials accountable to the electorate; (2) the statute contains standards insufficient to guide the arbitrators in making their award; and (3) it fails to provide an adequate procedure for judicial review. None of these claims is persuasive.

Section 7-473c (a) contains no restrictions or qualifications for the three arbitrators who form the panel to decide the issues in a dispute over a new collective bargaining agreement for municipal employees. The statute allows the “chief executive officer of the municipal employer” to name one member, the “executive head of the municipal employee organization” to choose a second, and the two arbitrators thus designated to select the third, who acts as chairman. The plaintiff claims that this statutory delegation of legislative power to persons having, by virtue of their selection as arbitrators, only a tenuous connection with government that is limited to the duration of the performance of their duties in the dispute referred to them violates a basic principle that determinations having the force of law should be made only by those who are in some manner accountable to the electorate. It has been contended that “this approach to legislative decision-making, precisely because it is designed to insulate and, in fact, does insulate the decision-making process and the results from accountability within the political process, is not consonant with proper governance and is not an appropriate method for resolving legislative-political issues in a representative democracy.” Dearborn Fire Fighters Union v. Dearborn, 394 Mich. 229, 258, 231 N.W.2d 226 (1975) (opinion of Levin, J.). The majority of courts, nevertheless, have sustained statutes imposing compulsory arbitration to resolve disputes that arise during collective bargaining between municipal employers and employees. Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769, 352 N.E.2d 914 (1976); Warwick v. Warwick Regular Firemen’s Assn., 106 R.I. 109, 256 A.2d 206 (1969).

In this state the delegation of the governmental power of eminent domain to private persons rather than to public officials has frequently been approved where a public purpose is thereby advanced and where the benefit of the property taken is considered to be available to the general public. Connecticut College v. Calvert, 87 Conn. 421, 427-28, 88 A. 633 (1913); cf. New York, N.H. & H. R. Co. v. Long, 69 Conn. 424, 435, 37 A. 1070 (1897); Evergreen Cemetery Assn. v. Beecher, 53 Conn. 551, 5 A. 353 (1886); Todd v. Austin, 34 Conn. 78, 89-91 (1867). “The legislature itself may exercise the power or may delegate that right to another.” Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 587, 87 A.2d 139 (1952). We have also upheld the statutory designation of a private credit corporation as the sole agency to investigate applications for mortgages to be insured through the credit of the state, the ultimate authority to grant such applications being retained by a state agency. Roan v. Connecticut Industrial Building Commission, 150 Conn. 333, 342-43, 189 A.2d 399 (1963). We perceive no inherent vice that should preclude enlistment by the legislature of private individuals or agencies to achieve a public purpose by the exercise of a governmental power so long as adequate safeguards are provided. Although elected officials and those appointed by them as public officers may be more directly answerable to the electorate for their doings, the principle of accountability remains viable in the ability of legislators to terminate or modify any delegation of legislative power that has been made and in the ultimate authority of the people to change the law by electing those amenable to the public will.

The claim that the standards prescribed by § 7-473c for guidance of the arbitrators are constitutionally infirm rests upon the principle that, “[i]f the Legislature fails to prescribe with reasonable clarity the limits of the power delegated or if those limits are too broad, its attempt to delegate is a nullity.” State v. Stoddard, 126 Conn. 623, 628, 13 A.2d 586 (1940); see A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 530, 55 S. Ct. 837, 79 L. Ed. 1570 (1935). The only provision of the statute explicitly setting forth any guidelines is as follows: “The factors, among others, to be given weight by the arbitration panel in arriving at a decision shall include the wages, salaries, fringe benefits and working conditions prevailing in the labor market, the ability of the municipal employer to pay and the interests and welfare of the employees.” General Statutes § 7-473c (c) (2). The plaintiffs criticize this delineation of the criteria to be followed as unduly vague and also point to the absence of any declaration of legislative purpose in the statute.

