author: Borden, J.

text:
    Shawmut Bank, N.A. v. Valley Farms et al.
    (14411)
    Peters, C. J., Callahan, Covello, Borden and Berdon, Js.
    Argued February 11
    decision released June 9, 1992

      Richard P. Weinstein, with whom was Jennifer Jaff for the appellants (defendants).

      Robert M. Dombroff with whom, on the brief, was Stephen W. Aronson, for the appellee (plaintiff).
   Borden, J.

The principal issue in this appeal is the constitutionality, under the due process clause of the fourteenth amendment to the United States constitution, of our statutory scheme regarding the action of replevin codified in General Statutes § 52-515 et seq. The defendant partnerships, Valley Farms, Maple Shade Farms, Starr Farms and REM Motor Rental, appeal from the judgment of the trial court granting the application of the plaintiff, Shawmut Bank, N.A., for a prejudgment remedy of replevin of certain property of the defendants. The defendants claim that: (1) the statutory scheme authorizing replevin violates the federal due process clause; and (2) the property sought to be replevied is exempt from execution and, therefore, from replevin by way of a prejudgment remedy. We affirm the judgment of the trial court.

For purposes of this appeal, the following facts are undisputed. The defendants operate farms in Connecticut. Pursuant to a series of documents consisting of certain letter agreements, demand promissory notes, security agreements and guaranties executed by the defendants in 1985,1986 and 1991, the plaintiff loaned the defendants $1,200,000, and the defendants granted the plaintiff a security interest in all the defendants’ assets, including equipment, inventory, livestock and feed. The second of the letter agreements provided that, upon default, the defendants would voluntarily surrender possession of the collateral to the plaintiff. Despite the defendants’ default on repayment of the loan, they refused to comply with the plaintiff’s request for possession of the collateral. The plaintiff thereupon brought this action.

The plaintiff filed an application for a prejudgment remedy alleging that there was probable cause to believe that a judgment would be rendered against the defendants, and sought an order of the court “directing that the following prejudgment remedy be issued to secure the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars, to wit: To replevy the goods and chattels described on Exhibit A A attached hereto.” Exhibit AA listed, in general terms, all the livestock, feed and equipment owned by the four defendants, and also listed, by model year and serial number, certain equipment owned by the defendants Valley Farms and REM Motor Rental. Attached to the application was an eight page affidavit of Kevin C. Murphy, a vice president of the plaintiff, describing the transactions between the plaintiff and the defendants. Attached to the affidavit were copies of the various letter agreements, promissory notes, security agreements, and guaranties of the defendants. Also attached to the application was an unsigned writ, summons and complaint alleging, inter alia, that the defendants had wrongfully refused to turn the collateral over to the plaintiff, and requesting, in the prayer for relief, immediate possession of the collateral, monetary damages if the collateral could not be replevied to the plaintiff, damages for wrongful detention of the collateral, attorneys’ fees, and other equitable relief.

Pursuant to an order of the trial court, the court conducted an evidentiary hearing on July 29,1991. After the hearing, the trial court found probable cause that judgment would be rendered in the matter in favor of the plaintiff, and also found the total indebtedness of the defendants to the plaintiff to be $1,080,000. The court did not, however, issue an order of replevin. Instead, it continued the case for two weeks in order for the parties to file briefs on the defendants’ claim that the property was exempt from a prejudgment remedy. Also, in response to an argument of the defendants, the court ruled that the plaintiffs application was defective because it lacked an affidavit of the actual value of the property to be replevied and a proper bond. See General Statutes § 52-518 as set out in footnote 3, supra. The court instructed the plaintiff to amend its application in order to remedy these defects.

The parties returned to court on August 12, 1991. Prior to that date, the plaintiff had filed an affidavit evaluating the collateral at $3,150,000, and a bond in the amount of $6,300,000, twice the value of the collateral. After oral arguments, the trial court granted the plaintiff’s application. It ordered that the plaintiff could replevy the collateral to the value of $3,150,000. This appeal followed.

I

We first consider the defendants’ claim, rejected by the trial court, that the property sought to be replevied was exempt from prejudgment remedy attachment because it constituted “[tjools, books, instruments and farm animals which are necessary to the exemptioner in the course of his or her occupation or profession.” General Statutes § 52-352b (b). We agree with the trial court and the plaintiff that the exemptions from post-judgment remedies, and therefore from prejudgment attachment, afforded by General Statutes § 52-352b, apply only to “property of any natural person” under that statute and, therefore, do not apply to property of partnerships, like the defendants.

Section 52-352b, which is part of chapter 906, entitled “Postjudgment Procedures,” exempts from postjudgment procedures certain “property of any natural person.” Although the term “natural person” is not defined in chapter 906, it clearly means a human being, as opposed to an artificial or juristic entity. First, the types of property that are exempt under § 52-352b, other than the “[tjools, books, instruments and farm animals” referred to in subsection (b), are the types normally associated with individuals, not legal entities. Furthermore, the legislature has consistently used the term “natural person” in order to distinguish it from a partnership. See, e.g., General Statutes § 1-18a (c) (“ ‘Person’ means natural person, partnership, association or society.”); General Statutes § 33-374d (10) (“ ‘Person’ means a natural person, company, partnership, foreign or domestic corporation, trust, unincorporated organization, government or any other entity or political subdivision, agency or instrumentality of a government. . . General Statutes § 34-9 (12) (“ ‘Person’ means a natural person, partnership, limited partnership, foreign limited partnership, trust, estate, association or corporation.”). Finally, except where a word or phrase has a technical meaning or has acquired “a peculiar and appropriate meaning in the law,” a statutory word or phrase “shall be construed according to the commonly approved usage of the language.” General Statutes § 1-1 (a). Consistent with that rule of construction, “natural person” means “a human being as distinguished in law from an artificial or juristic person.” Webster’s Third New International Dictionary.

