source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Andover Limited Partnership I v. Board of Tax Review of the town of West Hartford
    (15081)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued January 5
    decision released March 14, 1995

      I. Milton Widem, with whom was Ann M. Siczewicz, for the appellant (plaintiff).

      Elizabeth Dee Bailey, assistant corporation counsel, with whom, on the brief, was William Mastrogiovanni, Jr., legal intern, for the appellee (defendant).
   Berdon, J.

The sole issue in this appeal is whether, in a tax assessment appeal under General Statutes § 12-117a, the plaintiff’s designation of the board of tax review of the town of West Hartford instead of the town of West Hartford as the defendant deprived the trial court of subject matter jurisdiction. We conclude that it did not and therefore reverse the judgment of the trial court.

The following facts are undisputed. The plaintiff, Andover Limited Partnership I, commenced this action to challenge a decision by the board of tax review of the town of West Hartford (board) affirming a 1989 tax assessment on improved real property owned by the plaintiff and located at 630 Oakwood Avenue in the town of West Hartford (town). On July 24, 1990, the plaintiff filed an application with the trial court appealing the decision. The application included a citation and recognizance that the plaintiff had served upon the assistant town clerk pursuant to General Statutes § 52-57 (b) (l), naming the “Board of Tax Review of the Town of West Hartford” as the defendant. On October 9, 1990, the plaintiff amended the appeal to include the 1990 assessment of the property at 630 Oak-wood Avenue. The plaintiff amended the appeal again on October 17,1991, and November 6,1992, to include assessments for the years 1991 and 1992, respectively.

The town filed an appearance on August 21, 1990, “for all defendants” (emphasis in original) in the action and subsequently filed an answer to the complaint on August 28, 1991, that was signed “Defendant, Town of West Hartford.” Two years later, on September 20, 1993, the town filed a motion to dismiss pursuant to Practice Book § 143, claiming that the court lacked subject matter jurisdiction to hear the case. The town contended that § 12-117a requires a plaintiff to include the town in the citation and that the plaintiff’s failure to name the town, rather than the board, as the defendant constituted a defect that deprived the court of subject matter jurisdiction. On September 24, 1993, the plaintiff filed a request for leave to amend the citation and recognizance pursuant to General Statutes § 52-123 in order to name the town, rather than the board, as defendant. The town objected to the request on October 8, 1993, contending that § 52-123 is not available to cure a defect that implicates subject matter jurisdiction.

The trial court strictly construed § 12-117a to require that the citation name the town, and determined that the plaintiff’s failure to do so constituted a jurisdictional defect that was not curable by amendment. Accordingly, the trial court granted the town’s motion to dismiss. The plaintiff appealed from the decision of the trial court to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

In order to determine whether the plaintiff’s failure to name the town as the defendant in its citation was fatal to its cause of action, despite proper service of the citation upon the assistant town clerk of West Hartford, we must look to the controlling statutes. Because statutory interpretation is a question of law, our review is de novo. See, e.g., Lussier v. Dept. of Transportation, 228 Conn. 343, 350-53, 636 A.2d 808 (1994); Pack v. Burns, 212 Conn. 381, 384-86, 562 A.2d 24 (1989).

Section 12-117a requires that in order to appeal from a decision of a town’s board of tax review, the aggrieved party must “make application ... to the superior court for the judicial district in which such town ... is situated, which shall be accompanied by a citation to such town ... to appear before said court.” Although the plaintiff acknowledges that it did not strictly comply with the statutory requirements, it contends that the error was a nonfatal misnomer that constitutes a circumstantial mistake, error or defect and is curable by § 52-123. The town, however, argues that because the plaintiff named the wrong party as the defendant in its citation, the error constituted a defect that deprived the court of subject matter jurisdiction, and the action was properly dismissed.

Section 52-123 is a remedial statute and therefore it must “be liberally construed in favor of those whom the legislature intended to benefit.” (Internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994); 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 35, pp. 137-38 n.608. The statute applies broadly to any writ issued in a civil action, and a citation, by definition, is a writ. Therefore, in this civil action, the plaintiff may invoke § 52-123 to amend the citation at issue if its error may be construed as “circumstantial.”

We previously have explained that § 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer or misdescription in an original writ, summons or complaint. Pack v. Burns, supra, 212 Conn. 381. In Pack, the plaintiff initially named as the defendant the “State of Connecticut Transportation Commission,” a nonexistent entity, but then properly served notice of the claim on the commissioner of transportation, as required by General Statutes § 13a-144. We determined that “[t]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed.” (Internal quotation marks omitted.) Id., 384-85. In Pack, we first considered whether the plaintiff had intended to sue the proper party or whether it had erroneously misdirected its action. Id., 385; see also Motiejaitis v. Johnson, 117 Conn. 631, 636, 169 A. 606 (1933) (plaintiff permitted to amend writ after verdict, but before judgment to properly name intended defendant). Second, we considered three factors to determine whether the error was a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice. Pack v. Burns, supra, 385. We concluded in Pack that the plaintiff was entitled to amend the named defendant under § 52-123 because the plaintiff had intended to sue the commissioner, and because the commissioner, who was not prejudiced by the error, knew he was the intended defendant. Id., 385-86.

Similarly, in Lussier v. Dept. of Transportation, supra, 228 Conn. 343, we permitted the plaintiff to amend a summons that misnamed the intended defendant. In Lussier, the plaintiff named the “State of Connecticut, Department of Transportation” as the defendant on the civil summons form instead of the commissioner, as required by .§ 13a-144. The commissioner was properly named in the complaint, however, and was provided with proper notice of the action. As in the case before us, the plaintiff argued that it merely had stated the defendant’s name incorrectly. The defendant argued that the wrong entity had been named as defendant and that the court, therefore, had no subject matter jurisdiction. Id., 350. We distinguished these two categories of error, stating that “[t]he first, involving a defendant designated by an incorrect name, is referred to as a ‘misnomer.’ It is a circumstantial defect anticipated by General Statutes § 52-123 that can be cured by amendment. A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant, rather than the legal nature of his existence. When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant.” Id.; see also 1 E. Stephenson, supra, § 105e, p. 433 (designation of correct party in way which may be inaccurate but which is still sufficient for identification purposes may be amended).

Furthermore, we recently determined that an error in the process that failed to comply with a statutory mandate may be corrected under a remedial statute. In Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 618, the plaintiffs, who erroneously specified a return date that fell on a Thursday, sought to amend the return date to fall on a Tuesday, as required under General Statutes § 52-48. We concluded that amendment of process to correct a return date must be permitted as a remedial measure under General Statutes § 52-72. Id., 623. In addition, we concluded that the language “[a]ny court shall allow a proper amendment to civil process” is mandatory rather than directory and we directed the trial court to grant the plaintiffs request to amend process. Id., 626. Section 52-123 is a comparably worded, remedial statute to which the same principles apply. 1 E. Stephenson, supra, § 35, pp. 137-38 n.608.

