author: Santaniello, J.

text:
    Board of Education of the Town of Ridgefield v. Freedom of Information Commission et al.
    (13966)
    Peters, C. J., Shea, Callahan, Glass and Santaniello, Js.

      Argued October 30, 1990
    decision released January 22, 1991

      Susan P. Liemer, commission counsel, for the appellant (named defendant).

      Robert B. Mitchell, with whom was Steven J. Sibner, for the appellee (plaintiff).
   Santaniello, J.

This is an appeal by the defendant freedom of information commission (defendant) from a judgment of the trial court sustaining an appeal by the plaintiff, the Ridgefield board of education (board), from a decision of the defendant. We affirm the trial court’s judgment.

The pertinent facts are essentially undisputed. At all times relevant to this matter, the board sponsored a high school literary magazine entitled Lodestar. The magazine published submissions from students, faculty and alumni. The June, 1987 edition of Lodestar contained a controversial alumni contribution. In reaction to the ensuing controversy, the superintendent of schools for the town of Ridgefield, Dr. David Larson, decided to exclude alumni submissions from future editions of Lodestar. Robert Cox, a faculty advisor to Lodestar, and members of the magazine’s editorial board opposed the decision and retained legal counsel, Attorney William Laviano. After two discussions with Larson and a third discussion with the board’s counsel, John Sabanosh, Laviano submitted a letter to Larson dated April 13, 1988, analyzing the existing confrontation and its legal implications, and demanding that the board rescind its decision by April 26,1988, in order to avoid legal action.

On April 25, 1988, the board held a regular public meeting during which it convened in a closed door, executive session together with Sabanosh and Larson. The publicly stated purpose for the executive session was, among others, to receive advice from counsel on the Lodestar matter. During the course of the executive session, the April 13 letter from Laviano was discussed and a proposed resolution was finalized for presentation and action in regular session. Upon reconvening the regular session, the board adopted a resolution ratifying the superintendent’s decision to restrict materials appearing in Lodestar to items submitted by members of the students and faculty of Ridgefield High School.

On April 28, 1988, Laviano, on behalf of Cox, submitted a letter of complaint to the defendant alleging that the board had met in executive session for an impermissible purpose. After a full hearing, Commissioner Joan M. Fitch found “that the respondent [board] did not meet in executive session for a purpose permitted by either §§ l-18a (e) (2) or l-18a (e) (5), G.S.,” and concluded, therefore, that, “the respondent violated §§ l-18a (e), 1-21 (a) [sic] and l-21g (h) [sic], G.S., by convening in executive session for an impermissible purpose.”

On January 25,1989, the defendant adopted the findings of Commissioner Fitch and made certain specific findings. Subsequent thereto, on March 17,1989, the board appealed the defendant’s decision to the Superior Court. The trial court sustained the appeal of the board, finding that the defendant’s decision was in “derogation of the law, an abuse of discretion, [and] not based on [the] facts . . . .”

From that decision, the defendant appealed to the Appellate Court on March 14, 1990, and the case was subsequently transferred to this court pursuant to Practice Book § 4023.

The defendant claims that the trial court: (1) exceeded its authority by substituting its judgment for that of the defendant; (2) incorrectly ruled that the demand of the student editors and Cox, as set out in Laviano’s letter, constituted a pending claim that the board could discuss in executive session; and (3) incorrectly interpreted General Statutes § l-18a (e) (5) in finding that the discussion of a draft resolution was protected from public disclosure.

I

The defendant first claims that the trial court exceeded the permissible scope of its review in determining that Laviano’s letter constituted a pending claim. The defendant argues that the trial court should be reversed for failing to defer to the defendant’s determination of this issue. A brief overview of the statutory background of this claim is necessary.

General Statutes § 1-21 (a)* ** provides that public agencies may adjourn from a public hearing into executive session in only a few narrowly defined circumstances, one of which is to discuss “strategy and negotiations with respect to pending claims and litigation to which the public agency ... is a party . . . .” General Statutes § l-18a (e) (2). The defendant therefore had to determine whether Laviano’s letter constituted a “pending claim” and whether the board’s discussion in executive session was properly devoted to “strategy and negotiations” concerning that claim.

The interpretation of statutes presents a question of law. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 139-40, 509 A.2d 1050 (1986). The disposition of the present case hinges on whether Laviano’s letter constituted a “pending claim” within the meaning of the statute. This issue in turn is dependent on the interpretation of the statutory term “pending claim.” The defendant’s finding that the letter did not constitute a pending claim was therefore a determination of law.

General Statutes § l-21i (d) provides that appeals from the defendant are taken pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4-166 through 4-189. Under the UAPA, a trial court may reverse the decision of an administrative agency if that decision evinces an “error of law.” General Statutes § 4-183 (j) (4). The trial court need not defer to an incorrect decision of law by the agency. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, supra, 140. “ 'Although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts ... it is for the courts, and not for administrative agencies, to expound and apply governing principles of law.’ ” Id. The defendant’s claim to the contrary is without merit.

II

We next turn to the merits of the defendant’s claim that Laviano’s letter did not constitute a “pending claim” within the meaning of General Statutes § l-18a (e) (2). The defendant argues that although the letter threatened legal action, it cannot be considered a pending claim because it was not a claim formally submitted to an adjudicatory body and was therefore not “pending.”

The defendant contends that the phrase “pending claims and litigation” must be construed narrowly because, as used in § l-18a (e) (2), it establishes an exception to the basic openness requirement of the Freedom of Information Act (FOIA). This basic proposition, that exceptions to the FOIA’s open hearings requirement are to be construed narrowly, is firmly established in our law. See New Haven v. Freedom of Information Commission, 205 Conn. 767, 775, 535 A.2d 1297 (1988). Even when construing statutory language narrowly, however, we cannot ignore the plain meaning of the words of the statute. Lamb v. Burns, 202 Conn. 158, 168, 520 A.2d 190 (1987). The defendant’s reading of the statute loses sight of this principle.

We note at the outset that “pending claims and litigation” must refer to a wider class of claims than those already filed in court. To hold otherwise would render the term “pending claims” superfluous. See, e.g., DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985) (no part of legislative enactment is to be treated as insignificant or unnecessary). We decline the defendant’s invitation to construe “pending claims and litigation” to encompass only those claims presently in litigation or pending before some other adjudicatory body.

In an earlier case we wrote that the term “ ‘[c]laim’ in its primary meaning is used to indicate the assertion of an existing right.” Beach’s Appeal, 76 Conn. 118, 125, 55 A. 596 (1903). Today, “claim” is commonly defined as “[a] demand for something as one’s rightful due ... [a] basis for demanding something; title or right”; American Heritage Dictionary (2d College Ed. 1985); and “[djemand for money or property.” Black’s Law Dictionary (5th Ed. 1979). These definitions, read in the context of § l-18a (e) (2), suggest that “claim,” as used in the statute, should be understood to mean the assertion of a positive legal right, which a court, administrative agency or other public agency could implement. “Pending” has been defined as “[b]egun, but not yet completed; before the conclusion of”; Black’s Law Dictionary (5th Ed. 1979); and “[not] yet decided or settled; awaiting conclusion or confirmation.” American Heritage Dictionary (2d College Ed. 1985). From these definitions it may reasonably be inferred that a pending claim is one already in existence and in progress. The defendant further contends, however, that only claims formally submitted to some adjudicatory forum may be deemed to be in progress. We do not discern in the applicable definitions a requirement that a claim, to be “pending,” must be formally under adjudication. Such a requirement, moreover, has no basis in reality, for it would deprive public agencies of the ability to formulate in private a response to the threat of imminent legal action until that action has commenced in court, thereby placing public agencies at a serious disadvantage. Such a rule would make it extremely difficult, for instance, for a public agency ever to settle a legal demand against it prior to the institution of suit. The defendant’s interpretation of “pending” thus renders litigation a tool of first, rather than last, resort for public agencies and those seeking to deal with them, a result wasteful of scarce governmental resources and thus contrary to public policy. We, therefore, reject it.