We are unpersuaded by the defendants’ argument that excluding partnerships from the exemption of § 52-352b would “render the exemption meaningless as applied to the few remaining small family farms” because “every family that owns and operates a farm collectively could be deemed to be a partnership . . . .” Unlike these defendants, who have chosen to operate their farms in the partnership form, others remain free to own their farm assets in individual or joint ownership forms and thereby retain the statutory exemption available to natural persons. See, e.g., Gangl v. Gangl, 281 N.W.2d 574 (N.D. 1979) (family farm not a partnership). These defendants presumably saw some legal advantage to operating the farms as partnerships. Having done so, they must accept any legal disadvantage that arises from the limitation of § 52-352b to property owned by a natural person.

II

We turn, therefore, to the defendants’ principal claim, namely, that the statutory scheme for replevin of goods on its face fails to satisfy due process of law. The defendants identify three “procedural inadequacies in the statutory scheme” that, they argue, render the statutory scheme, and thus this replevin order, invalid: (1) an ex parte replevin is permitted upon a showing only of probable cause rather than of exigent circumstances; (2) General Statutes § 52-521 provides for a challenge to the amount and form of the bond only after the seizure has occurred; and (3) the statutes do not require that the property to be replevied be identified. Recognizing that, as the applicable statutes were interpreted and applied by the trial court in this case, each of these requirements was either met or was inapplicable, the defendants argue that the statutes must be viewed facially, rather than as applied, because they “are unconstitutional in every application,” and that, therefore, “the fact that the court was willing to give [the defendants] more process than the statutes authorize does not save the statutes from constitutional challenge.” We disagree.

First, we reject the contention that we are required to gauge the constitutionality of our replevin statutes on their face, without regard to the particular facts of this case or the interpretation placed on the statutory language by the trial court. “The United States Supreme Court has noted that to mount a facial challenge to a statute, one must establish that no set of circumstances exists under which the Act would be valid. The fact that the [Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment. Schall v. Martin, [467 U.S. 253, 269 n.18, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984)]. United States v. Salerno, 481 U.S. 739, 745, 753-55, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).” (Internal quotation marks omitted.) State v. Ayala, 222 Conn. 331, 344 n.12, 610 A.2d 1162 (1992). This well established principle is consistent with the equally well established principles that “ ‘[d]ue process is flexible and calls for such procedural protections as the particular situation demands’ Tedesco v. Stamford, 222 Conn. 233, 242-43, 610 A.2d 574 (1992); and that we strive to read statutes so as to preserve, rather than to undermine, their constitutionality. State v. Kane, 218 Conn. 151, 156, 588 A.2d 179 (1991). We therefore view the question of the constitutionality of the statutes at issue as applied under the facts of this case. See State v. Ayala, supra. We conclude that the replevin statutes, as applied by the trial court to this case, comport with the requirements of due process of law.

In support of their claim, the defendants offer no more than the bare assertion that the statutes at issue are unconstitutional under any conceivable set of circumstances. Indeed, the facts of this case belie that assertion, since the trial court, relying on its interpretation of the statutes, provided the defendants with nearly all the process that they claimed to be due, namely, the opportunity to challenge the amount and form of the bond before the seizure, and proper identification of the property to be replevied.

The trial court’s interpretation, moreover, was firmly rooted in the statutory language and was not, as the defendants’ argument suggests, a strained attempt to salvage an obviously unsalvageable statutory scheme. General Statutes § 52-516 (b) provides that “[a]n action of replevin, to the extent that it includes a prejudgment remedy as defined in section 52-278a, shall not be allowed unless the provisions of sections 52-278a to 52-2781, inclusive, are complied with.” General Statutes § 52-278a (d) specifically defines “[p]rejudgment remedy” to include the action of replevin.

General Statutes §§ 52-278a through 52-278h were “enacted in response to the constitutional instructions of Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969).” (Internal quotation marks omitted.) Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 16, 542 A.2d 1159 (1988). Thus, in order to obtain an order of replevin, the plaintiff was required to satisfy not only the requirements of the replevin statutes; General Statutes § 52-515 et seq.; but the requirements of due process as expressed in §§ 52-278a through 52-278h.

With regard to the identification of the property to be replevied, implicit in §§ 52-278a through 52-278h is the requirement that property that is the subject of a prejudgment remedy be identified. The bench and bar of this state have always understood that identification to be a statutory requirement. Indeed, paragraph 2.a. of the statutory form for an application for a prejudgment remedy of attachment reflects that requirement.

With regard to the opportunity of the defendants to challenge the amount and form of the bond before the seizure, General Statutes § 52-521 (b) provides in pertinent part that “[i]f the defendant is not satisfied with the recognizance, he may, at any time before the return day of the writ, cite the plaintiff or his attorney, or the officer serving the writ, if the property still remains in his custody, to appear at once before a judge of the superior court where the replevin was effected, to respond to a motion for a new bond.” It is true, as the defendants argue, that § 52-521, as drafted, ordinarily contemplates a challenge to the bond after the seizure. That does not mean, however, that it is not subject to a construction, in order to save its constitutionality, that would require an opportunity by the defendant to challenge the amount and form of the bond prior to the seizure of the property.

