author: Covello, J.

text:
    Aaron Friedman et al. v. Planning and Zoning Commission of the Town of Rocky Hill
    (14389)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.

      Argued February 18
    decision released June 2, 1992

      Lewis K. Wise, for the appellants (plaintiffs).

      Gordon T. Allen, for the appellee (defendant).
   Covello, J.

This is an appeal from a decision of the Rocky Hill planning and zoning commission denying the plaintiffs’ application for site plan approval of a proposed office building within the town. The issue presented is whether the commission could require the submission of an offsite traffic study as part of the site plan approval process. We conclude that within the framework of the applicable Rocky Hill zoning regulations, a traffic study is an appropriate ancillary submission. We therefore affirm the decision of the trial court that so held.

On September 7, 1989, the plaintiffs, Aaron Friedman and Dennis Angel, applied to the defendant, the Rocky Hill planning and zoning commission (commission), for approval of a site plan to erect a three story office building at 2009 Silas Deane Highway, Rocky Hill. The parcel in question is located within a commercial zone in which an office building is a permitted use. The commission denied the application citing the proposal’s failure to comply with a number of the Rocky Hill zoning regulations.

The plaintiffs appealed to the Superior Court. The court dismissed the appeal concluding that the plaintiffs’ application had been incomplete in that it had not been accompanied by an appropriate, required traffic study. The Appellate Court granted certification to appeal placing in issue the question of whether the commission was precluded from weighing offsite traffic considerations and from requiring a traffic study as an incident to an application for a site plan approval. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

The plaintiffs first claim that the court erred in concluding that the commission could even consider off-site traffic issues in determining their site plan application. Specifically, the plaintiffs argue that since an office building was a permitted use in the zone in question, our holdings in TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 577 A.2d 288 (1990) (TLC), and Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 418 A.2d 82 (1979) (Beit Havurah), precluded the commission’s consideration of any offsite traffic matters. The plaintiffs contend that their failure to comply with the commission’s regulations requiring submission of a traffic study was, therefore, irrelevant and could not serve as the basis for denying their application. We do not agree.

In TLC the Branford zoning regulations set forth a series of general objectives, one of which was entitled “Traffic and Pedestrian Access.” TLC, supra, 530. The Branford regulations further provided that to assure the accomplishment of these general objectives, the “ ‘Commission . . . may require such modifications of the proposed plans as it deems necessary . . . (Emphasis added.) TLC, supra, 530. We observed that the Branford zoning regulations make “it clear that the general objectives are to serve solely as the basis for requiring a modification of the proposed site plan” and concluded, therefore, that “offsite traffic considerations should not have served as the basis for denying the plaintiffs site plan application.” (Emphasis added.) TLC, supra, 532. Thus, in TLC, it was the language of the Branford zoning regulations itself that established the proposition that offsite traffic considerations only served the limited purpose of requiring a modification to the site plan and could not serve as the basis for denying the application altogether.

Our conclusion in TLC, that offsite traffic considerations might have only a limited role in the review of site plan applications, comported with an earlier instance in which we concluded that traffic studies had only a limited applicability in determining a general land use. In Beit Havurah, supra, an existing Jewish synagogue that lay within a zone that permitted churches, sought unrestricted overnight accommodations as a permitted accessory use. In dicta, we stated that “[t]he designation of a particular use of property as a permitted use [e.g., a church,] establishes a conclusive presumption that such use [e.g., church use,] does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district.” Beit Havurah, supra, 443. We hastened to add that, “[although property whose use constitutes a permitted use is not immune from regulation under the laws of nuisance or other applicable statutes such as those relating to public safety, no violation of any such laws has been alleged.” Beit Havurah, supra, 443.

Thus, TLC and Beit Havurah serve to illuminate two propositions with respect to the role of traffic considerations in weighing site plan applications. First, the language of a given zoning regulation may, by its textual content, limit the scope of the use of traffic considerations. Second, once a zoning authority establishes that a particular use within a zone is permitted, e.g., an office building or a church, a conclusive presumption arises that such a use in general, does not adversely affect the traffic within the zone. Neither of these tenets, however, precludes an examination into the special traffic consequences of a given site plan when the applicable zoning regulations permit it.

In the present instance, the erection of an office building within a commercial zone under the Rocky Hill zoning regulations was “permitted subject to Site Plan Approval in accordance with Section 9.4.” Unlike the Branford regulations in TLC, § 9.46 is not entitled, “Criteria that may necessitate modification,” but rather is entitled, “Criteria for ApprowL” (Emphasis added.) Section 9.46 contains an entire section dealing with traffic and specifically requires a traffic study addressing the impact of the proposed development upon the street system in the area. As is appropriate in such regulations, § 9.46 does not deal with general matters such as the volume of traffic that might be generated by an office building, but rather with specific issues such as the placement of entrances and exits in order to disturb arterial traffic minimally and provisions to minimize the impact of traffic on nearby residential areas. It is reasonable to conclude that a commission regulation dealing with the placement of entrances and exits so as to minimize the disturbance of existing traffic flow could require, as a predicate, a traffic study concerning the existing streets so that both the applicant and the commission would know what volumes of traffic were likely to be disturbed by the proposed use.

General Statutes § 8-3 (g) provides: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building . . . with specific provisions of such regulations. . . . A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations.” (Emphasis added.) The Rocky Hill zoning regulations required that a traffic study accompany any application for site plan approval. Since the site plan submission did not comply with the requirements set forth in the zoning regulations, the court correctly concluded that the failure to supply the required traffic study furnished an adequate legal basis for the commission’s decision to deny the application.

The plaintiffs further argue, however, that the commission never referred specifically to the failure to submit the required traffic study as the reason for its disapproval. The plaintiffs claim, therefore, that the court erred in adopting as the basis for its conclusion, a reason not relied upon by the commission.

“In situations in which the zoning commission does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations.” Zieky v. Town Plan & Zoning Commission, 151 Conn. 265, 267-68, 196 A.2d 758 (1963).

While the court may not substitute its judgment for that of the commission, if it concludes that any one of several reasons submitted by the commission for its action is reasonably supported by the record, then the commission’s actions must stand. Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 94, 368 A.2d 24 (1976). While there is no talismanic reference to the specific section of the zoning regulations requiring a traffic study, the record of the commission’s decision makes it perfectly clear that a shortage of information concerning traffic was a significant factor in its decision. The commission stated: “While it is not proposed that there be no access from the site to Parsonage Street, the testimony of the applicant’s engineer, who is not a traffic engineer, that all traffic will use the Route 99 (Silas Deane) entrance is not believed.” The commission further stated: “The proposal is not in compliance with section 9.46.a (3) of the Regulations in that no or insufficient information was submitted as to the capability of the adjacent collector street, Parsonage Street, or its feeder streets to handle the projected traffic volume. Parsonage Street adjacent to the site has a Level F. traffic flow at its intersection with Route 99 during peak hours.” Thus, we conclude that the commission adequately expressed as one of the reasons for its disapproval of the plaintiffs’ application, the absence of the required traffic data that the traffic study would have supplied.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 8-8 provides: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located.”

       The issues certified by the Appellate Court were: “1. Did the trial court err in upholding the decision of the Rocky Hill Planning and Zoning Commission (‘Commission’) denying the plaintiffs’ application for site plan approval on the grounds that the plaintiffs had failed to submit a traffic study as required by the zoning regulations when that ground was not relied on by the Commission in denying the application? 2. Did the trial court err in holding that the Commission could legally require the submission of an offsite traffic study as part of the plaintiffs’ application for site plan approval of an office building, even though the Commission is precluded from considering offsite traffic impacts under TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527 [577 A.2d 288] (1990), and Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370 [580 A.2d 91 (1990), cert. denied, 216 Conn. 832, 583 A.2d 131 (1991)]?”

       Rocky Hill zoning regulations § 9.46.d provides: “Traffic.
      “a. Ease of entrance to, and exit from the development, with a minimum of disturbance to outside traffic flow shall be considered of prime importance.
      “b. Entrances and exits shall be located either at an existing intersection or a minimum of 50 feet from an intersection.

        “e. No exit or entrance shall exceed a grade of three percent within 25 feet of any street line nor eight percent at any other point.
      “d. Consideration shall be given to the inclusion of arterial thru-streets with proper provisions made to minimize the effects of traffic through residential areas. In all cases, a traffic study shall be prepared by a licensed Professional Engineer addressing the impact of the development upon the street system in the area.

