text:
    W. Scott Temple v. Geri Meyer
    (13383)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued June 9
    decision released July 26, 1988

      Steven H. Levy, with whom, on the brief, was Stephanie M. Weaver, for the appellant (plaintiff).

      Judith Dixon, for the appellee (defendant).
   Glass, J.

The plaintiff, W. Scott Temple, commenced

this action against the defendant, Geri Meyer, originally seeking custody of Timothy Daniel Temple, the defendant’s minor child. The plaintiff subsequently amended his complaint to seek only visitation rights with the child. The trial court rendered judgment denying the plaintiff visitation rights. The plaintiff has appealed. We find no error.

The facts relevant to this appeal are as follows. The plaintiff and the defendant met in June, 1982, and began living together in September, 1982. They separated in March or April of 1984 and resumed living together in June, 1984. In July, 1984, the defendant learned that she was pregnant. Although she had some doubts as to whether the plaintiff was the child’s father, the defendant told the plaintiff and he believed, that he was the child’s father. The child, Timothy, was born on February 21, 1985. On Timothy’s birth certificate the defendant listed the plaintiff as the father and Timothy was given the plaintiff’s surname. While the plaintiff and the defendant were living together, the plaintiff was Timothy’s primary caretaker. The plaintiff and the defendant separated in May, 1986.

In October, 1986, the defendant started living with Scott Barton. The plaintiff continued to visit Timothy until November, 1986. Still believing that he was the father, the plaintiff brought this action in December, 1986, seeking custody of Timothy and pendente lite visitation. The trial court granted pendente lite visitation on February 23, 1987, to commence on Sunday, March 1,1987, and alternate Sundays thereafter from 9 a.m. to 6 p.m.

The defendant married Scott Barton on May 1,1987. In June, 1987, a blood test revealed that the plaintiff was not Timothy’s biological father. Thereafter, on August 17, 1987, the plaintiff filed an amended complaint, seeking only visitation.

At the hearing on visitation, the trial court heard testimony from Edward D. Kenny, the family relations officer, who had prepared a visitation report that was submitted to the court, and considered by the court in its memorandum of decision. Kenny recommended that the plaintiffs motion for visitation be denied. He noted that the plaintiff was “closely bonded” to Timothy but that Scott Barton “has taken over the role of psychological father to Timothy” and has achieved “a relational status to Timothy never achieved by [the plaintiff], that of step-father.” Kenny also stated that “[f]or two competing father figures to become a permanent reality in the child’s life would appear to be well beyond the level of the child’s comprehension at this time.”

At the hearing, the plaintiff testified about the caring and loving relationship that existed between him and Timothy. He testified that he often referred to Timothy as “Daddy’s boy” and that Timothy referred to him as “Daddy.” The plaintiff also presented the testimony of a babysitter regarding the strong psychological bonding between the plaintiff and Timothy.

The trial court also heard the testimony of the defendant that she believed that the court-imposed visitation rights were upsetting Timothy. She stated that the visitations had caused him to wet his bed and soil his clothes. Additionally, the defendant presented the testimony of another babysitter who occasionally picked up Timothy from a daycare center. She testified that after the plaintiff obtained visitation rights, Timothy was very quiet and that he had soiled his clothes when she picked him up.

In rebuttal, the plaintiff presented the testimony of a friend regarding her opportunity to observe the plaintiff visit with the child. She testified that the relationship between the plaintiff and Timothy “was very close,” and for much of the visitation time the plaintiff and Timothy played games and at no time did Timothy appear sullen or withdrawn.

The trial court concluded that it would be in the child’s best interest if he was not compelled to continue a relationship with the plaintiff. From the ensuing judgment the plaintiff appealed to the Appellate Court, claiming that, based on the evidence presented at the hearing, the trial court erred in denying visitation. The appeal was transferred to this court pursuant to Practice Book § 4023. We find no error.

The sole issue in this appeal is whether the trial court erred in denying the plaintiff visitation with the child. Because this is a factual issue, the plaintiff argues that the statement of facts is an important part of this appeal. We agree that the facts distilled from the evidence are important. In contrast to the trial court, however, our role is not that of factfinder. “Our function is to decide whether the decision of the trial court was ‘clearly erroneous in view of the evidence and pleadings in the whole record’; Practice Book § [4061]; Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 564, 438 A.2d 759 (1980); and ‘where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence . . . .’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). See Hollingsworth v. Hollingsworth, 180 Conn. 212, 214-15, 429 A.2d 463 (1980). . . . Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role. Munn v. Scalera, 181 Conn. 527, 530-31, 436 A.2d 18 (1980); Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).” Gallo v. Gallo, 184 Conn. 36, 38-39, 440 A.2d 782 (1981). Finally, we note that as in any civil action of this nature, it is the plaintiffs burden of proof to show that visitation is in the child’s best interest. See Ubysz v. DiPietro, 185 Conn. 47, 57, 440 A.2d 830 (1981).

This action is based on General Statutes § 46b-59 which authorizes the trial court to “grant the right of visitation ... to any minor child ... to any person, upon an application .... In making, modifying or terminating such an order, the court shall be guided by the best interest of the child . . . . ” The trial court found that it would not be in the child’s best interest to grant visitation rights to the plaintiff. The court reasoned that “the child is now of such a young age that it would be at best confusing for him to be exposed to an individual passing as his father, who in fact is not.”

The plaintiff challenges Kenny’s statement, adopted by the trial court, that Scott Barton has taken over the role of psychological father to Timothy. Although the plaintiff claims that the relationship between Scott Barton and Timothy is irrelevant to this action, he nonetheless argues that because Kenny did not interview Barton, there was no basis for his conclusion that Barton was Timothy’s psychological father. The plaintiff acknowledges that Kenny interviewed him and the defendant in preparing his report. Moreover, the trial court had the benefit of not only the report of Kenny, but also the testimony of Kenny, the plaintiff, the defendant, two babysitters and a friend of the plaintiff.

The unchallenged evidence before the court indicates that the plaintiff is not and does not claim to be Timothy’s biological father, adoptive father or stepfather. Further, after the plaintiff and the defendant separated in May, 1986, the defendant and Timothy began living with Scott Barton in October, 1986. Barton and the defendant were married in May, 1987. Moreover, on the basis of his interview with the defendant, Kenny concluded that Timothy has become closely bonded to Barton, and that the defendant, Barton and Timothy have merged into a close family unit and are looking toward Barton’s adoption of the child. Kenny’s report also stated that the defendant believes that the plaintiff should be denied a continuing relationship with Timothy, as it will only become more confusing to the child as he develops through his formative years, and that she believes that it is not in her son’s best interest to continue to have a relationship with the plaintiff.