Section 52-521 (b) requires, as a matter of timing, only that the plaintiff challenge the bond “at any time before the return day of the writ.” That language does not preclude a construction that, for constitutional reasons, advances the time for such a challenge. Since, as the defendants point out, the effect of a replevin of their cattle on their property interest therein was substantial, because it would work “a complete and physical taking of the cattle,” and since “[i]n order to comply with due process, notice and an opportunity to be heard must be afforded litigants at a meaningful time and in a meaningful manner”; (internal quotation marks omitted) Ford Motor Credit Co. v. B. W. Beardsley, Inc., supra, 17; it was consistent with the purposes of §§ 52-278a through 52-278h for the trial court to interpret the time requirement of § 52-521 (b) so as to afford the defendants a preseizure opportunity to challenge the amount and form of the bond.

We are unpersuaded by the defendants’ claim that the recent United States Supreme Court decision in Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), required the plaintiff in this case to establish more than probable cause, namely, exigent circumstances, in order to obtain an order of replevin. In Doehr, “an ex parte attachment pursuant to the Connecticut [prejudgment remedy] statute in a tort action was held to violate due process . . . .” Union Trust Co. v. Heggelund, 219 Conn. 620, 624 n.3, 594 A.2d 464 (1991). In that procedural context, the court held that exigent circumstances, rather than probable cause, were required in order to justify an ex parte deprivation of the defendant’s property. Connecticut v. Doehr, supra, 2116.

This case is distinguishable from Doehr. Here, there was no ex parte deprivation. The replevin order did not issue until after the defendants had a full opportunity for an evidentiary hearing. Furthermore, unlike the situation in Doehr, in this case the probable cause standard was constitutionally sufficient because the facts at issue, namely, the existence of the debt and whether it was in default, were “ ‘ordinarily uncomplicated matters that lend themselves to documentary proof.’ ” Id., 2114, quoting Mitchell v. W. T. Grant Co., 416 U.S. 600, 609, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974). Therefore, “the risk of error was minimal . . . .’’Connecticut v. Doehr, supra, 2115; see also Union Trust Co. v. Heggelund, supra. Finally, unlike the situation in Doehr, where the “[plaintiff had no existing interest in [the defendant’s] real estate when he sought the attachment”; Connecticut v. Doehr, supra; in this case the plaintiff had a preexisting security interest in the property sought to be replevied.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendants 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.

       Shawmut Bank, N.A., is the successor in interest to Shawmut Bank of Boston, N.A., the original party to the transactions with the defendants. We refer herein to Shawmut Bank, N.A., as the plaintiff.

       Although the defendants purport to challenge the entire “statutory scheme” regarding replevin; General Statutes §§ 52-515 through 52-531; their claims of unconstitutionality focus on General Statutes §§ 52-516 and 52-518.
      General Statutes § 52-516 provides: “commencement of action of replevin, prejudgment remedy, (a) An action of replevin shall be commenced by a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance. The writ shall be signed as in other civil actions and may run into any judicial district.
      “(b) An action of replevin, to the extent that it includes a prejudgment remedy as defined in section 52-278a, shall not be allowed unless the provisions of sections 52-278a to 52-278Í, inclusive, are complied with.”
      General Statutes § 52-518 provides: “replevin writ; affidavit as to VALUE OF GOODS AND RECOGNIZANCE REQUIRED. A writ of replevin shall not be issued: (1) Until the plaintiff, or some other credible person, subscribes an affidavit annexed to the writ stating the true and just value of the goods which it is desired to replevy, and that the affiant believes that the plaintiff is entitled to the immediate possession of the goods, and (2) until some person, known to the authority signing the writ to be of sufficient responsibility, has entered into a recognizance before him, with at least one sufficient surety, in a sum at least double the sworn value of the property, conditioned (A) that the plaintiff shall prosecute his action to effect, (B) for the payment of any judgment that may be recovered by the defendant in the action, and (C) for the return of the property to the defendant, and payment to the defendant of all damages sustained by the replevy of the property if the plaintiff fails to establish his right to its possession. The recognizance shall be signed by the obligors in the presence of at least one witness other than the authority taking the recognizance. A record of the recognizance shall be entered at the foot of the writ before the writ is issued, and copies of the process left in service shall contain the affidavit and the recognizance.”

       The order was stayed pending this appeal, pursuant to the parties’ agreement.

       We address this claim first because of the fundamental principle of appellate jurisprudence that a case should be disposed of on nonconstitutional grounds if possible. See State v. Daniels, 209 Conn. 225, 229 n.1, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989).

       General Statutes § 52-352b provides: “exempt property. The following property of any natural person shall be exempt:
      “(a) Necessary apparel, bedding, foodstuffs, household furniture and appliances;
      “(b) Tools, books, instruments and farm animals which are necessary to the exemptioner in the course of his or her occupation or profession;
      “(c) Burial plot for the exemptioner and his or her immediate family;
      “(d) Public assistance payments and any wages earned by a public assistance recipient under an incentive earnings or similar program;
      “(e) Health and disability insurance payments;
      “(f) Health aids necessary to enable the exemptioner to work or to sustain health;
      “(g) Workers’ compensation, social security, veterans and unemployment benefits;
      “(h) Court approved payments for child support;
      “(i) Arms and military equipment, uniforms or musical instruments owned by any member of the militia or armed forces of the United States;
      “O’) One motor vehicle to the value of one thousand five hundred dollars, provided value shall be determined as the fair market value of the motor vehicle less the amount of all liens and security interests which encumber it;
      “(k) Wedding and engagement rings;
      “(1) Residential utility deposits for one residence, and one residential security deposit;
      “(m) Payments received by the exemptioner under a profit-sharing, pension, stock bonus, annuity or similar plan which is established for the primary purpose of providing benefits upon retirement by reason of age, health, or length of service and which is either (1) qualified under Section 401,403, 404 or 408 of the Internal Revenue Code, or any successor thereto, or (2) established by federal or state statute, but only to the extent that wages are exempt from execution under section 52-361a;

