author: Palmer, J.

text:
    Lucille Gonsalves v. City of West Haven et al.
    (15022)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued October 25, 1994
    decision released January 31, 1995

      Jeremy G. Zimmermann, with whom, on the brief, was Jennifers. Aniskovich, for the appellant (plaintiff).

      Henry C. Szadkowski, assistant corporation counsel, with whom, on the brief, was Charles A. Graham, corporation counsel, for the appellees (named defendant et al.).

      Paul J. Dorsi, with whom were Eugene J. Dorsi and Louis Smith Votto, for the appellee (defendant Anne Gonsalves).

      Bradford J. Rieger, with whom, on the brief, was Kimberly Simon, for the appellee (defendant Edward Connelly).
   Palmer, J.

This case requires us to decide whether the plaintiff, Lucille Gonsalves, is entitled to benefits under the police pension fund of the named defendant, the city of West Haven, as a consequence of her marriage to the decedent, Luis J. Gonsalves, a former member of the West Haven police department. The plaintiff applied to the defendant West Haven police pension board (pension board) for benefits under the fund. The pension board denied the application, concluding that the plaintiff is not a “widow” as defined by the special act (act) establishing the fund’s eligibility criteria. The plaintiff thereupon commenced this action, seeking a declaratory judgment that she is entitled to benefits under the act. The trial court concluded that the plaintiff is not entitled to benefits and rendered judgment in favor of the defendants. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts are undisputed. The decedent married his first wife, Anne, in 1956. In 1963, the decedent was appointed to serve as a police officer for the city of West Haven, a position he held until May 6, 1977, when he retired due to a disability. Approximately one month after his retirement, the decedent and Anne Gonsalves were divorced, and on September 3, 1977, the decedent married the plaintiff. The decedent died on September 30, 1990.

Following his death, Anne Gonsalves and the plaintiff each applied to the pension board for widow’s benefits under the pension fund. On October 30,1990, the pension board voted to award benefits to Anne Gonsalves and to deny the plaintiff’s application. Thereafter, upon the plaintiff’s request for reconsideration, the pension board affirmed its decision. The plaintiff then brought this declaratory judgment action, claiming that she alone is entitled to widow’s benefits under the act. The parties stipulated to the relevant facts, and also agreed that the plaintiff’s eligibility for benefits depends upon whether she is a “widow” as that term is defined by the act.

The trial court concluded that the act unambiguously limits the class of widows of department members entitled to benefits to those surviving wives who (1) were living with a department member at the time of his death, or, if not so living with him, were absent by reason of the member’s fault, and (2) were married to the department member at the time of his retirement. Applying this test, the trial court concluded that the plaintiff is not eligible for widow’s benefits because she was not married to the decedent at the time of his retirement.

The plaintiff contends that the trial court misconstrued the act’s definition of the term “widow.” Under the construction urged by the plaintiff, a surviving wife of a department member would be entitled to benefits upon proof either that (1) she was living with the decedent at the time of his death, or (2) if not so living with him, was absent by reason of his fault, and was married to him prior to his retirement. The plaintiff claims that because she is a surviving wife of the decedent who was living with him at the time of his death, she satisfies the first prong of the test and, accordingly, is entitled to widow’s benefits. We conclude that the trial court properly determined that the plaintiff is not a “widow” as defined by the act.

Our analysis of the plaintiff’s claim is guided by well established principles of statutory construction. “ ‘Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ ” (Citation omitted.) Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); see also Carpenteri-Waddington, Inc. v. Commissioner of Revenue Services, 231 Conn. 355, 362, 650 A.2d 147 (1994).

The plaintiff relies primarily on the language of the act’s definition of “widow” to support her claim that she is entitled to benefits. The definition, however, read in the light of the ordinary rules of English grammar and sentence structure, compels a contrary conclusion. See Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993).

Under the act, the term “widow” is “limited in its meaning to the surviving wife of [a department] member who was living with him at the time of his death, or, if not so living with him, was absent by reason of his fault, and who, if such member was retired, was married to him prior to his retirement from [the] department.” The parties’ disagreement over the proper construction of the definition centers upon their differing views as to which phrases and clauses are connected by the coordinating conjunctions “and” and “or.” The defendants contend that “and” connects a restrictive clause containing two predicate phrases (“who was living with him at the time of his death, or, if not so living with him, was absent by reason of his fault”) with a second restrictive clause (“who, if such member was retired, was married to him prior to his retirement from such department”). This construction is consistent with the general rule of grammar that coordinating conjunctions are used to connect sentence elements of the same class. Under the construction urged by the plaintiff, however, this grammatical rule is violated, because “and” would connect a clause (“who was living with him at the time of his death”) and a phrase (“if not so living with him, was absent by reason of his fault”) with a clause (“who, if such member was retired, was married to him prior to his retirement from such department”).

Similarly, under the defendants’ construction, “or” connects sentence elements of the same class, namely, two predicate phrases (“was living with him at the time of his death” and “if not so living with him, was absent by reason of his fault”). Under the plaintiff’s construction, however, “or” connects a clause (“who was living with him at the time of his death”) with a phrase and a clause (“if not so living with him, was absent by reason of his fault” and “who, if such member was retired, was married to him prior to his retirement from such department”). Here again, the defendants’ construction, in contrast to that urged by the plaintiff, comports with the rules of grammar.

The plaintiff does not disagree with the general rule that coordinating conjunctions are used to connect sentence elements of equal grammatical rank, but claims, rather, that her construction of the act is consistent with the rule. Specifically, she contends that the sequence “or, if not so living with him, was absent by reason of his fault,” is a clause, not a phrase, and that the subject of the clause, “who,” is implied or understood. The plaintiff, however, cites nothing in the act or in its history to support this assertion. Because we will not supply language to change the clear meaning of a statute in the absence of any indication that the legislature intended such a construction; see, e.g., Kilpatrick v. Board of Education, 206 Conn. 25, 28-29, 535 A.2d 1311 (1988); McPadden v. Morris, 126 Conn. 654, 13 A.2d 679 (1940); we reject the plaintiff’s argument.

The plaintiff also contends that her interpretation finds support in the legislature’s 1961 rephrasing of the definition of “widow,” which, she argues., changed the meaning of the term. We are not persuaded.

The plaintiff acknowledges that she would not have been entitled to benefits under the act’s definition of the term “widow” prior to the enactment of the 1961 amendment. She claims, however, that the 1961 revision of the definition necessarily reflects a legislative intent to change the meaning of the term “widow.” Although it is generally true that when the legislature amends the language of a statute, we presume “that it intended to change the meaning of the statute and to accomplish some purpose”; State v. Johnson, 227 Conn. 534, 543, 630 A.2d 1059 (1993); we have recognized also that the legislature may modify the phrasing of a statute solely to simplify or condense the statutory language, and not to effect a substantive change. See Daly v. DelPonte, 225 Conn. 499, 511, 624 A.2d 876 (1993); Norwalk v. Daniele, 143 Conn. 85, 87-89, 119 A.2d 732 (1955); Bassett v. City Bank & Trust Co., 115 Conn. 393, 400-401, 161 A. 852 (1932). In revising the phraseology of the act’s definition of the term “widow,” the 1961 amendment made no material changes to its wording. Moreover, there is no indication in the amendment’s legislative history that any change in the meaning of the term “widow” was intended. Indeed, there was no mention of the term or its definition in the committee hearings on the amendment; Conn. Joint Standing Committee Hearings, Cities and Boroughs, Pt. 2, 1961 Sess., pp. 493-99; or in the brief discussion of the amendment on the floors of the House of Representatives; 9 H.R. Proc., Pt. 7, 1961 Sess., pp. 3089-90; and the Senate. 9 S. Proc., Pt. 8, 1961 Sess., p. 2788. Furthermore, for the reasons already discussed, application of the rules of grammar to the definition of “widow” contained in the 1961 amendment leads to the firm conclusion that the legislature did not intend to make any substantive changes in the act’s eligibility requirements for surviving wives.