We, therefore, have refused to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiffs cause of action if the pleadings were technically imperfect. As Professor Edward L. Stephenson points out, remedial statutes such as § 52-123 were intended to soften the otherwise harsh consequences of strict construction under the common law: “Over-technical formal requirements have ever been a problem of the common law, leading [legislative bodies] at periodic intervals to enact statutes . . . which, in substance, told the courts to be reasonable in their search for technical perfection.” 1 E. Stephenson, supra, § 35, p. 137.

In sum, we decline to interpret § 52-123 in so strict a manner as to deny the plaintiff the pursuit of its complaint. See, e.g., Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 477-78, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980) (court should avoid interpreting rules and statutes so strictly that litigant is denied pursuit of its complaint due to mere circumstantial defects); Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974) (court does not favor termination of proceedings without determination on merits); Greco v. Keenan, 115 Conn. 704, 705,161 A. 100 (1932) (same).

In this case, it is evident that the town, rather than the board, was the intended defendant and that the town had actual notice of the institution of this action. The plaintiffs intent was to appeal the alleged excessive tax assessment under § 12-117a. According to the statute, relief could only be obtained from the town. Notice to the town was properly served, pursuant to § 52-57 (b) (1), upon the assistant town clerk. Further, the town implicitly recognized that it was the proper defendant in this action by accepting service of the citation, appearing in the action, answering the complaint and otherwise acting as the defendant. The town, through its counsel, has been actively involved in filing documents with the court and in attempting to negotiate a settlement with the plaintiff, and there is no evidence that the town was prejudiced in any way by the erroneous designation of the board as the defendant in the citation. Counsel for the town signed every court document in the record before us that was submitted on behalf of the board or the town. Counsel for the town also represented the board at oral arguments before this court and conceded that neither notice nor prejudice is at issue in this case. Therefore, we can reasonably conclude that the plaintiff intended to bring the action against the town, and that the town had actual notice of the action and knew it was the intended defendant. The record reveals that the town responded accordingly and was not prejudiced by the naming of the board as the defendant in the plaintiffs citation.

We conclude that the naming of the board instead of the town was a circumstantial error, mistake or defect under § 52-123. We further conclude that because the language of § 52-123—“[n]o writ . . . shall be . . . set aside ... for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court’’—is mandatory rather than directory, the plaintiff was entitled to correct its error by amendment.

The judgment of the trial court is reversed, and the case is remanded with direction to grant the plaintiff’s request for leave to amend the citation, and for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 12-117a provides in pertinent part: “Notwithstanding the provisions of sections 12-118, 12-121aa and 12-121bb, any person . . . claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1, 1989, October 1,1990, October 1, 1991, October 1, 1992, October 1,1993, or October 1, 1994, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. . . .”

       “[T]he citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 18.” Tolly v. Dept. of Human Resources, 225 Conn. 13, 18, 621 A.2d 719 (1993).

       General Statutes § 52-57 provides in pertinent part: “manner of service UPON INDIVIDUALS, MUNICIPALITIES, CORPORATIONS, PARTNERSHIPS AND VOLUNTARY ASSOCIATIONS. . . .
      “(b) Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen . . . .”

       Practice Book § 143 provides in pertinent part: “[motion to dismiss]— GROUNDS
      “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . .•. . 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.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”

       General Statutes § 52-123 provides: “circumstantial defects not TO abate PLEADINGS. No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

       Under § 12-177a the plaintiff had two months within which to appeal the board’s decision and, although the date of the decision is not included in the record, the application to appeal apparently was timely filed on July 24,1990. If the trial court’s dismissal is upheld, however, the plaintiff will be unable to reinstitute this action because the deadline to make such application has long passed. Therefore, such an outcome would be fatal to the plaintiff’s cause of action.

       See footnote 2.

       General Statutes § 13a-144 provides in pertinent part: “damages FOR INJURIES SUSTAINED ON STATE HIGHWAYS OR SIDEWALKS. Any person injured . . . through the neglect or default of the state . . . may bring a civil action to recover damages sustained thereby against the commissioner [of transportation] .... No such action shall be brought . . . unless notice of such injury . . . has been given in writing within ninety days thereafter to the commissioner. . . .”

       General Statutes § 52-48 provides in pertinent part: “return day OF process, (a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the superior court may be made returnable on any Tuesday in any month. . . .”

       General Statutes § 52-72 provides in pertinent part: “amendment of process, (a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.
      “(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.”


author: Per Curiam.

text:
    John Fraenza v. Timothy R.E. Keeney, Commissioner of Environmental Protection, et al.
    (15143)
    Peters, C. J., and Borden, Berdon, Katz and Palmer, Js.
    Argued February 9
    decision released March 21, 1995

      Frank Cochran, for the appellant (plaintiff).

      John M. Looney, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).
   Per Curiam.

This administrative appeal concerns the right of a landowner to obtain the prescribed permits from the department of environmental protection in order to construct a marina within tidal waters that are part of a statutorily designated coastal zone. In a decision upholding the findings and conclusions of a hearing officer, the defendant, Timothy R.E. Keeney, commissioner of environmental protection, determined that the proposed marina, in its present configuration, would have significant adverse environmental consequences and therefore denied the application of the plaintiff, John Fraenza, for a structures and dredging permit pursuant to General Statutes (Rev. to 1989) § 22a-361 and a tidal wetlands permit pursuant to General Statutes (Rev. to 1989) § 22a-32. The plaintiff filed an administrative appeal in the Superior Court in accordance with General Statutes §§ 22a-34 and 4-183. On the basis of its review of the administrative record and the arguments of counsel, the trial court rendered a judgment dismissing the plaintiff’s appeal. The plaintiff then appealed from the judgment of the trial court to the Appellate Court, and we transferred his appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

In this court, the plaintiff has raised eighteen issues that renew almost all the claims that he made in the trial court. He challenges the dismissal, on procedural grounds, of his appeal from the denial of a structures and dredging permit. He likewise challenges the dismissal, on substantive grounds, of his appeal from the denial of a tidal wetlands permit. He maintains, furthermore, that the defendant’s actions have deprived him of any opportunity to develop his property as a marina and therefore constitute a constitutionally impermissible regulatory taking. In response to these various issues, the trial court filed a thoughtful and comprehensive memorandum of decision that thoroughly canvassed the applicable legal principles in a manner consistent with the statutes governing the regulation of tidal wetlands in statutorily designated coastal zones. Because that memorandum of decision fully states and meets the relevant arguments raised in the present appeal, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law on these issues. See Fraenza v. Keeney, 43 Conn. Sup. 386, 655 A.2d 1113 (1994). No useful purpose would be served by a repetition of the discussion contained therein. See Masotti v. Bristol Savings Bank, 232 Conn. 172, 175, 653 A.2d 179 (1995); Advanced Business Systems, Inc. v. Crystal, 231 Conn. 378, 381, 650 A.2d 540 (1994); Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 229 Conn. 455, 458-59, 642 A.2d 697 (1994).

The judgment is affirmed.