        “(n) Alimony and support, other than child support, but only to the extent that wages are exempt from execution under section 52-361a;
      “(o) An award under a crime reparations act;
      “(p) All benefits allowed by any association of persons in this state towards the support of any of its members incapacitated by sickness or infirmity from attending to his usual business; and
      “(q) All moneys due the exemptioner from any insurance company on any insurance policy issued on exempt property, to the same extent that the property was exempt.”

       This conclusion renders it unnecessary to consider the plaintiffs alternate argument that the defendants were estopped from claiming the statutory exemption by granting the plaintiff a consensual lien on the collateral.

       Examples of types of property that are exempt under the statute are workers’ compensation and social security benefits, health and disability insurance payments, burial plots and wedding rings. See footnote 6, supra.

       This was not an ex parte replevin proceeding. The trial court did not issue an order of replevin until after notice and a full evidentiary hearing. Furthermore, the defendants had an adequate opportunity to challenge the amount of the bond at the August 12, 1991 hearing, before the order of replevin was issued, but failed to do so. Finally, the property to be replevied was fully identified in the documents presented to the court in the plaintiffs application.

       We discuss, infra, the only other statutory deficiency identified by the defendants, namely, a provision that replevin may be ordered upon a finding of exigency rather than of probable cause.

       We recognize that, under some circumstances, it may be something of a misnomer to call a replevin action a “prejudgment remedy,” since the principal purpose of such an action is often, as in this case, to obtain a judgment authorizing possession of and the right to dispose of the property sought to be replevied in order to satisfy a preexisting debt; cf. General Motors Acceptance Corporation v. Powers, 137 Conn. 145, 75 A.2d 391 (1950); and any other aspects of the judgment would be merely incidental to that purpose. It is clear, nonetheless, that the legislature has included replevin in the panoply of prejudgment remedies; General Statutes § 52-278a (a); and that the strictures of the due process clause apply to such an action. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974).

       General Statutes § 52-278a provides: “definitions. The following terms, as used in sections 52-278a to 52-278g, inclusive, shall have the following meanings, unless a different meaning is clearly indicated from the context:
      “(a) ‘Commercial transaction’ means a transaction which is not a consumer transaction.
      “(b) ‘Consumer transaction’ means a transaction in which a natural person obligates himself to pay for goods sold or leased, services rendered or moneys loaned for personal, family or household purposes.
      “(c) ‘Person’ means and includes individuals, partnerships, associations and corporations.
      “(d) ‘Prejudgment remedy’ means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order.
      “(e) ‘Property’ means any present or future interest in real or personal property, goods, chattels or choses in action, whether such is vested or contingent.”

       General Statutes § 52-278c sets out, inter alia, the form for an application for a prejudgment remedy. Paragraph 2.a. of that form provides: “2. That there is probable cause that a judgment will be rendered in the matter in favor of the applicant and to secure the judgment the applicant seeks an order from this court directing that the following prejudgment remedy be issued to secure the sum of $ .... :
      “a. To attach sufficient property of the defendant to secure such sum.”

       General Statutes § 52-521 provides: “replevin; service; new bond; voiding of PROCESS, (a) The officer who replevies property shall leave a true and attested copy of the process with the defendant, or at his usual place of abode, within three days after the replevy, and shall retain the property replevied in his custody for twenty-four hours after leaving the copy, unless the defendant endorses on the writ that he is satisfied with the amount and sufficiency of the recognizance taken on issuing the writ.
      “(b) If the defendant is not satisfied with the recognizance, he may, at any time before the return day of the writ, cite the plaintiff or his attorney, or the officer serving the writ, if the property still remains in his custody, to appear at once before a judge of the superior court where the replevin was effected, to respond to a motion for a new bond. The judge may hear the motion and, at his discretion, order a new or further bond, conditioned like the recognizance taken on issuing the writ, signed by the obligors, and delivered to the defendant, by whom it shall be transmitted to the court to which the writ was made returnable. If the order is made while the property replevied remains in the custody of the officer, he shall not deliver the property to the plaintiff until the bond is given.
      “(c) If an order for a new bond is not complied with, or if the officer fails to leave with, or at the usual place of abode of, the defendant a true and attested copy of the writ, or to retain the property in his custody, as hereinbefore provided, the writ of replevin shall be null and void.
      “(d) If it appears to the court before which an action of replevin is pending that the replevin bond attached to the writ is insufficient, the court may, at its discretion, order a new or further replevin bond to be given by the plaintiff, conditioned like the recognizance taken on issuing the writ. If the plaintiff fails to comply with the order, he shall be nonsuited.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Timber Trails Corporation et al. v. Planning and Zoning Commission of the Town of Sherman
    (13969)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued February 19
    decision released June 3, 1992

      George C. Hastings, with whom was Linda L. Morkan, for the appellants (plaintiffs).

      Creighton M. English, for the appellee (defendant).
   Shea, J.