Finally, the plaintiff contends that the definition of the term “widow,” as construed by the trial court, is unfairly restrictive of the rights of surviving wives of department members to receive pension benefits. In particular, the plaintiff claims that limiting pension eligibility only to those surviving wives who were married to a department member prior to his retirement leads to an unfair result where, as here, the surviving wife married the department member shortly after his retirement and remained married to him until his death many years later. The act, however, reflects a policy determination by the legislature that benefits shall be awarded only to a surviving wife who, as a consequence of her marriage to a department member during some or all of his period of active duty, shared with him the dangers and difficulties attendant upon police work. Moreover, “this court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will.” Penfield v. Jarvis, 175 Conn. 463, 474-75, 399 A.2d 1280 (1978); see also McPadden v. Morris, supra, 126 Conn. 658-59 (wisdom of police relief act’s unambiguous definition of term “widow” is not properly concern of court). Therefore, as we have previously concluded in construing the provisions of a police pension fund containing substantially similar eligibility requirements; see Heise v. Hartford, 127 Conn. 359, 17 A.2d 8 (1940) (widow of police officer not entitled to pension benefits unless she was married to him prior to his retirement and at time of his death); the fact that the plaintiff was not married to the decedent prior to his retirement from the department renders her ineligible for widow’s benefits.

The judgment is affirmed.

In this opinion the other justices concurred.

       The police pension fund, known as the police relief fund, has its origin in the police relief fund established for the town of Orange in 1917 by special act of the legislature. 17 Spec. Acts 882, No. 180 (1917). In 1921, the town of Orange was divided into the towns of Orange and West Haven, and the provisions of the 1917 act were made applicable to West Haven. 18 Spec. Acts 1067, No. 482 (1921). The legislature has amended the act on several occasions, two of which are relevant to this case: the 1937 amendment, which authorized the award of widow’s benefits; 22 Spec. Acts 645, No. 162, § 2(1937); see Wilson v. West Haven, 142 Conn. 646, 651-53, 116 A.2d 420 (1955) (setting forth legislative history of act); and the 1961 amendment, which is the subject of this appeal. 30 Spec. Acts 211, No. 275, § 1 (1961).

       The pertinent amendment to the act; 30 Spec. Acts 211, No. 275, § 1 (1961); provides in relevant part: “Upon the death of any member of the police department who has actually contributed to [the police] relief fund [of the town of West Haven] . . . the widow of such member shall receive, until her death or remarriage, out of said fund of said department, a monthly sum equal to one-half of the compensation received by such member at the time of his death, if in active service, provided such widow shall receive no less than two thousand dollars per annum, or a monthly sum equal to one-half of the pension received by such member at the time of his death, if retired, provided such widow shall receive no less than one thousand dollars per annum. . . . The term ‘widow’, as used in this section, shall be limited in its meaning to the surviving wife of such member who was living with him at the time of his death, or, if not so living with him, was absent by reason of his fault, and who, if such member was retired, was married to him prior to his retirement from such department. ...”

       Also named as defendants were police pension board members Joseph Borelli, Gregory Mondo, Louis D’Onofrio, Alex Botte, Genevieve Canny and Edward Connelly, the West Haven board of police commissioners, and Anne Gonsalves, the decedent’s first wife. All are parties to this appeal, as well.

       The decedent had contributed to the police pension fund during his tenure as a police officer as required by the act.

       We note that the act is antiquated insofar as it purports to provide pension benefits only to certain surviving spouses of male department members. See footnote 2. This case, however, raises no issue concerning the act’s failure to provide pension benefits for widowers of department members.

       The plaintiff also sought damages and injunctive relief.

       The plaintiff also relies on the charter of the city of West Haven and the manual of the West Haven department of police service, both of which set forth the pension fund’s eligibility requirements in language identical to that of the act.

       The trial court declined, however, to adjudicate the pension rights of the defendant Anne Gonsalves, explaining as follows: “The Court notes that [the] prayer for relief in paragraph three of [the] plaintiffs amended complaint dated October 5, 1993, requests the Court to determine Anne Gonsalves’ entitlement to [benefits under the act]. In view of the fact that [the plaintiff] has no [right] to [widow’s benefits,] and in view of the fact that all parties required under [Practice Book § 390 (d)] for a determination of [the] rights of persons other than [the] plaintiff may not be before the Court, the Court, while finding no [right] to pension benefits in the plaintiff, makes no finding as to pension rights with respect to Anne Gonsalves.” We need not address this issue because it has not been raised on appeal.

       A clause is a sequence of related words, within a sentence, that has a subject and a predicate. A phrase is a sequence of grammatically related words without a subject and a predicate. See J. Hodges, M. Whitten, W. Horner, S. Webb & R. Miller, Harbrace College Handbook (11th Ed. 1990) pp. 554, 568.

       “As their name suggests, [coordinating] conjunctions are normally used to connect sentence elements of the same grammatical class—for instance, nouns with nouns, adverbs with adverbs, phrases with phrases, clauses with clauses.” P. Roberts, Understanding Grammar (1954) pp. 231-32; see also J. Hodges, M. Whitten, W. Horner, S. Webb & R. Miller, Harbrace College Handbook (11th Ed. 1990) p. 16.

       The 1937 amendment, which authorized the award of benefits to surviving wives of department members, defined “widow” as follows: “The term ‘widow’, as used in this section, shall be limited in its meaning to the surviving wife of such member, who shall have been married to him prior to his retirement from such department, if retired, and who was living with Mm at the time of his death, or, if not so living with Mm, was absent by reason of his fault.” 22 Spec. Acts 645, No. 162, § 2 (1937). The definition remained unchanged from 1937 until its revision under the 1961 amendment.

       The plaintiff also argues that her construction of the act is consistent with the provision of the 1961 amendment awarding certain minimum payments to widows otherwise eligible for pension benefits. See footnote 2. Specifically, she claims that the award of minimum benefits reflects a broad intent on the part of the legislature to treat surviving wives of department members more generously than in the past, and that it can be presumed, therefore, that the legislature, in revising the definition of “widow,” also sought to liberalize the act’s eligibility requirements. Neither the language of the 1961 amendment nor its legislative history, however, supports this claim. As we have explained, construction of the amendment in accordance with the rules of grammar compels the conclusion that the legislature intended no substantive change to the act’s definition of “widow” in its 1961 revision. Furthermore, the legislative history of the amendment clearly indicates that its primary purpose was to provide for the award of minimum benefits to widows eligible for payments under the act. See 9 H.R. Proc., Pt. 7,1961 Sess., p. 3089, remarks of Representative William T. Blake (“This bill amends the special act which set up the police relief fund in the Town of West Haven. It provides that minimum pensions will be paid.”); 9 S. Proc., Pt. 8,1961 Sess., p. 2788, remarks of Senator John F. Pickett, Jr. (“this bill would establish a minimum retirement amount for the persons who are pensioned under the Police Relief Fund under the terms of the West Haven Fund”). Indeed, the amendment’s legislative history contains no mention of the term “widow” or its definition. Thus, there is no merit to the plaintiffs claim that the 1961 amendment reflects a general intent on the part of the legislature to enlarge the class of surviving wives eligible for benefits under the act.


source: Caselaw Access Project

author: Norcott, J. Berdon, J.,

license: Public Domain

text:
    Gordon B. Mannweiler et al. v. Robert S. LaFlamme et al.
    (15009)
    Callahan, Borden, Berdon, Norcott and Palmer, Js.
    Argued November 3, 1994
    decision released January 31, 1995

      Edward G. Fitzpatrick, with whom was Jayne Elser Welch, for the appellants (plaintiffs).

      Vincent T. McManus, Jr., for the appellees (defendants).
   Norcott, J.

In this action for a declaratory judgment and for other relief, the plaintiffs appeal from the judgment of the trial court rendered in favor of the defendants. The plaintiffs claim that the trial court improperly: (1) found that there was a common scheme of development; (2) concluded that a purported revocation of the right to restrict certain development was valid; and (3) concluded that the plaintiffs were not entitled to enforce certain restrictive covenants. We conclude that the trial court lacked subject matter jurisdiction because certain indispensable parties had not been given notice pursuant to Practice Book § 350 (d). Accordingly, we reverse the judgment of the trial court and remand the case to that court for further proceedings.