It is neither necessary nor desirable, however, for this court to define further the parameters of the term “pending.” That task is properly left with the administrative agency, on a case-by-case basis. Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 105-106, 561 A.2d 429 (1989). The next question we face is whether the trial court correctly determined that Laviano’s letter constituted a “pending claim.”

Upon reviewing the evidence in the administrative record, we agree with the trial court that Laviano’s letter constituted a claim within the proper meaning of the statute. In that letter, the board had before it a carefully articulated demand for certain legal relief, a demand asserted to vindicate an alleged legal right personal to Laviano’s clients. Beach’s Appeal, supra, 125. The letter requested that by April 26,1988, the board rescind Larson’s order prohibiting the magazine from publishing alumni submissions, and stated that Cox and the students would file suit if this was not done. Laviano’s letter purported to address the legal merits of the students’ claim. Although he stated at several points in the letter that Cox and the students wished to avoid litigation, the only way to avert that outcome, under the terms of the letter, was for the board essentially to capitulate.

The facts of this case lead inescapably to the conclusion that the claim was “pending” within the meaning of the statute. It defies common sense to assert that the claim of Laviano’s clients had not yet “begun” by the time of the challenged executive session, when, in fact, that claim, reduced to writing, was in the board’s hands and awaiting its decision. The claim was both in existence and in progress. The trial court, therefore, correctly determined that Laviano’s letter constituted a “pending claim.”

Finally, we consider whether the board’s discussion concerned “strategy and negotiations with respect to pending claims and litigation . . . .” (Emphasis added.) General Statutes § l-18a (e) (2). At oral argument the defendant questioned whether the topic of the board’s discussion in executive session was a permissible one under § l-18a (e) (2). The defendant argued that the board’s discussion of the draft proposal affirming Larson’s order concerned a matter of school board policy, and as such should have been held publicly. General Statutes § l-18a (e) (2). We disagree.

It is permissible for public agencies to adjourn into executive session to discuss “strategy and negotiations with respect to pending claims and litigation to which the public agency ... is a party . . . .” General Statutes § l-18a (e) (2). The “pending claim” concerning the board was the demand that Larson’s order be rescinded. The discussion in executive session concerned whether to do so, and if not, the manner in which to affirm his order. The board could reasonably have believed that the threat of litigation contained in Laviano’s letter was real, and that its decision on this matter would determine whether litigation would be avoided or would go forward. The board’s discussion in executive session thus came well within any reasonable interpretation of the term “strategy and negotiations.”

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       Although Larson decided in the summer of 1987 to exclude alumni submissions to Lodestar, he did not reduce that decision to writing until April 8, 1988, in a letter to Robert Cox, a faculty advisor for Lodestar.

       Pertinent portions of Laviano’s letter follow:
      “In an attempt to avoid litigation, which is a very real possibility in this case, I have requested that you withdraw your order of April 8,1988 with regard to this year’s Lodestar .... I told John Sabanosh that I had about two weeks for this decision to be made before papers need be filed in U.S. District Court asking for an injunction.
      “In examining the realistic publication deadlines, the time necessary for the preparation of legal papers and for the court to schedule a full evidentiary hearing, it appears that we must receive your decision before April 26,1988.1 am sorry but those are the practicalities of the timing situation.
      “Thus I request that you schedule a meeting with my clients on April 24th or 25th to see if a compromise is possible. We also could appear before the Board on April 25, 1988 in public session.
      “The second purpose of this letter is to set forth in a structured fashion, certain legal claims & facts which represent considerations of the merits of my clients’ complaint.
      “It is hoped that this letter will be considered by you, the Board and John in evaluating the equities as well as the legalities involved.
      “The potential case of Lodestar and Cox v. Ridgefield offers many distinctions from the set of facts in Hazelwood."

       The defendant concluded that the board had convened in executive session for a purpose not permitted by the Freedom of Information Act, stating specifically:
      “15. It is found that the written policy statement presented by the respondent’s attorneys contains no information that constitutes a communication privileged by the attorney-client relationship.
      “16. Indeed, it is found that immediately after the executive session adjourned, the respondent reconvened in public session, had the revised statement read aloud, and without discussion unanimously votéd to adopt it.
      “17. It is also found that the complainant’s attorney’s letter, explained in the executive session, contains no information privileged by the respondent’s attorney-client relationship.
      “18. Thus it is concluded that no record as defined in § 1-19 (b) (10), G.S., was discussed in the executive session.
      “19. It is found that legal advice about a threatening letter does not constitute ‘strategy and negotiations with respect to pending claims and litigation’ within the meaning of § l-18a (e) (2), G.S.
      “20. It is also found that a presentation and revision of a policy statement on magazine submissions does not constitute ‘strategy and negotiations with respect to pending claims and litigation’ within the meaning of § l-18a (e) (2), G.S.
      “21. Thus it is concluded that the respondent did not meet in executive session for a purpose permitted by either §§ l-18a (e) (2) or l-18a (e) (5), G.S.
      “22. It is concluded, therefore, that the respondent violated §§ l-18a (e) 1-21 (a), [sic] and l-21g (h) [sic], G.S., by convening in executive session for an impermissible purpose.”

       General Statutes § 1-21 (a) reads in pertinent part: “The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public.”

       The relevant portions of General Statutes § l-18a (e) read as follows: “ ‘Executive sessions’ means a meeting of a public agency at which the public is excluded for one or more of the following purposes ... (2) strategy and negotiations with respect to pending claims and litigation to which the public agency or a member thereof, because of his conduct as a member of such agency is a party until such litigation or claim has been finally adjudicated or otherwise settled . . . and (5) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.”

       The defendant claims that this issue involved a question of fact, in that Laviano’s letter could not be read in a vacuum, divorced from its surrounding factual background. This factual background, as well as Laviano’s letter, was the subject of testimony before the defendant. Robert Cox testified that, prior to the board’s receipt of Laviano’s letter, numerous conversations regarding this controversy had transpired between Larson, Cox, Laviano, Sabanosh and the student editors of the magazine. The defendant argues that, because these conversations may have colored the board’s perception of the threat of litigation underlying Laviano’s letter, it was for the defendant, as trier of fact, to determine whether these conversations had such an effect, and that this determination transformed the question of the letter’s meaning into one of fact.
      There is nothing in the record to indicate that the letter could not reasonably have been viewed by the board as a “pending” claim. First, the defendant’s final decision does not suggest that the board members, as a result of prior conversations with Cox, Laviano, or anyone else, failed to view the letter as a demand for legal relief. Second, in reviewing the administrative record we find no testimony regarding those conversations that could have led the defendant reasonably to believe that the board gave the letter anything other than a literal reading. Indeed, the testimony before the defendant reveals that Laviano’s letter was merely a written memorialization of the position of Cox and the students as expressed in prior conversations with Larson.

       We further note that during the legislative deliberations prior to the enactment of Public Acts 1977, No. 77-609 (now codified at General Statutes § l-18a [e] [2]), an amendment was offered that would have restricted the meaning of pending claims to include only pending “claims” for which “legal notice has been filed.” Conn. Joint Standing Committee Hearings, Government Administration & Policy, Pt. 2,1977 Sess., p. 423. The amendment would have narrowed the scope of “pending claims” in a manner similar to that proposed by the defendant in the present case. The amendment, however, was defeated.

       The defendant further claimed that, because no claim was “pending,” there was nothing to which the board could be a party. General Statutes § l-18a (e) (2). This claim is disposed of by our determination that there was a pending claim, directed at the board. The board, therefore, was a party to the claim.