The dispositive issue in this appeal is whether a planning and zoning commission’s failure to comply with General Statutes (Rev. to 1977) § 8-3 (a), as amended by Public Acts 1977, No. 77-509, § 2, which required, inter alia, that a copy of proposed regulations be filed in the town clerk’s office for public inspection prior to the public hearing on the proposed regulations, deprived the commission of its jurisdiction to adopt such proposed regulations, thereby rendering its vote to adopt them void. We answer this question in the affirmative and therefore reverse the judgment of the trial court upholding the validity of an amendment to the zoning regulations of the town of Sherman adopted under such circumstances.

The plaintiffs, Timber Trails Corporation, Tessa Pascarella and Timber Trails Associates, brought this administrative appeal in the Superior Court to challenge the action of the defendant, the planning and zoning commission of the town of Sherman, in amending its regulations to increase the minimum lot size requirement in zone B from 40,000 square feet to 80,000 square feet and to make all zone A requirements applicable to zone B. The trial court upheld the validity of the regulatory amendment and dismissed the plaintiffs’ appeal. The Appellate Court granted the plaintiffs’ petition for certification to appeal from the trial court’s decision, and we then transferred the case to this court in accordance with Practice Book § 4023 and General Statutes § 51-199 (c).

The relevant facts are as follows. On September 14 and 21, 1978, the defendant published the following notice in The New Milford Times: “Notice of Public Hearing. The Planning and Zoning Commission of the Town of Sherman, Conn, will hold a public hearing on Friday, September 29, 1978, at 8:00 p.m. in the gym of the Sherman School on the proposal that the B Zone be changed from 40,000 square feet to 80,000 square feet according to the recommendation of the Master Plan of Development, and that all properties in the B Zone shall be required to meet all requirements of the A Zone. Such proposal is to be considered for adoption by the Planning and Zoning Commission of the Town of Sherman, Conn. At this hearing interested persons may be heard and written communications received. A copy of the proposal is on file in the office of the Town Clerk, Mallory Town Hall in Sherman, Conn. Dated in Sherman, Conn., this 14th day of September, 1978. Planning & Zoning Commission, J. Anthony Crawford, Chairman, Frances Murray, Clerk.” The defendant filed a copy of that newspaper notice in the town clerk’s office, but failed to file a copy of the proposed regulations with the town clerk. The public hearing was held on September 29,1978. Thereafter, on October 2,1978, the defendant enacted the proposed regulation, which increased the minimum lot size requirement in zone B from 40,000 square feet to 80,000 square feet and made land in zone B subject to the same requirements as land in Zone A. The amended regulation became effective on October 6, 1978.

Section 8-3 (a) provides that “[njotice of the time and place of [a hearing for establishing or changing zoning regulations] shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in [the] municipality” and that “a copy of such proposed regulation . . . shall be filed in the office of the town . . . for public inspection at least ten days before such hearing, and may be published in full in such paper.” The defendant does not challenge the trial court’s finding that the defendant failed to file a copy of the proposed regulation with the town clerk. The plaintiffs maintain that the defendant’s failure to comply with § 8-3 (a) constituted a jurisdictional defect, which rendered the purported regulatory amendment a nullity. The defendant argues that the newspaper publication and the filing of a copy of that publication with the town clerk provided adequate notice of the proposed change so that the failure to file the actual text of the proposal was merely a technical defect. We agree with the plaintiffs that strict compliance with § 8-3 (a) was a prerequisite to the defendant’s exercise of its power to amend the town zoning regulations.

In State ex rel. Capurso v. Flis, 144 Conn. 473, 133 A.2d 901 (1957), this court addressed the same issue presented in the instant case. We held that the town planning and zoning commission’s failure to file a copy of the proposed change in zone boundaries, in accordance with the statutory predecessor of § 8-3 (a), rendered invalid the commission’s attempt to change those boundaries. “Compliance with the statutory procedure was a prerequisite to any valid and effective change in zonal boundaries.” Id., 481. In Scovil v. Planning & Zoning Commission, 155 Conn. 12, 14-15, 230 A.2d 31 (1967), we again characterized the failure to file a copy of a proposed zoning amendment with the town clerk as “jurisdictional.” Because this case falls squarely within the rule announced in Capurso, we hold invalid the amendment increasing the minimum lot size in zone B from 40,000 square feet to 80,000 square feet and subjecting land in zone B to the same requirements as land in zone A.

The defendant argues, nevertheless, that its failure to file a copy of the text of the proposed amendment with the town clerk was of no consequence because the plaintiffs’ very thorough presentation at the public hearing demonstrated that they had been adequately notified of the nature of the proposed change. That these plaintiffs may have been sufficiently apprised of the contemplated change despite the fact that the proposal was not filed is of little import since “[t]he underlying purpose of such requirements is 'not to permit changes, exceptions or relaxations [in zoning matters] except after such full notice as shall enable all those interested to know what is projected and to have opportunity to protest, and as shall insure fair presentation and consideration of all aspects of the proposed modification. This is not a technical requirement difficult of performance by the unwary. It is dictated by common sense for protection of an established neighborhood to be subject to change only after fair notice.’ ” (Emphasis added.) Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 (1951), quoting Kane v. Board of Appeals of Medford, 273 Mass. 97, 104, 173 N.E. 1 (1930); see also Passero v. Zoning Commission, 155 Conn. 511, 514, 235 A.2d 660 (1967), cert. denied, 390 U.S. 1004, 88 S. Ct. 1248, 20 L. Ed. 2d 104 (1968). The evident purpose of § 8-3 (a), to notify all interested persons of the precise character of the proposed change, would be thwarted if the presence of some interested persons at the public hearing could serve as an acceptable substitute for compliance with the statutory requirement of a public filing of the proposal. We therefore reject the defendant’s claim in this regard.