Where an act does not contain an express statement of its public purpose, we may consider the entire act as well as its legislative history to ascertain such a purpose. Roan v. Connecticut Industrial Building Commission, supra, 339. It is evident from the debate that attended the adoption in 1975 of § 7-473c with its mandatory arbitration feature that the principal concern of the legislators was to devise a method for resolving impasses in contract negotiations between municipal employers and their employees that might otherwise result in strikes or other disruptions of essential public services. Though such strikes were illegal; General Statutes § 7-475; the legislature was concerned that “in many cases the employee organizations have, as a result of the frustrations in negotiations, have [sic] taken some type of job action.” 18 H. R. Proc., Pt. 11,1975 Sess., p. 5324, remarks of Representative Dominic J. Badolato. It was believed that binding arbitration upon issues that could not be resolved by the elaborate system of negotiations provided in related statutes would be the most fair and effective device for resolving these disputes. The structure of § 7-473c, which limits the arbitrators to choosing the “last best offer” of one party over that of the other, indicates that the primary emphasis of the legislation was to induce settlement of disputes by negotiation under the impetus that the most reasonable proposal would probably gain acceptance by the arbitrators. This narrowing of the scope of arbitrator discretion to a choice between two proposals as formulated by the parties upon an unresolved issue significantly circumscribes what might otherwise be deemed a broad delegation of legislative power. The specification of certain factors to be considered by the arbitrators in making this limited choice is a further control over their exercise of the delegated authority.

“As the complexity of economic and governmental conditions has increased over the years, courts have tended to approve ever broader standards to facilitate the operational functions of administrative agencies.” Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 120, 355 A.2d 72 (1974). Given the impracticability of prescribing standards that will precisely govern the outcome of every issue that may arise in contract negotiations between municipal employers and employees, we conclude that those set forth in § 7-473c are sufficient to satisfy constitutional requirements for a valid delegation of legislative power.

The plaintiffs’ remaining objection to the validity of the statute is that there is no provision for an appeal to the courts in the manner ordinarily available for review of decisions of administrative agencies. See, e.g., General Statutes §§ 8-8, 8-30. Such review, of course, is ordinarily limited to the record before the agency and to ascertaining whether some material error of law has occurred or administrative discretion has been clearly abused. See Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265-66, 455 A.2d 339 (1983); Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 469-70, 442 A.2d 65 (1982); cf. General Statutes § 4-183 (g). Unlike decisions of state agencies that may be appealed under the Uniform Administrative Procedure Act; General Statutes §§ 4-166 through 4-189; a decision of the arbitrators pursuant to § 7-473c may be judicially reviewed only in accordance with General Statutes §§ 52-418 and 52-419 upon a motion to vacate or modify the award, the same procedure that is available in consensual arbitration. The grounds for vacating an award are restricted to: (1) procurement of the award by “corruption, fraud or undue means”; (2) “evident partiality or corruption” of an arbitrator; (3) misconduct in refusing to postpone the hearing for sufficient cause; or (4) instances where “the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” General Statutes § 52-418. Awards may be modified only in the event of: (1) a “material miscalculation of figures” or “material mistake in the description” of any person, thing or property referred to in the award; (2) an award upon a matter not submitted to the arbitrators unless it does not affect the merits of the decision upon the matters submitted; or (3) imperfections in matters of form not affecting the merits of the controversy. General Statutes § 52-419.

We are not convinced that the scope of review provided for decisions rendered under § 7-473c is so essentially different in practical application from that available for reviewing determinations of administrative agencies that any constitutional deficiency is perceptible. As we have noted, the authority of the arbitrators is limited to the two choices presented to them by the parties in the form of “last best offers.” Any deviation from this restriction would indicate that the arbitrators had “exceeded their powers,” a basis for vacating the award under § 52-418. An award made without giving weight to the factors specified for consideration by the panel in making a decision would be similarly infirm.

The circumstances of this case do not require that we explore fully the extent of judicial review available for decisions resulting from compulsory arbitration under § 7-473c or decide to what extent it is limited to the scope permitted where the parties have voluntarily submitted an issue to the arbitrators. See Bruno v. Department of Consumer Protection, 190 Conn. 14, 18-19, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 22-23, 453 A.2d 1158 (1983). In part III of this opinion we do undertake to review the constitutional validity of the residency clause that the arbitrators have chosen to impose as a condition of employment. Unlike consensual arbitration, where the terms of the submission commonly make the decision of the arbitrators final upon all questions of law as well as fact, in compulsory arbitration the parties cannot be deemed to have waived their right to challenge any constitutional infringement that the award may entail. We conclude, therefore, that there is a provision for judicial review of arbitrator determinations under § 4-473c adequate to satisfy constitutional requirements.