       The defendant’s last claim is that the trial court incorrectly ruled that the board could avail itself of General Statutes § l-18a (e) (5), which permits the discussion, in executive session, of “any matter which would result in the disclosure of public records or the information contained therein” including “communications privileged by the attorney-client relationship.” General Statutes § 1-19 (b) (10).
      Having already determined that there was an adequate legal basis for the executive session, namely, the discussion of strategy or negotiation with respect to a pending claim to which the board was a party, we need not consider the merits of this alternative legal basis for the executive session.


source: Caselaw Access Project

author:
Glass, J.
      Covello, J., with whom Callahan, J.,

license: Public Domain

text:
    Ellen P. Mario et al. v. Town of Fairfield et al.
    (13906)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued November 7, 1990
    decision released January 22, 1991

      Louis B. Blumenfeld, with whom were Jeffrey C. Pingpank and, on the brief, Jeffrey Lang, for the appellants (plaintiffs).

      Donal C. Collimore, assistant town attorney, for the appellees (defendants).
   Glass, J.

This appeal concerns the validity of a regulation adopted by the defendant conservation commission of the town of Fairfield (commission), the town’s inland wetlands agency, that requires an owner of a parcel of land partially within a designated wetlands area to apply to the commission before erecting any structure on the nonwetlands portion of the parcel. The trial court determined that the regulation was not promulgated in excess of the commission’s statutory authority and did not violate the plaintiffs’ equal protection rights. We affirm the judgment of the trial court.

The plaintiffs jointly own a twenty-two acre parcel of land located within the town of Fairfield. Approximately eleven acres of the parcel are designated as wetlands. On June 2,1987, the commission adopted inland wetlands and watercourses regulation § 3.3 (xi), applicable to construction activity on parcels of land, like the plaintiffs’, that are partially contained within designated wetlands areas. The disputed aspect of the regulation is its requirement that before the owner of such a parcel may erect a structure on the nonwetland portion of the parcel, a “certificate of wetlands conformance” must be obtained from the commission. The commission will issue a certificate of conformance only if it determines that the proposed activity is not “reasonably likely to significantly disturb the natural and indigenous character of the land.”* ***

The plaintiffs challenged the regulation in the Superior Court pursuant to General Statutes § 22a-43. In their complaint, the plaintiffs alleged that the commission exceeded its statutory authority in adopting the regulation because the regulation brought within the jurisdiction of the commission activity that would neither occur in, nor impact upon, wetlands. The plaintiffs also claimed that the regulation denied them the equal protection of the laws since it required them to obtain the approval of the commission for activity upon their nonwetland property, but imposed no such requirement upon allegedly similarly situated owners of strictly nonwetland property.

After finding the issues in favor of the commission, the trial court dismissed the plaintiffs’ appeal. The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. On appeal, the plaintiffs argue that the trial court improperly determined that: (1) the commission did not exceed its statutory authority in adopting the amended regulation; and (2) the regulation did not deny them the equal protection of the laws as guaranteed by the federal and state constitutions.* *****

I

The plaintiffs first claim that the regulation is invalid because it exceeds the scope of the Inland Wetlands and Watercourses Act (IWWA) and the regulations adopted by the commissioner of the department of environmental protection (DEP). According to the plaintiffs, the regulatory authority of the commission extends only to statutorily defined “regulated activity” and activity that affects wetlands. They argue that the regulation applies to activity that occurs outside of wetlands and has no impact upon wetlands, and therefore conclude that the regulation impermissibly expands the jurisdiction of the commission. We disagree.

In evaluating the plaintiffs’ claims, we are mindful that the IWWA rests upon a specific legislative finding that “[t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed,” and that “[t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.” General Statutes § 22a-36. Accordingly, the broad legislative objectives underlying the IWWA are in part “to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution . . . [and by] protecting the state’s potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment of generations yet unborn.” General Statutes § 22a-36.

In order to accomplish these objectives, it is the public policy of the state “to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.” General Statutes § 22a-42 (a). The designated wetlands agency of each municipality is expressly authorized to promulgate regulations that “are necessary to protect the wetlands and watercourses within its territorial limits.” General Statutes § 22a-42 (c). A regulation deemed “necessary” by a wetlands agency is not inconsistent with the IWWA so long as it is “reasonably designed to effectuate the stated purposes of the wetlands statutes.” Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 561, 552 A.2d 796 (1989). The IWWA “envisages its adaptation to infinitely variable conditions for the effectuation of the purposes of these statutes.” Aaron v. Conservation Commission, 183 Conn. 532, 541, 441 A.2d 30 (1981).

While the necessity for protecting wetlands “must be balanced against the productive use of privately owned land; Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 719, 563 A.2d 1339 (1989); we have also indicated that this balancing process is more appropriately conducted in a legislative rather than a judicial setting.” Lizotte v. Conservation Commission, 216 Conn. 320, 336, 579 A.2d 1044 (1990). As a consequence, the commission “ ‘is vested "with a large measure of discretion, and the burden of showing that the agency has acted improperly rests upon the one who asserts it.’ ” Id., 336-37, quoting Aaron v. Conservation Commission, supra, 537. “Every intendment is to be made in favor of the validity of the ordinance, and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.” Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960); see Lizotte v. Conservation Commission, supra, 337; Aaron v. Conservation Commission, supra.

In attempting to establish the invalidity of the regulation, the plaintiffs point to General Statutes § 22a-42a (c), which provides in relevant part that “no regulated activity shall be conducted upon any inland wetland and watercourse without a permit.” The term “regulated activity” is defined in General Statutes § 22a-38 (13) as “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . . .” The plaintiffs also acknowledge our interpretation of the term “regulated activity” in § 22a-42a (c) as encompassing not only activity that occurs within wetlands, but also in some instances, activity that occurs in nonwetlands areas, yet affects wetlands. See, e.g, Cioffoletti v. Planning & Zoning Commission> supra, 558; Aaron v. Conservation Commission, supra, 542. In order to demonstrate that the regulation governs activity that does not fall within the meaning of the term “regulated activity,” the plaintiffs simply assert that the erection of a structure on the nonwetland portion of a parcel of land containing wetlands will not impact upon the wetlands. We find this assertion insufficient to overcome the presumed validity of the regulation.

Despite the lack of a specific finding that the erection of a structure on a parcel of land containing wetlands might adversely affect the wetlands, we must assume, in the absence of any evidence to the contrary, that the commission considered the potential environmental impact of such an activity, as well as the other factors set forth in General Statutes § 22a-41, before it promulgated the regulation. See General Statutes § 22a-42e; Lizotte v. Conservation Commission, supra, 334-35; Carothers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268 (1990). Indeed, the legislature has explicitly recognized that the “deposition, filling or removal of material, the diversion or obstruction of water flow, the erection of structures and other uses . . . have despoiled, polluted and eliminated wetlands and watercourses.” (Emphasis added.) General Statutes § 22a-36. The commission, like the legislature, has expressed particular concern that the unregulated erection of structures “has had, and will continue to have, a significant, adverse impact on the environment and ecology of the Town of Fairfield . . . .” Fairfield Inland Wetlands & Water Courses Regulations § 1.1. The commission could reasonábly have determined that the construction activity inevitably accompanying the erection of a structure, albeit on the nonwetland portion of a parcel of land containing wetlands, could pose a significant threat to the environmental stability of the nearby wetlands. The plaintiffs have presented no evidence to the contrary.