      “e. The interior traffic circulation pattern shall be safe and aesthetically in harmony with the stated objectives of the district. Design items to consider in laying out the interior system shall include:
      “(1) Work with, not against the topography;
      “(2) Utilize curves to break up the monotony of straight drives;
      “(3) Separate pedestrian and vehicular traffic where possible.” (Emphasis added.)

       Rocky Hill zoning regulations § 9.46.a (3) provides: “Appropriateness of Location or Use Relative to ... (3) The capability of adjacent and feeder streets to accommodate the projected traffic volumes.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Ernest Caron et al. v. Inland Wetlands and Watercourses Commission of the Town of Berlin et al.
    (14328)
    Shea, Callahan, Glass, Borden and Berdon, Js.

      Argued February 14
    decision released June 2, 1992

      Charles W. Bauer, with whom was Kenneth R. Slater, Jr., for the appellants (plaintiffs).

      E. Timothy Sullivan, Jr., for the appellees (defendants).
   Shea, J.

The sole issue in this appeal is whether the plaintiffs’ application for a wetlands permit was automatically approved when the local inland wetlands agency failed to hold a public hearing on the application within sixty-five days after its receipt, in accordance with General Statutes (Rev. to 1989) § 22a-42a (c) and the Berlin inland wetlands and watercourses regulations § 5.6 (a).

The plaintiffs, Ernest and Florine Caron, applied to the named defendant, the Berlin inland wetlands and watercourses commission, for a permit to place fill and to construct drainage systems and roadways for a proposed residential subdivision. The application was filed on October 20, 1988, and the commission’s next regularly scheduled meeting was November 1, 1988. The plaintiffs requested and were granted a continuance. The commission considered the plaintiffs’ application on December 6, 1988. On January 3, 1989, two days before the sixty-five day period for holding a hearing expired, the commission voted to hold a public hearing on the application. After the public hearing was held on February 7,1989, the commission denied the plaintiffs’ application on February 14, 1989. The plaintiffs then appealed the commission’s decision to the Superior Court.

Although the plaintiffs raised several claims in their administrative appeal, including that concerning automatic approval of the application, the trial court concluded, without reaching the automatic approval issue, that the commission had failed to give proper notice of the public hearing. The court remanded the case to the commission for a new hearing after proper notice. The plaintiffs appealed the trial court’s decision to the Appellate Court, claiming entitlement to automatic approval of their application because no public hearing thereon was held within sixty-five days from its receipt, as § 22a-42a (c) required. The Appellate Court held that the commission’s failure to act within the requisite time period did not result in automatic approval and, therefore, that the trial court had properly remanded the case to the commission for a new hearing because of the defective notice. Caron v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 61, 592 A.2d 964 (1991). We granted the plaintiffs’ petition for certification to appeal and now affirm the judgment of the Appellate Court.

We begin our analysis with the language of the relevant statute and regulation. When the plaintiffs filed their application, General Statutes (Rev. to 1989) § 22a-42a (c) provided in relevant part: “No later than sixty-five days after the receipt of [an] application, the inland wetlands agency may hold a public hearing on such application. . . . Action shall be taken on applications within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application.” Section 5.6 of the Berlin inland wetlands and watercourses regulations similarly provided that “[a]ll public hearings shall commence not sooner than thirty (30) days nor later than (65) sixty-five days after receipt of a complete application.” Although both provisions contain the word “shall,” that word alone does not automatically make the requirement mandatory. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). “In determining whether a statute is mandatory or merely directory, the most satisfactory and conclusive test is whether the prescribed mode of action is of the essence of the thing to be accomplished or, in other words, whether it relates to matter of substance or to matter of convenience.” Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967).

We have held a time limit to be mandatory, so that a land use agency’s failure to comply with it results in the automatic approval of an application in three situations: (1) the statute contains express language invalidating belated action by the agency or automatically approving an application not acted upon within the requisite time period; id., 554-55; see also Finn v. Planning & Zoning Commission, 156 Conn. 540, 554, 244 A.2d 391 (1968); (2) the statute contains a provision requiring an applicant’s consent for an extension of the statutory time period; Vartuli v. Sotire, 192 Conn. 353, 363-64, 472 A.2d 336 (1984); see also Carr v. Woolwich, 7 Conn. App. 684, 694-95, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986); and (3) the statute incorporates by reference another statute that contains automatic approval or consent to extension language, thereby creating an express administrative linkage to the mandatory requirement. Vartuli v. Sotire, supra, 361-62.

The plaintiffs concede that the applicable statute and regulation contain neither express invalidating language nor consent to extension provisions. They claim, however, that § 22a-42a (c) is mandatory because it is administratively linked to General Statutes § 8-3 (g), which forbids a zoning commission from rendering a decision on a site plan application until the inland wetlands agency has submitted a report with its final decision, and to General Statutes § 8-7d (e), which extends the time period within which a zoning commission must act to thirty-five days from the date of the decision of the inland wetlands agency, when the time period for action by the zoning commission would otherwise elapse before the thirty-fifth day after the decision of the wetlands agency. Although these statutory sections make reference to the relationship between an inland wetlands agency’s decision on an application and a zoning commission’s subsequent decision on it, we are not persuaded that they link § 22a-42a (c) to any mandatory time requirement.

In Vartuli v. Sotire, supra, this court interpreted the time limitation contained in the Coastal Management Act, General Statutes (Rev. to 1983) § 22a-109 (f), as mandatory because another subsection of the act provided that “[t]he coastal site plan review . . . shall be subject to the same statutory requirements as subsection (b) of section 8-7d for the purposes of determining the time limitations on the zoning commission in reaching a final decision.” General Statutes (Rev. to 1983) § 22a-109 (e). Section 8-7d (b) in turn provided that “a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan” and that an applicant “may consent to one or more extensions of such period . . . .” Not only did § 8-7d (b) contain a consent to extension provision, which inferentially rendered the time limitation mandatory, but § 8-3 (g) explicitly stated that “[ajpproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d.” The direct references in § 22a-109 (e) to § 8-7d (b), which contained consent to extension language as well as an automatic approval provision by virtue of § 8-3 (g), eliminated any doubt that the time requirement for rendering a decision on a coastal site plan was mandatory.

Unlike the statutory scheme in Vartuli, the inland wetlands statutes in existence at the time the plaintiffs’ application was pending contain no language directly connecting the wetlands time limitation to any statutory provisions for automatic approval or consent to an extension. The zoning statutes mentioned by the plaintiffs in support of their argument contain only general references to the effect that the zoning commission must wait until the wetlands agency issues a final report before rendering its decision and that the time period for deciding a zoning application may be tolled because of the pendency of a wetlands decision. Those references do not address in any way the nature of the time limitation in § 22a-42a (c) that governs inland wetlands agencies. This fundamental difference in statutory schemes distinguishes this scenario from that presented in Vartuli and leads us to conclude that no express administrative linkage exists to make the time limit of § 22a-42a (c) mandatory.

The plaintiffs also advance the argument that, even if no express administrative linkage exists, the statute and regulation must be interpreted as mandatory in order to promote uniformity among the time constraints placed on land use agencies. They claim that, since the legislature placed the same sixty-five day time limitation on site plan review; General Statutes § 8-7d (b); coastal site plan review; General Statutes § 22a-109 (g); subdivision applications; General Statutes § 8-26d (b); and inland wetlands and watercourses applications; General Statutes § 22a-42a (c); all those time limitations should be interpreted as creating a mandatory duty. The commission points out, however, that in 1977, the legislature enacted Public Acts 1977, No. 77-450, which amended the existing planning and zoning statutes to include a uniform time limitation of sixty-five days within which a planning and zoning commission must take action on an application and a provision for automatic approval of applications not acted upon within the requisite time period. The commission argues that the fact that the 1977 act did not affect the time limitations on inland wetlands agencies is strong evidence that, contrary to the plaintiffs’ argument, the legislature did not intend to include inland wetlands agencies within the comprehensive scheme it had developed with respect to time constraints on other land use agencies.