We recognize that third party visitation statutes are relatively new and have been the subject of little judicial construction. Our statute leaves great latitude for the exercise of judicial discretion because it does not focus on the legal relationship of the parties involved. Although other jurisdictions have granted visitation to parties who share a blood or legal relationship with the child; see Bryan v. Bryan, 132 Ariz. 353, 359, 645 P.2d 1267 (1982) (stepparent and child); Looper v. McManus, 581 P.2d 487, 489 (Okla. App. 1978) (grandparents, former stepmother and child); Spells v. Spells, 250 Pa. Super. 168, 175, 378 A.2d 879 (1977) (stepfather and children); our statute is not so limited. The only criterion under § 46b-59 is the best interest of the child.

We are persuaded that the trial court was not clearly erroneous in its conclusion that visitation to the plaintiff was not in the best interest of the child. There was evidence that Barton became a psychological parent to Timothy, considering Kenny’s report and his testimony, the testimony of the babysitter presented by the defendant, and the defendant’s testimony, including her statement that the child referred to Barton as “Papa.” Even if the plaintiff had demonstrated that he had been Timothy’s psychological parent, such a finding would not have demonstrated that visitation continued to be in the best interest of the child. See Seymour v. Seymour, 180 Conn. 705, 711-12, 433 A.2d 1005 (1980). The trial court had the advantage of hearing the witnesses and observing their demeanor and attitude. In making its determination under General Statutes § 46b-59, the trial court is required to “be guided by the best interest of the child.” After considering all of the evidence and the reasonable inferences therefrom, we are not persuaded that the trial court was clearly erroneous in its determination that it was in the best interest of Timothy that he not be compelled to continue a relationship with the plaintiff.

There is no error.

In this opinion the other justices concurred.

       Subsequent to the commencement of this action the defendant Geri Meyer married Scott Barton. Geri Meyer is now Geri Barton.

       “[General Statutes] Sec. 46b-59. court may grant right of visitation to any person. The superior court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court’s best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.”

       “A psychological parent is one who, on a continuing, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child’s psychological needs for a parent, as well as the child’s physical needs. The psychological parent may be a biological . . . adoptive, foster, or common-law . . . parent, or any other person. There is no presumption in favor of any of these after the initial assignment at birth . . . . ” J. Gold-stein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1979) p. 98.

       At oral argument, counsel for the defendant stated that Scott Barton had adopted Timothy. The plaintiff did not challenge this statement.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    City of New Haven v. AFSCME, Council 15, Local 530, AFL-CIO
    (13363)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued June 1
    decision released July 26, 1988

      Edward Mattson, deputy corporation counsel, for the appellant (plaintiff).

      Jackson T. King, with whom, on the brief, was Susan King Shaw, for the appellee (defendant).
   Peters, C. J.

The sole issue in this appeal is whether arbitrators violated public policy by awarding back pay to a policeman for the period between his termination for a criminal conviction and his reinstatement following reversal of his conviction on appeal. Pursuant to a collective bargaining agreement between the parties, the defendant, AFSCME, Council 15, Local 530, AFL-CIO (AFSCME), invoked arbitration on behalf of the policeman, Ralph Hodge. The arbitrators found, over the city’s objection, that the grievance was arbitrable and that Hodge had suffered discipline without just cause. They awarded Hodge the wages and benefits that he had lost as a result of his discharge. The city then filed an application in the Superior Court to vacate the arbitration award pursuant to General Statutes § 52-418. The trial court denied the city’s application. The city has appealed that judgment. We find no error.

The relevant facts are not in dispute. Patrolman Ralph Hodge of the New Haven police department was convicted of violating General Statutes § 29-9, which prohibits a police officer from accepting gifts or awards to influence his behavior in office. In 1983, the board of police commissioners discharged Hodge. The sole ground for discharge was the fact that Hodge had been convicted. The city neither referred to the underlying misconduct nor undertook to inquire into what had transpired. The city relied instead on that part of § 29-9 that provides that a police officer convicted of violating that section “shall be dishonorably discharged from the division of state police or from the police department.” At the time of Hodge’s discharge, the city was aware that Hodge was appealing his conviction.

Hodge’s appeal resulted in the reversal of his conviction. The Appellate Court ruled that the trial court had erroneously determined that § 29-9 is a lesser included offense of General Statutes § 53a-148. State v. Hodge, 5 Conn. App. 125, 128-29, 497 A.2d 79 (1985). On further review after certification, this court concluded that Hodge’s conviction had to be set aside because the trial court had made an erroneous finding about the intentionality of Hodge’s conduct. State v. Hodge, 201 Conn. 379, 383, 517 A.2d 621 (1986). On January 26, 1987, the city voluntarily reinstated Hodge without loss of seniority but denied his claim for back pay and benefits for the period of his discharge.

AFSCME filed a grievance on behalf of Hodge and submitted the dispute to the Connecticut state board of mediation and arbitration. The city objected, claiming that the dispute was not arbitrable. It contended that Hodge’s termination “was required by law and therefore is not subject to examination under the contract.” The city did not, however, avail itself of the opportunity to obtain an immediate judicial determination of arbitrability pursuant to General Statutes § 52-415. Daginella v. Foremost Ins. Co., 197 Conn. 26, 34, 495 A.2d 709 (1985). In these circumstances, despite the city’s reluctance to do so, it submitted the arbitrability of the grievance to the arbitrators, and is as bound by the arbitrators’ resolution of that issue as it is bound by any other arbitral determination. East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 648, 539 A.2d 125 (1988); Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 179 (1974).

The arbitrators framed the issues as follows: “Is the grievance arbitrable? If so, has Officer Ralph Hodge suffered discipline without just cause by virtue of the City’s refusal to make him whole for all losses he has suffered from the date of his discharge to the date of his reinstatement? If so, what shall be the remedy?” The arbitrators decided that the grievance was arbitrable, that Hodge had suffered discipline without just cause and that the city should pay Hodge all wages and benefits that he lost as a result of his discharge. The trial court denied the city’s application to vacate the award.

On appeal, the sole issue is whether the arbitration award so clearly violated public policy that it should have been vacated by the trial court as exceeding the arbitrators’ power under § 52-418 (a) (4). The city maintains that it cannot be required to give back pay to a police officer whose discharge was mandated by statute. AFSCME claims, to the contrary, that the arbitrators’ award is not inconsistent with any statutory mandate or the public policy of this state and should therefore be enforced. We agree with AFSCME.