In view of the potential hazards associated with the erection of a structure in proximity to wetlands, the commission could reasonably have concluded that regardless of whether such activity may or may not adversely affect wetlands in a particular instance, it was administratively necessary for its approval to be required before any such activity could go forward. Accord Lizotte v. Conservation Commission, supra, 337; Aaron v. Conservation Commission, supra, 547; cf. Cannata v. Department of Environmental Protection, 215 Conn. 616, 629, 577 A.2d 1017 (1990). The commission might otherwise remain unaware of construetion activity destructive to wetlands until the wetlands were damaged beyond repair. Moreover, the regulation does not completely bar the plaintiffs from engaging in such activity. In the event that the plaintiffs propose to erect a structure on the nonwetlands portion of their property, the commission may determine that their proposal would not endanger wetlands and accordingly issue a certificate to them. Should the commission refuse to issue a certificate to the plaintiffs, they can then pursue their claim, backed by a factual record, that the erection of the structure will not impact upon wetlands. See Cannata v. Department of Environmental Protection, supra, 627, 629.

We conclude, therefore, that the certification requirement imposed by the regulation is a valid administrative device reasonably designed to enable the commission to protect and preserve the wetlands located within Fairfield, in fulfillment of its duty under the IWWA. Accord Lizotte v. Conservation Commission, supra; Cioffoletti v. Planning & Zoning Commission, supra, 561. As such, the regulation does not impermissibly expand the scope of the commission’s regulatory jurisdiction beyond that authorized by the IWWA and the regulations adopted by the commissioner of the DEP.

II

The plaintiffs next claim that the regulation deprives them of the equal protection of the laws as guaranteed by the fourteenth amendment to the United States constitution and article first, §§ 1 and 20, of the Connecticut constitution. According to the plaintiffs, the classification drawn by the commission, which distinguishes owners of a parcel of land that “happens to contain some wetlands” from owners of strictly non wetlands property, is not rationally related to the purpose of Fairfield’s inland wetlands and watercourses regulations. The plaintiffs contend that by subjecting some, but not all owners of non wetland property to the jurisdiction of the commission, the regulation treats similarly situated landowners disparately. The plaintiffs maintain, in addition, that the commission should have formulated a more precise and direct classification, such as one distinguishing activity likely to impact upon wetlands or activity occurring within a certain distance of wetlands. We are not persuaded.

The commission promulgated the challenged regulation pursuant to its statutorily delegated police power. See General Statutes §§ 22a-36 and 22a-42. Pursuant to that police power, the commission, acting on behalf of the town of Fairfield, has the right to regulate the use of property within its borders for the legitimate purpose of carrying out the legislative objectives articulated in the IWWA; see General Statutes § 22a-42 (e); and for the equally legitimate purpose of protecting and preserving the natural aquatic resources specifically located within Fairfield. Fairfield Inland Wetlands & Water Courses Regulations § 1.1. The commission is also expressly charged with the duty of promulgating regulations for the enforcement of the IWWA. See General Statutes § 22a-42a (a) (5). “Any such regulation, however, must be reasonably calculated to achieve that purpose; it must have a rational relationship to its objective.” Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 22, 523 A.2d 467 (1987); accord Eisenbud v. Suffolk County, 841 F.2d 42, 45 (2d Cir. 1988); Faraci v. Connecticut Light & Power Co., 211 Conn. 166, 168, 558 A.2d 234 (1989).

While the equal protection clauses prohibit the commission from drawing irrational classifications, the commission is not constitutionally required to treat all landowners identically without regard to relevant differences among them. In order for the regulation to withstand an equal protection challenge, the distinctions employed by the commission must “ ‘be based on natural and substantial differences, germane to the subject and purpose of the [regulation], between those within the class and those whom it leaves untouched.’ ” Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 315, 417 A.2d 343 (1979), quoting Tough v. Ives, 162 Conn. 274, 292-93, 294 A.2d 67 (1972); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976). The equal protection clauses are offended only if the classification rests on grounds wholly irrelevant to the achievement of the commission’s objectives. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988).

In scrutinizing the regulation under the “rational relationship” standard, moreover, we must indulge every legal presumption and reasonable inference of fact in its favor. Blue Sky Bar, Inc. v. Stratford, supra, 24; Aaron v. Conservation Commission, supra, 537. If there is a reasonable ground for upholding the regulation, we must assume that the commission intended to place it upon that ground. Blue Sky Bar, Inc. v. Stratford, supra, 23; see United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980), reh. denied, 450 U.S. 960, 101 S. Ct. 1421, 67 L. Ed. 2d 385 (1981); Mahone v. Addicks Utility District, 836 F.2d 921, 934 (5th Cir. 1988). The regulation “ ‘carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality’ Kadrmas v. Dickinson Public Schools, supra, 462, quoting Hodel v. Indiana, 452 U.S. 314, 331-32, 101 S. Ct. 2376, 69 L. Ed. 2d 40 (1981); see Blue Sky Bar, Inc. v. Stratford, supra, 24; and, therefore, the plaintiffs must establish its constitutional invalidity beyond a reasonable doubt. See Aaron v. Conservation Commission, supra; accord Faraci v. Connecticut Light & Power Co., supra.

After examining the regulation, we conclude that the plaintiffs have failed to sustain their burden of establishing that the classification embodied in the regulation bears no rational relationship to the regulatory objectives of the commission. We have held in Part I above that the regulation is a reasonable response by the commission to the conceivable threat posed by the erection of a structure in proximity to wetlands. See Kadrmas v. Dickinson Public Schools, supra, 463; Vance v. Bradley, 440 U.S. 93, 110-11, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979); Hancock Industries v. Schaeffer, 811 F.2d 225, 238 (3d Cir. 1987). In addition, the particular distinction embodied in the regulation could reasonably have been designed by the commission as a measure to enhance its ability to enforce the provisions of the IWWA. Accord Harvey & Harvey, Inc. v. Delaware Solid Waste Authority, 600 F. Sup. 1369, 1382 (D. Del. 1985). It certainly would have been rational for the commission to have concluded that construction activity undertaken by a landowner that imperiled wetlands located on his own property would be less likely to be brought to its attention than identical activity that endangered wetlands located on the property of another. Thus, through the certification process, the commission can detect and prevent environmentally unsound activity that might otherwise escape its notice. Since the classification embodied in the regulation is reasonably calculated to accomplish the objectives articulated in the IWWA and those specific to the commission, as well as to enforce the provisions of the IWWA, we cannot say that it was arbitrarily or irrationally drawn.

Furthermore, we perceive no constitutional infirmity in the regulation even though the classification employed by the commission could have swept more broadly, or could have more narrowly governed the erection of structures within a given distance of wetlands. The equal protection clauses do not require that the classification be perfectly tailored to achieve its intended objectives. Rather, it need only be rationally related to those objectives, despite the possibility that more inclusive or precise measures can be envisioned. Having determined that the regulation is indeed rationally supportable, we decline to “interpose [our] judgment as to the appropriate stopping point.” Geduldig v. Aiello, 417 U.S. 484, 495, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974); Faraci v. Connecticut Light & Power Co., supra, 172-73. The commission is entitled to pursue its objectives “step by step . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.” (Citations omitted.) New Orleans v. Dukes, supra, 303; accord Correa v. Thornburgh, 901 F.2d 1166, 1174 (2d Cir. 1990). The equal protection clauses do not force the commission to “ ‘choose between attacking every aspect of a problem or not attacking the problem at all.’ ” Geduldig v. Aiello, supra; Faraci v. Connecticut Light & Power Co., supra, 173; see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S. Ct. 715, 66 L. Ed. 2d 659, reh. denied, 450 U.S. 1027, 101 S. Ct. 1735, 68 L. Ed. 2d 222 (1981).

The judgment is affirmed.

In this opinion Peters, C. J., and Shea, J., concurred.