We agree with the commission that the legislature’s failure to amend the time limitations on inland wetlands agencies in 1977, when it amended the time limitations on several other land use agencies, is a significant indication that it did not intend to impose the same mandatory strictures on inland wetlands agencies. The legislature enacted § 22a-42a (c) in 1973, fours years before the 1977 act. Because “the legislature is presumed to exercise its statutory authority with knowledge of existing statutes and with the intention of creating one consistent body of law”; Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989); we conclude that its omission of inland wetlands agencies from the purview of the 1977 act indicates its intention not to make the time limitation on wetlands decisions mandatory, as it did in planning and zoning decisions.

Both the plaintiffs and the commission claim support for their diverse interpretations of § 22a-42a (c) in a subsequent amendment to that statute, Public Acts 1989, No. 89-356, § 16 which added three provisions relevant to this appeal. First, a consent to extension provision was added. Second, applicants were granted the right to file their applications with the commissioner of the department of environmental protection if the inland wetlands agency failed to take action within the requisite time period. Third, the failure of an inland wetlands agency to act within the time period specified would not be deemed to constitute approval of the application.

Relying on the precept of statutory construction that the legislature intends to change existing law when it enacts new statutory language unless a contrary legislative intent appears; see Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 155, 561 A.2d 1373 (1989); the plaintiffs maintain that the 1989 amendment changed the time constraint in § 22a-42a (c) from mandatory to directory. The commission counters with the argument that the amendment merely clarified what was already a directory time constraint. It claims that the legislature amended the statute to avoid any confusion that might have existed about the nature of the time requirement, since that requirement had not yet been construed by an appellate court in this state.

Although both interpretations are arguable, we are inclined to adopt the commission’s view that the 1989 amendment clarified what was already a directory time constraint. Unfortunately, the legislative history of the 1989 amendment does not shed any light upon the reasons for its passage. This void, however, does not preclude construction of the 1989 amendment as intended to clarify the original intent of § 22a-42a (c). Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540-41, 489 A.2d 363 (1985); see State v. Magnano, 204 Conn. 259, 280-81, 528 A.2d 760 (1987). In all likelihood the legislature recognized the ambiguity in the time limit referred to in § 22a-42a (c) and enacted the 1989 amendment to eliminate any doubt that the provision was directory. Before the amendment was enacted, at least one Superior Court decision had interpreted § 22a-42a (c) as creating a mandatory duty. See Westwood Estates, Inc. v. Environmental Protection Board, Superior Court, judicial district of Stamford-Norwalk, Docket Nos. 060244, 061645 and 061646 (April 18, 1983). Because the legislature is presumed to be aware of judicial interpretations of a statute; State v. Chicano, 216 Conn. 699, 719, 584 A.2d 425 (1990), cert. denied, U.S. , 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); Peck v. Jacquemin, 196 Conn. 53, 72, 491 A.2d 1043 (1985); we conclude that the legislature added explicit directory language to § 22a-42a (c) to avoid the risk that the statute would again be erroneously construed as mandatory. Unlike the time requirements imposed on other land use agencies, § 22a-42a (c) had not been construed by an appellate court and had not been amended in 1977, along with the other time provisions, to indicate that automatic approval would result from a failure to act within the sixty-five day period. The amendment, therefore, appears to have been the legislature’s attempt to clarify what it recognized as a potential ambiguity in the statute.

Finally, we note that the presumption that the 1989 amendment changed the nature of the time limitation is rebutted by the language of the statute before it was amended. The time requirement contains no negative words or express invalidation language. As we stated in Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 535, 525 A.2d 940 (1987), “[t]he requirement [in § 22a-42a (c)] that the agency [act] within the prescribed 65 day period is to insure prompt and expeditious action for the protection of the applicant.” It is a well established maxim of statutory construction that “provisions designed to secure order, system and dispatch in proceedings are generally held directory unless accompanied by negative words.” International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 67, 82 A.2d 345 (1951); State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956). Accordingly, we reject the plaintiffs’ claim that their application was automatically approved when the commission failed to hold the hearing within the statutory time period.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 22a-42a (e) provided in relevant part: “No later than sixty-five days after the receipt of such application, the inland wetlands agency may hold a public hearing on such application. . . .Action shall be taken on applications within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application.”

       At the time of the plaintiffs’ application, § 5.6 (a) of the Berlin inland wetlands and watercourses regulations provided: “All public hearings shall commence not sooner than thirty (30) days nor later than (65) sixty-five days after receipt of a complete application.” We confine our analysis to the relevant statute since the language of the regulation is substantially similar to that of the statute and the plaintiffs have not differentiated between the two.

       The plaintiffs also named as defendants Clyde Seylner, chairman of the Berlin inland wetlands and watercourses commission, the town of Berlin, Joanne Ward, Berlin town clerk, and Leslie Carothers, commissioner of the department of environmental protection.

       Some of the claims raised were that the commission denied the plaintiffs a fair hearing, that the commission’s decision was not supported by the evidence before it, that the commission had predetermined the outcome of the case and that the commission had failed to hold a public hearing within sixty-five days of receipt of the application.

       We granted certification to appeal, limited to the following issue: “In the circumstances of this case, have the plaintiffs established their entitlement to automatic approval of their application for a wetlands permit because of the defendant’s failure to act within the time period specified by the relevant statute and regulation?” Caron v. Inland Wetlands & Watercourses Commission, 220 Conn. 906, 593 A.2d 971 (1991).

       The Appellate Court determined that the case was governed by the relevant statute and regulation in effect when the plaintiffs filed their application despite subsequent amendments made to each during the pendency of the application. Caron v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 61, 63-64, 592 A.2d 964 (1991). The applicability to this case of the subsequent amendments is not a certified issue before us in this appeal. See Mulrooney v. Wambolt, 215 Conn. 211, 216-17, 575 A.2d 996 (1990); Darak v. Darak, 210 Conn. 462, 467-68, 556 A.2d 145 (1989).

       To comply with the statute and the regulation, the commission would have had to hold the hearing on or before January 5, 1989, that is, within sixty-five days after receipt of the application. November 1, 1988, was the date of receipt referred to in General Statutes (Rev. to 1989) § 22a-42a (c), which provided: “The day of receipt of an application shall be the day of the next regularly scheduled meeting of [the] inland wetlands agency, immediately following the day of submission to such inland wetlands agency or its agent of such application, provided such meeting is no earlier than three business days after receipt, or thirty-five days after such submission, whichever is sooner.” Whether the continuance granted at the plaintiffs’ request could be viewed as extending the statutory time period of § 22a-42a (c) is a question not before us in this certified appeal.

       General Statutes § 8-3 (g) provides in relevant part: “The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d.”

       General Statutes § 8-7d (e) provides: “Notwithstanding the provisions of this section, if an application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, and the time for a decision by a zoning commission or planning and zoning commission established pursuant to this section would elapse prior to the thirty-fifth day after a decision by the inland wetlands agency, the time period for a decision shall be extended to thirty-five days after the decision of such agency. The provisions of this subsection shall not be construed to apply to any extension consented to by an applicant or petitioner.”

       In 1987, General Statutes § 22a-109 (f) was redesignated as § 22a-109 (h) when the legislature added a new subsection to the statute. See Public Acts 1987, No. 87-495.

       Consent to extension provisions were also added by the amendment. Public Acts 1977, No. 77-450.
      For a thorough discussion of the changes effected by the 1977 act, see Carr v. Woolwich, 7 Conn. App. 684, 688-95, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986).

       Public Acts 1989, No. 89-356, § 16 provides in relevant part: “The applicant may consent to one or more extensions of the periods specified in this subsection for the holding of the hearing and for action on such application, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such application. If the inland wetlands agency fails to act on any application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application, or within any extension of any such period, the applicant may file such application with the commissioner of environmental protection who shall review and act on such application in accordance with this section. . . . The failure of the inland wetlands agency or the commissioner to act within any time period specified in this subsection, or any extension thereof, shall not be deemed to constitute approval of the application.” This statute became effective on October 1, 1989, about seven months after the decision of the commission.

       We may consider subsequent amendments in order to illuminate the legislature’s intent with respect to a prior enactment. AirKaman, Inc. v. Groppo, 221 Conn. 751, 761, 607 A.2d 410 (1992).


author:
Shea, J.
      Berdon, J.,

text:
    Rudra Tamm, Trustee v. J. William Burns, Commissioner of Transportation et al.
    (14355)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.

      Argued February 18
    decision released June 2, 1992

      Kenneth N. Tedford, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Cornelius F. Tuohy, assistant attorney general, for the appellant (named defendant).