Ill

The residency requirement at issue in this case, which is not a prerequisite to municipal employment initially, must be distinguished from the durational residency requirement that was found to impinge upon the fundamental right of travel and thus to violate the equal protection clause of the federal constitution in Bruno v. Civil Service Commission, 192 Conn. 335, 351, 472 A.2d 328 (1984). “Bona fide residency requirements as continuing conditions of municipal employment rest upon footings significantly different from those of durational residency requirements.” Andre v. Board of Trustees, 561 F.2d 48, 52 (7th Cir. 1977). In the Bruno opinion this court differentiated between “a bona fide residency requirement” and “a durational one,” declaring that “[i]f it is important to develop relations between city employees and citizens, then the employee may be required to live within the geographical confines of the city while that employee holds municipal employment.” Id., 351. This dictum in Bruno is not a controlling precedent, however, not only because the circumstances there did not actually present the issue now before us, but also because the opinion is limited to a consideration of only federal constitutional provisions.

The plaintiffs base their attack on the constitutionality of the residency requirement now before us wholly upon article first, §§ 1 and 20, of our state constitution, which generally have been construed to afford the same right to “equal protection of the laws” as is provided by the fourteenth amendment to our federal constitution. Lockwood v. Killian, 172 Conn. 496, 500, 375 A.2d 998 (1977); Karp v. Zoning Board, 156 Conn. 287, 295, 240 A.2d 845 (1968); St. John’s Roman Catholic Church Corporation v. Darien, 149 Conn. 712, 184 A.2d 42 (1962); Barnes v. New Haven, 140 Conn. 8, 14, 98 A.2d 523 (1953). Apparently they recognize that the federal courts, as final arbiters of the United States constitution, have rejected the claim that a bona fide residence requirement as a condition for continued employment of such municipal employees as policemen impairs federal constitutional rights. McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S. Ct. 1154, 47 L. Ed. 2d 366 (1976) (fireman); Detroit Police Officers Assn. v. Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), appeal dismissed, 405 U.S. 950, 92 S. Ct. 1173, 31 L. Ed. 2d 227 (1972) (policemen); Andre v. Board of Trustees, supra (policemen, firemen and other municipal employees).

The plaintiffs argue that the right of travel, intrastate as well as interstate, is a fundamental right that includes the right to live where one chooses without restriction and that any impingement upon this right of municipal employees as a class by restricting the location of their residences can be justified only where some compelling state interest is advanced. Thus they claim the benefit of the most exacting standard for review of classifications alleged to violate the constitutional right of equal protection of the laws. They rely upon decisions of New Hampshire courts that have construed state constitutional provisions affording the right of equal protection to invalidate residency requirements, like that involved here, applicable to municipal employees generally. Angwin v. Manchester, 118 N.H. 336, 386 A.2d 1272 (1978); Donnelly v. Manchester, 111 N.H. 50, 274 A.2d 789 (1971). Most courts, however, have found no infringement of the fundamental right to travel in a requirement of residency within a reasonable time after employment by a municipality and have upheld such a requirement under the “rational basis” test as a permissible exercise of the legislative power of a municipality. Ector v. Torrance, 10 Cal. 3d 129, 514 P.2d 433, 109 Cal. Rptr. 849 (1973), cert. denied, 415 U.S. 935, 94 S. Ct. 1451, 39 L. Ed. 2d 493 (1974); Lines v. Topeka, 223 Kan. 772, 777-79, 577 P.2d 42 (1978); Abrahams v. Civil Service Commission, 65 N.J. 61, 66-73, 319 A.2d 483 (1974); Kennedy v. Newark, 29 N.J. 178, 183, 148 A.2d 473 (1959). Some courts have found a continuing residency requirement to impact upon a fundamental right to travel, but, nevertheless, have concluded that a municipality does have a compelling state interest sufficient to uphold the requirement when applied to policemen. Krzewinski v. Kugler, 338 F. Sup. 492, 497-98 (D.N. J. 1972); Fraternal Order of Police v. Hunter, 49 Ohio App. 2d 185, 199-200, 360 N.E.2d 708 (1975).

