author: Peters, C. J.

text:
    Timothy R.E. Keeney, Commissioner of Environmental Protection v. L and S Construction et al.
    (14535)
    Peters, C. J., Callahan, Borden, Katz and Palmer, Js.
    Argued May 4
    decision released June 29, 1993

      Robert V. Cimmino, for the appellants (named defendant et al.).

      Kimberly P. Massicotte, assistant attorney general, with whom were Joseph Rubin, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Robert B. Teitelman, assistant attorney general, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is whether monetary penalties imposed for disposal of solid wastes in violation of the applicable environmental statutes were so excessive as to constitute an abuse of discretion. The plaintiff, Timothy R.E. Keeney, the commissioner of environmental protection (commissioner), filed a multicount complaint charging the defendants L and S Construction, Cathy Morsey, Lee B. Morsey and Steven Hinckley (defendants) with the dumping of demolition debris without a permit, at five different sites in Connecticut, in violation of General Statutes §§ 22a-208a (b) and 22a-430 and with having thereby caused pollution in violation of General Statutes § 22a-14 et seq. The trial court found that the defendants had violated each of the statutes as charged, granted injunctive relief to the commissioner, and ordered the defendants to pay a civil penalty of $1,032,800. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred their appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The trial court’s memorandum of decision establishes the following facts. The defendant L and S Construction is a partnership. The acts of the partnership are attributable to the individual defendants, who are either partners or agents of the partnership.

During 1990 and 1991, without having applied for any state permits, the defendants disposed of massive amounts of construction debris at five different sites in the state. One of these sites was their own property in New Milford, while the others were sites on which they deposited waste materials with the consent of the owners.

At their own property at 322 Kent Road in New Milford, abutting the Housatonic River, the defendants buried several thousand cubic yards of waste material on the site, and accumulated more than 51,000 cubic yards altogether. The waste materials constitute an environmental hazard to the site’s subsurface water and to the contiguous river.

At 44 Black Bridge Road in Newtown, although the defendants received consent to deposit clean fill, they instead deposited 700 cubic yards of construction debris. The solid waste is within fifty to seventy-five feet of a well, and its leachate will pollute the ground and endanger the water supply at the site.

On Saw Mill Road in Torrington, the defendants dumped 1800 cubic yards of construction debris on the property of a subdivision for which they had contracted to construct a road. Because this solid waste is a danger to the water supply and to the environment, the developers removed it from the site at a cost of $78,000.

On Route 55 in Sherman, the defendants dumped 3000 to 4000 cubic yards of construction debris on property for which they had agreed to dig a foundation hole and to build an access road. These solid waste materials constitute a danger to the water supply in the area and to the environment.

On property in or near a wetland in New Preston, with the unwitting consent of the owner, the defendants dumped 2000 cubic yards of construction debris. These solid wastes constitute a danger to the water supply, to the environment in general and to the wetlands.

The trial court concluded that the defendants had violated three different environmental statutes by their disposal of significant amounts of construction debris at each of these five sites without the necessary permits. First, the defendants’ dumping of construction materials contravened the requirements of § 22a-208a regulating the disposal of solid waste. Construction debris falls within the definition of “solid waste.” General Statutes § 22a-207 (3). The disposal of more than ten cubic yards of solid waste constitutes the establishment of a solid waste facility; General Statutes § 22a-207 (4) and (6); for which a license is required by § 22a-208a. Second, the defendants’ unlicensed discharge of leachate contravened § 22a-430, which forbids the discharge of any substance or material into the water of the state without a permit for discharge issued by the commissioner of environmental protection. Third, the presence of these solid waste materials and the accompanying discharge of leachate into the waters of the state constituted unreasonable pollution in violation of the Environmental Protection Act, § 22a-14 et seq.

Having found that the commissioner had proven these three statutory violations, the trial court issued a permanent injunction enjoining the defendants from dumping future deposits of solid waste anywhere within the state without a permit and requiring their compliance with detailed specifications for the removal of the illegal solid waste previously deposited at each of the sites other than Torrington. The court’s order included penalties in the event of noncompliance and indicated that the court would retain supervisory jurisdiction to assure compliance with its mandate.

In addition, pursuant to §§ 22a-208a and 22a-430, the trial court imposed civil penalties of $1,032,800 on the defendants. The court determined that such penalties were appropriate, in accordance with the criteria outlined in Carothers v. Capozziello, 215 Conn. 82, 103-104, 574 A.2d 1268 (1990), and General Statutes § 22a-438, because the statutory violations were severe, serious, knowing and flagrant. The court found that the defendants had profited substantially from their illegal conduct, and that they had failed to substantiate their alleged financial inability to pay a fine.

The defendants’ appeal raises two issues. They maintain that the judgment of the trial court should be set aside because: (1) there was insufficient evidence of their violation of § 22a-16 of the Environmental Protection Act; and (2) the amount of the civil penalties constituted an abuse of discretion. We are unpersuaded.

I

The defendants’ claim of insufficiency of the evidence is a limited one. They do not challenge the trial court’s finding that their unlicensed disposal of construction debris came within, and violated, the permit requirements of §§ 22a-208a and 22a-430. They contend, instead, that the state failed to prove that their activities constituted unreasonable pollution in violation of § 22a-16 of the Environmental Protection Act.