      Rudra Tamm, the appellee (plaintiff).
   Shea, J.

The sole issue in this appeal is whether the plaintiff’s allegations, that the state’s operation of a truck inspection and weigh station on its property, which is adjacent to his, has caused additional noise, unsightliness and air pollution on his property, sufficiently state a claim of inverse condemnation under article first, § 11 of the Connecticut constitution, which provides: “The property of no person shall be taken for public use, without just compensation therefor.” The plaintiff, Rudra Tamm, brought this action for damages and injunctive relief against J. William Bums, who was commissioner of the state department of transportation when the action was commenced, and William A. O’Neill, who was governor of Connecticut at that time. The first three counts of the complaint alleged inverse condemnation, malicious erection of a structure and private nuisance, respectively, against Burns. The fourth count stated a misrepresentation claim against O’Neill. The trial court granted the defendants’ motion to dismiss the action on the ground that the court lacked subject matter jurisdiction because of the doctrine of sovereign immunity. The plaintiff appealed the dismissal of the first and fourth counts to the Appellate Court, which upheld the dismissal of the fourth count against O’Neill, but reversed with respect to the first count and remanded the case for further proceedings on that inverse condemnation claim. Tamm v. Burns, 25 Conn. App. 468, 594 A.2d 1043 (1991). We granted certification, limited to the following issue: “Did the Appellate Court properly conclude that the plaintiff had adequately alleged facts amounting to a substantial claim of a violation of his constitutional right against taking of his property without just compensation, so as to avoid the bar of sovereign immunity?” Tamm v. Burns, 220 Conn. 914, 597 A.2d 340 (1991). We answer that question in the negative and, accordingly, reverse the judgment of the Appellate Court.

“We have long recognized the common-law principle that the state cannot be sued without its consent. . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. . . . Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant.” (Citations omitted.) Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). Nevertheless, “[i]n a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts.” Id., 343; Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977). “[T]he doctrine of sovereign immunity is not available to the state as a defense to claims for just compensation arising under article first, § 11, of the Connecticut constitution.” Textron, Inc. v. Wood, 167 Conn. 334, 342, 355 A.2d 307 (1974). “When possession has been taken from the owner, he is constitutionally entitled to any damages which he may have suffered . . . .” Trumbull v. Ehrsam, 148 Conn. 47, 55-56, 166 A.2d 844 (1961); see also Simmons v. Parizek, 158 Conn. 304, 307, 259 A.2d 642 (1969); Anselmo v. Cox, 135 Conn. 78, 81-82, 60 A.2d 767, cert. denied, 335 U.S. 859, 69 S. Ct. 132, 93 L. Ed. 405 (1948).

The word “taken” in article first, § 11 of our state constitution means “the exclusion of the owner from his private use and possession, and the assumption of the use and possession for the public purpose by the authority exercising the right of eminent domain.” Bishop v. New Haven, 82 Conn. 51, 58, 72 A. 646 (1909). Although property may be “taken” without any actual appropriation or physical intrusion; Laurel, Inc. v. State, 169 Conn. 195, 201, 362 A.2d 1383 (1975); Stock v. Cox, 125 Conn. 405, 419, 6 A.2d 346 (1939); “there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose . . . as where the economic utilization of the land is, for all practical purposes, destroyed.” (Citations omitted.) Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976). A constitutionál taking occurs when there is a “substantial interference with private property which destroys or nullifies its value or by which the owner’s right to its use or enjoyment is in a substantial degree abridged or destroyed.” Textron, Inc. v. Wood, supra, 346. To survive a motion to dismiss on the ground of sovereign immunity, a complaint “must allege sufficient facts to support a finding of a taking of land in a constitutional sense.” Horak v. State, supra.

The complaint in this case alleges that the commissioner’s construction of a truck weigh station on the south side of Interstate 95 adjacent to the plaintiff’s property in Greenwich, which included the felling of over one thousand trees located on state property between the plaintiff’s parcel and the interstate, “resulted in the following damages to plaintiff’s property. a. Removed the natural and pre-existing screening between plaintiff’s property and the noise, sight, fumes and toxic emissions from 195. b. Altered the preexisting drainage near plaintiffs property, c. Located a dangerous toxic substance holding pond immediately adjacent to plaintiffs property, d. Located a vehicle weighing station with additional noise, unsightliness and toxic substances immediately adjacent to plaintiff’s property.” The complaint further alleges that the commissioner’s actions “diminished the value of plaintiff’s property” and “made part of the property of plaintiff unable to be utilized for any reasonable and proper purpose.” We hold that the facts alleged do not demonstrate an interference with the plaintiff’s property that “in a substantial degree abridged or destroyed” the value of the property or the plaintiff’s use and enjoyment of it. Textron, Inc. v. Wood, supra.

In essence, the complaint alleges that the commissioner’s removal of trees from state property has exposed the plaintiff’s property to the noise, unsightliness, and fumes, as well as toxic emissions from traffic on Interstate 95, and that his operation of a weigh station has resulted in additional noise, unsightliness, and fumes, as well as the presence of a holding pond for toxic substances on property adjacent to the plaintiff’s property. Although such allegations could conceivably support a claim of nuisance or some other sort of tortious interference by the state with the plaintiff’s use of his property, they do not amount to a “taking” of the plaintiff’s property in the constitutional sense. It can scarcely be doubted that an owner of property situated near a truck weigh station on an interstate highway endures an eyesore and a level of noise and air pollution not experienced by property owners who do not live beside a highway. Aesthetic privations such as these, even when accompanied by increased motor vehicle pollution, do not, however, interfere so substantially with a property owner’s rights as to constitute a practical confiscation of those rights. Compare Richards v. Washington Terminal Co., 233 U.S. 546, 34 S. Ct. 654, 58 L. Ed. 1088 (1914) (landowner entitled to compensation for injuries peculiar to his property that were so severe as to render it objectionable as a habitation).

The claim that the plaintiff’s property has been “taken” because it has diminished in value as a result of the commissioner’s actions must also fail because “[an] owner is not entitled to compensation for the diminution in value of his property resulting from ... a valid exercise of the police power.” DeMello v. Plainville, 170 Conn. 675, 679, 368 A.2d 71 (1976); see also Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 133, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). The plaintiff cites two New York cases for the proposition that diminution in value may provide a basis for compensation under factual circumstances such as these. Yonkers v. New York, 40 N.Y.2d 408, 353 N.E.2d 829, 386 N.Y.S.2d 865 (1976); Dennison v. New York, 22 N.Y.2d 409, 239 N.E.2d 708, 293 N.Y.S.2d 68 (1968). These cases, however, do not stand for that proposition. They merely set forth the rule that, when a governmental authority condemns a portion of a property owner’s parcel, any diminution in the value of the remaining parcel is taken into account by the court when determining the measure of just compensation for the partial taking.

Connecticut law recognizes the same rule that “[wjhen only a part of a tract of land is taken for the public use, ‘just compensation’ includes recovery for the part taken and recovery for any damages visited upon the remainder which result from the taking.” D’Addario v. Commissioner of Transportation, 172 Conn. 182, 184, 374 A.2d 163 (1976). Injuries of the sort complained of by the plaintiff in this case may, therefore, be compensated as consequential damages when they result from the state’s condemnation of a portion of private property, but they may not be so compensated, absent such a partial condemnation, because they do not, themselves, constitute a taking, the necessary constitutional predicate for the award of just compensation. “This restriction of a right of recovery to situations where land is taken inevitably produces inequalities and inequities; thus the construction of a new highway on a portion of a tract of land of one person entitles him to recover damages suffered by reason of the depreciation in value of his remaining premises, whereas one owning land which abuts upon the new highway but no part of which is taken can recover nothing . . . .” Andrews v. Cox, 129 Conn. 475, 477-78, 29 A.2d 587 (1942).