It must be conceded that “[e]ven a bona fide residence requirement would burden the right to travel, if travel meant merely movement.” Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974). The right to travel that has been found to be “fundamental,” and thus to necessitate demonstration of a compelling state interest for maintenance of any governmental restraint thereon, involves much more than locomotion. Id., 254. It concerns the right “to migrate, resettle, find a new job, and start a new life.” Shapiro v. Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). It is the barriers to such resettlement raised by durational residency requirements as qualifications for receiving benefits or exercising privileges that have been found to have such serious impact as to infringe upon the constitutional right to travel. Memorial Hospital v. Maricopa County, supra, 254-55; Dunn v. Blumstein, 405 U.S. 330, 340-42, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972). “Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right.” Dunn v. Blumstein, supra, 342. No such vice has been found with respect to “appropriately defined and uniformly applied bona fide residence requirements.” Id., 342 n.13.

We see no reason to give the equal protection clauses of our state constitution in this instance a more expansive reading than has been accorded to the corresponding provisions of our federal constitution. Nothing in their language or history supports the plaintiffs’ contention that a person has a fundamental right to employment by a municipality without regard to the location of his residence. See McCarthy v. Philadelphia Civil Service Commission, supra, 646. Accordingly, since no fundamental constitutional right is implicated by the residency requirement, it is not essential for the city to demonstrate a “compelling” interest to sustain its validity.

The plaintiffs, as a fall-back position, urge that, if the right of a municipal employee is not deemed to be “fundamental” and thus to invoke the “strict scrutiny” standard of review applicable to rights so characterized, it is of sufficient importance to call for an intermediate standard and not merely the minimal “rational basis” test. Courts have tended to depart from the minimal standard where the interests affected by the governmental restriction are sufficiently elevated in the hierarchy of social values and to devise various formulae less rigid than the compelling state interest criterion that essentially necessitate balancing private against governmental concerns with varying degrees of deference to legislative judgment. Tribe, American Constitutional Law § 16-30; see Plyler v. Doe, 457 U.S. 202, 216-26, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). This court has recently applied such an intermediate standard to the right of children to a public education. Horton v. Meskill, 195 Conn. 24, 37, 486 A.2d 1099 (1985); cf. Keogh v. Bridgeport, 187 Conn. 53, 66-67, 444 A.2d 225 (1982); Eielson v. Parker, 179 Conn. 552, 564, 427 A.2d 814 (1980). Such a standard has been applied in considering restrictions on employment eligibility, the availability of subsistence benefits, the retention of a driver’s license, and the opportunity for higher education. Hampton v. Mow Sun Wong, 426 U.S. 88, 102-103, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976); United States Department of Agriculture v. Murry, 413 U.S. 508, 519, 93 S. Ct. 2832, 37 L. Ed. 2d 767 (1973) (Marshall, J., concurring); Vlandis v. Kline, 412 U.S. 441, 459, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973) (White, J., concurring); Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971).

Situations triggering such intermediate review, other than sensitive classifications relating to stereotypes or disadvantaged minorities, have usually involved a significant interference with liberty or the denial of benefits considered to be vital to the individual. Tribe, American Constitutional Law § 16-31. Even if we were to deem such an intermediate standard appropriate in reviewing this claimed infringement on the liberty of a person to live where he chooses while maintaining employment with a municipality, we would also conclude that, at least with respect to policemen such as the plaintiffs, the interests of the municipality in imposing residency as a condition of employment far outweigh the liberty interest asserted. For municipal employees in general, a residence requirement has been found to promote such governmental interests as “ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee performance by greater personal knowledge of the city’s conditions and by a feeling of greater personal stake in the city’s progress; diminution of absenteeism . . . ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees’ salaries.” Ector v. Torrance, supra, 135. Some of these considerations have special significance with respect to policemen as guardians of the public safety. “A policeman’s very presence, whether actually performing a specified duty during assigned hours, or engaged in any other activity during off-duty hours, provides a trained person immediately available for enforcement purposes.” Fraternal Order of Police v. Hunter, supra, 199. “Wherever possible, police officers should be encouraged to live within city limits for it is important that officers have a feeling of commitment to the city, above and beyond the obligation to police it.” The President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report, The Police (1967). “[A] policy of requiring fire department and police force residency would tend to increase the presently low degree of community cooperation uniformly observed by law enforcement officials.” Krzewinski v. Kugler, supra, 499. We conclude that Bridgeport’s determination that persons who wish to serve as its policemen must also reside within its boundaries is a reasonable exercise of its discretion to run its own affairs closely tailored to the governmental concerns advanced and is not overridden by the interest in obtaining or continuing such employment of a person who prefers to live elsewhere. Thus we find that the residency requirement survives scrutiny even if an intermediate standard of review is applied under the circumstances of this case. It follows a fortiori that the requirement in this instance also satisfies the less demanding “rational basis” standard applicable as a minimal requirement for governmental classifications.