In support of its conclusion that the defendants had violated the Environmental Protection Act, the trial court found that, at each of the five sites at issue in this case, the defendants had deposited construction debris in close proximity to water resources. At each site, the leachate from this construction debris constituted an environmental hazard to a river, to the local water supply or to a wetlands. These findings of fact would be reversible on appeal only if they were clearly erroneous. See Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The defendants do not question the trial court’s findings relating to their improper disposal of the construction debris or to the leachate emanating from such debris. They maintain, however, that the court improperly determined that they had violated § 22a-16 of the Environmental Protection Act because whatever pollution, impairment or destruction of the environment resulted from their activities was not shown to have been unreasonable.

The state’s evidence on the adverse impact of the defendants’ activities on the health and well-being of the community and the environment principally took the form of expert opinions offered by three environmental analysts with the department of environmental protection and a director of health for the town of New Milford. The experts testified that the leachate from the defendants’ construction debris would pollute nearby subsurface or ground water and surface waters and that pollution of such waters would endanger other persons using the groundwaters as a source of drinking water. There was testimony about a risk of fire hazard and rodent harborage associated with the decomposition of construction debris. Finally, there was testimony that the defendants’ disposal activities had impaired the quality of the river adjacent to their own property and had destroyed a portion of the wetlands on the New Preston property.

Although the defendants do not challenge the qualifications of the state’s witnesses to give expert opinions on environmental matters, they nonetheless maintain that the trial court could not have relied on these expert opinions because the experts testified in large part on the basis of hypothetical questions rather than on the basis of their own personal observations. The defendants cite no authority in support of this proposition of law, and our law is to the contrary. The established rule is that, on direct examination, the stated assumptions on which a hypothetical question is based must be the essential facts established by the evidence. See Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666, 136 A.2d 918 (1957); Johnson v. Toscano, 144 Conn. 582, 589-90, 136 A.2d 341 (1957); Graybill v. Plant, 138 Conn. 397, 403, 85 A.2d 238 (1951); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.16.8, pp. 180-81. If the hypothetical question has the proper factual foundation, the expert may give his opinion without having personally verified the accuracy of these assumed facts. See Shelnitz v. Greenberg, 200 Conn. 58, 67, 509 A.2d 1023 (1986); Nash v. Hunt, 166 Conn. 418, 425-26, 352 A.2d 773 (1974); Pischitto v. Waldron, 147 Conn. 171, 176-77, 158 A.2d 168 (1960).

The defendants, therefore, have not shown that the trial court’s finding that they violated § 22a-16 of the Environmental Protection Act was clearly erroneous. The trial court’s injunctive order is, accordingly, affirmed.

II

Although the defendants do not contest the trial court’s finding that they violated §§ 22a-208a and 22a-430, they claim that the trial court abused its discretion in ordering them to pay civil penalties in the amount of $1,032,800 because of these violations. The trial court arrived at the amount of the civil penalties by separately assessing a fine of $200 per day, under each statute, for the violations at each of the five sites at which the defendants had illegally deposited demolition debris.

In making its assessment, the trial court appropriately relied on the guidelines defined in Carothers v. Capozziello, supra, and § 22a-438 (a). For violations of § 22a-208a, the Carothers guidelines require the trial court to exercise its discretion by conducting an inquiry including, but not limited to, the following factors: “(1) the size of the business involved; (2) the effect of the penalty or injunctive relief on its ability to continue operation; (3) the gravity of the violation; (4) the good faith efforts made by the business to comply with applicable statutory requirements; (5) any economic benefit gained by the violations; (6) deterrence of future violations; and (7) the fair and equitable treatment of the regulated community.” Id., 103-104. Similarly, for violations of § 22a-430, the § 22a-438 (a) guidelines direct the court to consider “the nature, circumstances, extent and gravity of the violation, the person or municipality’s prior history of violations, the economic benefit resulting to the person or municipality from the violation, and such other factors deemed appropriate by the court.”

In conformity with these guidelines, the trial court made the following findings. The defendants’ violations were “severe and extremely serious. Not only did the defendants dump toxic demolition debris near water supplies at the various sites but also dumped it next to the Housatonic River in New Milford in huge quantities. The 51,000 cubic yards of waste at that site were buried over a 2 acre area up to 18 feet deep. They totally dumped over the five sites in excess of 58,000 cubic yards of waste. Of further significance is that much of this dumping occurred after the defendants were told by the authorities that they were violating the law.” The defendants made substantial profits as a result of their illegal dumping, not only because they entered into profitable contracts for the illegal disposal of demolition debris but also because they did not incur the costs associated with lawful disposition. They had profited from a contract to transport and dump demolition material from New York at $8 per cubic yard and they had saved the costs of proper disposition in an amount “in excess of $1,000,000.” The court further noted that, in assessing penalties against the defendant, it had considered the effect of the fine on future violations by these defendants.

The court expressly inquired into the defendants’ ability to pay a substantial fine. In part, this inquiry was grounded in the court’s initial findings about the size of the defendants’ business. The court determined that the defendants were actively engaged in the demolition business, having grossed at least $269,000 in the first six months of 1991. They owned the land and the buildings in New Milford, as well as “six large trucks and additional equipment.” The court noted that the defendants had offered no credible evidence about their inability to pay any fine except for the testimony of one of the defendants that the partnership “had contacted a bankruptcy attorney because of its financial problems.”

The defendants challenge the trial court’s findings in several respects. Significantly, they do not contest the considerable number of days that the court found them to have violated the statute at each of the five sites at which they illegally disposed of demolition debris. They maintain, however, that the court improperly: (1) ignored testimony about their financial circumstances; (2) found that 51,000 cubic yards of waste had been deposited at the New Milford site; (3) overlooked their attempts at remediation; (4) calculated the benefits they had received from their statutory violations; and (5) imposed a penalty in addition to ordering them to remove the debris. We are not persuaded.