       We will refer to the commissioner as the defendant because the commissioner apparently represents the interests of the defendant coastal resources management division of the department of environmental protection. The other listed defendants, the estate of Armand Williams, Pier 66 Marina, Branford Point Association, Robert Bartlett and Virginia Bartlett, have neither filed briefs nor participated in oral argument in the appeal to this court.

       General Statutes (Rev. to 1989) § 22a-361 provides in relevant part:
      “permit for dredging or erection of structures or placement of fill, regulations, (a) No person, firm or corporation, public, municipal or private, shall dredge, or erect any structure, place any fill, obstruction or encroachment or carry out any work incidental thereto in the tidal, coastal or navigable waters of the state waterward of the high tide line until such person, firm or corporation has submitted an application and has secured from said commissioner a certificate or permit for such work and has agreed to carry out any conditions necessary to the implementation of such certificate or permit. . . .
      “(b) The commissioner of environmental protection may adopt, in accordance with the provisions of chapter 54, regulations to carry out the provisions of sections 22a-359 to 22a-363, inclusive, and sections 22a-383 to 22a-390, inclusive. . . .”

       General Statutes (Rev. to 1989) § 22a-32 provides in relevant part: “regulated activity permit, application, hearing, waiver of hearing. No regulated activity shall be conducted upon any wetland without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon any wetland shall file an application for a permit with the commissioner, in such form and with such information as the commissioner may prescribe. ... No sooner than thirty days and not later than sixty days of the receipt of such application, the commissioner or his duly designated hearing officer shall hold a public hearing on such application, provided, whenever the commissioner determines that the regulated activity for which a permit is sought is not likely to have a significant impact on the wetland, he may waive the requirement for public hearing after publishing notice, in a newspaper having general circulation in each town wherever the proposed work or any part thereof is located, of his intent to waive said requirement, except that the commissioner shall hold a hearing on such application upon receipt of a petition, signed by at least twenty-five persons, requesting such a hearing. . . .”

       General Statutes § 22a-34 provides in relevant part: “appeal, (a) An appeal may be taken by the applicant or any person or corporation, municipal corporation or interested community group other than the applicant who has been aggrieved by such order from the denial, suspension or revocation of a permit . . . within thirty days after publication of such issuance, denial, suspension or revocation of any such permit to the superior court for the judicial district of Hartford-New Britain. If the court finds that the action appealed from is an unreasonable exercise of the police power, it may set aside the order. If the court so finds that the action appealed from constitutes the equivalent of a taking without compensation, and the land so regulated otherwise meets the interests and objectives of sections 22a-28 to 22a-35, inclusive, it may at the election of the commissioner (1) set aside the order or (2) proceed under the provisions of sections 48-12 to 48-14, inclusive, to award damages.
      “(b) Such appeal shall be brought in accordance with the provisions of section 4-183, except venue for such appeal shall be in the judicial district of Hartford-New Britain. Such appeal shall have precedence in the order of trial.”
      General Statutes § 4-183 provides in relevant part: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section.
      * ** *
      “(i) The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
      “(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment. . . .”


author: Callahan, J.

text:
    Connecticut National Bank v. Mark Cooper et al. Connecticut National Bank v. CCM Land Developing, Inc., et al.
    (15110) (15111) (15112)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.

      Argued January 6
    decision released March 28, 1995

      Jeffrey J. Tinley, with whom was William T. Blake, Jr., for the appellant (defendant Southbury Affiliates, Limited Partnership).

      James Wu, with whom was Brian Shagan, for the appellee (plaintiff).
   Callahan, J.

The dispositive issue in this appeal is whether the trial court properly refused to open the stipulated judgments that had been rendered against the defendants Southbury Affiliates, Limited Partnership (partnership), and Mark Cooper, a limited partner in that partnership, in the absence of the consent of the partnership’s limited partners. The plaintiff, Connecticut National Bank, now known as Shawmut Bank (bank), had filed three separate complaints against Cooper demanding payment on nineteen defaulted promissory notes. Each complaint also contained one count of fraudulent conveyance against the partnership, alleging that Cooper had assigned his interest in the limited partnership back to the partnership without consideration or, alternatively, with the intent to hinder, delay or defraud his creditors, and that the partnership had consented to the assignment with knowledge of the fraudulent purpose. A stipulated judgment was rendered by the trial court, Glass, J., on July 1, 1986, that purportedly resolved all the bank’s claims in the three complaints and also settled its claims concerning two other defaulted notes on which Cooper was liable, but on which the bank had not yet filed suit. It is undisputed that the limited partners had not given their written consent to the stipulated judgment. On August 21, 1990, the partnership moved to open the judgment. After holding a four day hearing on the partnership’s motion; see footnote 2; the trial court, Pellegrino, J., denied the motion. The partnership 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 reverse the judgment of the trial court.

The factual history of this case is convoluted. Cooper was the original general partner of what ostensibly was a limited partnership, which had been formed in 1984 for the purpose of developing a large parcel of real estate located in Southbury, known as the Uniroyal Farm. Harvey Gordon, Cooper’s uncle, became the general partner of the limited partnership upon Cooper’s resignation from that position later in 1984. The partners thereafter entered into a written limited partnership agreement, dated April 1,1985, and a certificate of limited partnership was filed with the secretary of the state on May 14,1985. Both documents were prepared by attorney George Adams, who represented the partnership at the time. Gordon and Cooper had assembled the group of investors who became the limited partners in the partnership. The investors for the most part were either associated with Gordon through his business as a certified public accountant, or were familial relations or friends of Gordon and Cooper.

On March 28, 1986, the bank filed three complaints against Cooper for nonpayment of defaulted promissory notes and against the partnership for fraudulent conveyance. The bank also filed motions for prejudgment remedies against the partnership. On May 13, 1986, the parties to the lawsuits met to discuss a possible settlement of the bank’s claims. In attendance at this meeting were Gordon, Cooper, two other limited partners of the partnership, attorney George Adams representing the partnership, attorney David Collins representing the bank, attorney Morris Olmer representing Cooper, and the bank’s loan officer, Theodore Maniatis. At the hearing to open the judgment, Maniatis testified that the partnership, at the May 13,1986 meeting, had espoused the position that, although no fraudulent conveyance had taken place, it nonetheless would offer to settle the matter only as to the partnership for $100,000. The bank had rejected that offer. According to Maniatis, the meeting ended with an outstanding offer from the partnership to settle all claims in the complaint, against both Cooper and the partnership, for $250,000. The partnership disputes that any offer was ever made to settle any claim against Cooper. The trial court made no factual findings about what actually had transpired at the meeting.

When settlement negotiations failed, a hearing was scheduled on the bank’s motions for supplemental prejudgment remedies for June 30,1986. Adams informed Gordon of the hearing by letter, and indicated that he would not file an appearance for the partnership “without a substantial retainer.” The trial court found that, after Gordon had received Adams’ letter, Gordon had asked Olmer to represent the partnership at the June hearing, with the understanding that Cooper would pay Olmer’s fee. The trial court further found that Olmer had discussed strategy with Gordon on June 24,1986, before the hearing, and on July 2,1986, after the hearing. According to the trial court, “Olmer was, in fact . . . given specific authority from . . . Gordon to settle the matters on behalf of the Partnership in accordance with the terms of the stipulated judgment.”