IV

Finally, the plaintiffs claim that the city is estopped from now imposing by means of a collective bargaining agreement a residency requirement upon policemen, when for more than forty years it has failed to enforce a similar requirement of a city ordinance applicable to all municipal employees. The stipulation of facts presented to the trial court indicates that each of the plaintiffs was first employed as a policeman while a resident of Bridgeport at some time after the adoption of the municipal employee residency ordinance in 1933. While so employed each of them later established a home outside the city, despite knowledge of the residency ordinance. These individuals were aware that many other policemen, including superior officers, did not reside in Bridgeport. They continued to maintain with the police department Bridgeport addresses and telephone numbers, usually those of relatives through whom they could be contacted. Each also informed some of his superior officers of his out-of-town residence and telephone number. The amount of time spent at his Bridgeport address by each plaintiff varies from several nights per week to virtually none. Some of the plaintiffs vote as residents of Bridgeport in accordance with their addresses as maintained with the police department; some pay taxes to Bridgeport on motor vehicles registered to them at those addresses. The extent to which the plaintiffs have reasonably relied upon the inaction of the city in enforcing the residency ordinance against them and other municipal employees is disputed.

The memorandum of decision does not address the merits of the estoppel claim of the plaintiffs, apparently because the trial court felt the issue had been foreclosed by the arbitration award, in which it found the plaintiffs to have participated voluntarily. Although we have concluded that the plaintiffs had no choice but to recognize the inevitability of arbitration as mandated by § 7-473c, the stipulated facts which are the basis for the estoppel claim do not compel a conclusion that the arbitrators exceeded their powers in accepting the city’s proposal for enforcement of a residency requirement by including it in the collective bargaining agreement. See General Statutes § 52-418. The plaintiffs through their bargaining representative might well have proposed individualized consideration of the varying circumstances of each policeman with respect to the extent of his reliance upon nonenforcement of the residency ordinance and the hardship that compliance would entail. They preferred for all members of the bargaining unit to have the issue of residency hinge upon the outcome of the pending cases concerning the validity of the residency ordinance. The arbitrators acted within their discretion when they selected the city’s proposal for residency as a condition of employment with an allowance of 120 days for compliance. They followed the mandate of § 7-473c requiring acceptance of “the final provision relating to such unresolved issue as contained in the statement of last best offer of one party or the other.”

If the city had never enacted a residency ordinance it would not have been precluded from seeking through the collective bargaining process the inclusion of a residency requirement for policemen as a condition of employment. Any claim of estoppel because of the absence of such a requirement during the prior employment of policemen who resided outside the city would be without merit. No more valid bar to action deemed to be in the best interests of the city is raised by the fact that for forty years an ordinance has remained in existence that the plaintiffs by various subterfuges have evaded, even though superior officers may have been aware of their duplicity.

We have recognized that there are situations in which the doctrine of equitable estoppel may be applicable to municipalities. West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983); Zoning Commission v. Lescynski, 188 Conn. 724, 731, 453 A.2d 1144 (1982); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 354, 365 A.2d 1093 (1976). “The courts have consistently held that the general rule applicable to the invocation of the doctrine of estoppel against municipal corporations should be limited and invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the . . . regulations.” (Emphasis in original.) Dupuis v. Submarine Base Credit Union, Inc., supra, 354. There is nothing in the record to suggest that the enforcement of a residency requirement through a collective bargaining agreement will be any more “oppressive” in Bridgeport, where the existing residency ordinance had become virtually a “dead letter,” than in some other municipality attempting to impose a similar requirement for the first time. A municipality cannot be estopped from changing its existing laws or policies in the light of new developments. There can be no reasonable reliance upon an assumption that the legal status quo will never be altered.