The defendants presented only one witness to testify about their financial ability to pay a penalty. That witness was the defendant Cathy Morsey, the manager of the defendant partnership. Although she testified on direct examination that the company was under severe financial stress, on cross-examination she acknowledged that she had little or no direct knowledge of the underlying financial data, inasmuch as the figures upon which she relied had come from a bookkeeper who was no longer in the company’s employ. In these circumstances, the court was not required to attribute persuasive weight to her testimony. We agree with the commissioner that, especially after flagrant and knowing statutory violations have been shown, the trial court may place the burden of establishing mitigating financial circumstances on the defendants. See Chesapeake Bay Foundation v. Gwaltney of Smithfield, 791 F.2d 304, 315-16 (4th Cir. 1986); Public Interest Research Group v. Powell Duffryn Terminals, Inc., 720 F. Sup. 1158, 1165-66 (D.N.J. 1989).

The defendants challenge the court’s finding about the extent of their dumping activities at the New Milford site. Specifically, the court found that “51,000 cubic yards of waste at that site were buried over a 2 acre area up to 18 feet deep.” The defendants’ contention that no evidence was adduced to support the finding cannot prevail in light of the testimony of Peter Carpenter, a field inspector of the department of environmental protection engineering enforcement division, solid waste unit. On the basis of test borings performed at the site, Carpenter testified that demolition debris had been buried over a two acre area up to sixteen to eighteen feet deep. With the appropriate conversion into cubic yardage, this evidence substantiates the court’s finding.

The defendants’ contention that the court ignored their attempts to remedy their illegal use of the New Milford site cannot be sustained. Not only did they fail to ask the trial court to articulate what role such attempts might have played in its decision; see Practice Book § 4051; but they overlooked substantial evidence in the record that shows that their activity continued long after the department of environmental protection had notified them of its illegality.

The defendants also argue that the trial court lacked a factual foundation for its findings about the economic benefits that they had received from their illegal disposal activities. We disagree. The defendants have offered no tenable challenge to the trial court’s findings that they dumped nearly 60,000 cubic yards of demolition debris without incurring the costs of licensed disposal. Accepting the expert testimony of Thomas Pregman, the trial court could reasonably have found that the defendants saved more than $1,000,000 by their illegal disposal. The court could equally have inferred that the defendants received an unwarranted profit from a contract in which they were paid for disposing of unwanted waste materials, when that profit would have reflected their failure to assume the costs legally associated with such disposal.

Finally, we reject the defendants’ contention that the court did not have the discretion to impose both a removal order and a civil penalty in the circumstances of this case. The governing statutes do not forbid the trial court to order cumulative remedies. Indeed, as the commissioner points out, a remedy limited to the costs of removal would not achieve the primary purpose of civil penalties, which is deterrence. See, e.g., United States v. T & S Brass and Bronze Works, Inc., 681 F. Sup. 314, 322 (D.S.C. 1988); United States v. Phelps Dodge Industries, Inc., 589 F. Sup. 1340, 1365 (S.D.N.Y. 1984).

The judgment is affirmed.

In this opinion the other justices concurred.

       The commissioner also brought charges against the owners of the properties, the defendants Leonard F. Ballwig, Nevzat Murtishi, Agman Murtishi and Michael Chemiske. These defendants are not parties to this appeal because, at trial, they entered into a stipulated judgment with the commissioner.

       General Statutes § 22a-208a provides in relevant part: “permit for CONSTRUCTION, ALTERATION OR OPERATION OF SOLID WASTE FACILITY ....
      “(b) No solid waste facility shall be built or established and no solid waste facility without a permit to construct shall be altered after July 1, 1971, until the plan, design and method of operation of such facility have been filed with the department and approved by the commissioner by the issuance of a permit to construct, provided, nothing in this chapter or chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. The commissioner shall send a written notification of any application for a permit to construct to the chief elected official of each municipality in which the proposed facility is to be located, within five business days of the date on which any such application is filed.”

       General Statutes § 22a-430, formerly General Statutes § 25-54i, provides in relevant part: “permit for new discharge, regulations. RENEWAL. SPECIAL CATEGORY PERMITS OR APPROVALS. LIMITED DELEGATION. general permits, (a) No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner. Any person who initiated, created or originated a discharge prior to May 1,1967, and any municipality which initiated, created or originated a discharge prior to April 10, 1973, for which a permit has not been issued pursuant to this section, shall submit an application for a permit for such discharge on or before July 1, 1987. Application for a permit shall be on a form prescribed by the commissioner, shall include such information as the commissioner may require and shall be accompanied by a fee of twenty-five per cent more than the amount established in regulations in effect on July 1, 1990. On and after July 1, 1991, such fees shall be as prescribed by regulations adopted by the commissioner in accordance with chapter 54. The commissioner shall not issue or renew a permit unless such issuance or renewal is consistent with the provisions of the federal Clean Water Act (33 USC 1251 et seq.).”

       General Statutes § 22a-15 provides: “declaration of policy. It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.”
      General Statutes § 22a-16 provides: “action for declaratory and equitable relief against unreasonable pollution. The attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford-New Britain, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.”
      General Statutes § 22a-18 provides in relevant part: “powers of court. (a) The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.”