On June 27, 1986, Adams responded to a subpoena duces tecum from the bank by delivering to the bank’s attorney, James Wu, all of the documents that he had in his possession regarding the partnership. The documents included a copy of the limited partnership agreement dated April 1, 1985. At the hearing on the motion to open the judgment, Wu stipulated that he had received and reviewed this document prior to the July 1,1986 stipulated judgment. Adams did not enter an appearance or represent the partnership in connection with the bank’s claims.

On June 30, 1986, the parties appeared before the Superior Court in Waterbury and requested time to pursue settlement discussions. The court consequently continued the supplemental prejudgment remedy hearing until the next day, July 1, 1986. On July 1, 1986, the parties filed appearances with the trial court clerk: Wu appeared for the bank; Cooper appeared pro se; Olmer appeared as counsel for the partnership; and attorney Ralph Crozier appeared pro se and as counsel for Anthony Silano. The parties then sought and were granted a recess in order to continue settlement negotiations. The trial court found that during this recess Crozier had overheard Cooper and Olmer make a telephone call to Gordon with regard to the contemplated settlement agreement.

On July 1,1986, after the recess, the parties reported to the court that they had reached an agreement, which was read into the record and, at the parties’ request, recorded as a stipulated judgment. The essential terms of the stipulated judgment were: (1) a stipulation by the defendants that the allegations of the complaints were true; (2) an agreement that Cooper would pay the bank $340,000, plus interest at the bank’s prime rate, out of his proceeds from the contemplated sale of the partnership property; and (3) an agreement that the partnership would execute a written guarantee of the judgment. The payment of the judgment was to be in satisfaction of all nineteen promissory notes cited in the bank’s three complaints, as well as two other notes for which Cooper was liable but which were not mentioned in the bank’s complaints. The bank agreed to release the prejudgment attachment of the partnership property upon payment.

At the hearing on the motion to open the judgment; see footnote 2; Gordon denied having authorized the stipulation or knowing that Olmer had been retained to represent the partnership, although he did testify that he had spoken to Olmer on July 2, 1986, the day after the judgment was rendered. He testified that they had spoken only “for a moment or two and just bypassed anything except hello and so forth and that was it.” The trial court, however, did not find Gordon’s testimony credible in this regard.

On August 1,1986, the bank forwarded the proposed guarantee to Olmer for the partnership to execute; the guarantee, however, was never signed. At the hearing on the motion to open the judgment; see footnote 2; Olmer testified that he had given the guarantee to Cooper with the expectation that Cooper would forward it to Gordon, but it is unclear whether Gordon ever received it. The sale of the partnership property, which at the time of the stipulated judgment was expected to be consummated on January 2, 1987, never took place. On June 29, 1987, the bank wrote to Gordon informing him that Cooper had not paid the debt, and that the bank could enforce the judgment against the partnership after July 1, 1987. Gordon later claimed that this was his first inkling that the stipulated judgment existed. Subsequent to receipt of the bank’s letter, Gordon requested a transcript of the July 1, 1986 hearing from the bank. He acknowledged receiving the transcript, but neither he nor the bank took any further action at that time.

Almost four years later, in May, 1990, the bank filed a motion to enforce the stipulated judgment and also filed a motion for contempt against Cooper and the partnership. Shortly thereafter, over the weekend of June 9, 1990, Cooper died in a plane crash. On August 21,1990, the partnership subsequently filed the motion to open the stipulated judgment. See footnote 2. The trial court denied the partnership’s motion. This appeal followed.

On appeal, the partnership claims that the stipulated judgment should be opened because it was procured by fraud or in the actual absence of consent by the partnership. We agree that there was an actual absence of consent for the partnership to enter into the stipulated judgment. We therefore reverse the judgment of the trial court, and remand the case with direction to grant the partnership’s motion to open the judgment as to it.

Generally, a judgment rendered in the Superior Court cannot be opened unless a motion to open is filed within four months following the date that the judgment was rendered. General Statutes § 52-212a; Practice Book § 326. The partnership’s motion to open the stipulated judgment was filed over four years after the judgment was rendered. However, “[i]t is a well-established general rule that even a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which the court has given its approval, can subsequently be opened [after the four month limitation] ... if it is shown that the stipulation, and hence the judgment, was obtained by fraud, in the actual absence of consent, or because of mutual mistake.” (Emphasis added; internal quotation marks omitted.) Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980).

The partnership does not dispute the trial court’s finding that Gordon authorized Olmer to represent the partnership. Nonetheless, the partnership claims that the stipulated judgment was rendered “in the actual absence of consent” because the limited partnership agreement prohibited the general partner from confessing a judgment against the partnership without the written consent of the limited partners. The limited partnership agreement explicitly provides that “[without the prior written consent of a majority in interest of the Limited Partners, the General Partner shall not . . . confess a judgment against the Partnership.”

General Statutes § 34-47 (4) provides: “No act of a partner in contravention of a restriction on authority shall bind the partnership to persons having knowledge of the restriction.” The partnership argues that because the bank’s attorney acknowledged that he had received and had reviewed the limited partnership agreement prior to the stipulated judgment, the bank had knowledge of the restriction on Gordon’s authority to agree to the stipulation. The partnership, therefore, argues pursuant to § 34-47 (4) that it is not bound by the stipulation. In short, the partnership contends that because the judgment was confessed without the prior written consent of the limited partners as required by the partnership agreement, and the restriction in the agreement was known to the bank, the judgment must be opened as to the partnership. We agree.

Section 34-47, which is part of the Uniform Partnership Act (UPA), was codified in Connecticut in 1961. The UPA applies to limited partnerships except insofar as it is inconsistent with the Uniform Limited Partnership Act. General Statutes § 34-44; Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 274, 492 A.2d 180 (1985). General Statutes § 34-17 (a), which is part of the Uniform Limited Partnership Act, provides: “Except as provided in this chapter or in the partnership agreement, a general partner of a limited partnership shall have all the rights and powers and be subject to all the restrictions of a partner in a partnership without limited partners.” Because § 34-47 is not inconsistent with § 34-17 (a), the limitation provided in § 34-47 (4) applies to the general partner of a limited partnership.

No previous cases in Connecticut have interpreted § 34-47 (4). Moreover, there is no helpful legislative history of § 34-47 (4) or edifying commentary on the identical subsection in the UPA. Other jurisdictions, however, have interpreted equivalent language in their states’ codification of the UPA. For instance, under a provision with language identical to that of § 34-47 (4), the North Dakota Supreme Court, in First National Bank & Trust v. Scherr, 467 N.W.2d 427, 429 (N.D. 1991), held that a “partner, as an agent of the partnership, normally binds the partnership by executing any instrument that carries on the business of the partnership in the usual way. . . . But, as with any agent, that is not so if the partner’s authority is restricted, and if the restriction is known to the person with whom the partner deals.” See Evans v. Pioneer Bank of Evanston, 809 P.2d 251, 254-55 (Wyo. 1991) (“In summary, we hold that the Partnership Agreement required that all managing partners consent to the promissory note and that [the bank] knew of this requirement. Because of [the bank’s] knowledge of the limitation contained in the Partnership Agreement, it had the burden to prove consent by all managing partners.”).