This court has long endorsed arbitration as “an alternative method of settling disputes ‘intended to avoid the formalities, delay, expense and vexation of ordinary litigation.’ Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981); Administrative & Residual Employees Union v. State, 200 Conn. 345, 349, 510 A.2d 989 (1986).” O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). We have recognized that when arbitration is consensual, rather than statutorily imposed, judicial review is limited in scope. Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 199, 544 A.2d 604 (1988); O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 154; Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 583, 440 A.2d 774 (1981). If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact. Stratford v. Local 134, IFPTE, 201 Conn 577, 585, 519 A.2d 1 (1986); Wilson v. Security Ins. Group, 199 Conn. 618, 626-27, 509 A.2d 467 (1986); Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980); Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979). Judicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether, in accordance with the powers conferred upon the arbitrators, their award conforms to the submission. O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 153-54; Bic Pen Corporation v. Local No. 134, supra, 584; New Britain v. Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977).

In their collective bargaining agreement, the city and AFSCME agreed to arbitrate grievances involving the discharge or discipline of an employee. Although the city recognizes that the authority conferred by this agreement encompasses arbitral power to determine questions both of law and of fact, the city would have us carve out a broad public policy exception to the limited review otherwise afforded to arbitral awards. We decline to do so.

We have recognized two narrow exceptions grounded in public policy to the broad authority that arbitrators are ordinarily permitted to exercise over unrestricted submissions. First, with respect to constitutional questions, although arbitrators may decide legal issues that have constitutional implications, they exceed their authority when they address the constitutional validity of a statute. Stratford v. Local 134, IFPTE, supra, 585-86; Carofano v. Bridgeport, 196 Conn. 623, 637-38, 495 A.2d 1011 (1985); Caldor, Inc. v. Thornton, 191 Conn. 336, 345, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). That exception has no relevance in the present circumstances. Second, with respect to matters of public policy generally, arbitrators exceed their authority if their award orders a party to engage in conduct that is patently illegal or in clear violation of public policy. Stratford v. Local 134, IFPTE, supra, 585; Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); Gorman, Basic Text on Labor Law, Unionization and Collective Bargaining (1976) p. 593. The party challenging an arbitration award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. We “make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings.” O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 145; Administrative & Residual Employees Union v. State, supra, 349.

Our view that public policy exceptions to arbitral authority should be narrowly construed finds support in a recent decision of the United States Supreme Court. In United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 44, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987), the United States Supreme Court concluded that a policy against the operation of dangerous machinery by persons under the influence of drugs or alcohol, while “firmly rooted in common sense,” did not permit a court to set aside an arbitration award. The court stated: “[A] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate ‘some explicit public policy’ that is ‘well defined and dominant, and is to be ascertained “by reference to the laws and legal precedents and not from general considerations of supposed public interests.” ’ ” Id., 43; see W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) (award of back pay did not violate public policy mandating obedience to judicial orders because the award did not compel the employer in Grace to violate a district court order, but merely required the payment of retrospective damages).

In light of the narrow scope of the public policy limitation on arbitral authority, the city can prevail in this case only if it demonstrates that the award of back pay to Patrolman Hodge clearly violated the public policy expressed by § 29-9. We conclude, as did the trial court, that the city has not met this burden. Nothing in § 29-9 expressly addresses the effect of a criminal conviction, under this section, when the conviction is subsequently reversed in a timely appeal. The arbitrators’ construction of § 29-9 therefore does not conflict with any direct statutory mandate. Further, the arbitrators’ construction is a reasonable accommodation of the statutory mandate of General Statutes § 54-142a (e), which requires a person who is acquitted of criminal charges to be placed in the same position he would have occupied had he not been arrested. The arbitrators’ interpretation of § 29-9 as not precluding the award of back pay in the circumstances of this case is, therefore, at least a reasonable construction of the statute. Having adopted a reasonable construction, the arbitrators have not exceeded their authority under § 52-418a (4). In the absence of a clear arbitral misreading of statutory mandates or other egregious arbitral violation of public policy, the city has failed to prove that the arbitral award should be vacated.

Our conclusion that the trial court correctly refused to vacate the arbitral award in this case rests on the terms of the submission made to the arbitrators. The city has an unquestioned right and duty to investigate the facts underlying the alleged misconduct of its police officers, to conduct hearings and to discharge officers found guilty of misconduct. Rawlings v. New Haven, 206 Conn. 100, 537 A.2d 439 (1988). Contrary to the city’s assertions, however, the arbitrators have neither interfered with the city’s duties in this regard nor required the city to continue to employ an officer found guilty of violating § 29-9. Rather, the arbitrators have ordered the city to reimburse lost wages and benefits to an employee terminated solely because of a conviction that was later overturned. The city chose not to conduct hearings before discharging the officer, chose the grounds upon which to terminate him, and chose to forego a judicial determination of the arbitrability of his discharge. The city is, therefore, bound by the arbitrators’ award.

There is no error.

In this opinion the other justices concurred.

       AFSCME asserted at oral argument that if it prevails, any wages or benefits that Hodge earned during the time of his termination will be subtracted from the back pay awarded to him. “There is general agreement by courts, arbitrators, and the NLRB that outside earnings properly are deducted from back pay.” F. Elkouri & E. Elkouri, How Arbitration Works (3d Ed. 1973) p. 358.

       General Statutes § 52-418 (a) provides: “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 29-9 provides: “acceptance or offering of gifts or REWARDS BY or to state or local police, (a) Any state police officer appointed as provided in section 29-4, any police officer of any city, town or borough and any person having the power of arrest who, directly or indirectly, receives a reward, gift or gratuity for the purpose of influencing his behavior in office . . . shall be fined not more than one hundred dollars or imprisoned not more than six months or both, and the police officer shall be dishonorably discharged from the division of state police or from the police department.”

       While the arbitration was pending, the city conducted internal investigations into Hodge’s misconduct. As a result of its investigation, the city discharged Hodge a second time on June 22,1987. Pursuant to a stipulated arbitration award, Hodge tendered his resignation on October 6,1987, and his June 22 termination was expunged. This stipulated arbitration award is not at issue in this litigation.

       General Statute § 52-415 provides in pertinent part: “arbitrators may ask advice op courts. At any time during an arbitration, upon request of all the parties to the arbitration, the arbitrators or an umpire shall make application to any designated court, or to any designated judge, for a decision on any question arising in the course of the hearing, provided such parties shall agree in writing that the decision of such court or judge shall be final as to the question determined and that it shall bind the arbitrators in rendering their award.”
      The city chose not to pursue this option, however, and, after first objecting to arbitration of the grievance, chose to submit the issue of arbitrability to the arbitrator. The city now requests judicial intervention.

       “[T]he public policy defense will not often succeed, particularly if the party using it did not challenge the arbitration process at an earlier stage, such as by moving for a stay of arbitration.” M. Domke, Commercial Arbitration (Rev. Ed. Wilner 1984) § 33:03, p. 470.