The defendant also contends that, because citizens of a town are presumed to know of the town’s zoning regulations; M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 244-45, 445 A.2d 591 (1982); the newspaper publication adequately alerted the public to the nature of the proposed change by indicating that zone B would be subject to all the requirements of zone A. While it is true that townspeople are presumed to be familiar with local regulations, they are not presumed to know of contemplated changes in those regulations. Section 8-3 (a) exists to ensure that interested persons are apprised of such contemplated changes. Moreover, the statute does not relax the requirement that the proposed regulation itself be filed in the town hall simply because a proposal, such as this, seeks to amend the regulations by applying the existing requirements of one zone, about which the townspeople are presumed to know, to another zone. Accordingly, we decline the defendant’s invitation to apply the requirements of § 8-3 (a) selectively, depending upon the nature of the proposed change.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1977) § 8-3 (a), as amended by Public Acts 1977, No. 77-509, § 2, provided: “Such zoning commission shall provide for the manner in which regulations under section 8-2 and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto, held by a majority of the members of the zoning commission or a committee thereof appointed for that purpose consisting of at least five members, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing, and a copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk, as the case may be, in such municipality, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located, for public inspection at least ten days before such hearing, and may be published in full in such paper. The commission may require a filing fee to be deposited with the commission to defray the cost of publication of the notice required for a hearing.” (Emphasis added.)

       The plaintiffs have also claimed: (1) the amendment increasing the minimum lot size is invalid because it was not predicated upon a change of circumstances; (2) the amendment is invalid because the commission was operating under a mistake of law when it was enacted; (3) the trial court improperly attempted to cure the commission’s error in prohibiting plaintiffs’ counsel from cross-examining witnesses at the hearing by suggesting that counsel cross-examine the witnesses before the trial court; and (4) the state trial referee presiding over the administrative appeal improperly failed to recuse himself from the case despite his inappropriate involvement in the settlement process. Because we agree with the plaintiffs that the amendment purporting to increase the minimum lot size requirement was nullified by the defendant’s failure to file a copy of the proposed amendment in the town clerk’s office, we need not address these alternate claims.

       As owners of land in zone B, the plaintiffs are aggrieved parties. See General Statutes § 8-8 (b); Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502-503, 264 A.2d 566 (1969).

       See General Statutes $ 8-8 (o) and Practice Book $$ 2030 through 2034.

       More recently, the Appellate Court followed our holding in State ex rel. Capurso v. Flis, 144 Conn. 473, 133 A.2d 901 (1957), to invalidate a purported zoning change because a copy of the proposed change had not been filed in the town clerk’s office. Bombero v. Planning & Zoning Commission, 17 Conn. App. 150, 153-55, 550 A.2d 1098 (1988).


text:
    Timber Trails Corporation v. Planning and Zoning Commission of the Town of Sherman Stephen Eisner et al. v. Planning and Zoning Commission of the Town of Sherman et al.
    (13970)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.

      Argued February 19
    decision released June 3, 1992

      George C. Hastings, with whom was Linda L. Morkan, for Timber Trails Corporation, the appellant (plaintiff in the first case and defendant in the second case).

      Creighton M. English, for the appellee planning and zoning commission (defendant in both cases).

      Frank J. Silvestri, Jr., with whom was David P. Friedman, for the appellee (plaintiff in the second case, Timber Trails Property Owners Association, Inc.).
   Shea, J.

These appeals were consolidated for trial as well as appeal, and separate judgments in each case were rendered by the trial court on the same date, December 18,1989, ten days after its rendition of judgment in the companion case of Timber Trails Corporation v. Planning & Zoning Commission, 222 Conn. 374, 610 A.2d 617 (1992) (Timber Trails I). In that case this court has on this date rendered judgment invalidating an amendment to the zoning regulations of the town of Sherman adopted on October 2,1978, increasing the minimum lot size requirement in zone B from 40,000 square feet to 80,000 square feet and making land in zone B subject to the requirements of zone A, for failure to comply with the requirement of General Statutes § 8-3 that a copy of the proposed amendment must be filed in the office of the town clerk “for public inspection at least ten days before” the public hearing.

Both cases arise out of the action of the defendant Sherman planning and zoning commission on . February 21,1980, approving the application of Timber Trails Corporation, the plaintiff in the first case, and a defendant in the second case, for a twenty-two lot subdivision of its land with modifications that reduced the number of lots to sixteen and also imposed several conditions. In the first case, the corporation, claiming that its application should have been granted without modification, appealed from that decision to the Superior Court, which dismissed the appeal. In the second case, five persons owning property abutting or in the vicinity of the proposed subdivision also appealed from the decision of the commission approving the subdivision, and an additional plaintiff, The Timber Trails Property Owners Association, was later admitted on motion. The trial court held that the commission had illegally approved the sixteen lot subdivision because the lots contained less than 80,000 square feet of area in violation of the zoning amendment that this court has nullified in Timber Trails I, and accordingly rendered judgment sustaining the appeal of the property owners and their association, effectively invalidating the commission’s action in approving a sixteen lot subdivision subject to specified conditions.