General principles of agency law are in accord. General Statutes § 34-42 (3), which is part of the UPA, provides: “The law of agency shall apply under this chapter.” “It is an acknowledged principle of agency law that a principal may limit the powers of his agent and that all parties who deal with the agent with knowledge of the limitation are bound by its terms. Fischer Co. v. Morrison, 137 Conn. 399, 402, 78 A.2d 242 [1951] . . . .” Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 125, 374 A.2d 144 (1976); see Slocum v.New York Life Ins. Co., 228 U.S. 364, 374, 33 S. Ct. 523, 57 L. Ed. 879 (1913) (“[o]ne who deals with an agent, knowing that he is clothed with a circumscribed authority and that his act transcends his powers, cannot hold his principal”). Under facts analogous to those in this case, the terms of a partnership agreement have been enforced against persons having knowledge thereof. Green River Associates v. Mark Twain Kansas City Bank, 808 S.W.2d 894,897 (Mo. App. 1991) (bank’s knowledge of limitations on general partner’s authority contained in limited partnership agreement precluded enforcement of promissory note against partnership).

The manifest intent of § 34-47 (4) is to protect innocent partners, in this instance limited partners, from the undertakings of a general partner in contravention of a specific restriction on the authority of the general partner, when the restriction is known to the third party with whom the partner is dealing. The purpose of placing a restriction on a general partner’s authority in a partnership agreement and the policy embodied in § 34-47 (4) would be defeated if one who was aware of a restriction on a partner’s authority could ignore the restriction and hold the partnership to an unauthorized agreement.

Notably, at the hearing on the partnership’s motion to open the judgment, Gordon’s undisputed testimony was that he had not received the prior written consent of any, let alone a majority in interest, of the limited partners authorizing him to enter into a stipulated judgment to settle the lawsuits filed by the bank. Moreover, the record contains no evidence that any consent, written or otherwise, was given by a majority in interest of the limited partners. Because the bank had received and had reviewed the limited partnership agreement prior to the stipulation, it was a “[person] having knowledge of the restriction” under the statute. Accordingly, pursuant to § 34-47 (4), the partnership is not bound by Gordon’s confession of judgment against the partnership.

The judgments are reversed in part and the cases are remanded to the trial court with direction to grant the partnership’s motions to open the judgments as to it.

In this opinion the other justices concurred.

       The first complaint, Docket No. 0075733S, involved seventeen promissory notes, sixteen of which were executed by H & S Contractors, Inc./Energy Homes, Inc. (H & S), and endorsed by Cooper, and one of which was executed by Cooper. The second complaint, Docket No. 0075734S, involved one promissory note executed by Cooper and Ralph Crozier, who initially was Cooper’s partner, and endorsed by CCM Land Developing, Inc. (CCM). The final complaint, Docket No. 0075735S, involved one promissory note executed by CCM and endorsed by Cooper. H & S and CCM were related companies under the direction of Cooper.

       The stipulated judgment was rendered in each of the three lawsuits that the bank had filed. The partnership filed a motion to open the judgment in each case. For purposes of this consolidated appeal, reference to the stipulated judgment and to the partnership’s motion applies to all three cases.

       Before the cases were transferred to this court, the Appellate Court, sua sponte, consolidated the three appeals.

       Initially no written partnership agreement existed and no certificate of limited partnership was filed with the secretary of the state.

       The limited partners who signed the limited partnership agreement were Harold Merritt, Sheldon and Sheldon (by Glenn Gordon, partner), Mark Cooper, Anthony Silano, Aronson and Aronson (by Bernard Aronson, partner), Leonard Cooper, Gerald Shukow, Ruth Sheldon, Gertrude Cooper, Herbert Haber, Conn Job (by Michael Aboff, partner) and Charlene White. Harvey Gordon signed as the general partner.

       The transcript of the limited discussions in court on June 80,1986, was destroyed. There is no disagreement between the parties, however, as to what occurred on that day.

       Crozier initially had been a general partner with Cooper in the acquisition of the real estate, which was the primary asset of the partnership. Crozier was a defendant in one of the complaints; see footnote 1; and Silano was a garnishee in the bank’s original prejudgment remedy, which had been granted by the court on March 27, 1986.

       Crozier testified: “He said: [Gordon], this is [Olmer], we’re in court, we’re about to stipulate. We’re getting down to the nitty-gritty and I have to pass something by you with regards to a guarantee.”

       The record reflects that Wu described the stipulated judgment in relevant part as follows: “Your Honor, with regard to the settlement, the plaintiff, Connecticut National Bank, has agreed with both Southbury Affiliates, Limited Partnership, represented by Attorney Morris Olmer, and with Mr. Mark Cooper, who is an individual defendant who is representing himself, to the following: the defendants will—these defendants will stipulate that the allegations of all three complaints are true .... [TJhree hundred and forty thousand dollars will be paid by the defendant, Mark Cooper. He has agreed to pay interest at the prime rate of Connecticut National Bank from today’s date until the date the property . . . we are seeking to attach [is closed upon]. The tentative closing date is January 2, 1987.
      “In addition, there will be a written guaranty signed by Southbury Affiliates, Limited Partnership, guarantying the payment of three hundred and forty thousand dollars by Mark Cooper. Such payment will be made by Southbury Affiliates, Limited Partnership, at the time of closing ....
      “If there is no closing on January 2,1987, the bank and all of the defendants, Southbury Affiliates, Limited Partnership, and Mark Cooper, individually, have agreed that the debt will be paid by either defendant by July 1, 1987 . . . .”

       A hearing has never been held on the bank’s motion to enforce the judgment or on its motion for contempt.

       Although the trial court found absolutely no evidence to support the partnership’s claim of fraud, we need not address this issue due to our conclusion that the judgment must be opened on the ground of lack of consent.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law . . . a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. ...”
      Practice Book § 326 provides in relevant part: “Unless otherwise provided by law . . . any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.”

       On appeal, the bank claims that the equitable doctrine of laches should apply to this case. Because at least two limited partners were at the proceeding in which the judgment was stipulated to, the bank argues that the knowledge of those limited partners should be imputed to the other limited partners not present at the proceeding; see General Statutes § 34-50; and that the partnership’s inaction for four years with knowledge of the judgment should bar its opening the judgment. General Statutes § 34-43 provides: “In any case not provided, for in this chapter the rules of law and equity, including the law merchant, shall govern.” (Emphasis added.) Because General Statutes § 34-47 (4) specifically provides that “[n]o act of a partner in contravention of a restriction on authority shall bind the partnership to persons having knowledge of the restriction” (emphasis added), and because the bank had knowledge of the restriction, this case is governed by the Uniform Partnership Act, and the equitable doctrine of laches does not apply. It would be particularly inappropriate to have laches apply in the case of limited partners because they do not actively participate in the management of the partnership’s affairs.
      Similarly, the bank also claims that because all of the limited partners either had actual knowledge or should be ascribed imputed knowledge of the stipulated judgment, the partnership ratified the stipulated judgment by its silence. Because a judgment confessed by a partner without the consent of the limited partners is not void, but only voidable; see 59A Am. Jur. 2d § 761, p. 614, and cases cited therein; subsequent ratification of the stipulated judgment by the limited partners may act to bind the partnership. Id. Because there is no evidence, however, that the limited partners not present at the court proceeding had actual knowledge of the stipulated judgment, and because imputing knowledge of the stipulated judgment to those limited partners absent from that proceeding would render § 34-47 (4) essentially meaningless, there is no merit to the bank’s claim of ratification.