       General Statute § 54-142a (e) provides in pertinent part: “Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”

       The city relies on Matter of Toro v. Malcolm, 44 N.Y.2d 146, 375 N.E.2d 739, 404 N.Y.S.2d 558 (1978), to support its argument that the arbitrators’ interpretation of General Statutes § 29-9 is impermissible. We are not persuaded. In Matter of Toro v. Malcolm, the court construed N.Y. Public Officers Law § 30 (5) (McKinney 1988), which states that every office “shall be vacant” if the officer is convicted of a felony or a crime involving violation of his oath of office. Unlike § 29-9, Public Officers Law § 30 specifically vests discretion in the appointing authority to reinstate an officer whose conviction has been vacated and to “award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement . . . .’’The Torro court held that the authority’s exercise of discretion should not be overruled by a judicially created right to back pay; the court did not hold that the authority, directly or through arbitration, could not provide such an award. Toro, therefore, provides no support for the city’s public policy argument.
      The city also relies upon Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961). In Avco Corporation, the trial court vacated an arbitration award that reinstated the defendant with back pay after he was terminated following his conviction for running a gambling operation on the employer’s premises. Avco Corporation is, however, distinguishable because, in that case, the defendant’s conviction was neither reversed nor vacated. Without otherwise addressing its merits, we find Avco Corporation uninformative in the present circumstances.


author: Shea, J.

text:
    State of Connecticut v. John P. Walzer
    (13355)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued June 2
    decision released July 26, 1988

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellant (state).

      Austin J. McGuigan, with whom were Joseph B. Burns and, on the brief, Richard F. Banbury, for the appellee (defendant).
   Shea, J.

The dispositive issue in this appeal is whether the trial court, Melville, J., had jurisdiction to rule upon a motion filed by the defendant to reduce or correct his sentence after his first appeal from the judgment imposing that sentence had terminated unsuccessfully. We conclude that the court had no such jurisdiction. Accordingly, we find error and remand the case to the trial court with direction to reinstate the original sentence.

The following facts are not disputed. The defendant entered a plea of guilty to the crime of larceny in the first degree by embezzlement, a violation of General Statutes § 53a-119 (1) and General Statutes (Rev. to 1981) § 53a-122 (a) (2), and in October, 1983, was sentenced by the trial court, Melville, J., toa term of six years to run consecutive to an unrelated federal sentence he was then serving. At this time the court issued a judgment mittimus that gave the commissioner of correction authority to seize the defendant once his federal sentence had been served. The defendant remained incarcerated in the federal penitentiary in Danbury, but a detainer was lodged to prevent his release without notification to state correctional authorities. The sentence review board affirmed the sentence.

Thereafter, the defendant moved to correct the sentence pursuant to Practice Book § 935 on the ground that General Statutes § 53a-37 does not permit our courts to order a sentence to run consecutively with an earlier sentence unless the prior term was imposed by a “court of this state.” The trial court, Landau, J., denied the motion and the defendant later filed an appeal.

The defendant filed a motion in the Appellate Court for bail pending his appeal. The Appellate Court referred the motion to the trial court, Landau, J., for determination. On February 5,1986, the court granted the motion and set an appeal bond at $75,000. In addition, on February 10, 1986, a judgment mittimus was issued that was apparently designed to allow the commissioner of correction to seize the defendant as soon as the appeal was resolved. The defendant was released from federal custody on February 28, 1986, with a thirty day stay pending the exercise of any detainer. This detainer was removed when the defendant posted his appeal bond and, therefore, he was not required to surrender to the commissioner of correction. The defendant was released into the community subject to the terms of his appeal bond.

On December 23,1986, the Appellate Court released its decision in State v. Walzer, 9 Conn. App. 365, 518 A.2d 966 (1986), rejecting the defendant’s claim that his sentence was illegal. On January 9,1987, this court denied his petition for certification. State v. Walzer, 202 Conn. 802, 519 A.2d 1207 (1987). The defendant conceded at argument that he did not petition the United States Supreme Court for a writ of certiorari. The state made no effort to incarcerate him after this court denied his petition for certification.

On January 27, 1987, the defendant filed a motion for correction or reduction of his sentence. After a contested hearing, on September 29,1987, the trial court, Melville, J., granted this motion. It determined that it had jurisdiction to modify the sentence “in view of the fact that the sentence was never executed.” Impressed by the defendant’s counselling work with persons addicted to drugs, the court found that he had demonstrated significant rehabilitative progress in this and other respects since he had been originally sentenced. It noted that the victim of the crime, E.I. du Pont de Nemours, Inc., had indicated that it did not favor incarcerating the defendant. The court concluded that society would be better off if he performed substantial community service instead of being committed to prison. Accordingly, it vacated the original sentence of six years, and ordered a sentence of six years with execution suspended and a period of five years probation. It imposed several conditions of probation that were not contained in the original sentence, including payment of restitution to the victim of the larceny and the performance of 6000 hours of community service. The state did not seek to stay this new sentence pending appeal and, therefore, the defendant has been serving his new sentence and complying with these probation conditions.

At the hearing before the trial court, the state argued that the court lacked jurisdiction to consider the motion and took an exception when the court modified the sentence. The next day the state filed a motion for permission to appeal, which was granted by the court. This appeal followed.

I

The trial court, Melville, J., did not elaborate on why it had determined that the sentence was unexecuted beyond indicating that it had relied “primarily” upon State v. Chisolm, 29 Conn. Sup. 339, 287 A.2d 389 (1971). In Chisolm, the court held that it had the power to revoke post-conviction bail even where by operation of law a stay of execution is in effect and cannot be terminated by the court. Id., 340-43. “The defendant’s position is that bail and stay of execution go together like Siamese twins. . . . The history of [General Statutes (Rev. to 1968)] § 54-95 supports the view that bail and stay of execution are separable.” Id., 342. In dictum unrelated to the merits of the decision, the court noted: “In a criminal case the imposition of sentence is the judgment of the court. State v. Smith, 149 Conn. 487, 489 [181 A.2d 446 (1962)]. When the sentence is put into effect and the prisoner is taken in execution, custody is transferred from the court to the custodian of the penal institution. At this point jurisdiction of the court over the prisoner terminates. When a stay of execution occurs, the court retains jurisdiction of the offender. When an appeal or a notice of appeal is filed in a criminal case, the appeal or notice operates as a stay under General Statutes § 54-95 pending the final determination of the case, ‘provided the defendant is admitted to bail . . . Id., 340-41. In addition, the court concluded that “[a] stay of execution prevents a transfer of custody from the court to the commissioner of correction.” Id., 342. The defendant in the case at bar has relied on these dicta in contending that the court retained jurisdiction over him because his posting of an appeal bond stayed execution of the judgment imposing the original sentence. The court in the present case appears to have accepted this argument in view of the significance it attached to Chisolm.