       General Statutes § 22a-207 (3) provides: “ ‘Solid waste’ means unwanted or discarded solid, liquid, semisolid or contained gaseous material, including, but not limited to, demolition debris, material burned or otherwise processed at a resources recovery facility or incinerator, material processed at a recycling facility and sludges or other residue from a water pollution abatement facility, water supply treatment plant or air pollution control facility.”

       General Statutes § 22a-207 (4) provides: “ ‘Solid waste facility’ means any solid waste disposal area, volume reduction plant, transfer station, wood-burning facility or biomedical waste treatment facility.”
      General Statutes § 22a-207 (6) provides: “ ‘Solid waste disposal area’ means any location, including a landfill or other land disposal site, used for the disposal of more than ten cubic yards of solid waste. For purposes of this subdivision, ‘disposal’ means the placement of material at a location with the intent to leave it at such location indefinitely, or to fail to remove material from a location within forty-five days, but does not mean the placement of material required to be recycled under section 22a-241b in a location on the premises of a recycling facility, provided such facility is in compliance with all requirements of state or federal law and any permits required thereunder.”

       The construction debris had been removed from the Torrington site by the time of the trial.

       General Statutes § 22a-438, formerly General Statutes § 25-54q, provides in relevant part: “forfeiture for VIOLATIONS. PENALTIES, (a) Any person who or municipality which violates any provision of this chapter, or section 22a-6 or 22a-7 shall be assessed a civil penalty not to exceed twenty-five thousand dollars, to be fixed by the court, for each offense. Each violation shall be a separate and distinct offense and, in case of a continuing violation, each day’s continuance thereof shall be deemed to be a separate and distinct offense. The attorney general, upon complaint of the commissioner, shall institute a civil action in the superior court for the judicial district of Hartford-New Britain to recover such penalty. In determining the amount of any penalty assessed under this subsection, the court may consider the nature, circumstances, extent and gravity of the violation, the person or municipality’s prior history of violations, the economic benefit resulting to the person or municipality from the violation, and such other factors deemed appropriate by the court. The court shall consider the status of a person or municipality as a persistent violator. The provisions of this section concerning a continuing violation shall not apply to a person or municipality during the time when a hearing on the order pursuant to section 22a-436 or an appeal pursuant to section 22a-437 is pending.”

       The defendants make a subsidiary claim that the trial court mistakenly assumed that the demolition debris was hazardous waste rather than solid waste. Although the record indicates some casual usage of the term “hazardous,” the trial court consistently and correctly made its findings under the proper statutes. The court’s determination that the demolition debris was hazardous to local water supplies and to local wetlands is not a finding that the debris fell within the legal classification of hazardous waste.

       The penalty was assessed, under each statute, in accordance with the trial court’s findings that the defendants’ continuing violations had occurred as follows: New Milford, 649 days; Sherman, 639 days; New Preston, 636 days; Newtown, 606 days; and Torrington, 89 days.

       The defendants claim that the trial court made an improper factual finding because it allegedly adopted the representation of the commissioner, at trial, that “this case involves the largest amount of dumping of hazardous waste in the State’s history.” Nothing in the memorandum of decision substantiates the proposition that the court made such a finding.

       An acre consists of 4840 square yards. Two acres consist of 9680 square yards. At a depth of sixteen feet, or 5.33 yards, the site contained 51,626 cubic yards of debris.

       The trial court’s finding must stand, despite the testimony of the defendant Cathy Morsey. Her testimony on this issue was neither dispositive nor did the court have to find it credible.


source: Caselaw Access Project

author: Palmer, J.

license: Public Domain

text:
    Warren T. Kenny v. Sandra J. Kenny
    (14653)
    Callahan, Borden, Norcott, Katz and Palmer, Js.
    Argued March 24
    decision released July 6, 1993

      James E. Mattern, for the appellant (defendant).

      Raymond L. Baribeault, Jr., with whom was Miriam Gardner-Frum, for the appellee (plaintiff).
   Palmer, J.

The sole issue presented by this appeal is whether the trial court had subject matter jurisdiction to open a marital dissolution judgment for the purpose of allocating military retirement benefits pursuant to the federal Uniformed Services Former Spouses’ Protection Act after the statutory time period allowing the opening of judgments had expired. The trial court dismissed the defendant’s motion to open and modify that portion of the dissolution decree concerning the assignment of property. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We conclude that the trial court properly determined that it lacked subject matter jurisdiction to entertain the defendant’s motion.

The trial court dissolved the parties’ marriage on August 24,1982. The dissolution decree incorporated the agreement of the parties concerning custody, alimony and the division of certain property that is not at issue in this appeal. In September, 1990, more than eight years after the rendition of the dissolution judgment, the defendant, Sandra J. Kenny, moved to open and modify the decree in order to obtain a share of the payments to which the plaintiff, Warren T. Kenny, became eligible upon his retirement from the United States Navy on November 30,1983. The defendant relies upon the Uniformed Services Former Spouses’ Protection Act (act) to support her claim that she is equitably entitled to share in the plaintiff’s retirement benefits.

Congress passed the act in response to the decision of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981), holding that state courts could not consider military retirement pay in assigning marital property pursuant to a dissolution decree. The act authorizes state courts to assign such benefits, retroactive to the date of the McCarty decision, “in accordance with the law of the jurisdiction of such court[s].” 10 U.S.C. § 1408(c)(1) (1988).