In 1927, the J. H. Whittemore Company (Whittemore) had recorded in the Naugatuck land records a subdivision map of a tract of land known as the Hop Brook development (Hop Brook), which consisted of six sections divided into fifty-two lots that were delineated on the subdivision map. The parties in the present case are all owners of property within the development and all derive their title from Whittemore, the common grantor. In May, 1991, the defendants received approval from the Naugatuck planning and zoning commission to subdivide their property and to construct two additional homes in addition to the single residence that already existed on their lot.

Thereafter, the plaintiffs instituted this action seeking injunctive and declaratory relief to prevent the defendants from constructing additional dwellings on their resubdivided parcel. In commencing their action, the plaintiffs served only the defendants and sought no order of notice. The plaintiffs alleged that Whittemore had created, by restrictive covenant, a uniform plan of development, or “common scheme,” limiting any development within Hop Brook to one residential dwelling per lot, to which all subsequent conveyances were subject. The plaintiffs claimed that the restrictive covenant precluded any further subdivision and the erection of additional houses on the defendants’ parcel.

At trial, the defendants contended that the language of the covenant relied on by the plaintiffs does not prohibit the resubdivision of their lot but, rather, expressly permits it. In support of this argument, the defendants pointed to their own deed that contains, in addition to the restrictions in footnote 2, language that evinces Whittemore’s 1937 attempt to revoke or amend Hop Brook’s restrictive covenants in a deed to Lewis A. Dibble. Dibble is the defendants’ predecessor in title. Further, they cited a 1946 warranty deed from Whittemore to Dibble, wherein Whittemore attempted to revoke completely the restrictive covenants and to permit resubdivision by the grantee of four lots in section E of the subdivision.

After a trial, the court concluded that the original grantor’s intention as to the general plan or common scheme was to develop a residential area of single-family homes. The court also found, however, that the plan did not restrict the resubdivision of the defendants’ lot. Accordingly, the court rendered judgment for the defendants. The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The substantive issues in this appeal are whether the trial court properly: (1) concluded that, although a common scheme of development exists, the language of the restrictive covenant does not constitute an enforceable restriction on the number of dwellings that may be constructed on any one lot; (2) declined to declare that the attempted reservation of the right to revoke the restrictive covenants by the original grantor in 1937, and the subsequent revocation in 1946, without consent of all the prior grantees, was void and of no effect; and (3) concluded that the plaintiffs were not entitled to enforce the terms of the restrictive covenants. Because we conclude that the record discloses a fundamental flaw in the proceedings that deprived the trial court of subject matter jurisdiction, we reverse the trial court’s judgment and do not reach the merits of the appeal. See Serrani v. Board of Ethics, 225 Conn. 305, 306, 622 A.2d 1009 (1993).

The parties concede that the plaintiffs’ amended complaint sought both injunctive and declaratory relief. Although the plaintiffs assert that the case was tried to and resolved by the trial court only on the basis of an injunction and that the claim for declaratory judgment was only “ancillary” to the proceedings, our review of the record does not support their contention. Neither the trial court’s memorandum of decision nor the judgment file indicates that the declaratory judgment aspect of this case was not determined by the trial court. Indeed, the pertinent part of the trial court’s memorandum of decision sounds very much like the resolution of the declaratory judgment issue regarding a common scheme. We conclude, therefore, that the trial court considered and denied the declaratory relief sought.

In order for a trial court to have jurisdiction over declaratory judgment actions, however, it must comply with the notice requirement of Practice Book § 390 (d), which provides: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” After a thorough examination of the record, we are persuaded that the presence of all of the lot owners in Hop Brook is indispensable to a determination of the issues upon the merits and that they were entitled to notice of the underlying action.

“Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience. Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983); Standard Mattress Co. v. Hartford, 31 Conn. Sup. 279, 288, 329 A.2d 613 (1974).” Gaudio v. Gaudio, 23 Conn. App. 287, 305-306, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); see also Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 439, 572 A.2d 951 (1990). Joinder of indispensable parties is mandated because due process principles make it “essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action].” Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 634, 563 A.2d 293 (1989). The unnoticed lot owners within Hop Brook are classic “indispensable parties” because the resolution of the questions regarding the restrictive covenants and the alleged common scheme of development are relevant to all deeds within the development. See Tri-Mor Bowl, Inc. v. Brunswick Corp., 366 N.E.2d 941 (Ill. App. 1977); Garnick v. Serewitch, 39 N.J. Super. 486, 121 A.2d 423 (Ch. Div. 1956); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 621-24.

“The purpose of a declaratory judgment action . . . is to ‘secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties’ ”; Wilson v. Kelley, 224 Conn. 110, 115, 617 A.2d 433 (1992), quoting Connecticut Assn, of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986); and to make certain that the declaration will conclusively settle the whole controversy. See National Transportation Co. v. Toquet, 123 Conn. 468, 481-84, 196 A. 344 (1937). “ ‘This rule 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 [person] shall be judicially determined without affording him [or her] 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). Disposition of this case without the presence of all of the lot owners could lead to unacceptable results. For example, the question of whether a common scheme exists could be relitigated in multiple actions by persons not bound by the first declaration. See E. Borchard, Declaratory Judgments (2d Ed. 1941) p. 256. Thus, because adjudication of the declaratory judgment claim necessarily implicates the interests of every other lot owner within the development, each must be given notice and an opportunity to be heard.

This case is analogous to Sloane-Wheeler Corp. v. Odiseos, 154 Conn. 705, 226 A.2d 508 (1967), in which this court dismissed an action for declaratory judgment for lack of jurisdiction because not all of the landowners in a forty acre tract were represented in the action to adjudicate whether building and use restrictions contained in each parcel’s deed were enforceable. The court concluded that “[t]he record fails to disclose that the plaintiffs sustained their burden of proving that all persons having any interest in the removal of the deed restrictions on the lots [in the tract] either were made parties to the action or have had reasonable notice thereof.” Id., 707.

Since, in this case, the plaintiffs, in their prayer for relief, invoked the declaratory judgment provision of General Statutes § 52-29, as implemented by Practice Book §§ 389 and 390, a proper order of notice to all parties having an interest in the subject matter of the complaint was mandatory. See Serrani v. Board of Ethics, supra, 225 Conn. 308. “Failure to comply with § 390 (d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment. See, e.g., Connecticut Ins. Guaranty Assn. v. Raymark Cory., 215 Conn. 224, 229, 575 A.2d 693 (1990); Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966). [Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. . . .In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992); Practice Book §§ 143, 145.” (Internal quotation marks omitted.) Serrani v. Board of Ethics, supra, 308. “We have consistently stressed that strict observance of this jurisdictional requirement is necessary.” Sloane-Wheeler Corp. v. Odiseos, supra, 154 Conn. 707. Accordingly, the lack of notice, pursuant to Practice Book § 390 (d), to the other owners in the subdivision is a fatal flaw that deprived the trial court of jurisdiction. Kolenberg v. Board of Education, supra, 206 Conn. 124.

Furthermore, our concern with the provision of proper notice to all parties with an interest in property subject to the deed restrictions at issue applies with equal force to the plaintiffs’ claim for injunctive relief, at least in a case such as this where it is accompanied by a claim for a declaratory judgment. The plaintiffs’ claims for injunctive and declaratory relief both rise or fall on the interpretation of the deeds at issue in the case and are, therefore, inexorably intertwined. Because to decide one claim is to decide the other, reaching the merits of the claim for injunctive relief— which in this case is essentially just the procedural method for enforcement of the declaratory judgment-through an artificial severance of the claim for declaratory relief would lead to the same multiplicity of litigation that would arise were we to address the declaratory judgment on its merits. The interests of judicial economy and fairness that require the plaintiffs in a declaratory judgment action to give notice to all interested parties militate against our deciding the fundamental issue underlying that cause of action under another name.