       Other jurisdictions have looked to the common law when considering issues arising under the UPA, because the UPA generally is consistent with the common law prior to its enactment. Shafer Bros. v. Kite, 43 Md. App. 601, 607 n.2, 406 A.2d 673 (1979).

       The trial court’s memorandum of decision stated: “The court finds that Mr. Olmer was, in fact, retained to represent the Partnership, [and] that he was given specific authority from Mr. Gordon to settle the matters on behalf of the Partnership in accordance with the terms of the stipulated judgment.” (Emphasis added.)

       Apparently Olmer, who entered an appearance for the partnership, did not himself have actual knowledge of the restriction on Gordon’s authority, nor had he ever received a copy of the limited partnership agreement.

       Because the issue is not here presented, we need not decide whether the judgment may be enforced against Gordon’s personal assets. There is authority, however, for the proposition that “a confession of judgment made by a partner on behalf of a partnership is valid . . . as to the partner confessing and can affect only that partner’s individual property and his interest in the partnership effects.” Scanlon v. Kuehn, 225 App. Div. 256, 258, 232 N.Y.S. 592 (1929); see North & Scott v. Mudge & Co., 13 Iowa 496, 498 (1862) (“the judgment was good and binding on the party or partner confessing the same”); Shafer Bros. v. Kite, 43 Md. App. 601, 607, 406 A.2d 673 (1979) (“‘where one partner does . . . confess, judgment as against all the partners, without the consent of his copartners, the judgment thus confessed binds only the partner confessing’ ’ ’); Morgan v. Richardson, 16 Mo. 409, 411 (1852) (“The authorities are abundant to show that one partner cannot confess a judgment which will bind his co-partner. . . .Itdoes not appear that the judgment against [the partner confessing judgment] has been vacated, nor will we interfere with it.”); Rubin v. A. C. Kluger & Co., 86 Misc. 2d 1014,1016, 383 N.Y.S.2d 828 (1976) (“[t]he confession of judgment is ineffective against the partnership and is valid only as to the private assets of the confessing partner and possibly against the confessing partner’s share of partnership income”); Van Scoten v. Botsford & Kanes, 98 Pa. Super. 270, 273 (1930) (“It is definitely settled that one partner does not have an implied authority to confess judgment against another partner for a partnership debt. The judgment is, therefore, void against a non-assenting partner, but it is good against the partner confessing it . . . .”); see also 59A Am. Jur. 2d § 761, p. 614 (1987).


author: Norcott, J.

text:
    O and G Industries, Inc. v. Planning and Zoning Commission of the Town of Beacon Falls
    (15063)
    Callahan, Norcott, Palmer, F. X. Hennessy and M. Hennessey, Js.
    Argued November 29, 1994
    decision released March 28, 1995

      Thomas F. McDermott, Jr., with whom was Kenneth W. Merz, for the appellant (plaintiff).

      Robert F. Carter, for the appellee (defendant).
   Norcott, J.

The dispositive issue in this appeal is whether the plaintiff, O and G Industries, Inc., had an adequate remedy available from the defendant, the Beacon Falls planning and zoning commission (commission), and therefore was required to exhaust its administrative remedies prior to seeking relief in the Superior Court. The plaintiff instituted this action seeking a declaratory judgment that its earth processing operation, located on its land in Beacon Falls, constituted a valid nonconforming use of its land. The trial court dismissed the action for lack of subject matter jurisdiction on the ground that the plaintiff had failed to exhaust its administrative remedies. 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 trial court’s judgment of dismissal.

The relevant facts and procedural history are as follows. The plaintiff owns and operates an earth mining, excavation and gravel processing facility located in an industrial zone within the town of Beacon Falls. In 1988, the commission amended the Beacon Falls zoning regulations (regulations) in response to a perceived risk that, as the mines in town were gradually depleted, the focus of local mining enterprises would shift from mining operations to permanent processing operations utilizing earth products excavated outside of the town. In particular, the amendments designated all accessory uses, such as the processing of earth products, as nonconforming uses, which require a special permit under § 64.11 of the regulations.

Previously, the plaintiff and two other gravel processing facilities in Beacon Falls had challenged the constitutionality of the amendments claiming that they were facially invalid because they did not expressly exempt nonconforming principal uses. See General Statutes § 8-2. This court disagreed, stating that “although lacking an express exemption for nonconforming principal processing uses, [the amendments] implicitly exempt such uses.” D & J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 455, 585 A.2d 1227 (1991). Because we lacked the requisite factual record upon which to base a determination, we declined to decide whether the operations on the parcels at issue constituted nonconforming principal uses. Instead, our decision contemplated that further proceedings would necessarily have to be held to develop a factual historical record as to whether the plaintiffs gravel processing of foreign materials was an existing use in November, 1960, the effective date of the regulations. Id., 450-53.

On August 1, 1991, the plaintiff submitted an application to the commission to renew its existing special permit pursuant to § 64.11.2 of the regulations and to register its land as a nonconforming use pursuant to § 10.6 of the regulations. Thereafter, on September 10, 1991, the plaintiff initiated an action in the Superior Court seeking a declaratory judgment that its operation “constitutes a valid, pre-existing nonconforming use of the above-described property as a principal use of land and is not prohibited by the regulations so enacted.” On October 2,1991, the commission held a public hearing on the plaintiffs application at which the plaintiff was invited to, and did, introduce evidence regarding the historical use of the property. Some testimony was introduced in this regard, but the hearing was continued until October 30,1991, to allow the plaintiff the opportunity to offer further evidence.

On October 17,1991, prior to the scheduled hearing, the plaintiff sought a temporary injunction prohibiting the commission from proceeding on its application. The court granted the plaintiffs request on November 14, 1991. On October 13,1993, after a trial on the merits and consideration of supplemental briefs on the jurisdictional issue, the trial court dissolved the temporary injunction and dismissed the declaratory judgment action for the failure of the plaintiff to exhaust its administrative remedies. The plaintiff has appealed from the judgment of dismissal.

While the plaintiff in its brief has raised a number of reasons why it is not required to exhaust administrative remedies, these claims raise but two issues: (1) whether the commission lacked jurisdiction initially to decide the status of the plaintiffs property because pursuing an application with the commission would have been inadequate or futile; and (2) whether the regulations that the commission would have applied were unconstitutional in that they constitute the taking of a vested property right without just compensation.