On appeal, the defendant concedes that the retirement benefits at issue here constitute property within the meaning of General Statutes § 46b-81 and that property assignments generally are final at the time of the dissolution decree, subject only to a motion to open under General Statutes § 52-212a. The defendant argues, however, that because Congress passed the act to permit state courts to consider military retirement payments in determining the appropriate division of assets between former spouses retroactive to the date of the McCarty decision, the federal statute preempts state restrictions on opening and modifying dissolution judgments subsequent to that date. The plaintiff contends, to the contrary, that, notwithstanding the provisions of the act, the trial court lacked subject matter jurisdiction to open the judgment because General Statutes § 46b-86 (a) deprived the court of continuing jurisdiction with respect to the distribution of property in a dissolution decree and the four month period for opening or setting aside a civil judgment pursuant to § 52-212a had long since passed. We agree with the plaintiff.

The act provides in relevant part that “[s]ubject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a [service] member for pay periods beginning after June 25,1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 U.S.C. § 1408 (c) (1) (1988). The Senate Report on the act stated that “[t]he purpose of this [act] is to place the courts in the same position they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The [act] is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible.” S. Rep. No. 97-330, 97th Cong., 2d Sess. (1982), reprinted in 1982 U.S. Code Congressional and Administrative News 1555, 1611. The Senate Report explains further, however, that “[n]othing in [the act] requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution.” Id.

The parties agree that, although the act removed the federal preemption barrier to the retroactive division of the plaintiff’s military retirement benefits, state law, apart from such preemption, may prohibit the trial court from entertaining the defendant’s motion to open and modify the divorce decree in these circumstances. The trial court could have considered the defendant’s motion, therefore, only if the act preempted those state law provisions that bar the opening and modification of the dissolution judgment.

“ ‘[Sjtate law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. . . . If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law . . . or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.’ ” (Citations omitted.) Times Mirror Co. v. Division of Public Utility Control, 192 Conn. 506, 510-11, 473 A.2d 768 (1984), quoting Silkwood v. Kerr-McGee Corporation, 464 U.S. 238, 248, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984).

We are mindful, however, that “[s]tate law is today preempted only to the extent necessary to protect the achievement of the aims of the federal law. . . . The governing federal principle now is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained. . . . [C]ourts should not readily infer that Congress has deprived states of the power to act on interests deeply rooted in local feeling and responsibility which only peripherally concern an area controlled by non-conflicting federal legislation. ...” (Citations omitted; internal quotation marks omitted.) Times Mirror Co. v. Division of Public Utility Control, supra, 511-12. “State family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.” Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979), quoting United States v. Yazell, 382 U.S. 341, 352, 86 S. Ct. 500, 15 L. Ed. 2d 404 (1966). A federal statute, therefore, will not be deemed to preempt state family law unless “Congress has ‘positively required by direct enactment’ that state law be pre-empted.” Hisquierdo v. Hisquierdo, supra, quoting Wetmore v. Markoe, 196 U.S. 68, 77, 25 S. Ct. 172, 49 L. Ed. 390 (1904).

Applying these principles to the facts of this case, we conclude that the act does not preempt our state law provisions restricting the opening and modifying of judgments. The act itself provides that it is to be applied by state courts ‘in accordance with the law of the jurisdiction of such court[s]”; 10 U.S.C. § 1408 (c) (1) (1988); and nothing in the language of the act or in its legislative history suggests that Congress intended to mandate the opening of dissolution judgments by state courts in jurisdictions that prohibit such reconsideration. Indeed, the purpose of the act is to “remove the federal pre-emption found to exist by the United States Supreme Court [in McCarty]”; S. Rep. No. 97-330, supra; not to preempt state laws in the area of domestic relations, a field long recognized to fall within the primary interest of the states rather than the federal government. See, e.g., Hisquierdo v. Hisquierdo, supra, 581 (“[i]nsofar as marriage is within temporal control, the States lay on the guiding hand”); In re Burrus, 136 U.S. 586, 593-94, 10 S. Ct. 850, 34 L. Ed. 500 (1890) (“[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States”).

The defendant cites no authority in support of her contention that the act preempts state laws restricting or prohibiting the opening and modification of property distributions in dissolution judgments, and we have found none. On the contrary, in those jurisdictions with laws that restrict or prohibit the opening of such decrees, courts have refused to open the judgments notwithstanding the provisions of the act. See Holler v. Holler, 257 Ga. 27, 354 S.E.2d 140 (1987); Curl v. Curl, 115 Idaho 997, 772 P.2d 204 (1989); Bishir v. Bishir, 698 S.W.2d 823 (Ky. 1985); Andresen v. Andresen, 317 Md. 380, 564 A.2d 399 (1989); In re Marriage of Quintard, 691 S.W.2d 950 (Mo. App. 1985), on appeal after remand, 735 S.W.2d 388 (Mo. App. 1987); Allison v. Allison, 690 S.W.2d 340 (Tex. Ct. App. 1985). Moreover, state courts have entertained motions to open dissolution decrees seeking division of military retirement benefits only if state law expressly authorizes consideration of such motions. See, e.g., Edsall v. Superior Court, 143 Ariz. 240, 693 P.2d 895 (1984); Smith v. Smith, 458 A.2d 711 (Del. Fam. Ct. 1983); In re Marriage of Waters, 724 P.2d 726 (Mont. 1986); Castiglioni v. Castiglioni, 192 N.J. Super. 594, 471 A.2d 809 (1984); Koppenhaver v. Koppenhaver, 101 N.M. 105, 678 P.2d 1180 (Ct. App. 1984); In re Marriage of Flannagan, 42 Wash. App. 214, 709 P.2d 1247 (1985), review denied, 105 Wash. 2d 1005 (1986); In re Marriage of Giroux, 41 Wash. App. 315, 704 P.2d 160 (1985); Thorpe v. Thorpe, 123 Wis. 2d 424, 367 N.W.2d 233 (Ct. App. 1985).