The trial court’s lack of subject matter jurisdiction here, however, does not require a dismissal on remand. We have recently held that “[ujnlike other jurisdictional defects implicating the trial court’s subject matter jurisdiction . . . the bringing of a declaratory judgment action is not itself precluded by a failure to comply with the notice requirement.” Serrani v. Board of Ethics, supra, 225 Conn. 309 n.5; Connecticut Ins. Guaranty Assn. v. Raymark Corp., supra, 215 Conn. 230. On remand, the plaintiffs may pursue further procedural efforts to cure the jurisdictional defect regarding the notice requirement. Serrani v. Board of Ethics, supra, 309.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

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

Berdon, J.,

dissenting. I agree that if this case were simply one in which the plaintiffs had sought only a declaratory judgment, this court could dispose of it in a one page per curiam decision because the plaintiffs failed to give notice to all interested parties pursuant to Practice Book § 390 (d). The failure of interested parties to have notice of such litigation, of course, deprives this court of subject matter jurisdiction to rule on that form of relief. In this case, however, the plaintiffs did not seek only declaratory relief. Rather, the plaintiffs sought primarily injunctive relief, and this court should recognize that fact and issue a ruling on the substantive merits of the plaintiffs’ case.

The plaintiffs brought this action to enforce restrictive covenants in their property deeds and to prevent the resubdivision of the original subdivision. In their original seven paragraph prayer for relief, dated July 18, 1990, the plaintiffs asked the court for three different temporary and permanent injunctions, monetary damages, punitive damages and attorney’s fees. During the next thirteen months, the plaintiffs amended their complaint three times. Only in the final amended complaint, dated August 12, 1991, did the plaintiffs amend their prayer for relief to add a request for a declaratory judgment.

This court has considered the availability of both injunctions and declaratory judgments as a means of enforcing restrictive covenants in a deed. We have recognized that a trial court may issue an injunction in order to enforce such restrictions. Manley v. Pfeiffer, 176 Conn. 540, 544, 409 A.2d 1009 (1979); Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977). Similarly, we have held that a trial court may grant a declaratory judgment to determine the validity of these restrictions; Fidelity Title & Trust Co. v. Lomas & Nettleton Co., 125 Conn. 373, 375, 5 A.2d 700 (1925); provided, however, that the party seeking the declaratory judgment has complied with the Practice Book requirements for obtaining it, including joining as parties or providing notice of the litigation to all interested persons. Sloane-Wheeler Corp. v. Odiseos, 154 Conn. 705, 707, 226 A.2d 508 (1967). Where a plaintiff seeks both types of relief, the trial court may rule on the request for an injunction even if the plaintiffs request for a declaratory judgment must be rejected because the plaintiff failed to comply with the Practice Book requirements. Manley v. Pfeiffer, supra, 544-45. In other words, the defects in a plaintiffs request for a declaratory judgment do not deprive the court of its authority or its jurisdiction to rule on his or her request for equitable relief.

In order for the majority to reverse the trial court without reaching the merits of this case, therefore, it is not sufficient to show merely that the trial court ruled on the issue of the declaratory judgment. The majority must also demonstrate that the trial court did not rule on the plaintiffs’ request for injunctive relief. This the majority cannot do. The pleadings, the procedural history of this case, and the trial court’s memorandum of decision all indicate that the plaintiffs’ requests for injunctions were before the trial court and that the trial court predicated its ruling only on them.

First, there is nothing in the complaint or in the prayers for relief that would narrow the plaintiffs’ claims solely to a request for a declaratory judgment. On the contrary, the complaint makes perfectly clear that the plaintiffs sought primarily equitable relief, rather than a declaratory judgment. As I previously indicated, three paragraphs in the prayer for relief requested the court to grant “[a]n injunction, both temporary and permanent,” to restrain the defendants in the use of their property. The plaintiffs’ decision to amend their complaint to include a request for declaratory judgment does not alter the fact that the complaint sought primarily injunctive relief.

Second, the trial court previously had granted the plaintiffs’ motion for a temporary injunction. The issue of whether to convert that temporary injunction into a permanent one therefore was ripe for review and before the court.

Third, the trial court’s own memorandum of decision and the judgment file indicate that the court was deciding the issue of injunctive relief. On the first page of its memorandum of decision, the trial court stated that it understood the central issue to be whether provisions in the deeds of the defendants are “void and subject to injunction by the court.” (Emphasis added.) Indeed, the trial court never once mentioned declaratory relief or declaratory judgment or used any language that can be connected even tangentially to the grant or denial of a declaratory judgment. Furthermore, one of the principal cases relied on by the trial court involved a property owner who sought injunctive relief rather than a declaratory judgment. See Contegni v. Payne, 18 Conn. App. 47, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989). Finally, the judgment file indicates that the trial court had ruled on an “action, by writ and complaint claiming damages and injunctive relief, and later a declaratory judgment . . . .” (Emphasis added.) Importantly, neither the plaintiffs nor the defendants claim that the trial court limited its ruling to the request for a declaratory judgment.

Given these undisputed facts, the majority cannot rationally conclude that the trial court’s decision did not concern the plaintiffs’ request for injunctive relief. Furthermore, even if the trial court’s decision can be construed as denying both injunctive and declaratory relief, we would still have jurisdiction to determine the validity of the trial court’s denial of the injunctive relief. Accordingly, the majority cannot simply remand this case to the trial court without first reaching the merits of that court’s decision and ruling on the substantive issues, which have been fully briefed by the parties.

Finally, the majority’s veiled suggestion that the notice requirements of Practice Book § 390 (d) apply “with equal force to the plaintiffs’ claim for injunctive relief” muddles not only the remand in this case, but also the state of the law on the proper means to enforce restrictive covenants. The plaintiffs in such a case would, on remand, simply withdraw their request for a declaratory judgment and then, if the parties agreed, the appeal could be refiled. See Serrani v. Board of Ethics, 225 Conn. 305, 310-14, 622 A.2d 1009 (1993) (Berdon, J., dissenting). The majority’s comments, however, greatly confuse the issue. If the majority is now layering a notice requirement on an action brought for injunctive relief, the opinion should say so. If the majority is overruling Hartford Electric Light Co. v. Levitz, supra, 173 Conn. 15, in which this court held that a property owner may enforce a restrictive covenant by seeking an injunction, the opinion should say so. If the majority is overruling Manley v. Pfeiffer, supra, 176 Conn. 540, in which this court held that a trial court may rule on a request for an injunction even if the plaintiff:’s request for a declaratory judgment fails for want of proper notice to interested parties, the opinion should say so. Finally, if the majority is now holding that, when more than one property owner is affected, the validity of a restrictive covenant can be determined only by a declaratory judgment, the opinion should say so. This court has an obligation to the practicing attorneys in this state to explain what the law is when we have an issue squarely before us.

Accordingly, I would reach the substantive issues in this case. I, therefore, respectfully dissent.

       The plaintiffs, Gordon B. Mannweiler, Arminda P. Murtha and William G. Boies, each own lots within Hop Brook. The defendants, Robert S. LaFlamme, Charles E. LaFlamme, Sr., David Apicella and John J. Carroll, are joint owners of a single parcel in the development.

       Each deed within Hop Brook contained a similar covenant. For example, the first lot conveyed out of the Hop Brook subdivision was a warranty deed from Whittemore to Howard H. Bristol dated September 28, 1927. That deed contained the following language: “This conveyance is made subject to the following covenants and restrictions and the said Grantee, his heirs and assigns, by the acceptance of this deed, assents and agrees to take the said premises subject thereto:
      “1. The aforesaid premises shall be occupied and used by the Grantee, his heirs and assigns, for private residential purposes only and not otherwise, and there shall at no time be erected or maintained thereon anything except one private residence for the use of one family only, which private residence shall cost, exclusive of the land not less than $15,000.00, together with the necessary outbuildings appurtenant thereto. . . .
      “3. Each and all the foregoing covenants and restrictions are for the mutual benefit of all persons who have derived or who shall derive title, directly or indirectly from the Grantor to any lot or lots shown on the Map hereinbefore referred to, and shall run with the land in favor of all lots shown on said Map, and any breach or threatened breach of any one or more or all of the covenants and restrictions aforesaid may be enjoined upon application of the Grantor, its successors and assigns, or any person or persons who have derived or shall derive title directly or indirectly from the Grantor to any lot or lots shown on said map.”