I

The plaintiff claims that the trial court improperly dismissed its appeal for failure to exhaust administrative remedies because the commission lacked jurisdiction initially to decide that the plaintiff’s property was a valid principal nonconforming use. Specifically, the plaintiff claims that it did not have to fulfill the exhaustion requirement because the commission could not have provided adequate relief, namely, a declaration that its use of its land constituted a valid nonconforming principal use. Alternatively, the plaintiff maintains that application to the commission would have been futile because the commission was not impartial. We disagree and conclude that because the plaintiff had an adequate remedy under the regulations, it was required to exhaust its administrative remedies before seeking redress in court.

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977).” Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989); see also Pet v. Dept. of Health Services, 207 Conn. 346, 350-51, 542 A.2d 672 (1988); Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987); Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 230 (1987); LaCroix v. Board of Education, 199 Conn. 70, 78-80, 505 A.2d 1233 (1986). Exhaustion is required even in cases where the agency’s jurisdiction over the proposed activity has been challenged. Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 621-22 n.7, 577 A.2d 1017 (1990); Greater Bridgeport Transit District v. Local Union 1336, supra, 438; Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Wilkinson v. Inland Wetlands & Watercourses Commission, 24 Conn. App. 163, 586 A.2d 631 (1991). “This requirement ‘reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment.’ Greenwich v. Kristoff 180 Conn. 575, 578, 430 A.2d 1294 (1980).” Planning & Zoning Commission v. Craft, 12 Conn. App. 90, 94, 529 A.2d 1328, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987).

We have recognized, however, certain limited exceptions to the exhaustion requirement. Such exceptions include “where the available relief is inadequate or futile”; Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 4, 544 A.2d 152 (1988); or where local procedures cannot effectively, conveniently or directly determine whether the plaintiff is entitled to the relief claimed. Conto v. Zoning Commission, 186 Conn. 106, 115, 439 A.2d 441 (1982); see also Cummings v. Tripp, supra, 204 Conn. 74-81; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541, 469 A.2d 382 (1983); Sullivan v. State, 189 Conn. 550, 553-54, 457 A.2d 304 (1983); Kosinski v. Lawlor, 111 Conn. 420, 425, 418 A.2d 66 (1979); Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969). The plaintiff argues that these exceptions to the exhaustion requirement excuse its failure to pursue administrative remedies.

A

The plaintiff first claims that it should not be required to exhaust administrative remedies because the procedures and relief established by the commission’s regulations, vis-a-vis its claim, are inadequate. We have previously determined that an administrative remedy is adequate when it could provide the plaintiff with the relief that it seeks and provide a mechanism for judicial review of the administrative decision. Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 629.

In the present case, the relief sought by the plaintiff is a declaration that its use of the property constitutes a valid nonconforming principal use. Such a declaration would enable the plaintiff to continue to process gravel materials without regard to their source. Two provisions of the regulations could provide the relief sought: (1) a special permit, pursuant to § 64.11; see footnote 3; and (2) registration of a nonconforming use, pursuant to § 10.6. See footnote 4. The plaintiff had attempted to avail itself of both provisions through its submission of an application to the commission on August 1, 1991.

The holder of a § 64.11 special permit is entitled to operate an earth products processing facility as an accessory use to its mining operations. See D & J Quarry Products, Inc. v. Planning & Zoning Commission, supra, 217 Conn. 455 (§ 64.11 pertains only to accessory uses). The only materials that are allowed to be processed under this permit, however, are those materials that are mined onsite—imported foreign materials are specifically prohibited. See Beacon Falls Zoning Regs. § 64.11.5 (f); footnote 3. Thus, the plaintiff contends that even if it were granted a special permit pursuant to § 64.11, it would not receive the underlying relief sought, i.e., permission to continue processing earth products indefinitely without regard to the source of the raw materials. See Cannata v. Dept, of Environmental Protection, supra, 215 Conn. 629 (granting of permit would give underlying relief sought, therefore required to submit to permit process); Wilkinson v. Inland Wetlands & Watercourses Commission, supra, 24 Conn. App. 163 (same). We agree with the plaintiff that the special permit process pursuant to § 64.11 would not provide an adequate remedy and, therefore, the plaintiff is not required to seek a special permit.

This does not, however, end our discussion. Section 10.6 enables a property owner to register a nonconforming use. See footnote 4; see also Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981). Although the regulation provides that nonconforming uses should be registered within one year, the “[fjailure to so register [merely places] the burden of proof on the property owner [to prove] that any alleged non-conforming use of land or structure legally existed at the time this ordinance or any amendment thereto became effective.” Beacon Falls Zoning Regs. § 10.6. Such a remedy, if granted, would afford the plaintiff the relief it seeks, namely, recognition of the plaintiff’s use of its property as a nonconforming use and the right to continue to process gravel materials without regard to their origin. In addition, if the commission denied the plaintiffs application to register its nonconforming use, the plaintiff could pursue an appeal to the Superior Court pursuant to General Statutes §§ 8-8 (b) and 8-9. “Therefore, the [registration] process . . . is an adequate remedy available for the requested relief and is within the agency’s authority to grant.” Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 629.

B

The plaintiff also contends that the commission was not an impartial forum because, as evidenced by its members’ allegedly hostile comments toward gravel processing operations, it would have been futile to seek a special permit and, therefore, it should be excused from fulfilling the exhaustion requirement. We find no merit to this argument.

Although we consistently have recognized an exception to the exhaustion requirement “where the available relief is . . . futile”; Norwich v. Norwalk Wilbert Vault Co., supra, 208 Conn. 4; our review of the record reveals that the plaintiff’s belief that it necessarily would be unavailing to apply to the commission to register its nonconforming use was purely speculative. It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings. See Kosinski v. Lawlor, supra, 177 Conn. 425; Planning & Zoning Commission v. Craft, supra, 12 Conn. App. 95. “The law does not require the doing of a useless thing.” Corsino v. Grover, 148 Conn. 299, 308, 170 A.2d 267 (1961).

“[Tjhere is a presumption [however,] that administrative board members acting in an adjudicative capacity are not biased. Jutkowitz v. Department of Health Services, [220 Conn. 86, 100, 596 A.2d 374 (1991)]; Rado v. Board of Education, [216 Conn. 541, 556, 583 A.2d 102 (1990)]. ‘To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias “too high to be constitutionally tolerable.” ’ Rado v. Board of Education, supra, [556,] quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). The plaintiff has the burden of establishing a disqualifying interest. Jutkowitz v. Department of Health Services, supra [100]; Petrowski v. Norwich Free Academy, [199 Conn. 231, 236, 506 A.2d 129, appeal dismissed, 479 U.S. 802,107 S. Ct. 42, 93 L. Ed. 2d 5 (1986)].” Clisham v. Board of Police Commissioners, 223 Conn. 354, 362, 613 A.2d 254 (1992).