The state claims that the court erred in determining that the sentence was unexecuted and, therefore, in concluding that it had jurisdiction to modify the sentence. The state contends that the appeal bond expired when this court denied the defendant’s petition for certification and that the defendant at that time automatically passed into the jurisdiction of the commissioner of correction because a judgment mittimus had been issued both at the time he was originally sentenced in October, 1983, and again on February 10, 1986, five days after the appeal bond had been filed.

We conclude that the appeal bond and, therefore, the stay of execution expired when this court denied the defendant’s petition for certification and he ceased to pursue further appeals by filing a petition pursuant to Practice Book § 4050. We also conclude that he passed into the jurisdiction of the commissioner of correction at the time of the original sentence because a judgment mittimus had been issued at that time transferring his custody to the commissioner of correction subject to completion of his federal sentence. The defendant contends that his appeal bond remained in effect because the state took no action to gain custody over him prior to the sentencing hearing on September 29,1987. General Statutes § 54-95 (b) provides, however, that an appeal by a criminal defendant “shall operate as a stay of execution pending the final determination of the case . . . . ” The Chisolm court acknowledged that, under an earlier version of this statute, any stay of execution put into effect by an appeal bond expires upon “final determination of the case.” State v. Chisolm, supra, 341. We conclude that the final determination of this case occurred when this court denied certification. The defendant did not file a motion under Practice Book § 4050 to obtain a stay of execution from this court pending a decision in the case by the United States Supreme Court and never sought a writ of certiorari from that court. The purpose of the appeal bond ended once the defendant ceased to pursue appellate remedies. The fact that a second judgment mittimus was issued to the commissioner of correction five days after the appeal bond was granted indicates that the stay of execution put into effect by the bond was intended to terminate after the defendant had completed the appeal process and that the first mittimus at the time of sentence was designed to transfer custody of the defendant automatically from the court to prison authorities. The execution of the sentence commenced and the court relinquished jurisdiction over the defendant when the first mittimus transferred custody of him from the court to the commissioner of correction. Alexander v. Robinson, 185 Conn. 540, 546-47, 441 A.2d 166 (1981). The fact that the defendant was still obliged to complete his federal sentence did not diminish the authority of the commissioner of correction under the first mittimus to take custody of him upon his release by federal officials. The effect of posting the appeal bond was, of course, by virtue of § 54-95 (b), to stay execution of the sentence after the bond had been posted during pendency of the appeal and thus to suspend for that period the authority of the commissioner under the mittimus. Upon termination of the appeal, however, the stay under § 54-95 (b) terminated and the authority of the commissioner to seize and hold the defendant under the original mittimus was reinstated without the necessity for further court proceedings.

We believe our statutes and precedents are sufficiently clear to require no further elaboration of our holding that, where a mittimus has been issued following a sentence, the stay incident to the posting of an appeal bond does not leave the sentence unexecuted and thus does not confer upon the trial court residual jurisdiction to modify the sentence that has been imposed. It is appropriate, nevertheless, to observe that a different result would create a disparity between those financially able to post an appeal bond after sentence and those who are unable to do so. As demonstrated in this cáse, those more fortunate defendants who have the means necessary to post an appeal bond would be given an opportunity upon termination of their appeals for modification of sentence not available to others who remain incarcerated during the pendency of their appeals if the trial court were deemed to retain jurisdiction to modify a sentence after the original mittimus had been issued. For this reason we would be reluctant to arrive at such a result even if our statutes compelled us to reach it, which, as we have concluded, they do not. See Moscone v. Manson, 185 Conn. 124, 129-31, 440 A.2d 848 (1981). Accordingly, we hold that the court erred in determining that the sentence was unexecuted for the purpose of ascertaining its jurisdiction to modify the sentence.

II

The defendant contends that a trial court has the authority to modify a sentence even after a person has been taken into custody physically by the commissioner of correction and the execution of his sentence has unquestionably begun. He relies on State v. Tomczyk, 20 Conn. Sup. 67, 123 A.2d 283 (1956), in which the court concluded that General Statutes (Sup. 1955) § 3338d permitted a court to suspend a prison sentence at any time and place a defendant on probation. He acknowledges that this statute is no longer in effect, but points out that General Statutes § 53a-28 contains no limit as to when the court may exercise its power to suspend a definite sentence. He contends that § 53a-28 authorizes a court to suspend a prison sentence at any time and to place any prisoner on probation. If this contention that all sentences are suspendable at any time were sound, however, it would render superfluous subsection (c) of § 53a-28, which expressly provides that a sentence of probation or conditional discharge is a revocable disposition.

We conclude that General Statutes § 53a-39 does not permit a court to place on probation a defendant who is serving an executed sentence of six years imprisonment. The statute allows a court at any time to reduce a definite sentence of less than three years provided that a hearing is held and good cause is shown. In addition, the statute was amended in 1984 to authorize a court to place on intensive probation a defendant who is serving “a definite sentence of at least two years but not more than five years . . . . ” Public Acts 1984, No. 84-505, § 3. “Where the meaning of a statute is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it.” Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73, 411 A.2d 28 (1979). Section 53a-39 clearly allows a court to modify only executed sentences of not more than five years. We conclude that the court lacked jurisdiction to reduce the defendant’s sentence of six years imprisonment after his custody had been transferred to the commissioner of correction under the mittimus of October, 1983, subject to completion of his federal sentence. We need not address the contention of the state that § 53a-39 prohibits a trial court from reducing an unexecuted sentence greater than five years and leave that issue for another day.

On the basis of all the foregoing, we hold that the trial court did not have jurisdiction to grant the defendant’s motion to reduce or correct the sentence originally imposed and, accordingly, that the sentence it imposed on September 29, 1987, is void.

There is error, the sentence imposed on September 29, 1987, is set aside and the case is remanded to the trial court with direction to reinstate the original sentence.

In this opinion the other justices concurred.

       Although the court file indicates that this second mittimus was issued on February 10,1986, it does not disclose the circumstances under which it was issued or the reasons for its issuance. Neither the record nor the parties have provided any explanation for this second mittimus. As our opinion makes clear, the existence of this second mittimus is not crucial to the result we have reached.