       The deed to Dibble, dated August 6,1937, contained the following language: “4. It is particularly agreed and understood that should the Grantee, his heirs or assigns, purchase further lands from the Grantor, or its successors, within Block ‘E,’ as shown on said Map, the foregoing covenants and restrictions may be revoked, in whole or in part, and others substituted therefor, by an agreement entered into by and between the Grantor, or its successors, and the Grantee, or his heirs or assigns, alone, and without the consent of any other person or persons.”

       The restrictive language in the 1946 deed is as follows: “2. Said premises may be re-subdivided into building lots of dimensions other than those shown on said Map, provided, however, that no lot shall have a street frontage of less than 100 feet nor a total area of less than 15,000 square feet. On any such lot, or on the original lots if not re-subdivided, no house or outbuildings, including garage, stable, or any other structure, or any part or portion thereof, including p[or]ches, steps, porte cochere, bay windows, and any and all projections therefrom, shall be at any time erected or placed nearer to the front or sidewalk lines of any such lot than forty feet, nor nearer to the side line of any such lot than twenty feet or, where such lot sides upon a street, nearer than forty feet to such side or sidewalk line.”

       The plaintiffs’ amended complaint expressly sought, in part, a declaratory judgment, requesting: “6. A declaratory judgment determining whether or not additional residency can be constructed on the subject property, which is shown as Lot 1 in Section E on the Map and Plot recorded in Map Book 3, Page 1 of the Naugatuck Land Records.”

       It is unclear from the trial court’s memorandum of decision whether it ruled separately on the claims for injunctive and declaratory relief. After discussing the question of a common scheme, the court concluded by stating: “Judgment is entered for the defendants.” The judgment file also is not instructive, as it merely reads: “The court, having heard the parties, finds the issues in favor of the defendants.” Pursuant to Practice Book § 4061, “[i]t is the responsibility of the appellant to provide an adequate record for review.” Neither party sought articulation, pursuant to Practice Book § 4051, of the trial court’s memorandum of decision to clarify this issue and to preserve properly the issue for appeal.

       The pertinent language of the trial court’s memorandum of decision states: “From all of the evidence regarding the conveyances at issue here, it is the conclusion of the court that the grantor’s intention as to the general plan or scheme was one of developing a residential area of single family homes, but that it was not part of the general plan or scheme to restrict the subdivision of the defendant’s lots except as described in the defendant’s deeds. This is further supported by the language in each deed which states that ‘each and all of the foregoing covenants and restrictions’ in the deed are enforceable against subsequent grantees and assigns of the same property. It is not a fair reading of such language to suggest that it means that the restrictions contained in one deed are to be construed as applicable not solely to the property described in that deed, but to other property which may also have once been owned by a common grantor.”

       At oral argument, the plaintiffs’ suggested that a newspaper article relating to the defendants’ proposed subdivision satisfied the notice requirement of Practice Book § 390 (d). We find no merit to this claim.

       The rule requiring joinder of all necessary parties is not inflexible. As this court stated in National Transportation Co. v. Toquet, 123 Conn. 468, 484,196 A. 344 (1937): “Under our rule all such persons even though their presence is not necessary to a decision of the issues between the parties of record are required either to be made parties or to have reasonable notice of the action. Where they are reasonably within the reach of process and are not so numerous that it would impose an unreasonable burden upon the plaintiff they should be made parties; but if they or some of them are not reasonably available for service or to summon them or all of them into the action would put upon the plaintiff a burden he ought not fairly to be asked to assume, the provision for reasonable notice applies. The plaintiff may often accomplish the purpose intended by . . . securing authority from the court for them to defend in behalf of all.”

       In Manley v. Pfeiffer, 176 Conn. 540, 544-45, 409 A.2d 1009 (1979), this court affirmed a trial court judgment that had granted injunctive relief, even though the trial court had lacked jurisdiction to rule on the request for declaratory judgment because proper notice had not been afforded to all interested parties. Although in Manley this court did not explicitly consider whether the trial court had jurisdiction to hear the request for an injunction, our holding implied that the trial court had been competent to hear this claim. That implication is incorrect. Had we considered that issue, as we do in this case, we would have concluded that a trial court lacks jurisdiction to rule on a request for injunctive relief when that relief depends on a de facto declaratory judgment as to the rights of interested parties who have not been given proper notice. We therefore overrule anything in Manley to the contrary.

       Once the notice to the other property owners has been given pursuant to Practice Book § 390 (d), several procedural paths are possible. If any such owner joins as a party and objects to the judgment already rendered, the case must be retried ab initio, so that the new party has a full opportunity to participate therein. Of course, to the extent that the parties agree, the record of the first trial may be incorporated into and made the record of the new trial. If, however, such owner joins but does not request such a new trial or if no such owner joins as a party, the trial court, after giving the parties the opportunity to be heard, will be free either (1) to reissue the decision and rerender its original judgment, or (2) proceed to hear the case anew if it entertains doubt about the original judgment.

       Practice Book § 390 provides: “The court will not render declaratory judgments upon the complaint of any person: (a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or (b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or (c) where the court shall be of the opinion that the parties should be left to seek redress by'some other form of procedure; or (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”

       The plaintiffs’ final amended prayer for relief provides as follows:
      “WHEREFORE, the Plaintiffs claim:
      “1. Monetary damages.
      “2. Attorneys fees and costs for the bringing of this action.
      “3. Punitive damages in Counts Second, Fourth and Sixth.
      “4. An injunction, both temporary and permanent, restraining the Defendants and their agents, servants, employees and other acting under their direction and authority from any further development of existing structure on their property in violation of the deed restrictions and covenants.
      “5. An injunction, both temporary and permanent, restraining the Defendants and their agents, servants, employees and others acting under their direction and authority from constructing any other building or structure on their property in violation of the deed restrictions and covenants.
      “6. An injunction, both temporary and permanent, restraining the Defendants and their agents, servants, employe[e]s and others acting under their direction and authority from subdividing said property in violation of the deed restrictions and covenants.

        “[7.] A declaratory judgment determining whether or not additional residency can he constructed on the subject property, which is shown as Lot 1 in Section E on the Map and Plot recorded in Map Book 3, Page 1 of the Naugatuck Land Records. (See Exhibit A).

      “[8.] The amount of money damages claimed exclusive of interest and costs is not less than Fifteen Thousand and 00/100 ($15,000.00) Dollars.” (Emphasis added.)

       See footnote 1 for the text of Practice Book § 390.

       The opinion of this court in Manley v. Pfeiffer, supra, 176 Conn. 540, does not make clear that the plaintiff had sought both injunctive relief and declaratory relief. The opinion correctly notes that the trial court had denied the declaratory judgment “on the ground that the parties had failed to join all persons having an interest in the subject matter of the suit . . . .” (Emphasis added.) Id., 543. The opinion, however, also seems to suggest that only the defendants had sought the declaratory judgment. Id., 541.
      The record in that case, however, removes any doubt that the plaintiff, as well as the defendants, had sought both injunctive relief and declaratory relief. In her pleadings, the plaintiff stated that she “joins in seeking a declaratory judgment and asks that the Court enter judgment declaring that she has the right to use the so called easement area of her land.” Manley v. Pfeiffer, Conn. Supreme Court Records & Briefs, Nov. Term, 1978, Pt. 2, Record, p. 14. The decision of the trial court, moreover, stated that “[b]oth parties seek a declaratory judgment as to their rights and legal relations with respect to the permanent exclusive easement parcel of land.” Id., p. 15.