In support of his position that he is entitled to just compensation, the plaintiff has cited certain California and Illinois cases; Harding v. Department of Transportation, 159 Cal. App. 3d 359, 205 Cal. Rptr. 561 (1984); Chicago, Milwaukee & St. Paul Ry. Co. v. Darke, 148 Ill. 226, 35 N.E. 750 (1893); in which governmental action short of a “taking” resulted in successful claims for just compensation. The constitutions of those states provide for just compensation when property is taken or damaged. “Some constitutions . . . provide a recovery for the ‘taking or damage’ and consequently are liberally construed to include compensation for injury akin to that charged by the [plaintiff. 2 Nichols, Eminent Domain (3d Ed.) § 6.4432[2]; New Haven Steam Saw Mill Co. v. New Haven, 72 Conn 276, 285, 44 A. 233 [1899]. Our constitution, however, contains no such language . . . .” Benson v. Housing Authority, 145 Conn. 196, 202, 140 A.2d 320 (1958). In view of this fundamental distinction, we do not consider case law construing “damage” provisions in other states’ constitutions as persuasive authority for interpreting the “taking” clause of the Connecticut constitution.

In holding that the facts alleged do not support a claim of inverse condemnation under article first, § 11 of the Connecticut constitution, we emphasize that our decision is based on the nature of the plaintiff’s allegations and not on his claim that only a portion of his property has been rendered useless by the commissioner’s installation of the weigh station. As a matter of law, allegations that the state has exposed the plaintiff’s property to unpleasant sights, sounds and vehicle pollutants by its lawful construction of a weigh station do not support the claim of an interference sufficiently grave to be deemed a “taking” in the constitutional sense of even part of that property. Having concluded that the facts alleged in this case do not allege the requisite level of governmental intrusion with private property rights, we need not decide at this juncture whether private property may be considered “taken” when the factual allegations do support a claim of substantial interference, but with respect to only a portion of the property.

Although the factual allegations in this case do not state a claim for inverse condemnation under the state constitution and, therefore, cannot avoid the bar of sovereign immunity, the legislature has established an alternate forum for claims against the state that are barred by sovereign immunity. As we have previously noted, the plaintiffs allegations might be appropriate for an action of private nuisance against an adjoining landower. Because sovereign immunity bars such an action against this defendant, the plaintiff has resorted to a claim of an unconstitutional taking in order to obtain redress. We have rejected this claim because it does not conform to our state precedent for such a taking. Before embarking on a consideration of whether we should take a more expansive view of the taking clause in article first, § 11 of our state constitution, we must be sure that no other remedy is available to compensate the plaintiff for the losses alleged.

In accordance with article eleventh, § 4 of the Connecticut constitution, the General Assembly has established the office of the claims commissioner, granting to the claims commissioner the power to waive the state’s sovereign immunity when he “deems it just and equitable” and to authorize suit “on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.” General Statutes § 4-160 (a). The claims commissioner is also authorized to “approve immediate payment of just claims not exceeding [$7500]”; General Statutes § 4-158; or, for claims greater than $7500, to make recommendations to the general assembly for the payment or rejection of such claims, which recommendations the general assembly may “accept or alter” or “reject.” General Statutes § 4-159. Since we have concluded that the plaintiff’s claim does not fit the precedential mold for a constitutional taking claim, he must exhaust the claims commission remedy, which is available for nonconstitutional claims, before proceeding further with his claim of a violation of his constitutional rights. Doe v. Heintz, 204 Conn. 17, 37, 526 A.2d 1318 (1987); McNish v. American Brass Co.. 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S. Ct. 336, 97 L. Ed. 704 (1953).

Moreover, the legislature has provided a specific action for declaratory and equitable relief against unreasonable pollution whereby “any person . . . may maintain an action ... for declaratory and equitable relief against the state ... 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-16. An individual, such as the plaintiff, who complains of tortious interference by the state, that is not so serious as to constitute a constitutional taking of his private property, is not, therefore, without recourse to other avenues of relief.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the trial court’s dismissal of this action.

In this opinion Peters, C. J., Callahan and Covello, Js., concurred.

Berdon, J.,

dissenting. In this case, the plaintiff clearly alleged a taking of his property under article first, § 11 of the Connecticut constitution, which provides: “The property of no person shall be taken for public use, without just compensation therefor.”

The majority concedes that because the trial court did not hold an evidentiary hearing on the motion to dismiss, even though the state submitted affidavits with its motion, we must view “the factual allegations of the complaint in the light most favorable to the plaintiff. See Bradley’s Appeal from Probate, 19 Conn. App. 456, 466-67, 563 A.2d 1358 (1989).” In the present case, the Appellate Court pointed out that the plaintiff alleged in the first count of the complaint, the following: “[T]he plaintiff owns real estate on the south side of Interstate 95 in Greenwich adjacent to state owned property. At this location, which was formerly the site of a toll station, the state began constructing a truck inspection and weigh station. As part of this construction, the state cut down a substantial number of trees on its land and commenced other activities necessary to the construction of the weigh station. The plaintiff alleged that these activities caused the following damage to his property: (1) exposure to increased noise, unsightliness, fumes, and toxic emissions from 1-95; (2) the alteration of preexisting drainage; (3) the placement of a dangerous toxic substance holding pond immediately adjacent to his property and (4) increased noise, unsightliness and toxic emissions caused by the operation of the completed inspection and weigh station.” Tamm v. Burns, 25 Conn. App. 468, 469-70, 594 A.2d 1043 (1991). In addition, the plaintiff alleged the effects of these allegations, in that “[s]aid actions of the defendant [state] have made part of the property of [the] plaintiff unable to be utilized for any reasonable and proper purpose” and that “[s]aid actions of defendant have resulted in a taking of [the] plaintiffs property.” Surely, construed in the light most favorable to the plaintiff, these allegations allege a taking— that is, the activities of the state on adjoining land made a portion of the property of the plaintiff unusable for any purpose.

In Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976), we held the following: “The word ‘taken’ as used in the fifth amendment to the constitution of the United States and article first, § 11, of the Connecticut constitution means generally the exclusion of the owner from his private use and possession, and the assumption of the use and possession for the public purpose by the authority exercising the right of eminent domain. Bishop v. New Haven, 82 Conn. 51, 58, 72 A. 646 [1909]. Carl Roessler, Inc. v. Ives, 156 Conn. 131, 140, 239 A.2d 538 [1968]. Although a ‘taking’ may be complete without an actual, physical appropriation of property as discussed in such cases as Laurel, Inc. v. State, [169 Conn. 195, 205, 362 A.2d 1383 (1975)], and Stock v. Cox, 125 Conn. 405, 419, 6 A.2d 346 [1939], there is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose; Laurel, Inc. v. State, supra; Vartelas v. Water Resources Commission, 146 Conn. 650, 153 A.2d 822 [1959]; as where the economic utilization of the land is, for all practical purposes, destroyed. See Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 197 A.2d 770 [1964].” (Internal quotation marks omitted.) Accordingly, the plaintiff need only assert predicate allegations that could lead to the conclusion that a portion of his property, as a result of the state’s activities on its adjoining property, “cannot be utilized for any reasonable and proper purpose.” Horak v. State, supra.

In the present case, the plaintiff makes these allegations in his complaint. He alleges that as a result of the state activities on the adjoining property “fumes and toxic emissions . . . have made part of the property of [the] plaintiff unable to be utilized for any reasonable and proper purpose.” (Emphasis added.) Surely, these allegations are sufficient to support a constitutional taking. Whether they can be proven is not an issue before this court and must be left to the trier of fact.

In Richards v. Washington Terminal Co., 233 U.S. 546, 557-58, 34 S. Ct. 654, 58 L. Ed. 1088 (1914), the United States Supreme Court concluded that, despite Congress’ grant of immunity from actions for private nuisances, a landowner was entitled to compensation for injuries peculiar to his property that were caused by the gases and smoke emanating from a fanning system located in a railroad tunnel that were so severe as to render the property less habitable than it otherwise would have been. To hold otherwise, the court reasoned, would allow property to be taken for public use without just compensation, in violation of the fifth amendment to the United States constitution. Id. The court stated that “no authority conferred by Congress would justify an invasion of private property to an extent amounting to an entire deprivation of its use and enjoyment, without compensation to the owner; nor could such authority be invoked to justify acts, creating physical discomfort and annoyance to others in the use and enjoyment of their property, to a less extent than entire deprivation, if different places from those occupied could be used by the corporation for its purposes, without causing such discomfort and annoyance . . . .” (Emphasis added; internal quotation marks omitted.) Id., 556.

Although the majority demurs on the issue, logic dictates that we hold that the plaintiff need not allege that his entire property is rendered useless. Otherwise, for example, a plaintiff who owns only a ten foot strip of land that is rendered useless by the smoke and toxic emissions may recover for a taking, but, if that same ten feet of land is part of a larger tract owned by the plaintiff, he or she may not recover anything.