       The defendant contends that double jeopardy principles pursuant to the fifth amendment to the United States constitution prohibit this court from reinstating his original sentence because the state failed to seek a stay under Practice Book § 948 and, therefore, he began serving his new probation sentence. We note initially that the defendant failed to file a preliminary statement of issues to present for review alternative grounds upon which the judgment may be affirmed. Practice Book § 4013 (a) (1). Even if this claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), this issue is so inadequately briefed that it should be considered abandoned. See Practice Book § 4065; Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n.1, 425 A.2d 1289 (1979); Katsetos v. Nolan, 170 Conn. 637, 641, 368 A.2d 172 (1976). The defendant cites no authority for the novel proposition that reinstatement of a valid sentence in place of an illegal one constitutes multiple punishments for the same offense. Moreover, the defendant is entitled to petition the board of pardons to rectify any inequity caused by the fact that he has made partial restitution to the victim and performed community service, conditions not imposed by his original sentence. See General Statutes § 18-26 (b).

       General Statutes § 54-95 (b) provides: “When such defendant is convicted and sentenced to a term of imprisonment and, within two weeks after final judgment, files with the clerk of the court wherein the conviction was had an appeal to the supreme court or gives oral or written notice of his intention to appeal to said court or to petition for a new trial, the appeal or the notice shall operate as a stay of execution pending the final determination of the case, provided the defendant is admitted to bail, except the appeal or the notice shall not operate as a stay of execution, if within five days after the filing of the appeal or notice thereof, the judge before whom the criminal prosecution was tried directs in writing that the appeal or the notice shall not operate as a stay of execution. Such order shall be accompanied by a written statement of the judge’s reasons for denying the stay of execution. The order and the statement shall become a part of the files and record of the case. If any defendant has been admitted to bail following an oral or written notice of intent to appeal or petition for a new trial and such defendant has failed, within twenty days after the judgment from which the appeal is to be taken, or such further period as the court may grant, to perfect the appeal or petition, a mittimus for his arrest shall issue. H any defendant is imprisoned after sentencing and before he is admitted to bail, such period of imprisonment shall be counted toward satisfaction of his sentence. If any defendant is admitted to bail and subsequently surrendered and remitted to custody while his appeal is pending, the period of imprisonment following thereafter shall be counted toward satisfaction of his sentence.”

       See footnote 1, supra.

       “[General Statutes] Sec. 53a-28. authorized sentences, (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.
      “(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73 or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge.
      “(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction.”

       “[General Statutes] Sec. 53a-39. reduction of definite sentence OF THREE YEARS OR LESS. DISCHARGE OF DEFENDANT. INTENSIVE PROBATION. At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced. At any time during the period of a definite sentence of at least two years but not more than five years, the sentencing court or judge shall refer any application of a defendant seeking placement in the intensive probation program to the office of adult probation for assessment and recommendations and may, after hearing and for good cause shown, order the defendant discharged on intensive probation in accordance with subsection (b) of section 54-105 for a period of at least one year but not more than the unexpired portion of the sentence. At the time the sentencing court or judge orders the defendant discharged on intensive probation, the court or judge may order that if the defendant successfully completes his intensive probation he shall be placed on regular probation for a period of time which is not more than the difference between (1) the time served plus the time which will be spent on intensive probation and (2) the term of the initial sentence. Any defendant discharged on intensive probation shall comply with the conditions of probation ordered by the court or required by the office of adult probation, as provided in subsections (a) and (b) of section 53a-30.”


author: Glass, J. Callahan, J.,

text:
    Robert G. Reed v. Planning and Zoning Commission of the Town of Chester
    (13266)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued May 4
    decision released July 26, 1988

      Thomas P. Byrne, for the appellant (defendant).

      Peter M. Sipples, for the appellee (plaintiff).
   Glass, J.

The defendant planning and zoning commission of the town of Chester (commission), having been granted certification by this court, filed the instant appeal from a decision of the Appellate Court. See Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 529 A.2d 1338 (1987). The Appellate Court, by a divided vote, upheld the judgment of the trial court, Hale, J., that had sustained the administrative appeal of the plaintiff, Robert G. Reed, from a decision of the commission denying his application for a subdivision approval. The underlying facts set forth in Reed v. Planning & Zoning Commission, supra, are not in dispute. We summarize only those facts that are relevant to our consideration of this appeal.

On July 14, 1983, the plaintiff filed an application with the commission seeking approval to divide a 33.34 acre parcel of land in Chester into thirteen residential lots. Subsequently, at the request of the commission, lots one and two of the proposed subdivision were combined, resulting in an application for a twelve lot subdivision. The parcel of land is located on the east side of Turkey Hill Road in Chester. Turkey Hill Road is a public road that is partially unpaved. The unpaved section of the road is narrower than the paved section. At a duly noticed scheduled meeting of the commission, the subdivision application was denied on the ground that “[Turkey Hill Road] at the present time is inadequate to provide safe access and egress to the proposed lots for either residents or emergency vehicles.” The plaintiff appealed to the Superior Court from the action of the commission.

The trial court sustained the plaintiffs appeal, finding that “there is no Chester subdivision regulation prohibiting the plaintiffs plan for planned residential development on a public town road in Chester and therefore its action in refusing approval was illegal,” and relying on RK Development Corporation v. Norwalk, 156 Conn. 369, 377, 242 A.2d 781 (1968), and Beach v. Planning & Zoning Commission, 141 Conn. 79, 85, 103 A.2d 814 (1954). Thereafter, the commission appealed to the Appellate Court, which upheld the judgment of the trial court. See Reed v. Planning & Zoning Commission, supra. We granted the commission’s petition for certification, limited to the issue of whether the Appellate Court erred in concluding that the commission could not properly deny a subdivision application for the reason that the town road abutting and serving the property was inadequate to provide safe access to the subdivision. We affirm.

At the outset, we note that “[a] municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency, which would require it to observe the safeguards, ordinarily guaranteed to the applicants and the public, of a fair opportunity to cross-examine witnesses, to inspect documents presented, and to offer evidence in explanation or rebuttal and of the right to be fully apprised of the facts upon which action is to be taken, as exemplified in such cases as Parish of St. Andrew’s Protestant Episcopal Church v. Zoning Board of Appeals, 155 Conn. 350, 232 A.2d 916 [1967], and Wadell v. Board of Zoning Appeals, 136 Conn. 1, 68 A.2d 152 [1949]. See 2 Am. Jur. 2d, Administrative Law, § 403. The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance. Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412 [1958]. If it does not conform as required, the plan may be disapproved.” Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674-75, 236 A.2d 917 (1967).

The commission claims that it could properly deny approval of the plaintiff’s subdivision application because the town road abutting and serving the property was inadequate to provide safe access to the subdivision. Relying on General Statutes § 8-25, the commission argues that the town of Chester has adopted subdivision zoning regulations that authorize the commission to deny approval of the plaintiffs application because of inadequate road access to the subdivision. According to the commission, the specific authority for its denial of the subdivision application is set forth in the subdivision regulations for the town of Chester, §§ 2.0, 3.1 and 3.2.