       The majority’s reliance on Sloane-Wheeler Corp. v. Odiseos, supra, 154 Conn. 707, is misplaced. Although the complaint in that case included requests for both declaratory relief and injunctive relief, the trial court clearly granted solely a declaratory judgment as follows:
      “1. Judgment may enter for the plaintiff Sloane-Wheeler Corporation relieving its property located in Greenwich and identified as lots 9,10,11 on a development map entitled ‘The Maples’ dated March 5,1906 and on file in the Town Clerk’s office in Greenwich, numbered Map 268, from all restrictive covenants attached to or imposed upon its lots.
      “2. Judgment may enter for the plaintiff Byfield Holmes, Inc. relieving its property identified as the northeast one half of lot #22 on said map of ‘The Maples’ from all restrictive covenants attached to or imposed upon the lot.
      “8. Judgment may enter for the plaintiff Preferred Properties Incorporated relieving its property identified as lot #23 on said map of ‘The Maples’ from all restrictive covenants attached to or imposed upon its lot.
      “4. Judgment may enter for the plaintiff Dorothy M. Lindstedt relieving her property identified as the south one half of Lot No. 13, and all of Lot No. 14 on said map of ‘The Maples’ from all restrictive covenants attached to or imposed upon the lots.” Sloane-Wheeler Corp. v. Odiseos, Conn. Supreme Court Records & Briefs, Nov. Term, 1966, Record, p. 19. The trial court’s decision on the declaratory judgment, therefore, was the only issue before this court. Because the plaintiff had failed to provide notice to all interested parties, we correctly held that this court did not have subject matter jurisdiction.

       Indeed, neither the plaintiffs nor the defendants claim that the plaintiffs’ request for a declaratory judgment operated to deprive courts of subject matter jurisdiction over this case. Instead, this court raised the issue of subject matter jurisdiction for the first time when it asked the parties to file supplemental briefs on the issue. All parties, in fact, agree that we have jurisdiction and should decide this case on the merits.

       The majority contends that reaching the merits of the claim for injunctive relief would lead to a “multiplicity of litigation.” It is true, as the majority recognizes, that the trial court’s grant or denial of injunctive relief based upon the alleged restrictive covenants would not be res judicata for property owners who were not a party to this litigation. It is likely, however, that the parties now before the court are the only ones interested in the issue.

       Although this perfunctory act would satisfy the majority of the court, I am sure that the parties would be concerned about the additional delay and expense. Furthermore, dismissal of the appeal certainly does not advance the administration of justice.

       Footnote 10 of the court’s opinion, in which the majority contends that it is, in fact, overruling a portion of our holding in Manley, sets the stage for unusual distinctions among plaintiffs who seek various forms of judicial relief. The majority seems to suggest that if a plaintiff brings an action for an injunction to restrain a violation of a restrictive covenant and for a judgment declaring the rights of the parties with respect to the covenant, a court would not have jurisdiction to rule on the request for injunctive relief if the plaintiff had failed to satisfy the notice requirements for the declaratory judgment.
      On the other hand, however, the majority does not dispute that a court has jurisdiction to rule on that same plaintiffs request for an injunction if it is contained in a complaint that does not also seek a declaratory judgment. Similarly, the majority does not dispute that a court has jurisdiction to rule on that same plaintiff’s request for an injunction if, before or after judgment, the plaintiff withdraws a request for a declaratory judgment.
      I am unable to understand why a court would not have jurisdiction over the injunctive issue in all of these situations. After all, the particular elements that a plaintiff must prove in order to win an injunction are identical in each of the three situations. In each of the three situations the parties occupy exactly the same positions and carry exactly the same burdens. Finally, there is nothing in this case or in Manley to suggest, as the majority states, that the injunctive relief sought by the plaintiff “depend[ed] on a de facto declaratory judgment as to the rights of interested parties who have not been given proper notice.” Neither party argues this. Rather, this is simply a case where the court on its own has conjured a problem of subject matter jurisdiction that, in fact, does not exist.


author: Berdon, J.

text:
    Richard S. Pollio v. Planning Commission of the Town of Somers et al.
    (15008)
    Callahan, Borden, Berdon, Norcott and Palmer, Js.
    Argued November 3, 1994
    decision released January 31, 1995

      Thomas W. Fahey, Jr., with whom, on the brief, was Carl T. Bandolina, for the appellants-appellees (defendants).

      Ronald P. Sherlock, for the appellee-appellant (plaintiff).
   Berdon, J.

The dispositive issue raised by this appeal is whether a municipality is authorized pursuant to General Statutes (Rev. to 1989) § 8-lc to establish and collect reasonable fees to cover the costs of engineering review of construction plans and inspection of subdivision improvements during construction in connection with an application for a subdivision. We conclude that § 8-lc authorizes such fees, and reverse the judgment of the trial court.

In 1989, the defendant town of Somers (town) enacted an ordinance pursuant to § 8-lc to establish a base application fee of $250 and additional fee schedules “to cover engineering review of construction plans and inspection of improvements during construction.” Somers Town Ords., “Ordinance Establishing Fees for Subdivision Applications” (1989) (1989 ordinance). In February, 1990, the plaintiff, Richard S.Pollio, submitted an application for the approval of a 115 lot subdivision to the defendant planning commission of the town of Somers (commission). At that time, the plaintiff paid the town, pursuant to the 1989 ordinance, $36,030, consisting of a $250 base application fee and supplemental fees of $35,780 to cover engineering review of construction plans and inspection of improvements during construction. On October 11, 1990, the commission denied the plaintiffs application without prejudice, primarily because the plaintiff had failed to provide all the required information and because the proposed sanitary disposal methods were unsuitable. Instead of resubmitting the application, the plaintiff appealed from the commission’s denial to the Superior Court.

The plaintiff also demanded that the town return the $35,780 that he had paid for the review and inspection of the proposed subdivision pursuant to the 1989 ordinance. When the town refused to return the fees, the plaintiff brought this action seeking, among other things, a return of the subdivision fees that he had paid in the amount of $35,780.

The trial court concluded that § 8-lc did not authorize the town to charge application fees for engineering review of construction plans, and that when the legislature intended to authorize fees for inspection during construction, it enacted General Statutes § 8-26 to provide explicitly for such fees. This appeal followed.

At trial, the plaintiff argued that although § 8-lc authorizes a municipality to collect, by ordinance, reasonable fees for the basic administrative processing of subdivision applications, that statute does not extend to the collection of fees for engineering review of construction plans or inspection of improvements during construction. According to the plaintiffs interpretation of § 8-lc, the statute authorizes the town to charge only the base application fee of $250 described in § 3.1 of the 1989 ordinance for the processing and administrative handling of subdivision applications. The additional fees to cover engineering review of construction plans and inspection during construction that are detailed in §§ 3.1-1 through 3.1-4 of the 1989 ordinance, according to the plaintiff, are not processing fees. Therefore, the plaintiff argued that the town exceeded the statutory authority granted it by the legislature pursuant to § 8-lc upon which the 1989 ordinance was based. The plaintiff claimed that fees charged in addition to those authorized by § 8-lc can be collected only pursuant to § 8-26, which specifically grants planning commissions authority to charge application fees for the inspection of subdivision improvements, as well as processing applications, without enacting an ordinance. Fees charged under § 8-26 were, at the time of the enactment of the 1989 ordinance, subject to the statutory limitations of a minimum of $50 for each application and a maximum of $25 for each lot. The plaintiff argued, however, that because the ordinance was enacted pursuant to § 8-lc, the town could collect only the $250 base application processing fee authorized by the ordinance pursuant to the statute. We disagree.

We note at the outset that a presumption of validity is accorded to municipal ordinances. “ ‘Every intendment is to be made in favor of the validity of the ordinance, and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.’ ” Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981), quoting Connecticut Theatrical Corp. v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960). The burden of proving the ordinance is invalid rests upon the party asserting its invalidity; Aaron v. Conservation Commission, supra, 537; and in this case, the burden is on the plaintiff.

Fees charged under the 1989 ordinance are imposed for three purposes. The first type of fee requires the payment of $250 as a base application fee for “processing and administrative handling . . . including . . . Consultant expenses in direct connection with the technical . . . review.” 1989 ordinance, supra, § 3.1. It is undisputed that this fee and the costs it is intended to cover are authorized by § 8-lc.