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

joins, dissenting. I respectfully disagree with the majority’s conclusion that the Fairfield conservation commission did not exceed the scope of its authority under the General Statutes in enacting § 3.3 of its Inland Wetlands and Water Courses Regulations. General Statutes § 22a-36 provides: “It is ... the purpose of [the Inland Wetlands and Watercourses Act] to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution . . . [and] by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology . . . .’’(Emphasis added.) General Statutes § 22a-41 then lists the factors to be considered in carrying out the policies of the act. These factors include the available alternatives, the relationship between short and long term productivity of the land and the “character . . . of . . . interference with . . . reasonable use of property.” General Statutes § 22a-41 (a) (5). There is no express provision in the IWWA for a local conservation commission to regulate activities outside of actual wetlands.

In Aaron v. Conservation Commission, 183 Conn. 532, 542, 441 A.2d 30 (1981), this court concluded that one of the “major considerations” of the IWWA is the impact of activity “which may, in some instances, come from outside the physical boundaries of a wetland.” This statement was based, not on any specific language of the statute, but was inferred from provisions such as General Statutes § 22a-38 (13) which define “regulated activity” to include “use of a wetland . . . involving . . . any . . . pollution, of such wetlands . . . .’’Id. The court reasoned that because a wetland can be polluted by activities “ ‘perhaps even remote from designated wetlands areas’ id.; the legislature must have intended that town conservation commissions should be able to regulate activity beyond the limits of the designated wetlands.

The court thereafter expanded this generous construction of the conservation commissions’ power even further in Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 561, 552 A.2d 796 (1989), where it concluded that town commissions have the authority under General Statutes § 22a-42 (c) to issue “necessary” regulations controlling nonwetlands areas and that “ ‘necessary’ should not be interpreted as meaning indispensable, but rather, as that which is reasonably designed” to protect wetlands.

More recently, in Lizotte v. Conservation Commission, 216 Conn. 320, 579 A.2d 1044 (1990), the court approved a conservation regulation establishing a 150 foot buffer zone around wetlands in which all development was prohibited. The court did this even though there was no evidence that the town commission made any attempt, as required by § 22a-36, to balance the competing interests of the need to protect the environment and the right of landowners to the reasonable use of their property.

This court has therefore completed a line of authority that permits a local conservation commission to enact a regulation that may limit or prohibit entirely, without an express balancing of societal needs, any use of land in nonwetlands areas with the only limitation being that it bear, in the opinion of the commission, some attenuated relationship to the potential protection of designated wetlands. Now, with this decision, the court has approved a regulation that effectively controls development of the nonwetlands portion of property at any distance from designated wetlands. This remarkable expansion of the power of local conservation commissions has been accomplished in the absence of any direct grant of authority in the IWWA.

The judicial gloss on the act provided by this line of cases is not supported by the legislative history. In the 1972 amendments to the IWWA, the legislature specifically addressed the concerns of those who feared that wetlands, as defined by the statute, “could cover 25% of the State of Connecticut” or that wetlands regulation would end up controlling “half the Town of Suffield.” Remarks of Representative Thomas M. Kablik, 15 H.R. Proc., Pt. 4, 1972 Sess., pp. 1615-16. Referring to the lack of any existing limits on the authority of local commissions to define and regulate wetlands, Representative Kablik noted that “this is a lousy way to legislate.” Id. Many comments expressed concern as to the economic ramifications of the unbridled wetlands regulation. In describing the amendments, which include the balancing test in § 22a-36, Representative David Lavine said: “We want to plan for our growth. We want to plan for our residential needs. We want to plan for our industrial development. Mr. Speaker, what this Bill does is strike a balance. It strikes a bal: anee between the needs of the State and the protection of the peole who have property within the State.” 15 H.R. Proc., Pt. 4, 1972 Sess., p. 1612. He specifically noted the activities within wetlandsdhat were permitted under the amendments and stated: “It’s our . . . legislative intent . . . Mr. Speaker, to see to it that this is interpreted in the widest possible way.” Id. Far from supporting an expansive view of the authority of conservation commissions to regulate beyond the boundaries of designated wetlands, in contradistinction to any statutory provision, the available legislative history suggests an expansive view of permitted activities and a desire to insist on protecting the legitimate interests of property owners in the use of their land.

In sum, without any express basis in the statute and in opposition to the existing legislative history, this court has engaged in a process of adding incrementally to the powers of local conservation commissions. The result of this process is that these commissions now may regulate, in the name of wetlands protection, almost any aspect of land use in nonwetlands areas. In a state with over 150 ponds and lakes and innumerable streams, brooks and rivers, it is obvious that the actions of these commissions can have a significant effect on the private use of land and on the state’s economic activity. Yet, contrary to the express language of the statute, we have not required the commissions to provide for an explicit balancing of economic and private interests against the potential environmental benefits. I respectfully conclude, therefore, that this court has gone too far, and without adequate justification, in this unilateral grant of power to local conservation commissions and would conclude that the Fairfield regulation is invalid as exceeding its statutory authority. Accordingly, I dissent.

       The town of Fairfield and the commission were both named as defendants in this case.

       The regulation imposes the same requirement upon an owner of a parcel of land wholly within a designated wetland area.

       In addition to the named plaintiff, Mary Paniquitti and Olga Poinelli were named as plaintiffs in this case.

       The undisputed aspect of the regulation prohibits the erection of any structure, construction activities, on-site storm water detention or regulated site disturbance activities on the wetland portion of a parcel of land wholly or partially containing wetlands.

       Since the standard incorporated in the regulation tracks the language of General Statutes § 22a-40 (b) in pertinent part, we construe the word “land” in the regulation to refer to a “wetland or watercourse” as does the statute. This construction comports with the definition of the phrase “significantly disturbing the natural and indigenous character of the land” in a related regulation: “the activity will substantially and adversely affect the regulated area by reason of removal or deposition of material, will cause the alteration or obstruction of water flow or will result in the pollution of the wetland, or water course.” (Emphasis added.) Fairfield Inland Wetlands & Water Courses Regulations § 3.2.

       General Statutes (Rev. to 1987) § 22a-43 (a) provides: “Any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality may, within fifteen days after publication of such regulation, order, decision or action appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district, to said court in any such judicial district, except if such appeal is from a contested case, as defined in section 4-166, such appeal shall be in accordance with the provisions of section 4-183, except venue shall be in the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court. Notice of such appeal shall be served upon the inland wetlands agency. The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may on application and after notice grant a restraining order. Such appeal shall have precedence in the order of trial.”
      Although the plaintiffs requested a declaratory judgment and an injunction prohibiting the enforcement of the regulation in their prayer for relief, both the trial court and the plaintiffs treated the case as an administrative appeal pursuant to § 22a-43, rather than an independent action for declaratory and injunctive relief. Accordingly, we regard this case as involving an administrative appeal.

       The plaintiffs also claim that the trial court applied the incorrect standard of review in deciding the legal issues in their administrative appeal. Since we review and decide those issues now, and therefore find it unnecessary to remand the case to the trial court for review under the allegedly correct standard, we decline to address the plaintiffs’ claim that the trial court applied the incorrect standard of review. Moreover, because we reject the plaintiffs’ challenge to the judgment on the grounds relied upon by the trial court, we need not consider the alternate grounds for affirmance presented by the defendants pursuant to Practice Book § 4013 (a) (1) (A).

       The regulations promulgated by the commissioner of environmental protection pursuant to General Statutes § 22a-39 (f) mirror the terms of General Statutes §§ 22a-42a (c) and 22a-38. The regulations require that “[a]ny person wishing to carry out a regulated activity shall submit an application to the local inland wetlands agency.” Regs., Conn. State Agencies § 22a-39-5.1.a. The regulations define the term “regulated activity” as “any operation within or use of a wetland or water course as listed in Section 4.2 of these regulations.” Regs., Conn. State Agencies § 22a-39-2 (11). Section 22a-39-4.2 of the Regulations of Connecticut State Agencies provides, in turn, that “[t]he local inland wetlands agency or the Commissioner shall regulate only those activities which: (a) remove material from, (b) deposit material in, (c) obstruct, (d) construct, (e) alter, or (f) pollute inland wetlands and water courses.”