From our thorough review of the record, we are convinced that the commission has afforded, in good faith, the plaintiff ample opportunity to introduce evidence of the property’s historical use and is not predisposed to decide this matter in a manner adverse to the plaintiff. To the contrary, the commission repeatedly has refused to render a final decision until it has had the opportunity to consider all pertinent evidence. Thus, the plaintiff has failed to demonstrate that the pursuit of its administrative remedy would be futile. Accordingly, the issue the plaintiff seeks to have litigated must be resolved by the commission through its established procedures for registering nonconforming uses and, if the plaintiff is unsuccessful in registering its land as a nonconforming use, by taking an appeal pursuant to General Statutes §§ 8-8 (b) and 8-9.

II

Finally, the plaintiff argues that by requiring it to obtain a special permit in order to continue to operate its gravel operations, the commission has deprived it of a vested property right in a nonconforming use without just compensation. We disagree.

Although it is true that zoning regulations cannot bar uses that existed when the regulations were adopted; General Statutes § 8-2; and “ ‘[a] lawfully established nonconforming use is a vested right . . . entitled to constitutional protection’ ”; Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979); see also Helbig v. Zoning Commission, supra, 185 Conn. 306; James J. F. Loughlin Agency, Inc. v. West Hartford, 166 Conn. 305, 311, 348 A.2d 675 (1974); Lampasona v. Planning & Zoning Commission, 6 Conn. App. 237, 239, 504 A.2d 554 (1986); it has not yet been determined whether the plaintiffs property constitutes a valid nonconforming principal use. Thus, while it is possible that the plaintiff could have a vested property right, we cannot address this issue until the status of the plaintiffs property has been resolved by the commission.

Accordingly, we conclude that the trial court lacked jurisdiction to hear this complaint and properly granted the commission’s motion to dismiss.

The judgment is affirmed.

In this opinion the other justices concurred.

       The commission contends that under the regulations, earth products processing has always been permitted only as an accessory use and not as a principal use. Accessory uses are, by definition, uses “located on the same lot, and must be subordinate and customarily incidental to, the principal use. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 512, 264 A.2d 552 (1969).” D & J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 456, 585 A.2d 1227 (1991).

       General Statutes § 8-2 provides in relevant part: “REGULATIONS. . . . Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. . . .”

       Section 64.11 of the Beacon Falls zoning regulations provides: “64.11 earth products processing: After September 22,1988, all commercial screening, sifting, washing, crushing or other processing of earth products in all zones is prohibited, and the use of any land in any zone for such processing of earth products is prohibited. Any earth products processing facility which is located in any industrial or industrial park zone and which constitutes a valid prior non-conforming use, and any earth products processing facility in a residential zone until such use can be terminated, are subject to the following requirements for issuance of a permit to operate:
      “64.11.1 No earth products shall be screened, sifted, washed, crushed, or otherwise processed except as authorized by a permit granted by the Commission under this subsection. Issuance of a permit to any processing facility located in a residential zone does not constitute recognition that such use is a valid non-conforming use.
      “64.11.2 application: Application for a permit under this subsection shall be submitted annually in writing to the Zoning Enforcement Officer and to the Commission. All applications shall be accompanied by a written statement specifying the hours and days of the week when the operation is to be conducted, the number, type and capacity of trucks and other equipment to be used, and proposed vehicular access to the lot. The Commission may request the submission of such additional information as it deems necessary in order to decide upon the application. Duration of a permit shall be one year. Failure to apply for a permit under this Section shall terminate a non-conforming use.
      “64.11.3 APPLICATION FEE: $75.00
      “64.11.4 procedure: Upon receipt, the Zoning Enforcement Officer shall transmit the application and accompanying statement to the Commission. Within sixty-five (65) days after receipt of a completed application and statement meeting the requirements of Paragraph 64.11.2, the Commission shall hold a public hearing on the application. Notice of the public hearing shall be published [in various newspapers for required intervals]. After the public hearing the Commission shall approv[e] or disapprove the application. The applicant may consent in writing to any extension of the time of public hearing and action on the application. The grounds for disapproval of an application shall be stated in the records of the Commission. Failure to submit additional information requested by the Commission under Paragraph 64.11.2, within the period for action on the application, shall be grounds for disapproval of the application.
      “64.11.5 approval: After the public hearing the Commission may grant the application to permit the processing of earth products if it finds that the following standards and conditions will be met . . .
      “f. After September 1, 1990, no earth products excavated outside the Town of Beacon Falls shall be screened, sifted, washed, crushed or otherwise processed at any earth products processing facility or site in the Town of Beacon Falls; provided, that stockpiles of earth products excavated outside of the Town of Beacon Falls which are in existence as of September 1, 1990, must be entirely processed as of September 1, 1991.”

       Section 10 of the Beacon Falls zoning regulations, entitled “Nonconformity,” provides in part: “10.1 continuing existing non-conforming uses. The lawfully permitted use of land or structures existing at the time of the adoption of the zoning ordinance or any amendment thereto may be continued, although such use does not conform to the standards of the district in which such land or structure is located. Said uses shall be deemed non-conforming uses. . . .
      “10.6 REGISTRATION OF NON-CONFORMING USE OF LAND OR STRUCTURE: Any non-conforming use of land or structures shall be registered in the office of the Planning and Zoning Commission within one (1) year after the adoption of the Zoning Regulations. Such registration shall include the identifications of the premises, a description of the nature and extent of the non-conforming use and, if necessary to description, a plot plan, drawn to scale, showing property lines, all structures and any other pertinent information, and an affidavit by the owner as to the date since which such nonconforming use has existed. Failure to so register shall place the burden of proof on the property owner that any alleged non-conforming use of land or structure legally existed at the time this ordinance or any amendment thereto became effective.”

       Another general exception to the exhaustion requirement applies “when the challenge is to the constitutionality of the statute or regulation under which the board or agency operates, rather than to the actions of the board or agency. Conto v. Zoning Commission, [supra, 186 Conn. 115]; General Dynamics Corporations. Groton, 184 Conn. 483,490, 440 A.2d 185 (1981); Friedson v. Westport, 181 Conn. 230, 233, 435 A.2d 17 (1980).” LaCroix v. Board of Education, supra, 199 Conn. 79 n.7. The plaintiff instituted such a challenge in D & J Quarry Products, Inc. s. Planning & Zoning Commission, supra, 217 Conn. 447, in which we upheld the facial validity of these regulations.

       It is of course possible that in considering an application for a § 64.11 special permit, the commission could decide, on the basis of the historical evidence ascertained in the application process, that the plaintiff was exempt because its use constituted a principal nonconforming use pursuant to General Statutes § 8-2. This possibility, however, does not negate the fact that, for the plaintiff, obtaining a § 64.11 special permit would not have been an adequate remedy.

       General Statutes § 8-8 provides in relevant part: “appeal from board TO COURT. REVIEW BY APPELLATE COURT. . . .
      “(b) Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147Í, any 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 appeal shall be commenced by service of process in accordance with subsections (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court. ...”
      General Statutes § 8-9 provides: “appeals from zoning commissions AND PLANNING AND ZONING COMMISSIONS. REVIEW BY APPELLATE COURT. Appeals from zoning commissions and planning and zoning commissions may be taken to the superior court and, upon certification for review, to the appellate court in the manner provided in section 8-8.”