We have reviewed these subdivision regulations and are unable to discern any authority, express or implied, for the action of the commission. Section 2.0 deals with the character of the land that “can be used for building purposes.” Section 3.1 is concerned with the “planning and map layout of streets, lots, parks, recreation areas and other improvements and facilities shown on the subdivision map.” Section 3.2, entitled “Building Lots,” is concerned with lot shape, size, location, topography and character of the buildings that may be constructed on the lot. Existing town roads are not addressed in these sections.

The commission argues further that in discharging the duties imposed upon it by the provisions of § 8-25 and the subdivision regulations, it has the primary responsibility of reviewing a proposed subdivision plan of lots to be used for residential structures to determine whether the lots are “buildable.” The commission argues that this requires it to find, on the basis of the record before it, that each lot in the proposed subdivision has access to the town road system and that there is a place on each lot for a house, well and septic system. If the record demonstrates that there is no access to the proposed lots, or, if there is inadequate access to the proposed lots from the town road system, then the lot is not buildable and the commission should disapprove the proposed subdivision.

We find no support for this argument in either § 8-25 or the subdivision regulations. Because the commission acts in an administrative capacity and is authorized only to apply the requirements set forth in the regulations to the facts, and because the regulations and statutes relied upon by it do not address problems relating to existing roads, the commission exceeded its authority when it denied the subdivision application.

Furthermore, the commission misplaces reliance on Forest Construction Co. v. Planning & Zoning Commission, supra. In Forest Construction Co., an application for subdivision approval was denied primarily because the proposed subdivision consisted of 110 lots and the proposed network of roads within the subdivision limited access and egress to one roadway over a bridge, and this roadway discharged all of its traffic at one intersection with a public road. Here, however, the commission denied approval of the subdivision application because the town road abutting and serving each parcel was inadequate to provide safe access to the subdivision.

The commission also relies on Blakeman v. Planning Commission, 152 Conn. 303, 206 A.2d 245 (1965). Like Forest Construction Co., Blakeman is inapposite to this case. In Blakeman, the plaintiff submitted a plan for the resubdivision of a parcel of land so that a road could be cut through the parcel to reach thirty-four contiguous acres owned by the plaintiff. The plaintiffs application was denied on the ground that the intersection of the proposed road with the existing road would not be safe because the roads would intersect on a slope, thus providing a “poor sight distance,” and also because problems would arise with surface drainage on the existing road. We held that the conclusions reached by the commission were reasonable. Id., 308. This case, however, does not involve resubdivision or intersecting roads.

Moreover, the Chester subdivision regulations make provisions for inadequate existing town roads. Under § 3.3.6 of the subdivision regulations, the applicant of a proposed subdivision abutting an existing street must deed to the town land necessary to enable the town to improve the existing public road. We agree with the Appellate Court that by complying with the provisions of § 3.3.6 of the subdivision regulations, requiring subdivision applicants to convey to the town the land necessary to widen an inadequate, unimproved town road, the applicant, upon so doing, has “fulfilled the requirements set forth in the regulations concerning adequate public access.” Reed v. Planning & Zoning Commission, supra, 159. Whether the commission possesses the authority to condition its approval of a subdivision application on the applicant’s improvement of an existing town road abutting and serving the subdivision is not an issue in this case.

Since the commission did not find that the plaintiffs subdivision application did not conform to the Chester subdivision regulations, but based its disapproval on reasons not provided for in the regulations, the denial of the plaintiffs subdivision application for that reason was improper. Because the decision of the commission was administrative and the plaintiff’s subdivision application conformed to the requirements of the subdivision regulations, the Appellate Court correctly upheld the judgment of the trial court sustaining the plaintiff’s appeal from the denial of his subdivision application by the commission.

There is no error.

The decision of the Appellate Court is affirmed.

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

Callahan, J.,

dissenting. I respectfully dissent from

the majority opinion for the reasons stated in Judge Berdon’s dissenting opinion in Reed v. Planning & Zoning Commission, 12 Conn. App. 153,159-63, 529 A.2d 1338 (1987). The majority holds that the Chester subdivision regulations upon which the planning and zoning commission of the town of Chester (commission) relied “do not address problems relating to existing roads,"and thereafter concludes that “the commission exceeded its authority when it denied the subdivision application.” What the majority fails to recognize is that the commission assessed the suitability of the proposed subdivision and concluded that the safety of the residents and public was in jeopardy because Turkey Hill Road was inadequate “to provide safe access and egress to the proposed lots for either residents or emergency vehicles.” (Emphasis added.) Not only do the subdivision regulations of Chester specifically require that the land proposed for subdivision be, inter alia, of such character and location that it can be constructed and occupied without danger to the health and safety of the occupants and the public; Chester Subdivision Regs., §§ 2.0, 3.1, 3.2; but General Statutes § 8-25, which is the enabling legislation, also specifically mandates that the town’s subdivision regulations provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or public safety. While § 8-25 does not enumerate a list of safety factors that a zoning authority must consider in assessing an application for a subdivision, there can be no question that the safety or lack thereof to the residents of the subdivision and the public in general posed by the limited access to the subdivision are proper considerations for a zoning authority. See Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 94-97, 368 A.2d 24 (1976); Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 675, 236 A.2d 917 (1967); North Landers Corporation v. Planning Board, 382 Mass. 432, 437-38, 416 N.E.2d 934 (1981); Diversified Properties, Inc. v. Planning Board, 125 N.H. 419, 420, 480 A.2d 194 (1984); Noble v. Mendham, 91 N.J. Super. 111, 118-19, 219 A.2d 335, cert. denied, 48 N.J. 120, 223 A.2d 497 (1966). In fact, the existence of inadequate access roads to a proposed subdivision has been held to be a sufficient ground upon which to deny the application for a proposed subdivision. See DiCarlo v. Planning Board, 19 Mass. App. 911, 913, 471 N.E.2d 753 (1984); Malaguti v. Planning Board, 3 Mass. App. 797, 797-98, 339 N.E.2d 246 (1975); Brazer v. Mountainside, 55 N. J. 456, 470-71, 262 A.2d 857 (1970); Breuer v. Fourre, 76 Wash. 2d 582, 583-85, 458 P.2d 168 (1969).