       Without purporting to identify a consideration integral to our decision in this case, we note that contrary to the assertions of the dissent, regulation § 3.3 (xi) does not permit the commission to “limit or prohibit entirely . . . -any use of land in nonwetlands areas with the only limitation being that it bear, in the opinion of the commission, some attenuated relationship to the potential protection of designated wetlands,” nor does it allow the commission to limit or prohibit the erection of a structure on the non-wetland portion of a parcel of land containing wetlands “without an express balancing of societal needs.” See infra. The administrative record reveals that if an agent of the commission refuses to issue a certificate of conformance to an applicant, the applicant is entitled to seek further review of that decision. Further review is available pursuant to § 5.5 of the Fairfield regulations, which provides: “If the [commission] finds that the activity applied for does or may involve a significant or major effect on the wetland or water course the [commission] shall hold a public hearing on that application. . . .” (Emphasis added.) After a public hearing, the commission renders a final decision on the application. See Fairfield Inland Wetlands & Water Courses Regulations § 6.
      In reaching its final decision after a public hearing, the commission is required by § 6.1.4 of the Fairfield regulations, in accordance with General Statutes §§ 22a-42 (e) and 22a-42a (d), to consider in one form or another all of the statutory factors set forth in General Statutes § 22a-41 (a), including: “The character and degree of injury to, or interference with, safety, health, or the reasonable use of property which would be caused or threatened. This includes recognition of .. . destruction of the economic, aesthetic, recreational and other public and private uses and values of wetlands and water courses. ” (Emphasis added.) Fairfield Inland Wetlands & Water Courses Regulations § 6.1.4.5. The first sentence of this regulation is copied verbatim from subdivision (5) of General Statutes § 22a-41 (a), the only subdivision of § 22a-41 (a) that expressly requires consideration of the potential threat to the reasonable use of property. Furthermore, the commission must consider “[t]he suitability of such action to the area for which it is proposed. This requires the Agency to balance the need for economic growth of the Town and the use of its land, with the need to protect its environment and ecology for the people of Fairfield and the benefit of generations yet unborn.” (Emphasis added.) Fairfield Inland Wetlands & Water Courses Regulations § 6.1.4.6. The words “balance the need for economic growth . . . and the use of its land with the need to protect its environment and ecology” in this regulation are precisely those used in General Statutes § 22a-36, the only provision of the IWWA, and indeed the only words contained in the IWWA, that explicitly refer to the balancing of economic and environmental interests.
      Therefore, the regulatory scheme under which the commission operates ensures that what might be an arbitrary denial of a certificate of conformance is checked through the processes of a public hearing and final review by the commission. That final review involves an individualized consideration of all of the statutory factors set forth in § 22a-41 (a), as well as an express case-by-case balancing of economic and environmental interests that the dissent would find mandatory under § 22a-36. Accordingly, unlike the dissent, we perceive no conflict between the regulation and either § 22a-41 (a) or § 22a-36.

       Because the equal protection provisions of the federal and state constitutions have the same meaning and embody the same limitations; State Management Assn, of Connecticut v. O’Neill, 204 Conn. 746,750, 529 A.2d 1276 (1987); we have treated the plaintiffs’ equal protection claims together.

       It should be noted that in granting conservation commissions the authority to regulate land use in nonwetlands areas, the decisions of this court set up an inevitable conflict between conservation commissions and zoning commissions. General Statutes § 8-2 gives zoning authorities the responsibility to regulate land use, not conservation commissions. As we concluded in the recent decision of Cristofaro v. Burlington, 217 Conn. 103, 584 A.2d 1168 (1990), land use regulation is primarily the concern of the zoning authority and contradictory land use regulations enacted by other commissions are invalid.


author: Borden, J.

text:
    PaineWebber, Inc. v. American Arbitration Association et al.
    (13938)
    Peters, C. J., Callahan, Glass, Borden and Santaniello, Js.
    Argued November 6, 1990
    decision released January 22, 1991

      James R. Hawkins II, with whom were Daniel F. Sullivan and, on the brief, Sally S. King, for the appellant (plaintiff).

      Raymond A. Garcia, for the appellees (defendant Alex Charts et al.).
   Borden, J.

The plaintiff, PaineWebber, Inc. (Paine-

Webber), appeals from the judgment of the trial court (1) denying its motion for a permanent injunction, and (2) dissolving a temporary restraining order. The temporary restraining order had enjoined the defendants from proceeding with an arbitration that they had filed with the American Arbitration Association (AAA) in Hartford, and the motion sought to make that order permanent. PaineWebber claims that the trial court improperly denied the motion for a permanent injunction and improperly dissolved the temporary restraining order. We affirm the judgment of the trial court.

The following facts, and the procedural thicket to which they led, are undisputed. The Charts were customers of PaineWebber, a securities trader. The parties entered into three agreements, all on preprinted forms supplied by PaineWebber. One agreement, dated October 30, 1985, entitled “Client’s Agreement” (client agreement), defined their relationship as customer and securities trader. Paragraph 17 of this agreement provided in pertinent part that the “agreement and its enforcement shall be construed and governed by the laws of the State of New York . . . ,” Paragraph 19 provided in pertinent part that disputes between them “shall be settled by arbitration in accordance with the rules in effect of either the New York Stock Exchange, Inc., American Stock Exchange, Inc., [or] National Association of Securities Dealers, Inc. . . .” The parties also entered into two other agreements, one undated and one dated August 25,1987, each entitled “Client Option Agreement and Qualification Form” (client option agreement). Both of these agreements contain a paragraph providing in pertinent part that the client option agreement supplemented the client agreement and did not diminish any of the customer’s rights thereunder. Paragraph 18 of the undated client option agreement was identical to the arbitration paragraph of the client agreement. See footnote 4, supra. Paragraph 18 of the August 25, 1987 client option agreement was essentially identical to the arbitration paragraphs of the other two agreements.

After a dispute arose between the parties over trading in the Charts’ account with PaineWebber, the Charts brought suit against PaineWebber in the United States District Court for the District of Connecticut, alleging that PaineWebber had engaged in unauthorized transactions in the Charts’ account. PaineWebber wrote to the Charts reminding them of the agreement to arbitrate, and requested them to dismiss the federal action and to proceed in arbitration. The Charts replied that the “agreement is no longer in effect” between the parties and that the arbitration clause was inapplicable because their claims arose under the federal securities laws. They also stated, however, that if they were “subsequently compelled by a court to arbitrate all or part of this dispute, [they] shall elect the rules of the American Arbitration Association, or the National Association of Securities Dealers (NASD).” PaineWebber then filed a motion in the federal court to compel arbitration, which was granted without objection. Thereafter, PaineWebber requested the Charts to file for arbitration by the National Association of Securities Dealers (NASD) on the basis that the NASD was the Charts’ choice of forum consistent with their agreements.

Subsequently, the Charts filed a demand for arbitration with the AAA in Hartford. PaineWebber responded by filing this action in the Superior Court to enjoin the arbitration, claiming that any arbitration by the AAA was unauthorized. The trial court, Fracasse, J., issued a temporary restraining order enjoining the arbitration..