There is no basis to conclude that our statutory restrictions concerning the opening of property assignments in dissolution decrees conflict with federal law or that Congress has evidenced an intent to occupy the field with respect to the division of military retirement benefits in such decrees. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 493, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). Because the act does not preempt Connecticut statutory provisions prohibiting the opening of the assignment of property in the parties’ 1982 dissolution decree, the trial court properly dismissed the defendant’s motion to open and modify the judgment.

The judgment is affirmed.

In this opinion the other justices concurred.

       Title 10 of the United States Code, § 1408 (c) (1) (1988) provides in relevant part: “[A] court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." (Emphasis added.)

       The judgment was modified on two occasions in 1984 with respect to custody and child support.

        McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981), was decided on June 26,1981. President Ronald Reagan signed the Uniformed Services Former Spouses’ Protection Act on September 8,1982, and the act took effect on February 1, 1983.

         General Statutes § 46b-81 provides in relevant part: “ASSIGNMENT OF property AND TRANSFER of title, (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. . . .
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The defendant does not claim that the judgment may be opened even after the expiration of the four month period because it was obtained by fraud, duress or mutual mistake; see In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992); see also O’Leary v. Industrial Park Corporation, 211 Conn. 648, 652-53 n.2, 560 A.2d 968 (1989); or that the plaintiff has submitted to the jurisdiction of the court by consent, waiver or otherwise. See O’Leary v. Industrial Park Corporation, supra; see also Bunche v. Bunche, 180 Conn. 285, 287-89, 429 A.2d 874 (1980).
      Although the Uniformed Services Former Spouses’ Protection Act was signed by President Reagan on September 8, 1982, two weeks after the parties’ August 24, 3982 divorce, the act did not take effect until February 1,1983. A motion to open filed within four months of the divorce would have preceded the effective date of the act. The plaintiff concedes, however, that the trial court could have acted on the defendant’s motion at that time. See, e.g., Cameron v. Cameron, 641 S.W.2d 210, 212-13 (Tex. 1982).

       General Statutes § 46b-86 provides in relevant part: “modification of alimony oe support orders and judgments, (a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . . . This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.” See also Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980) (“[b]y its terms, [§ 46b-86 (a)] deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party”).

       General Statutes § 52-212a provides: “civil judgment or decree reopened or set aside within four months only. Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”

       The United States Supreme Court had concluded that “Congress has enacted a military retirement system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management needs of the active military forces.” McCarty v. McCarty, 453 U.S. 216, 232-33, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981). Because the “community property division of retired pay has the potential to frustrate each of these objectives”; id., 233; the court concluded that “the application of community property principles to military retired pay threatens grave harm to ‘clear and substantial’ federal interests”; id., 232; in violation of the supremacy clause of the United States constitution. U.S. Const., art. VI, clause 2. Although McCarty addressed the preemption issue in the context of the laws of California, a community property state, the plaintiff does not argue that the result would have been different under the laws of this state, an equitable distribution jurisdiction.


author: Per Curiam.

text:
    William Strong et al. v. Conservation Commission of the Town of Old Lyme et al.
    (14611)
    Peters, C. J., Callahan, Borden, Katz and Palmer, Js.
    Argued June 1
    decision released July 6, 1993

      James E. Mattern, for the appellant (named defendant).

      John S. Bennet, for the appellees (plaintiffs).

      Richard Blumenthal, attorney general, and Joseph Rubin and David H. Wrinn, assistant attorneys general, filed a brief for the commissioner of environmental protection as amicus curiae.
   Per Curiam.

In this appeal concerning a conservation commission’s denial of an inland wetlands application, we granted a petition for certification to consider whether the Appellate Court had improperly placed on the commission the burden of establishing that no feasible and prudent alternative existed to the plaintiff’s application. We dismiss the appeal on the ground that certification was improvidently granted.

The opinion of the Appellate Court, Strong v. Conservation Commission, 28 Conn. App. 435, 611 A.2d 427 (1992), discloses the relevant history. The plaintiffs, William Strong and Isabel Strong, filed an application with the defendant conservation commission of the town of Old Lyme (defendant) to construct a house and septic system within a regulated inland wetlands area. Id., 436. The defendant denied their application. Id. The plaintiffs appealed to the trial court, which concluded that there was no factual basis for the defendant’s denial and ordered it to grant the application. Id., 436-37. The Appellate Court affirmed the trial court’s substantive ruling, but reversed its mandate and ordered a remand of the case to the defendant for further consideration of the plaintiffs’ application. Id., 442-44.

In the course of its opinion, the Appellate Court held that the administrative record failed to “disclose substantial, reliable evidence to support the [defendant’s] findings and conclusions.” Id., 442. The defendant successfully petitioned this court for certification on the premise that the Appellate Court had improperly imposed upon the defendant the burden of proving compliance with the statutory requirement, contained in General Statutes § 22a-41 (b), that no permit for the conduct of a regulated activity in a wetland should be issued “unless the commissioner finds that a feasible and prudent alternative does not exist.”