The second type of fee imposed under the 1989 ordinance is for surcharges and supplemental fees for engineering review of construction plans. 1989 ordinance, supra, § 3.1. Because the technical review of subdivision construction plans must be made by engineers who are employed by the town as consultants, these costs are not distinguishable in kind from the “Consultant expenses in direct connection with the technical . . . review” that are included as part of the undisputed base application fee under § 3.1 of the ordinance and are part of the costs of processing the application pursuant to § 8-lc. The fees authorized by the ordinance for this specific type of engineering review merely allow for an incremental increase in the amount's collected by the town for the additional costs associated with the size of the subdivision involved. Furthermore, a detailed subdivision plan must be submitted before a subdivision application may be approved. It is clear that part of the processing of the application for subdivision approval requires that an engineer review those plans. Therefore, we conclude that, according to the plain meaning of the statute, preapproval engineering review of plans associated with subdivision applications is part of the cost of processing such applications and is authorized under § 8-lc. The only limitation is that the fees must be reasonable.

The third type of fee, $50 for each proposed subdivision lot, is intended to cover a portion of the costs of the inspection of improvements during construction. 1989 ordinance, supra, § 3.1. The plaintiff maintains that the authorization of fees for processing the applications is not included in § 8-lc. We conclude, however, that the plaintiff has not sustained his burden to rebut the presumption of its validity.

We begin our analysis of the inspection fee by defining the intended scope of the application processing fees authorized under § 8-lc. Although we must first look to the language of the statute to determine legislative intent, if the meaning is not evident, we may employ additional sources of statutory construction. Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 157-58, 622 A.2d 536 (1993). The phrase “fees for the processing of applications” is susceptible to several different constructions. Processing could refer only to the administrative handling of the application, as the plaintiff urges. It could also refer to the extensive review to which an application is subjected prior to its approval or disapproval. For example, the plaintiff s application was accompanied by a five page checklist of preapproval requirements that included testing, site review and inspection. Another reasonable interpretation of the statute would be that, in addition to the cost involved in approving or denying the application, upon approval a continuing process of municipal involvement commences. Because the town must insure that the developer complies with the approved plans, it continues to incur postapproval inspection costs and the legislature may have intended to authorize municipalities to cover these costs, at least in part, in the application fee authorized by § 8-lc. Because the statutory language is subject to more than one plausible interpretation, we look to well settled principles of statutory construction to illuminate the intended scope of the statute. Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 74, 607 A.2d 1142 (1992) (“When the language of a statute is reasonably subject to diverse interpretations ... we look to the statute’s legislative history and the policy it was designed to implement ‘to ascertain and give effect to the apparent intent of the legislature.’ United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 [1992]”).

Section 8-lc was enacted in 1982 for the purpose of granting municipalities the authority to establish fee schedules by ordinance for the processing of various land use applications including those processed by planning commissions. The purpose of the legislation was explained by Representative Alice V. Meyer: “After extensive study and discussions with many of the local municipalities, we find that without benefit of state statute many of the local communities have been setting various fees for the processing of all kinds of applications. . . . What this bill does is strongly support local ability to do what the town feels is in the best interest of that town. It gives the local community the right by ordinance to set what these fees are. And I think all of the Representatives who are concerned that these fees will be too high should realize that these fees will have to be voted upon by their own people within their own community. So that this is not something that is going to be imposed upon the people of the towns. They are going to have to pass the ordinances and agree to them before these fees can be collected.” 25 H.R. Proc., Pt. 6, 1982 Sess., pp. 1819-20. It is apparent that the purpose of the statute is to empower municipalities to do what they consider to be in their best interests in order to cover the costs associated with land use regulation subject only to reasonableness. Section 8-lc includes a number of land use commissions and, therefore, various land use applications that implicate diverse and nonuniform processing costs. By referring to such fees generally as “fees for the processing of applications,” the legislature simply chose not to attempt to specify all of them. Accordingly, we interpret the phrase “processing of applications” to include the diversified procedures of the several commissions that could involve both preapproval and postapproval costs associated with the application.

Any alternative interpretation would be contrary to the clearly expressed intent of the legislature. When construing a statute we must search for an effective construction that reasonably accords with the legislature’s underlying intent. Bartholomew v. Schweizer, 217 Conn. 671, 675-76, 587 A.2d 1014 (1991). “We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Internal quotation marks omitted.) Jones v. Mansfield Training School, 220 Conn. 721, 726, 601 A.2d 507 (1992); Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985). Considering that the legislative purpose of § 8-lc was to enable municipalities to enact ordinances so as to collect sufficient fees to cover the costs associated with land use regulations, it would be inconsistent with this intent to interpret § 8-lc to authorize the collection of fees to cover only the administrative costs of processing applications, because the most costly aspects of subdivision development for a municipality involve technical evaluation and inspection.

To further define the scope of § 8-lc, we look to the legislative history of § 8-26, which specifically provides for application fees for the inspection of subdivision improvements. “Because the legislature is always presumed to have created a harmonious and consistent body of law, the proper construction of any statute must take into account the mandates of related statutes governing the same general subject matter.” Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987).

Originally enacted in 1947, § 8-26 was first amended in 1959 to authorize planning commissions to charge limited fees for “the processing of subdivision applications and inspection of subdivision improvements.” Public Acts 1959, No. 679, § 6. The statute was subsequently amended several more times to increase the authorized minimum and maximum fees. See Public Acts 1963, No. 55, § 2; Public Acts 1975, No. 75-40; Public Acts 1978, No. 78-243. The General Assembly expressed concern that the municipalities were spending more on the approval process than they could collect under the statute. Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1975 Sess., pp. 58-59, remarks of Representative Raymond C. Ferrari. Legislation to increase the authorized fees was enacted to “enable the towns to more nearly meet their actual cost involved in subdivision processing and inspection.” 18 H.R. Proc., Pt. 3,1975 Sess., p. 1112, remarks of Representative Dorothy S. McCluskey. It is apparent that the purpose of § 8-26 is to enable planning commissions to cover the costs incurred during the evaluation of subdivision applications and the subsequent inspections required to assure compliance. The legislature was obviously concerned that the towns and, therefore, the taxpayers, were bearing a disproportionate burden of the costs of subdivision regulation. As previously indicated, the legislative history of § 8-lc demonstrates an identical concern pertaining to the several land use commissions and numerous application processes.

In 1993, the legislature again amended § 8-26 by authorizing planning commissions to charge sufficient fees to cover “the cost for the processing of subdivision applications, including, but not limited to, the cost of . . . the inspection of subdivision improvements.” Public Acts 1993, No. 93-124, § 1 (P.A. 93-124). That act also provides that any specific fees established by a planning commission under § 8-26 are superseded by a fee schedule enacted by ordinance under § 8-lc. Therefore, the amendment clearly defined in pertinent part “the cost for the processing of subdivision applications” to include “the inspection of subdivision improvements,” and specifically amended §§ 8-lc and 8-26 by providing that an enactment under § 8-lc supersedes any prior enactment under § 8-26.

We presume that laws are enacted in view of existing relevant statutes and that the legislature intended them to be read together so as to constitute one consistent body of law. Dept. of Administrative Services v. Employees’ Review Board, 226 Conn. 670, 679, 628 A.2d 957 (1993). If there are two possible interpretations of a statute, this court must adopt the more reasonable construction. Jones v. Mansfield Training School, supra, 220 Conn. 726. There is no indication that the processing of land use applications under § 8-1c is intended to have a narrower meaning than the same terminology under § 8-26. On the contrary, because § 8-lc pertains to numerous land use commissions, and therefore to a number of different application processing requirements, the meaning implicitly has a broader scope. Accordingly, we conclude that to the extent that the fees for the processing of applications authorized under § 8-1c pertain to subdivisions, they are intended to cover at least the equivalent costs that may be covered under § 8-26.