Ultimately, the Charts moved to dissolve the restraining order and PaineWebber moved for a permanent injunction against arbitration by the AAA. The parties submitted these motions to the court, Schaller, J., on the basis of a joint appendix of documents and briefs. In support of its motion for a permanent injunction, PaineWebber claimed that: (1) by declining to arbitrate and by filing the federal lawsuit the Charts had waived their right to arbitrate; (2) by making an equivocal and conditional election of the arbitration forum the Charts had failed to make an effective election, rendering PaineWebber’s choice of the NASD as the only effective choice; (3) the Charts’ election of the AAA as the forum for the arbitration was illegal because the arbitration agreement provided for arbitration only by the New York Stock Exchange, Inc. (NYSE), the American Stock Exchange, Inc. (Amex) or the NASD; and (4) permanent injunctive relief was therefore necessary to prevent an unlawful arbitration proceeding. The Charts claimed that PaineWebber was not entitled to a permanent injunction because the rules and constitution of the Amex provide that members of the Amex, such as PaineWebber, must give their customers the option to arbitrate before the AAA unless the customer had agreed in writing only to the arbitration procedure of the Amex. The Charts claimed that they had made no such agreement.

The trial court, without reaching the merits of the parties’ legal claims regarding the scope of their arbitration agreements, granted the Charts’ motion to dissolve the temporary restraining order and denied PaineWebber’s motion for a permanent injunction. The sole basis of the court’s decision was that PaineWebber had not established irreparable harm. PaineWebber appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

PaineWebber claims that the trial court improperly denied its motion for a permanent injunction. It argues that arbitration before the AAA is not permitted under the parties’ agreements because: (1) the agreement limited the arbitration fora to one of the three associations listed therein, namely, the NYSE, the Amex or the NASD, to the exclusion of the AAA; (2) as a matter of policy, arbitration regarding securities disputes should be so limited because those three entities are so-called self-regulating organizations that are extensively regulated by the federal Securities and Exchange Commission in order to ensure the adequacy of their arbitration procedures; and (3) contrary to the Charts’ assertion, the constitution and rules of the Amex do not provide for arbitration of securities disputes by the AAA. On the basis of its argument that arbitration before the AAA is unauthorized, PaineWebber also argues that the court improperly applied the doctrine of irreparable harm because under the circumstances of this case either PaineWebber had established irreparable harm or irreparable harm was not required to be established.*

It is not necessary to consider all of the various claims of PaineWebber or the Charts’ responses thereto, because we reach the merits of the controversy between the parties regarding the scope of their arbitration agreements, and we conclude that the parties’ agreements provide for arbitration before the AAA as a matter of law. We therefore affirm the judgment on a ground different from that relied on by the trial court. Cheshire v. McKenney, 182 Conn. 253, 261, 438 A.2d 88 (1980).

The parties’ agreements provided for “arbitration in accordance with the rules then in effect of . . . the . . . American Stock Exchange, Inc. . . .” Article VIII, § 2, of the constitution of the Amex provides as follows: “Arbitration shall be conducted under the arbitration procedures of this Exchange, except as follows . . . (c) if any of the parties to a controversy is a customer, the customer may elect to arbitrate before the American Arbitration Association in the City of New York, unless the customer has expressly agreed, in writing, to submit only to the arbitration procedure of the Exchange.” This provision of the Amex constitution is what is known as the “Amex window.” The dis-positive issue in this case is whether, under the agreements of the parties, the Amex window is open or closed; that is, whether, as the Charts claim, the reference in the parties’ agreements to the “rules” of the Amex was intended to incorporate § 2 (c) of Article VIII of the Amex constitution and was not intended to constitute an agreement to submit “only” to the arbitration procedures of the Amex, or whether, as PaineWebber maintains, the reference to the Amex “rules” was not intended to incorporate § 2 (c) of Article VIII and was intended to constitute an agreement to submit “only” to the arbitration procedures of the Amex. We conclude that, because the parties agreed that New York law would govern the construction and enforcement of their agreements and because New York law is clear that under these agreements the Amex window is open, the agreements between the parties must be construed accordingly.

We first consider our scope of review of the agreements. The construction of an arbitration agreement presents a question of the intention of the parties. See A. Dubrmil & Sons, Inc. v. Lisbon, 215 Conn. 604, 608, 577 A.2d 709 (1990). Ordinarily, “the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.” Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); see also A. Dubreuil & Sons, Inc. v. Lisbon, supra, 605; Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). Since we do not engage in the factfinding process, we would under most circumstances be precluded from drawing such an inference. That limitation on our function does not apply, however, where the contract language is definitive, that is, where the trial court could have reasonably reached but one conclusion. Bead Chain Mfg. Co. v. Saxton Products, Inc., supra; see also Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987). The contract language in this case is susceptible to but one construction because of the decision of the New York Court of Appeals in Cowen & Co. v. Anderson, 76 N.Y.2d 318, 558 N.E.2d 27, 559 N.Y.S.2d 225 (1990).

In Cowen & Co., the court was confronted with the precise issue posed by this case. The plaintiff securities trader sought to stay an arbitration by the AAA that had been elected by the defendant, the plaintiffs customer. The agreements between the parties provided for “arbitration in ‘accordance with the rules, then in effect’ of the New York Stock Exchange, or the American Stock Exchange or the National Association of Securities Dealers.” Id., 320-21. The plaintiff claimed that the defendant was limited to arbitration before the three named entities, and the defendant, relying on an open Amex window, claimed that he was authorized to select the AAA. The court held that: (1) article I, § 3 of the Amex constitution “defines the term ‘rules of the Exchange’ to ‘include the Constitution and all rules adopted pursuant thereto’ (emphasis in original) id., 321; and (2) “[i]nasmuch as [the defendant] did not agree to limit the arbitration to the self-regulating organizations, the plain language of the stock and margin agreements grant[s] him the right under the Amex constitution to elect to arbitrate the dispute before the AAA.” Id., 322.

The Cowen & Co. court rejected the plaintiff’s reliance on several federal cases for the proposition that the parties’ agreements overrode the Amex window and limited arbitration to one of the three self-regulating organizations. See Merrill Lynch,0 Pierce, Fenner & Smith v. Georgiadis, 903 F.2d 109 (2d Cir. 1990); PaineWebber, Inc. v. Pitchford, 721 F. Sup. 542 (S.D.N.Y. 1989), aff’d sub nom. PaineWebber, Inc. v. Rutherford, 903 F.2d 106 (2d Cir. 1990); Piltch v. Merrill Lynch, Pierce, Fenner & Smith, 714 F. Sup. 537 (D.D.C. 1989). The court read those cases as illustrating that the securities traders could have specifically limited the arbitration fora to one of the three named organizations but had not done so, and the court stated that since the term “rules” was not defined or limited by the agreements the customers were entitled to rely on the Amex window. Cowen & Co. v. Anderson, supra, 323. Similarly, the court declined to follow other federal cases that construed customer agreements as closing the Amex window; see Hybert v. Shearson Lehman/American Express, Inc., United States District Court, N.D. Illinois, Docket No. 84C10327 (June 8, 1989); Bear Steams & Co. v. N. H. Karol & Associates, 728 F. Sup. 499, 500, 503-504 (N.D. Ill. 1989); PaineWebber, Inc. v. Astrella, United States District Court, New Jersey, Docket No. 89-2268 (September 6, 1989); but instead rested its decision on the clear language of the contract and, assuming an ambiguity, on the proposition that such an ambiguity would be construed most strongly against the drafter, namely, the plaintiff. Cowen & Co. v. Anderson, supra.

We conclude that Cowen & Co. v. Anderson, supra, controls this case. We first note that the three agreements of the parties must be read together because they interlock and overlap. They all contained essentially the same arbitration clause. See footnotes 4 and 6, supra. Furthermore, both of the client option agreements defined their relationship to the client agreement as supplementing the client agreement and not diminishing any of the customer’s rights thereunder. See footnote 5, supra. The client agreement, moreover, provided that “[a]ll transactions made for the accounts) of the undersigned shall be governed by the terms of this agreement.” See footnote 3, supra.