Although we have concluded that the city was not precluded from seeking a residency requirement for policemen through collective bargaining and that the arbitrators did not exceed their powers by choosing that proposal over the one advanced by the plaintiffs’ representative, we do not purport to resolve in this opinion all of the issues which may arise in the implementation of that provision of the collective bargaining agreement. Some courts have found an impairment of the obligation of contract violating the federal constitution in the retroactive application of a residency requirement. Fraternal Order of Police v. Hunter, supra, 191-93; see Lines v. Topeka, supra, 780-81; Cross v. Whedon, 93 Mich. App. 13, 19, 285 N.W.2d 780 (1979). The record before us does not adequately show whether any of the plaintiffs have acquired vested contractual rights that will be affected by application of the residency requirement to them. Nor is it clear that the city will not extend the time for compliance or even grant waivers thereof in individual cases of extreme hardship or where valid claims for breach of contract may result in substantial awards of damages. We shall cross these bridges when we come to them. For now we decide only that the inclusion in the collective bargaining agreement of a residency requirement as a condition for continued employment as a police officer is not precluded by any of the circumstances presented to the trial court in the stipulation of the parties.

There is no error.

In this opinion the other judges concurred.

       It is not clear from the record whether the arbitration award in this case was rendered pursuant to General Statutes § 7-473c, entitled “Mandatory binding arbitration following expiration of collective bargaining agreement or for contract reopener provisions; procedure; apportionment of costs,” or General Statutes § 7-474 (h) through (j), which makes the same binding arbitration procedure available upon request of either party after rejection of the report of the factfinder. The complaints and the memorandum of decision refer only to § 7-473c. The stipulation of facts alludes to § 7-474 (h) as the governing statute, but does not resolve the issue. The arbitration award itself refers only to “7-473 of the General Statutes.” In any event, the provisions of these statutes pertaining to arbitration of disputes between municipalities and their employees appear to be essentially similar, except that under § 7-473c binding arbitration is imposed automatically ninety days after expiration of the current collective bargaining agreement, while under § 7-474 (h) such arbitration becomes mandatory only upon a request of either party after rejection of the report of the factfinder. Although we refer only to § 7-473c in this opinion, our discussion applies with equal force to § 7-474 (h) through (j).

       The brief of the intervening plaintiffs, who are also Bridgeport policemen residing outside the city, claims that “the attempt to obtain a residency clause through binding arbitration appeared to be an attempt to evade” the temporary injunction issued by the Superior Court. Although the defendants were enjoined from enforcing against the plaintiffs the residency requirement of the city ordinance “in any manner,” we do not view the attempt to obtain such a residency provision as part of a collective bargaining agreement, whether by negotiation or by arbitration, as enforcement of the residency ordinance in violation of the injunction.

       Although the trial court upheld the validity of both the residency ordinance applicable to municipal employees generally and the residency requirement contained in the arbitration award affecting only policemen, we limit our consideration of the residency issue solely to the award. It appears that all of the plaintiffs are bound by the collective bargaining agreement to which the award relates. We need not, therefore, consider the validity of the residency requirement contained in the ordinance. Since other municipal employees not affected by the award may have different interests not represented in this litigation, it would be inappropriate in this case to go beyond the narrower issue presented by the residency clause of the award affecting only policemen.

       This conclusion makes it unnecessary to address other grounds for the inapplicability of the estoppel principle which the trial court applied. The complaint in Docket No. 9574 does not purport to attempt to vacate the award pursuant to General Statutes § 52-418, but to enjoin its enforcement on constitutional grounds. The plaintiffs’ complaint on its face cannot be characterized as an attempt to question the validity of a statute under which a benefit has been sought “later in the same proceeding.” See Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Newington v. Mazzoccoli, 133 Conn. 146, 153-54, 48 A.2d 729 (1946). The complaint in Docket No. 9575 was filed long before the arbitration award and challenged the validity of the residency ordinance. “The rule would have no application to an independent proceeding challenging the constitutionality of a zoning regulation or ordinance.” Florentine v. Darien, supra, 428.

       18 S. Proc., Pt. 7, 1975 Sess., pp. 3506-59.

       As noted previously in footnote 4, supra, neither action before us is an attempt to vacate the award of the arbitrators pursuant to § 52-418. The defendants do not contest the propriety of these independent actions, one of which seeks to enjoin enforcement of the residency clause in the award and the other enforcement of the residency ordinance. Obviously, if review of the constitutional issues raised by the residency requirement is permissible in these independent actions, it would make little sense to preclude it in an action to vacate the award pursuant to § 52-418.

       See footnote 3, supra.