I agree with the Appellate Court that the allegations are sufficient and the plaintiff should be given his day in court. Accordingly, I respectfully dissent.

       The plaintiff also relies upon the “takings” clause of the fifth amendment to the United States constitution. The fifth amendment, however, serves as a limitation only on the powers of the United States government and affords no ground for relief against the state of Connecticut. Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 17 S. Ct. 56, 41 L. Ed. 369 (1896); Barron v. Baltimore, 32 U.S. 243, 8 L. Ed. 672 (1833). “The Fourteenth Amendment to the United States Constitution provides for the protection of the federal courts to individuals whose property is threatened with condemnation by a state without compensation. Such a deprivation would lack the process of law.” 3 P. Nichols, Eminent Domain (3d Ed.) § 8.01[2]; Chicago Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897); 2 J. Nowak, R. Rotunda and J. Young, Constitutional Law § 14.2. The plaintiff has not advanced a due process claim under the fourteenth amendment to the federal constitution.

       Practice Book § 143 provides in part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”

       Although the commissioner submitted affidavits with his motion to dismiss in accordance with Practice Book § 143, disputing some of the plaintiff’s factual allegations, no evidentiary hearing was conducted in the trial court to resolve the disputed issues of fact. Consequently, in reaching our conclusion, we have viewed the factual allegations of the complaint in the light most favorable to the plaintiff. See Bradley’s Appeal from Probate, 19 Conn. App. 456, 466-67, 563 A.2d 1358 (1989).

       The plaintiff also alleges that drainage near his property has been altered by the construction of the weigh station. Without a claim that the commissioner’s alteration of nearby drainage somehow adversely affected the plaintiffs property, this allegation fails to assert any interference whatsoever with the plaintiffs property rights.

       The plaintiff has not challenged the commissioner’s authority to construct the weigh station or the legality of the procedures followed in its construction.

       Article first, § 15 of the Illinois constitution provides in part: “Private property shall not be taken or damaged for public use without just compensation as provided by law. ...”
      Article first, § 19 of the California constitution provides in part: “Private property may be taken or damaged for public use only when just compensation . . . has first been paid to . . . the owner.”

       The United States Supreme Court has stated: “ ‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole
      . . . .” Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 130-31, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978).

       Article eleventh, § 4 of the Connecticut constitution provides: “Claims against the state shall be resolved in such manner as may be provided by law.”

       The majority asserts that before the plaintiff may seek redress of his constitutional claim, he must exhaust his claims commission remedy. Apparently, the majority distinguishes constitutional takings claims that “fit the precedential mold” from novel takings claims. This distinction, however, has no basis in our law and is without merit. First, General Statutes § 4-142 (2) excepts “claims upon which suit otherwise is authorized by law” from the jurisdiction of the claims commissioner. Constitutional takings claims, even atypical ones, are authorized by law. Second, Doe v. Heintz, 204 Conn. 17, 36-37, 526 A.2d 1318 (1987), upon which the majority relies, is inapposite because the issue in Doe was not one of constitutional dimensions, but, rather it involved a dispute over the recovery of attorney fees and costs.


text:
    Dorothy Gagnon v. Planning Commission of the City of Bristol et al.
    (14288)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued January 7
    decision released June 9, 1992

      Joann Paul, for the appellant (plaintiff).

      Ann T. Baldwin, assistant corporation counsel, for the appellees (named defendant et al.).

      AlfredF. Morrocco, Jr., with whom, on the brief, was Mary-LynnNawrockiKrusz, for the appellees (defendant Jon M. Pose et al.).
   Covello, J.

This is an appeal from the approval of an application for a subdivision by the named defendant, planning commission of the city of Bristol (planning commission). During the pendency of this appeal, the planning commission granted the applicant’s request for a resubdivision of the same parcel. There was no appeal from the planning commission’s action on the later resubdivision application. The issue presented is whether the present action was rendered moot and, is therefore, subject to dismissal because of the planning commission’s subsequent approval of the resubdivision application. We conclude that the unchallenged, subsequent approval of the resubdivision of the same parcel renders the issues in the present action moot. We therefore affirm the judgment of the Appellate Court that sustained the trial court’s dismissal of this appeal.

The procedural facts are not in dispute. On June 8, 1988, the defendants Jon M. Pose, James Session, Dominic Pietrofesa and Josephine Pietrofesa (defendants) filed an application with the planning commission of the city of Bristol, for approval of an eighteen lot subdivision near the intersection of Shrub Road and Burlington Avenue in Bristol. On October 26,1988, the planning commission approved the application. On November 7, 1988, the plaintiff, Dorothy Gagnon, an abutting property owner, filed a timely appeal in the Superior Court. The appeal alleged a failure to obtain inland wetlands approval, inadequacies in the public notice concerning the application, and irregularities in the planning commission’s procedures in approving the application.

On December 7, 1988, during the pendency of this appeal, the defendants filed an application with the planning commission to resubdivide the same parcels. On December 21, 1988, the planning commission approved the resubdivision application. There was no appeal from the planning commission’s second action. Following the expiration of the appeal period, the defendants recorded the resubdivision map on the Bristol land records.

On June 15, 1989, the defendants moved to dismiss the present appeal from the approval of their first subdivision application alleging that the plaintiff’s failure to appeal from the planning commission’s approval of the resubdivision had rendered the appeal from the first planning action moot. The plaintiff denied that the present proceedings were moot claiming, inter alia, that the resubdivision approval was conditioned upon the outcome of the present appeal. The defendants, in turn, denied that the approval of their resubdivision was conditioned upon the outcome of this appeal. The trial court examined the transcript and minutes of the planning commission’s December 21, 1988 meeting and found that “[t]he motion to give ‘final approval’ was made, [and] seconded, [that there was] no discussion, and [that the resubdivision was] unanimously approved by the Commission without any qualifications (except waiver of bond).” (Emphasis in original.) The trial court concluded that “the record is clear that there is no longer any practical relief which the court can provide under the appeal of the subdivision.” The trial court rendered judgment dismissing the appeal. The plaintiff appealed to the Appellate Court, which affirmed the judgment. We thereafter granted the plaintiff’s petition for certification to appeal. Gagnon v. Planning Commission, 219 Conn. 902, 593 A.2d 132 (1991).

Since mootness implicates the subject matter jurisdiction of this court, we must first consider the defendants’ threshold claim that subsequent “events have so overtaken this litigation that the appeal has become moot.” Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988). “The issue of subject matter jurisdiction can be raised at any time including on appeal. 'Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon.’ Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).” Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987).

The plaintiff contends that the resubdivision application was so procedurally flawed that the planning commission’s action in approving it was an absolute nullity. Since the planning commission’s action in granting the resubdivision application was allegedly void, the plaintiff argues that the issues raised in the first appeal were unaffected by the planning commission’s later action and, therefore, still remain to be resolved.

The defendants, on the other hand, argue that because a resubdivision of the same parcel is now administratively complete, and since the trial court determined that the planning commission’s approval of the resubdivision was unconditional and not dependent on the outcome of the present appeal, there is no longer any practical relief that could flow from this appeal.

The Appellate Court concluded that “approval of the resubdivision application controls the applicants’ rights to develop the parcel.” Gagnon v. Planning Commission, 24 Conn. App. 413, 417, 588 A.2d 1385 (1991). We agree with this proposition and with the Appellate Court’s conclusion that it was not, therefore, required to take up the merits of the plaintiff’s claims that the resubdivision was the product of a host of procedural irregularities. Having obtained approval from the planning commission for the resubdivision of the identical property and having thereafter recorded the resubdivision map upon the land records, the defendants waived irrevocably whatever benefit they may have derived from the planning commission’s earlier approval of the first subdivision. The defendants having withdrawn their claim to its benefits and having effectively extinguished the original subdivision plan through recording of the resubdivided version, the subdivision’s potential burdens to the plaintiff no longer presented a justiciable issue.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The issues certified were: “1. Did the Appellate Court correctly hold that the defendant City Planning Commission had authority to consider and approve a resubdivision application of a parcel of land where the original subdivision application concerning that parcel had not been recorded on the land records and was presently under appeal at the time the resubdivision application was considered?
      “2. Did the Appellate Court correctly hold that the approval of a resubdivision application of a parcel of land, which had been previously subdivided and which subdivision was under appeal, render the subdivision appeal moot?”