Thus, the choice of law provision of the clients agreement must be read as applying to all transactions between the parties, and to the construction and enforcement of their agreements, including the arbitration clauses. That choice of law provision stated that those agreements and their enforcement “shall be construed and governed by the laws of the State of New York . . . .” Cowen & Co. expresses in unmistakably clear terms the New York law that governs the interpretation of the parties’ arbitration agreements.

The arbitration clauses of the agreements in this case are essentially identical to those in Cowen & Co. We therefore must read them as having the same meaning as those in that case. As in Cowen & Co., furthermore, any ambiguity must be resolved against PaineWebber, which drafted the agreements. Moreover, the applicable provisions of the Amex constitution in this case are identical to those involved in Cowen & Co., and PaineWebber relies on many of the same federal cases that the court in Cowen & Co. declined to follow as a matter of construction of the agreements under New York law. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Georgiadis, supra; PaineWebber, Inc. v. Rutherford, supra; Bear Stearns & Co. v. N. H. Karol & Associates, supra; PaineWebber, Inc. v. Pitchford, supra; Piltch v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra. Thus, we are likewise constrained to decline to follow those cases. There can be no question, therefore, that as a matter of New York law these agreements provided for an open Amex window, and that the Charts were entitled to rely on that window in choosing the AAA as the arbitration forum.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendants are Alex Charts and Helena Charts, and the named defendant, the American Arbitration Association (AAA). The AAA has taken a passive role in this litigation, both in the trial court and on appeal, since the actual dispute is between PaineWebber and the Charts. We therefore consider the Charts as the defendants.

       After oral argument in this court, PaineWebber withdrew a third ground of appeal, namely, that the trial court abused its discretion in awarding certain sanctions against the plaintiff for its failure to attend a deposition that had been noticed.

       Paragraph 17 of the client agreement provided: “Jurisdiction. All transactions made for the account(s) of the undersigned shall be governed by the terms of this agreement. This agreement and its enforcement shall be construed and governed by the laws of the State of New York, and shall be binding upon the heirs, executors, administrators, successors, and assigns of the undersigned.”

       Paragraph 19 of the client agreement provided: “Arbitration. Any controversy between us arising out of or relating to this contract, breach thereof, or any accounts) maintained with you (except any claim for relief by a public customer for which a remedy may exist pursuant to an expressed or implied right of action under the federal securities laws), shall be settled by arbitration in accordance with the rules in effect of either the New York Stock Exchange, Inc., American Stock Exchange, Inc., National Association of Securities Dealers, Inc., or where appropriate, the Chicago Board Options Exchange or National Futures Association, as the undersigned may elect. The undersigned authorizes you to make such election, if such election is not made by the undersigned by registered mail addressed to you at your main office -within fifteen (15) days after receipt of notification requesting such election. The award of the arbitrators, or a majority of them, shall be final and judgment on the award may be entered in any court having jurisdiction.” It is clear from the context of the agreement that “the undersigned” refers to the Charts and “you” refers to PaineWebber.

       Paragraph 17 of both client option agreements provided: “Relationship to Client Agreement. This Agreement supplements where applicable the Client’s Agreement entered into between us and will not diminish any of your rights under said Agreement. In the event of any conflict between the terms of this Agreement and the terms of the Client’s Agreement, the provisions of this Agreement shall prevail.”

       Paragraph 18 of the August 25,1987 client option agreement provided: “Arbitration. It is understood that the following agreement to arbitrate does not constitute a waiver of the right to seek a judicial forum where such a waiver would be void under the federal securities laws. The undersigned agrees, and by carrying an accounts) for the undersigned you agree, that except as inconsistent with the foregoing sentence, all controversies which may arise between the undersigned and you (including your employees and agents) concerning any transaction in any accounts) or the construction, performance or breach of this or any other agreement between us, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration. Any arbitration shall be in accordance with the rules in effect of either the New York Stock Exchange, Inc., American Stock Exchange, Inc., National Association of Securities Dealers, Inc., or where appropriate the Chicago Board Options Exchange or National Futures Association, as the undersigned may elect. The undersigned authorizes you to make such election if such election is not made by the undersigned by registered mail addressed to you at your main office within fifteen (15) days after receipt of notification requesting such election. The award of the arbitrators, or a majority of them, shall be final and judgment on the award may be entered in any court having jurisdiction. The undersigned expressly agree(s) that service of process in any action shall be sufficient if served by certified mail, return receipt requested, at my last address known to you. The undersigned expressly waives any defense to service of process as set forth above.”

       Ultimately, the federal action was dismissed by the court upon the notice to the court by the Charts that “[a]n arbitration is now pending concerning the claims made in this matter.”

       The joint appendix included copies of the three agreements between the parties, various letters among their attorneys and other persons, pertinent court and arbitration documents, transcripts of certain depositions of officials of the American Stock Exchange, Inc., and of PaineWebber, and pertinent parts of the constitution of the American Stock Exchange, Inc.

       Neither PaineWebber nor the Charts have at any time suggested that either the Chicago Board Options Exchange or the National Futures Association was an appropriate forum for arbitration of their dispute.

       PaineWebber also reasserts its argument in the trial court that the Charts waived their right to choose the arbitration forum. The basis of this claim is that the Charts did not make a forum election within fifteen days of PaineWebber’s request of them to do so and, thereafter, made an invalid election by designating two fora.
      Waiver is a question of fact for the trial court in the first instance, subject to limited appellate review, unless the facts establish waiver as a matter of law. The record presented does not establish waiver as a matter of law, and the trial court made no explicit finding regarding waiver. It is possible to read the decision of the trial court as either having implicitly rejected or having bypassed PaineWebber’s claim of waiver, since the court decided that PaineWebber had not established irreparable harm. Faced with this ambiguity, it was PaineWebber’s responsibility to request the trial court to articulate its decision further and to seek an explicit finding of waiver vel non that would then constitute an adequate record reviewable on appeal. PaineWebber’s failure to do so precludes review of this claim on appeal.

       More specifically, PaineWebber argues that: (1) compelling it to go through arbitration before a body that lacks the power to hear the matter constitutes irreparable harm as a matter of law; (2) such harm is not legally required for the issuance of a permanent injunction; (3) the dispute between the parties is governed by the Federal Arbitration Act; 9 U.S.C. § 2 et seq.; under which a permanent injunction against an unauthorized arbitration may be granted without an additional showing of harm; (4) a state requirement of such an additional showing is preempted by the federal act; (5) if the Connecticut arbitration statutes; General Statutes § 52-408 et seq.; govern, they do not require a showing of irreparable harm; (6) this case, although nominally one for a permanent injunction, essentially is one for specific performance of a choice of forum contractual provision; and (7) denial of injunctive relief will waste judicial resources, since an award by the AAA will have to be vacated on appeal.

       PaineWebber purports to claim on appeal, solely by way of a one sentence footnote in its brief, that “even if arbitration before the AAA is somehow found to be appropriate, the AMEX Window contemplates arbitration only before the AAA in New York City, not before the AAA in Hartford.” (Emphasis in original.) We decline to consider this claim because: (1) a fair reading of the trial court record in this case indicates that this claim was not distinctly raised in the trial court; and (2) we do not regard PaineWebber’s footnote as an adequate briefing of the issue.

       Paragraph 17 of the client option agreements also provided that “[i]n the event of any conflict between the terms of this Agreement and the terms of the Client’s Agreement, the provisions of this Agreement shall prevail.” We can perceive no conflict, however, between the client option agreements and the client’s agreement with respect to the arbitration clauses.

       As indicated in Cowen & Co. v. Anderson, 76 N.Y.2d 318, 558 N.E.2d 27, 559 N.Y.S.2d 225 (1990), the record in this case indicates that Article I, § 3 (a) of the Amex constitution provides: “The term ‘rules of the Exchange’ shall include the Constitution and all rules adopted pursuant thereto.”