After obtaining certification, the corporation appealed from both judgments to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The corporation has raised eight issues in support of its claim that the judgments in each case should be reversed, but our decision in Timber Trails I, invalidating the amendment increasing the minimum lot size in the applicable zone for the subdivision to 80,000 square feet, has mooted some of them and others are now also moot. The remaining issues are: (1) in the first case, whether the modifications and conditions imposed by the commission on its approval of the subdivision plan were equivalent to a failure of the commission to act on the corporation’s application within the time allowed by General Statutes § 8-26d; (2) in the second case, whether the association, which owns no property in the area, may prosecute a zoning appeal by virtue of the aggrievement of one or more of its members; and (3) in both cases whether the commission abused its discretion in modifying the application and in approving it for sixteen lots, subject to the conditions imposed. We conclude that the commission’s approval of the application subject to modifications and conditions fulfilled the statutory requirement for action on the application within the time prescribed, that the association had the requisite standing and that the commission did not abuse its discretion. Accordingly, we affirm the judgment dismissing the corporation’s appeal in the first case and reverse the judgment sustaining the appeal of the association and the individual plaintiffs in the second case.

I

In the first case, the corporation claims that its application for a twenty-two lot subdivision filed on August 2,1979, was automatically approved, pursuant to General Statutes (Rev. to 1979) § 8-26, when the commission did not take valid action on that application within sixty-five days after the public hearing on it. Specifically, the corporation maintains that, although the commission was authorized by § 8-26 to “modify and approve” its application, the commission’s conversion of the twenty-two lot plan into a sixteen lot plan changed the subdivision application so fundamentally that it cannot be considered a mere “modification” of it. Relying on this court’s decision in Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 409 A.2d 1029 (1979), the corporation further claims that the commission acted outside its statutorily granted authority when it conditioned approval of the subdivision application on the corporation’s ability to obtain approval of its water system by the Connecticut department of business regulation, division of public utility control (DPUC). We are not persuaded that the commission acted illegally either by altering the corporation’s plan or by placing this condition on its approval. Consequently, we reject the argument that the twenty-two lot application was automatically approved because the commission failed to take proper action within sixty-five days of the hearing.

Some background information is necessary for the proper analysis of this claim. On August 2, 1979, the corporation filed with the commission an application for a twenty-two lot subdivision to be located in an area in Sherman known as the Valley Lake section. A public hearing on the application was held on September 28, 1979. On November 6, 1979, the corporation consented to a sixty-five day extension of time and, on January 4,1980, agreed to another sixty-five day extension. At a special meeting on February 21, 1980, the commission voted to approve the application with “[m]odifications and contingent approval until [the DPUC] approves water system and its bonding and the Commission is assured there will be no downgrading of water service to the present residents.” The modifications included withholding approval of two lots and combining several other lots or portions thereof, and resulted in the approval of a sixteen lot subdivision.

A

In its appeal to the trial court, the corporation raised the claim that the twenty-two lot application was automatically approved because the commission’s action on the application was legally improper and thus was no “action” at all within the meaning of § 8-26. The trial court rejected the claim because it had concluded that the amendment to the zoning regulations increasing the minimum lot size to 80,000 square feet, which we have since invalidated in Timber Trails /, was valid and applicable to the corporation’s application. Since many of the lots included in the application were less than 80,000 square feet in size, the court reasoned that the commission was powerless to approve it according to § 8-26, which provided that “nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations.”

Section 8-26 authorizes a planning and zoning commission to “modify and approve” a subdivision application, but does not define the scope of the term “modify.” It is well established, however, that “[i]n exercising its function of approving or disapproving a subdivision plan, the planning board acts in an administrative capacity. In passing upon a plan, its action is controlled by the regulations adopted for its guidance.” Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412 (1958). If the regulations in effect at the time authorized the commission to approve a plan with fewer lots, then the commission must be deemed to have exercised properly its authority to “modify and approve” the application within the meaning of § 8-26, and the corporation’s claim must fail.

In considering the corporation’s application, the commission expressed concern that, because the property contained much rugged terrain, “many of these lots have severe or very severe conditions which limit installation of septic systems.” The property’s proximity to Valley Lake also troubled commission members because “[a]ny failure of a system in the proposed subdivision would endanger the purity of the lake and thus jeopardize its use as an active recreational area.” The commission further noted that any contamination of Valley Lake would endanger the purity of the drinking water supply in New York City because Valley Lake, as part of the Hudson River Basin, flows into the New York City water system. Commission members also feared a threat to the purity of the water supply of future subdivision residents since the corporation’s application proposed locating wells immediately adjacent to Valley Lake. Questions arose at the final meeting on the application about whether the water system for the proposed subdivision would “tap from the present system in serving the new subdivision, thus downgrading the older system,” and about how best to “safeguard the present property owners’ water supply.”

At the tima the corporation’s application was being considered, § 3 (f) of the Sherman subdivision regulations provided: “The Commission is empowered to require that lots larger than required by applicable zoning regulations be plotted where deemed necessary because of inadequate drainage or sewage disposal conditions.” This regulation expressly granted authority to the commission to require larger lots in the subdivision than had been proposed by the corporation under circumstances such as these, where the commission had serious concerns about the purity and adequacy of the water system. The corporation does not claim that the regulations were not duly adopted or that they exceeded the scope of authority granted by the enabling legislation. See Finn v. Planning & Zoning Commission, 156 Conn. 540, 244 A.2d 391 (1968). It does not argue that there was insufficient evidence to support the commission’s expressed concerns about the water system. See Gardiner v. Conservation Commission, 222 Conn. 98, 108-109, 608 A.2d 672 (1992). Accordingly, we conclude that the commission took valid action on the subdivision application when it modified the lot configuration of the corporation’s subdivision application by reducing the number of lots thereon to sixteen and approved it, as modified.