Our examination of the record on this appeal, and the briefs and arguments of the parties, persuades us that the defendant’s appeal should be dismissed. At oral argument in this court, the parties agreed that the plaintiffs had the burden of proving compliance with the statutory requirements for a wetlands permit. There was, therefore, no controversy about the question on which certification had been granted. Instead, the disagreement between the parties devolved into their disparate views on the substantive issue of whether the plaintiffs had met their burden of persuasion. The Appellate Court’s comprehensive opinion thoroughly and properly addresses that issue and resolves it against the defendant. It would serve no useful purpose for us to repeat the discussion therein contained. In these circumstances, we conclude that certification was improvidently granted. See State v. Novoa, 224 Conn. 322, 324, 618 A.2d 30 (1992); State v. Milton, 224 Conn. 163, 168, 617 A.2d 460 (1992).

The appeal is dismissed.

         We granted the named defendant permission to appeal the following certified issue: “Under the circumstances of this case, did the Appellate Court improperly place the burden on the conservation commission to establish that no feasible and prudent alternative existed to the plaintiffs’ application?” Strong v. Conservation Commission, 224 Conn. 902, 615 A.2d 1046 (1992).

       General Statutes § 22a-41 provides: “FACTORS FOR consideration OF COMMISSIONER. FINDING OF NO FEASIBLE OR PRUDENT ALTERNATIVE, (a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability or unsuitability of such activity to the area for which it is proposed.
      “(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”


author: Peters, C. J. Berdon, J.,

text:
    Thomas Grieco et al. v. Zoning Commission of the Town of Redding et al.
    (CV 91-306827)
    Peters, C. J., Callahan, Borden, Berdon, Norcott, Katz and Palmer, Js.
    Decision released July 6, 1993

      Nancy Burton, for the named plaintiff, in support of the motion.

      Ronald E. Kowalski II, for the defendant Perkin-Elmer Corporation, in opposition to the motion.

      Charles K. Campbell, Jr., and Andrew B. Nevas, for the defendant R. K. Health Services, Inc., et al., in opposition to the motion.
   Peters, C. J.

The motion of the plaintiff Thomas Grieco for permission to file a petition for certification to review the Appellate Court’s denial of a petition for certification is denied pursuant to Ingersoll v. Planning & Zoning Commission, 194 Conn. 277, 479 A.2d 1207 (1984).

The jurisdiction of the Supreme Court is defined by statute. See State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983), and the cases cited therein. The applicable statute, General Statutes § 51-197f, limits our review of decisions of the Appellate Court to those that constitute a “final determination of any appeal.” State v. Ayala, 222 Conn. 331, 338-41, 610 A.2d 1162 (1992). In Ingersoll v. Planning & Zoning Commission, supra, 279, we held that a decision by the Appellate Court denying a petition for certification is not a “final determination of any appeal.” We declined to reconsider that decision in Udolf v. Plan & Zoning Commission, 206 Conn. 803, 535 A.2d 1316 (1987).

Our decisions in Ingersoll v. Planning & Zoning Commission, supra, and Udolf v. Plan & Zoning Commission, supra, that a denial of certification is not a “final determination of any appeal” were based upon the language that is currently found in General Statutes §§ 8-8 (o) and 8-9. Section 8-9 provides that “[a]ppeals from zoning commissions and planning and zoning commissions may be taken . . . upon certification for review, to the appellate court in the manner provided in section 8-8.” (Emphasis added.) Section 8-8 (o) provides that “[tjhere shall be no right to further review [of a decision by the Superior Court in a zoning appeal] except to the appellate court by certification for review,” and that “[t]he procedure on appeal to the appellate court shall ... be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court . . . .” (Emphasis added.) Taken together, these statutes manifest the legislature’s intent that, until the Appellate Court certifies a case for appeal, there is no appeal to that court. The statutes expressly differentiate between a right to “review” and a right to an “appeal.” This statutory distinction is reflected also in our rules of practice, which specify that, until the Appellate Court has granted a petition for certification to appeal, the petitioner may not file an appeal, is not required to pay the appellate filing fee and cannot take other steps to initiate the appellate process. See generally Practice Book §§ 4142 through 4142.4.

As we held in Ingersoll v. Planning & Zoning Commission, supra, our authority to grant petitions for certification does not, in light of these statutory and Practice Book provisions, encompass the authority to review the Appellate Court’s denial of a petition for certification. The Appellate Court’s denial of a petition for certification means that a predicate for an appeal to the Appellate Court has not been met. A fortiori, such a denial prevents the Appellate Court from reaching a “final determination of any appeal” within the meaning of General Statutes § 51-197f.

In other instances involving zoning appeals, if our construction of a jurisdictional statute was mistaken, the legislature has readily responded by amending the statute. The text of § 51-197f has, however, remained unchanged since Ingersoll v. Planning & Zoning Commission, supra, was decided in 1984. We may, therefore, “presume legislative acquiescence in our interpretation of the . . . statute.” Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 817, 595 A.2d 341 (1991); see Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987). It is reasonable to assume that the legislature decided to continue the policy, originally enacted before the establishment of the Appellate Court, that one opportunity for discretionary appellate review of a zoning decision, after a full hearing in the Superior Court, strikes the proper balance between protecting property rights and assuring the finality of zoning decisions.

Because a petition for certification to review the Appellate Court’s denial of a petition for certification must be dismissed, the plaintiff Thomas Grieco’s motion is denied.

In this opinion Callahan, Borden, Norcott, Katz and Palmer, Js., concurred.