Although P.A. 93-124 was enacted subsequent to the adoption of the 1989 ordinance, the purpose of the act was to clarify the prior law, and is therefore applicable to the 1989 ordinance. The act was introduced as a technical amendment to the statutes. 36 H.R. Proc., Pt. 5, 1993 Sess., pp. 1861-62. Technical amendments are not generally intended to effect substantive changes in the law. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 393-94, 618 A.2d 1340 (1993) (technical amendment to act clarifies legislative intent and removes ambiguity); Thomas E. Golden Realty Co. v. Society for Savings, 31 Conn. App. 575, 579 n.2, 626 A.2d 788 (1993) (technical amendment was designed to clarify statute and make it consistent with existing interpretations of act). Furthermore, “[w]e have recognized that a subsequent amendment to an existing statute may clarify the legislature’s original intent.” Daly v. DelPonte, 225 Conn. 499, 511, 624 A.2d 876 (1993); Kinney v. State, 213 Conn. 54, 66, 566 A.2d 670 (1989). We therefore construe P.A. 93-124 as a clarification of the legislative intent to grant planning commissions authorization to cover the costs associated with subdivision application evaluations, including the costs of post-approval inspections of improvements during construction. Because we interpret the processing of land use applications under both §§ 8-lc and 8-26 to be of at least equal scope, the technical amendment enacted by P.A. 93-124 is dispositive of our determination that the town is authorized to collect fees for construction inspections pursuant to § 8-lc.

We conclude that the town has broad authority under § 8-lc to define subdivision application processing fees by ordinance subject only to the standard of reasonableness. The fees charged according to the schedule adopted in the town’s 1989 ordinance are within the scope of § 8-lc.

The judgment of the trial court is reversed, and the case is remanded with direction to render judgment for the defendants.

In this opinion the other justices concurred.

       The defendants appealed from the judgment of the trial court to the Appellate Court, and this court transferred the appeal to itself pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes (Rev. to 1989) § 8-lc provides: “fees foe municipal land use applications. Any municipality may, by ordinance, establish a schedule of reasonable fees for the processing of applications by a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or inland wetlands commission. Such schedule shall supersede any specific fees set forth in the general statutes or any special act.”

       The defendants in this case are the town of Somers and the planning commission of the town of Somers.

       The 1989 ordinance provides in pertinent part: “ordinance establishing FEES FOR SUBDIVISION APPLICATIONS
      “BE IT ORDAINED THAT:
      “Section 1: authorization and purposes
      “1.1 To establish a schedule of fees, pursuant to Section 8-lc of the Connecticut General Statutes, which requires new Subdivision applications to fund the approximate actual municipal administrative costs of reviewing, evaluating and processing such applications, and ensures that fees do not cause such applications to subsidize municipal expenses which are not related to reviewing, evaluating and processing such applications. . . .
      “Section 2: definitions ....
      “2.2 Review, Evaluation and Processing—Review, evaluation and processing is to include all functions performed in connection with, or association with . . . a Subdivision application, by the Planning Commission, and any other Department of the Town of Somers or any Consultant hired by the Town to review, evaluate or process Subdivision applications. . . .
      “Section 3: FEES CHARGED FOR SUBDIVISION APPLICATIONS
      “3.1 The subdivision applicant shall pay a base application fee of Two Hundred and Fifty ($250.00) Dollars which is intended to cover a portion of the Town’s costs for processing and administrative handling of a Subdivision application, including, but not limited to: legal advertisements regarding hearings, decisions of the Commission and other matters requiring publication in a newspaper; recording and transcribing public hearings and minutes of Commission meetings relative to the application; staff salaries and overhead expenses for the Town Planner, Town Sanitarian and other Town Officials, and Consultant expenses in direct connection with the technical and regulatory review; and Town Attorney fees in direct connection with legal advice and review of documents directly related to the Subdivision. To this base Subdivision application fee shall be added the following surcharges and fees to cover engineering review of construction plans and inspection of improvements during construction:
      “3.1-1 A surcharge of Eighty-Five ($85.00) Dollars for every one hundred . . . feet, or part thereof, of new roadway proposed to be constructed as part of the subdivision and intended to be deeded to the Town as public right-of-way;
      “3.1-2 A surcharge of Fifty-Five ($55.00) dollars for every one hundred . . . feet, or part thereof, of existing or previously approved public rights-of-way for town or state roadways abutted by the boundaries of the land contained in the proposed Subdivision;
      “3.1-3 A Subdivision lot fee of One Hundred Fifty ($150.00) Dollars for each of the first Twenty . . . lots; One Hundred Twenty-Five ($125.00) Dollars for each of the twenty-first through the fiftieth . . . lots; One Hundred ($100.00) Dollars for each of the fifty-first through the hundredth lots . . . and Seventy-Five ($75.00) Dollars for each new lot over one hundred . . . lots to be created by the subdivision filed with the Planning Commission;
      “3.1-4 An inspection fee of Fifty ($50.00) Dollars per lot to cover a portion of the Town’s cost of inspections and administrative actions to insure compliance with approved plans for sedimentation and erosion control measures in connection with the approved Subdivision application.
      “3.2 All applicable fees and surcharges must be paid in full at the time the Subdivision application is filed with the Planning Commission.”

       Under the town ordinances, an application that is denied without prejudice may be resubmitted at no extra cost to the developer.

       The commission’s decision to deny the application was ultimately upheld on appeal. Pollio v. Conservation Commission, 32 Conn. App. 109, 628 A.2d 20 (1993).

       The plaintiff also sought a declaratory judgment that the 1989 ordinance is invalid because it is not authorized by § 8-1c. The trial court refused to consider the declaratory judgment because it found that the case of Avon-side, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 215 A.2d 409 (1965), prohibited the use of declaratory judgment when the fees are paid under protest and monetary damages are the appropriate remedy. Instead, it construed the plaintiffs prayer for relief claiming the return of the fees paid as a claim for monetary damages. We do the same.
      Upon the defendants’ appeal of the trial court’s decision, the plaintiff filed a cross appeal claiming that the trial court incorrectly refused to render a judgment declaring the 1989 ordinance to be invalid. Because of our judgment in this appeal, we need not address the issue of whether the trial court correctly determined that monetary damages, not declaratory judgment, is the proper remedy in this case.

       General Statutes (Rev. to 1989) § 8-26 provides in pertinent part: “approval of subdivision and resubdivision plans, waiver of certain REGULATION REQUIREMENTS. APPLICATIONS INVOLVING INLAND WETLANDS AND watercourses. All plans for subdivisions . . . shall be submitted to the commission with an application .... The commission may charge fees for the processing of subdivision applications and inspection of subdivision improvements, the minimum fee to be fifty dollars for each application and the maximum to be twenty-five dollars for each lot within the planned subdivision.”

       The plaintiff argues that this result is illogical because if a subdivision application is denied, as it was in his case, fees are collected in excess of costs incurred. We are not persuaded. First, the plaintiff was free to resubmit his application at no extra cost. He chose not to do so. Second, regardless of whether an application is approved or denied, the approval process is costly. The evaluation of the plaintiff’s incomplete application cost the commission $22,423. It is not unreasonable to require the developer to conform his or her subdivision application and plan to the town’s requirements and bear the financial burden if the application is not approved. Furthermore, the issue of the reasonableness of the fee is not before us. See footnote 11.

       The legislature amended § 8-26 to allow planning commissions to “establish a schedule of fees and charge such fees . . . sufficient to cover the cost for the processing of subdivision applications, including but not limited to, the cost of registered or certified mailings, the publication of notices and for the inspection of subdivision improvements. Any schedule of fees established under this section shall be superseded by fees established by ordinance under section 8-lc.” Public Acts 1993, No. 93-124, § 1. Section 8-lc was also amended by Public Act 93-124, § 2, to clarify that any ordinance enacted thereunder superseded an enactment under § 8-26.

       The trial court found the fees charged by the town were reasonable because the ordinance in the aggregate would recover only 80 to 85 percent of the town’s direct costs. This finding has not been challenged and is, therefore, not before this court.