       The plaintiff submits four reasons why the planning commission’s approval of the resubdivision was void. First, there is no statutory basis to approve a resubdivision when the initial subdivision was neither finally approved nor recorded. Second, the physical changes that occurred did not constitute a resubdivision within the meaning of General Statutes § 8-18. Third, the planning commission did not obtain the required inland wetlands report prior to rendering its decision. Finally, there was no notice of the public hearing on the application for the resubdivision. See Gagnon v. Planning Commission, 24 Conn. App. 413, 418-26, 588 A.2d 1385 (1991) (Lavery, J., dissenting).

       While this was not the plaintiff’s precise claim, we note because of its tangential involvement that in no event could this appeal have become the surrogate forum for the appeal that could have flowed from the planning commission’s subsequent action in approving the resubdivision. See Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979).


author: F. X. Hennessy, J.

text:
    State of Connecticut v. Thurlow Carey
    (14361)
    Peters, C. J., Glass, Borden, Berdon and F. X. Hennessy, Js.

      Argued March 26
    decision released June 9, 1992

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, was JohnM. Bailey, state’s attorney, for the appellant (state).

      Sarah Slade, certified legal intern, with whom were ToddD. Femow, Timothy H. Everett and, on the brief, Brian J. Kornbrath, for the appellee (defendant).
   F. X. Hennessy, J.

The principal issue in this appeal is whether noncompliance with Practice Book § 943, governing probation revocation proceedings, deprives the trial court of subject matter jurisdiction. The state appeals from the judgment of the Appellate Court reversing the judgment of the trial court and remanding the case to the trial court with direction to dismiss the proceedings. We reverse.

The record reveals the following facts. On July 21, 1988, the defendant, Thurlow Carey, pleaded guilty to and was found guilty of assault in the third degree in violation of General Statutes § 53a-61. The trial court, Barry, J., imposed a ninety day suspended sentence and one year of probation. The order of probation included a special condition that the defendant have no contact with Kimberly Byrd, the victim of the assault for which he had been convicted.

During the probationary period, the defendant was arrested twice for allegedly assaulting Byrd. On February 28,1989, the defendant’s probation officer, Sharon Rome, filed a motion pursuant to Practice Book § 943 requesting the court to revoke probation on the ground that the “new conviction constitutes a violation of his probation.” On July 11, 1989, Rome, through probation officer Barbara D’Onofrio, filed a second motion for revocation of probation on the ground of “subsequent arrests.”

On July 17, 1989, the trial court held a hearing on the July 11, 1989 motion for revocation of probation. The defendant did not question the propriety of a revocation proceeding commenced by motion pursuant to § 943. The court, Norko, J., found that the defendant had violated the conditions of his probation. The court revoked the defendant’s probation and committed him to the custody of the commissioner of correction to serve the suspended portion of his original sentence.

The defendant appealed from the trial court’s judgment to the Appellate Court, arguing that (1) the evidence at the hearing was insufficient to sustain the revocation decision; (2) he was denied his right to confront witnesses; and (3) the hearing violated his right to due process. At oral argument, the Appellate Court, noting that the probation revocation proceeding should not have been commenced by motion pursuant to § 943, questioned sua sponte whether noncompliance with that section deprived the trial court of subject matter jurisdiction. The Appellate Court granted a continuance to allow the parties to file supplemental briefs.

The Appellate Court reversed the judgment of the trial court. State v. Carey, 25 Conn. App. 421, 594 A.2d 1011 (1991). The court held that the way in which the probation revocation proceeding had been commenced did not comply with § 943 because a motion to revoke probation is authorized only when “the revocation is based upon a conviction for a new offense and . . . the defendant is before the court pursuant to that conviction.” (Emphasis omitted.) Id., 424. Because the defendant had not been convicted of either of the two alleged assaults, the court held that the failure to comply with the Practice Book deprived the trial court of subject matter jurisdiction, and ordered the judgment reversed and the probation revocation proceeding dismissed. Id., 427-28.

We granted certification to appeal limited to two issues: “(1) Did the failure of the state to comply with Practice Book § 943 with respect to initiating this proceeding for revocation of the defendant’s probation deprive the trial court of subject matter jurisdiction? (2) Did the defendant waive such noncompliance by failing to raise this procedural defect in the trial court?” State v. Carey, 220 Conn. 912, 597 A.2d 336 (1991).

The state agrees that the revocation proceeding commenced against the defendant did not comply with § 943. The state argues, however, that this noncompliance did not divest the trial court of subject matter jurisdiction to decide whether to revoke the defendant’s probation. The state contends that the failure to follow the Practice Book affected personal jurisdiction, and that the defendant had waived his right to contest the court’s personal jurisdiction by failing to raise the issue at the probation revocation hearing.

The defendant argues that the Appellate Court correctly concluded that § 943 grants the trial court subject matter jurisdiction to adjudicate probation revocation proceedings, and that, therefore, the failure to follow the proper procedure divested the trial court of that jurisdiction. The defendant advances three arguments to support his position that § 943 implicates the court’s subject matter jurisdiction: (1) probation revocation is penal in nature; (2) probation revocation is separate from the criminal prosecution, thus necessitating a new basis for subject matter jurisdiction; and (3) § 943 implements constitutional and statutory rights.

Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11. “A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). “ ‘Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.’ ” Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 73, 540 A.2d 59 (1988) (Shea, J., concurring), quoting Connecticut State Employees Association, Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). Article fifth, § 1 of the Connecticut constitution proclaims that “[t]he powers and jurisdiction of the courts shall be defined by law,” and General Statutes § 51-164s provides that “[tjhe superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. . . .”

A court may raise the issue of its subject matter jurisdiction sua sponte and must dismiss the case if it finds subject matter jurisdiction to be lacking. Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989). “[Ojnce the question of lack of jurisdiction of a court is raised, ‘[it] must be disposed of no matter in what form it is presented’ . . . and the court must‘fully resolve it before proceeding further with the case.’ ” (Citations omitted.) Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988). The question of whether the court has such jurisdiction, however, must be “ ‘informed by the established principle that every presumption is to be indulged in favor of jurisdiction.’ ” Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991).

The Superior Court hearing a criminal matter acquires subject matter jurisdiction from its authority as “a constitutional court of unlimited jurisdiction. Conn. Const., art. 5, § 1.” State v. Stallings, 154 Conn. 272, 278, 224 A.2d 718 (1966). The Superior Court’s authority in a criminal case becomes established by the “proper presentment of the information . . . which is essential to initiate a criminal proceeding.” Reed v. Reincke, 155 Conn. 591, 598, 239 A.2d 909 (1967). In State v. Chin Lung, 106 Conn. 701, 720, 139 A. 91 (1927), we stated, “[u]pon the return to the Superior Court of the indictment [or information] against the accused, it obtained the sole and original jurisdiction of the charge therein made . . . .’’There is no doubt that the court may order probation and take it away. General Statutes §§ 53a-29 through 53a-34. Because “[Revocation is a continuing consequence of the original conviction from which probation was granted”; State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988); and the inherent authority to convict and sentence a defendant flows from the authority to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information. See also Liistro v. Robinson, 170 Conn. 116, 128, 365 A.2d 109 (1976) (“A probationer is subject to judicial control and ‘the court may modify or enlarge’ the conditions of probation.”).

The Appellate Court concluded that § 943 affected the trial court’s subject matter jurisdiction. It started from the premise that the rules of construction that govern statutes are equally applicable to Practice Book rules. State v. Carey, supra, 25 Conn. App. 426. The court also reasoned that unless statutory procedures are strictly followed, the matter is subject to dismissal. Id., 426-27. The court concluded that the state’s failure to comply strictly with § 943 deprived the trial court of subject matter jurisdiction and remanded the case for dismissal. Id., 428.

Although the proper procedure is the filing of a motion for revocation of probation pursuant to the provisions of the Practice Book, we do not agree that § 943 implicates the court’s subject matter jurisdiction. When deciding whether to revoke probation, the Superior Court does not need to reestablish its authority over a criminal case that is already properly before it.

The defendant’s arguments do not persuade us to hold otherwise. First, Practice Book rules do not ordinarily define subject matter jurisdiction. General Statutes § 51-14 (a) authorizes the judges of the Superior Court to promulgate rules “regulating pleading, practice and procedure in judicial proceedings .... Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts.” The defendant has not presented us with any examples of criminal Practice Book rules that affect subject matter jurisdiction.