Berdon, J.,

dissenting. The plaintiff Thomas Grieco’s motion for permission to file a petition for certification raises an important issue—whether this court has jurisdiction to certify an appeal from the Appellate Court in a zoning matter when the Appellate Court fails to certify the appeal from the trial court as provided in General Statutes § 8-8 (o). The majority relies on the per curiam decision in Ingersoll v. Planning & Zoning Commission, 194 Conn. 277, 479 A.2d 1207 (1984), to support its denial of the motion. Because I believe Ingersoll was wrongly decided and that we have jurisdiction, I dissent.

First, it is helpful to examine the issue within the context of the plaintiffs claim. The plaintiff owns real property on the northerly side of Blueberry Hill Road in Redding. The defendants R.K. Health Services, Inc., and Gilbert Hill Corporation filed a site plan application to develop land, partly owned by the defendant Perkin-Elmer Corporation (Perkin-Elmer), located on the southerly side of Blueberry Hill Road. Appurtenant to Perkin-Elmer’s land is an easement providing a right-of-way over its adjoining residential land. The defendant zoning commission of the town of Redding approved the site plan application, permitting the development of a 299 unit health care facility, on the condition that Perkin-Elmer abandon the easement. The plaintiffs property and the easement are separated by Blueberry Hill Road, which is fifty feet in width. The plaintiff appealed the commission’s decision, claiming that he was statutorily aggrieved because he owned land “within a radius of one hundred feet of any portion of the land involved in the decision of the board.” General Statutes § 8-8 (a) (1). The defendants subsequently filed a motion to dismiss on the ground that the plaintiff lacked standing. While the motion to dismiss was still pending, Perkin-Elmer conveyed the easement to others. The effect of the conveyance was to place the plaintiff’s land a distance of more than 100 feet from the property that was the subject of the site plan approval. The trial court dismissed the appeal because the plaintiff did not own land within a radius of 100 feet of land involved in the commission’s decision, and, therefore, was not statutorily aggrieved. The plaintiff seeks, among other things, review of this decision.

Our jurisdiction to review decisions of the Appellate Court is limited by General Statutes § 51-197f, which provides in part: “Upon final determination of any appeal by the appellate court, there shall be no right to further review except the supreme court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter and upon the vote of two justices of the supreme court so to certify and under such other rules as the justices of the supreme court shall establish.” The Appellate Court’s refusal to grant certification in this case could not be more final. A reasonable interpretation of the term “appeal” must include petitions for certification to appeal. Not only must we interpret our statutes with common sense; Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 276, 545 A.2d 530 (1988); but “[e]very presumption which favors the jurisdiction of the court should be indulged.” Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973). By refusing to grant the plaintiff’s petition for certification, the Appellate Court has effectively extinguished the plaintiff’s claim. For practical purposes, the trial court’s decision has become a “final judgment” because the Appellate Court has allowed it to stand.

We have never held that the right of appeal is strictly grounded upon statutory authority. Indeed, we have recognized exceptions to the “final judgment” rule. In State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), we held that an “otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Certainly, the Appellate Court’s refusal to grant certification, which in effect allows the judgment of the trial court to stand, invokes this court’s right to grant the plaintiff’s petition for certification.

Accordingly, I believe that we should grant the motion for permission to file a petition for certification to appeal, vote affirmatively on the merits of the petition and decide the substantive issue raised by the plaintiff. I respectfully dissent.

       The two-part Curcio test upon which the dissent relies for the contrary-assertion is not a source of independent judicial authority to determine when appeals may be taken to this court. As the opinion makes clear, the test is a judicial gloss on whether certain trial court rulings are final judgments “within the meaning of [General Statutes] §§ 52-263 and 51-197a.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

       General Statutes § 8-8 provides in relevant part: “appeal from board TO COURT. REVIEW BY APPELLATE COURT. . . .
      “(o) There shall be no right to further review except to the appellate court by certification for review, on the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court.”
      General Statutes § 8-9 provides: “appeals from zoning commissions AND PLANNING AND ZONING COMMISSIONS. REVIEW BY APPELLATE COURT. Appeals from zoning commissions and planning and zoning commissions may be taken to the superior court and, upon certification for review, to the appellate court in the manner provided in section 8-8.”

       General Statutes § 8-10 provides in relevant part: “appeals procedure to apply TO all municipalities. The provisions of sections 8-8 and 8-9 shall apply to appeals from zoning boards of appeals, zoning commissions or other final zoning authority of any municipality . . . .”

       Practice Book § 4142.3, adopted by the judges of the Appellate Court pursuant to the authority of General Statutes § 8-8 (o), specifically provides that “[wjithin twenty days from the issuance of notice of certification, the petitioner shall file the appeal” and thereafter take all further steps necessary to perfect the appeal.

       We reject the dissent’s assertion that a denial of a petition for certification is the functional equivalent of an affirmance of the underlying judgment. The exercise of discretionary jurisdiction, by way of certification, is premised on the understanding that a denial of discretionary review leaves the underlying judgment in place without an endorsement of its merits. “ ‘[A] denial of certification does not necessarily indicate our approval either of the result reached by the Appellate Division or of the opinion rendered by it. [State v. Chisholm, 155 Conn. 706, 707, 236 A.2d 465 (1967)].” State v. Doscher, 172 Conn. 592, 376 A.2d 359 (1977).

       General Statutes § 8-8 (o) provides: “There shall be no right to further review except to the appellate court by certification for review, on the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court.”