I further dissent from the majority’s decision insofar as it sustains that portion of the trial court’s judgment that orders the commission to grant the plaintiffs application for the approval of the subdivision. I believe the record raises significant questions regarding the suitability of this land for the twelve building lots proposed and the subdivision’s compliance with other zoning regulations. It is only “[w]hen ... it appears that as a matter of law there was but a single conclusion which the zoning authority could reasonably reach, [that] the court may direct the administrative agency to do or to refrain from doing what the conclusion legally requires. Watson v. Howard, 138 Conn. 464, 470, 86 A.2d 67 (1952); Executive Television Corporation v. Zoning Board of Appeals, 138 Conn. 452, 457, 85 A.2d 904 (1952); Bishop v. Board of Zoning Appeals, 133 Conn. 614, 623, 53 A.2d 659 (1947). In the absence of such circumstances, however, ‘the court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action. For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.’ Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753-54, 345 A.2d 9 (1974); Guerriero v. Galasso, 144 Conn. 600, 608, 136 A.2d 497 (1957); Watson v. Howard, supra, 469-70.” Thorne v. Zoning Commission, 178 Conn. 198, 206, 423 A.2d 861 (1979); see also Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 154, 365 A.2d 387 (1976).

In ordering that the commission be directed to approve the application, the trial court stated: “Since the sole reason given by the board for the denial of the application was the inadequacy of the existing road, it must be taken that the plaintiff has conformed with all of the other requirements of the regulations of the planning commission, and since there is no regulation prohibiting the plaintiffs plan on the basis cited by the planning commission, the action of the commission refusing approval was illegal.” (Emphasis added.) I think the trial court based its order upon an assumption which, from the record, appears to be erroneous. The minutes of both hearings before the commission indicate potential problems with drainage, the presence of a high groundwater table, the absence of sufficient soil pockets to accommodate the installation and operation of septic systems, the existence of ledge, and the problems resulting from the subdivision’s close proximity to routes 9 and 82. In view of the record, I believe serious questions remain regarding the suitability of the proposed subdivision for twelve dwellings.

In addition, I feel the record is unclear as to whether the conditions or problems noted above entered into or provided a basis for the commission’s decision. While the commission voted to deny the application on safety grounds because of the inadequate access road, immediately after the commission’s vote, a member of the commission further stated “for the record that the Commission’s concerns about ledge, soils and groundwater conditions were based on the mandate to provide building lots which could be properly and conveniently built upon.” It must also be noted that the commission’s letter to Robert Reed that informed him of its decision reiterated the commission’s concerns regarding the intensity of the proposed development “because of ledge outcroppings, the poor soil conditions and the high groundwater table in the area.” The letter further stated that “[sjhould you undertake to redesign this subdivision for submission at some future date, we recommend that close attention be given to the existing conditions of the parcel and the access provided over the unimproved portion of Turkey Hill Road.”

Accordingly, I would sustain the decision of the commission and reverse the trial court. Since that eventuality is not about to occur, however, I would remand the matter for further hearings to determine whether the proposed subdivision was suitable for twelve dwellings and, in fact, complied with all applicable subdivision regulations of the town of Chester.

       General Statutes (Rev. to 1983) §.8-25 (a) provides in part: “No subdivision of land shall be made until a plan for such subdivision has been approved by the commission. . . . Before exercising the powers granted in this section, the commissioner shall adopt regulations covering the subdivision of land. . . . Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, drainage and sewerage . . . that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of development as described in section 8-23, especially in regard to safe intersections with such thoroughfares, and are so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs. . . . The commission may also prescribe the extent to which and the manner in which streets shall be graded and improved and public utilities and services provided (Emphasis added.)

       Section 2.0 of the Chester subdivision regulations provides in part: “All land to be subdivided or re-subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety.”
      Section 3.1 of the Chester subdivision regulations provides in part: “The following regulations and design standards shall apply to the planning and map layout of . . . lots . . . and other improvements and facilities shown on the subdivision map.”
      Section 3.2 of the Chester subdivision regulations provides: “The proposed lots shall be of such shape, size, location, topography and character that buildings can be reasonably constructed and that they can be occupied and used for building purposes without danger to the health and safety of the occupants and the public. Any lot which is found to be unsuitable for occupancy and building by reason of water or flooding conditions, unsuitable soil, topography, ledge rock or other conditions shall be combined with another lot that is suitable or shall be marked ‘This is not an approved lot’ on the subdivision map, until necessary improvements to the lot have been made and approved by the Commission and a revised subdivision map has been submitted to and approved by the Commission. All proposed lots shall conform, to the requirements of the Zoning Regulations of the Town of Chester.”

       Section 3.3.6 of the Chester subdivision regulations, entitled “Existing Streets,” provides: “Proposed subdivisions abutting on existing Town street or State Highway shall provide for proper widening of the right of way of such street or highway to the width appropriate for the classification given such street or highway by the Commission. Such provision shall be in the form of a deed dedicating sufficient land to the Town to enable the Town to widen the street or highway to the appropriate width from the center line of the street or highway to the proposed property lines of the subdivision.”

       The plaintiffs subdivision application included the following statement: “The applicant will convey to the town of Chester a strip of land 8V2 feet wide along the frontage of the subdivision property on Turkey Hill Road to the town of Chester for purposes of widening of the existing road.” Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 157 n.5, 529 A.2d 1338 (1987). The record does not indicate that the commission challenged the adequacy of the proffered strip of land to widen the road properly.

       The plaintiff argues that the commission could adopt a regulation to include the authority specifically identified as lacking in this case. The plaintiff suggests the following addition to the Chester subdivision regulations: “All presently existing public streets providing access to the proposed subdivision shall be in such condition as to safely accommodate the traffic generated by said subdivision.” We express no opinion about the adequacy or the validity of the plaintiffs suggestion, and our reference to the suggestion is not to be construed as a recommendation.

       The plaintiff places heavy reliance on Pope v. Planning & Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. 8239 (July 18,1979). In Pope, the trial court would “not allow the town to impose a road improvement requirement on an applicant whose property fronted a town road. The road was unpaved, and the planning commission refused to approve the sudivision because the road was unsafe for emergency vehicles as well as ‘unsuitable and unsafe’ for prospective residents and their guests. [The trial court] ordered the Killingworth planning commission to approve the application because its reason for the rejection was improper; the municipality has a clear obligation to itself maintain its public roads in a safe condition.” T. Tondro, Connecticut Land Use Regulation (1983 Sup.) pp. 62-63. Since Pope was not appealed to this court we decline to express any opinion about its validity. It is sufficient for this case that we hold that the Chester subdivision regulations do not authorize the disapproval of a subdivision application for the reasons stated by the commission.

       We do not address the second concern raised by the dissent, that the Appellate Court erred in sustaining the portion of the trial court’s opinion directing the commission to approve the plaintiffs application, because this issue is not within the question certified by this court. In addition, neither party addressed this issue in their briefs.