Nevertheless, the defendant argues that Practice Book rules that implicate important or constitutional rights are jurisdictional in nature and points to Practice Book § 388 et seq., the declaratory judgment action rules as examples. Section 390 sets forth a four-part test to determine whether the court may render a declaratory judgment. Most notably, subsection (d) requires that “all persons having an interest in the subject matter of the complaint” be parties or have reasonable notice of the action. Subsection (d) “has been regarded by this court as essential to the jurisdiction of a court to render a declaratory judgment.” Connecticut Ins. Guaranty Assn. v. Raymark Corporation, 215 Conn. 224, 229, 575 A.2d 693 (1990). In that case, the court reversed a judgment on the merits on the ground that the trial court lacked subject matter jurisdiction to render a declaratory judgment because all interested persons had not been made parties to or notified of the action.

“ ‘This rule [§ 390 (d)] is not merely a procedural regulation. It is in recognition and implementation of the basic principle that due process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard.’ ” Kolenberg v. Board of Education, 206 Conn. 113, 124, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S. Ct. 2903, 101 L. Ed. 2d 935 (1988), quoting Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966). “ ‘It is the settled rule of this jurisdiction, if indeed it may not be called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.’ ” Connecticut Ins. Guaranty Assn. v. Raymark Corporation, supra, 229, quoting Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 508, 100 A. 22 (1917). Notably, no due process rights to notice and to appear are at issue in the present appeal.

The defendant is, furthermore, mistaken in his argument that § 390 itself confers subject matter jurisdiction to render a declaratory judgment. General Statutes § 52-29 (a), within the chapter entitled “Civil Jurisdiction,” provides: “The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.” Pursuant to this statute, “the General Assembly . . . authorize^] our courts to render a declaratory judgment as a novel method of judicial procedure . . . enlarging our methods of remedial justice.” (Internal quotation marks omitted.) Braman v. Babcock, 98 Conn. 549, 556, 120 A. 150 (1923). General Statutes § 52-29 (b) directs the judges of the Superior Court to make rules to effectuate the purpose of the statute. Noncompliance with subsection (d) of Practice Book § 390 renders the declaratory judgment action void because the failure to comply with the notice requirement affects due process rights of persons not before the court and constitutes a substantial defect that deprives the court of subject matter jurisdiction. The fact that noncompliance with subsection (c) of that Practice Book rule does not affect the court’s subject matter jurisdiction; England v. Coventry, 183 Conn. 362, 365-66, 439 A.2d 372 (1981); lends support to the proposition that the Practice Book rule as a whole does not confer subject matter jurisdiction.

The defendant also argues that the court must obtain subject matter jurisdiction anew when the state commences a probation revocation proceeding because the proceeding is not part of the criminal prosecution. The United States Supreme Court has said that a probation revocation proceeding is not a stage of the criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). That statement, however, was made in the context of holding that “a probationer . . . is entitled to a preliminary and a final revocation hearing” before probation can be revoked because the potential loss of liberty affects an accused’s procedural due process rights. Id. The court was not discussing subject matter jurisdiction, and we do not construe its statement to mean that a court loses subject matter jurisdiction over a criminal case when a defendant is sentenced to probation rather than to incarceration.

Additionally, the defendant argues that § 943 is penal in nature and that penal provisions must be strictly construed. The Appellate Court and the defendant rely on State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981), for the proposition that probation revocation proceedings under § 943 are penal in nature and that the rule, therefore, must be strictly construed. In Cook, the defendant was arrested pursuant to a warrant for violating his probation. Section 943 at that time required arrest warrants to commence probation revocation proceedings, and Practice Book § 594 required that such warrants be signed by “the judicial authority.” The defendant filed a motion to dismiss the revocation proceeding because the arrest warrant had not been signed by a judge. This court, in a per curiam decision, affirmed the judgment granting the motion to dismiss based on the mandatory “shall” in § 594 and on the fact that a judge’s signature serves to protect an individual’s constitutional rights.

The decision in State v. Cook, supra, however, does not control this case because that decision did not specify whether the defective signature deprived the court of subject matter jurisdiction or personal jurisdiction, either of which could have provided the basis for the dismissal. Because the defendant in Cook moved to dismiss the proceedings himself, apparently in a timely manner, we decline to read the decision as controlling in this case.

Even if a statute or Practice Book rule must be strictly construed and is mandatory, compliance with its requirements does not necessarily become a prerequisite to a court’s subject matter jurisdiction. See State v. Siano, 216 Conn. 273, 579 A.2d 79 (1990) (even though state failed to comply with mandatory Practice Book rule, error did not undermine confidence in fairness of the trial or defendant’s right to confront witnesses and was, therefore, harmless); LoSacco v. Young, 210 Conn. 503, 508, 555 A.2d 986 (1989) (failure to comply with mandatory time requirement does not affect subject matter jurisdiction).

Although the failure to comply with Practice Book § 943 did not divest the court of subject matter jurisdiction, the defendant could have raised the defective procedure at the probation revocation hearing. The defendant, however, waived his right to contest the defective procedure by failing to object. See State v. Niblack, 220 Conn. 270, 277, 596 A.2d 407 (1991); State v. John, 210 Conn. 652, 665 n.8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). The Appellate Court improperly raised the defect on its own.

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

In this opinion the other justices concurred.

       Practice Book § 943 provides in relevant part: “In cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer and a copy thereof shall be delivered personally to the defendant. All other proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of his probation or his conditional discharge or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation. All proceedings thereafter shall be in accordance with the provisions of Secs. 634 and 660.”
      The General Statutes also authorize a procedure by which to commence probation revocation proceedings. General Statutes § 53a-32 (a) provides in relevant part: ‘ ‘At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. . . .”
      We note that the Practice Book rule and the statute provide different procedures by which to commence probation revocation proceedings. See State v. Carey, 25 Conn. App. 421, 427-28, 594 A.2d 1011 (1991); State v. Baxter, 19 Conn. App. 304, 312 n.8, 563 A.2d 721 (1989). We also note that the usual practice seems to be for the state to proceed under the statute. See State v. Durkin, 219 Conn. 629, 631, 595 A.2d 826 (1991); Payne v. Robinson, 207 Conn. 565, 567, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988); State v. Smith, 207 Conn. 152, 156, 540 A.2d 679 (1988). Other cases have relied on the rule alone; State v. Cook, 183 Conn. 520, 441 A.2d 41 (1981); or on a combination of both. State v. Grazdik, 193 Conn. 35, 45-47, 475 A.2d 269 (1984); State v. Egan,
        9 Conn. App. 59, 72, 514 A.2d 394, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). The issue of any disparity between the rule and the statute is not before us on this appeal.

       The parties agree that the defendant had not, in fact, been convicted of the assault at the time of the revocation hearing.

       The defendant has also briefed in this court the substantive arguments that he originally presented to the Appellate Court and suggests that they are alternative grounds upon which that court’s judgment could be affirmed. The Appellate Court, however, did not address the defendant’s original arguments because it had concluded that it lacked subject matter jurisdiction. Accordingly, in light of our disposition of this appeal, those issues will be before the Appellate Court following our remand to that court.

       Practice Book § 390 (c) provides that the court will not render a declaratory judgment “where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure . . . .”

       This court has rarely held defects to affect the subject matter jurisdiction of a court in the criminal context. See, e.g., State v. Fox, 83 Conn. 286, 76 A. 302 (1910) (City Court of Norwich lacked subject matter jurisdiction to acquit the defendants of a crime that could carry a punishment greater than that allowed by the city charter and was within the type of case over which the General Statutes gave exclusive jurisdiction to the Superior Court); Gilbert v. Steadman, 1 Root 403 (1792) (Connecticut courts have no jurisdiction to adjudicate a theft allegedly committed in another state).

       The state asks us to apply the rule formulated in State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), in which we held that “an illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution .... Where the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.” Id., 262-63. The “jurisdictional barrier” referred to in Fleming has been explained to pertain to personal jurisdiction over a defendant, not subject matter jurisdiction, and the right to contest it is deemed waived unless seasonably made. State v. John, 210 Conn. 652, 665 n.8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). Therefore, because only subject matter jurisdiction is in issue in this case, an analysis under Fleming is not appropriate.