B

We turn now to a consideration of whether the commission acted improperly in conditioning approval of the subdivision application on the corporation’s ability to obtain approval from the DPUC. In Carpenter v. Planning & Zoning Commission, supra, 591, the applicant advanced the same argument with respect to a planning commission’s approval of a subdivision plan “ ‘subject to posting a bond and approval of the highway superintendent.’ ” We held that “where a commission makes the approval of a plan of subdivision subject to a condition, the fulfillment of which is within the control of neither the commission nor the applicant, such as approval by a coordinate municipal agency, the commission has ‘failed to act’ within the intendment of General Statutes §§ 8-26 and 8-28, unless the coordinate agency approval appears to be a reasonable probability.” Id., 592-93. Because in Carpenter there was no indication in the record that the approval of the highway superintendent was a reasonable probability, we concluded that the commission had not taken valid action within sixty-five days of the submission of the applicant’s subdivision plan and that the plan was, therefore, automatically approved at that time. Id., 593.

In order to respond to the corporation’s claim of automatic approval, we must examine the record in this case to determine whether DPUC approval was a reasonable probability. Following an August 5,1979 petition by The Timber Trails Property Owners Association, the DPUC conducted an investigation regarding the adequacy of water service being provided by the corporation. On August 31,1979, the DPUC rendered a written report in which it made certain findings of fact and ordered the corporation to comply with five specific requirements in providing water service. A certified copy of this report was introduced into evidence at the September 28,1979 public hearing on the subdivision application. In order to obtain approval, the DPUC required that the corporation: (1) change the rate it had charged its customers; (2) familiarize itself with state regulations governing water companies and comply with those regulations; (3) within ninety days of the DPUC decision, install production meters on unmetered wells and maintain production records; (4) within ninety days of the DPUC decision, submit drafts of a revised billing form that would comply with applicable regulations; and (5) within 120 days of the DPUC decision, submit evidence that it had chlorinated a certain well and maintained a flushing program recommended by the Department of Health Services.

By enumerating five explicit requirements with which the corporation had to comply in order to obtain its approval, the DPUC essentially placed the corporation in control of whether its water system and subdivision plan would be approved. Approval was certain once the corporation had complied with the stated requirements. Unlike the scenario in Carpenter in which there was nothing in the record to indicate the requirements for obtaining the approval of the highway commissioner or the likelihood of doing so, the conditions for obtaining DPUC approval were clearly delineated in this case and could readily be met by the corporation. Furthermore, the requirements do not appear overly burdensome or complex, as suggested by the time frame for their fulfillment indicated in the DPUC report. Consequently, we conclude that the conditions could be fulfilled by the corporation within a reasonable time. Id., 593 n.7.

Another factor that distinguishes this case from Carpenter is the existence of local regulations specifically addressed to the maintenance of adequate drainage and sewage systems for the protection of the public health. As we noted in Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 94, 368 A.2d 24 (1976), with respect to the condition of approval that a road within the proposed subdivision be connected to an existing public street or highway in the town, the local regulations governing subdivision roads “provide sufficient authority for the imposition of the condition by the [commission].” Section 3 (e) of the Sherman subdivision regulations provides that “land contiguous to brooks, rivers, bodies of water or other areas subject to flooding [shall have] adequate provisions . . . made for drainage and flood control” and that “brooks, rivers or other bodies of water will not suffer from pollution by virtue of any sewage disposal system or other development of any kind which may be installed in such areas.” Section 3 (e) also provides: “All land to be subdivided shall be of such character that each lot intended to be used for building purposes can be so used without danger to health or the public safety. Land subject to flooding or with inadequate means of potable water supply and sanitary sewage disposal shall not be plotted or approved.” These regulatory provisions authorized the commission to take reasonable measures to ensure that the corporation would maintain an adequate water system, which would not pose a threat to public health. Because the condition of DPUC approval was a valid exercise of the commission’s police power according to the regulations governing it and because the corporation probably could have complied with the condition within a reasonable time, we reject the corporation’s claim that the commission’s decision to make its approval conditional was tantamount to a failure to take action on the subdivision application within the meaning of General Statutes § 8-26.

II

In the second case the corporation contests the standing of the association to appeal to the Superior Court from the decision of the commission. In Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 508 A.2d 743 (1986), this court approved representational standing as delineated by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977): “[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

The corporation challenges the standing of the association to represent its members on three grounds: (1) the evidence does not establish aggrievement on the part of any of the members of the association; (2) our decision in Worrell established a new rule of standing that should not be applied retroactively to this appeal, which was commenced approximately six years before its announcement; and (3) the rule of representative standing in Worrell should not apply to zoning appeals. We reject these challenges to the standing of the association.

The claim that the trial court’s finding of aggrievement is not supported by the evidence is without merit in view of the testimony of a real estate expert, referred to in the memorandum of decision, that the properties owned by the five named plaintiffs, most of whom were members of the association and one of whom still remains a member, would depreciate by 5 percent or 10 percent if either the original or the modified subdivision plan should become effective. We are also unpersuaded that Worrell should not be applied to pending cases, because it does not contract but expands the opportunity for litigants to have their substantive claims determined on their merits. Procedural decisions involving jurisdiction, such as standing to appeal, are generally held to be retroactive and to apply to pending cases. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981); Neyland v. Board of Education, 195 Conn. 174, 487 A.2d 181 (1985).

The corporation argues that representative standing is inappropriate in zoning appeals because of the requirement of General Statutes § 8-8 that an appeal be taken by a “person aggrieved” by the decision and the absence of such aggrievement on the part of those association members whose land is too distant from a proposed development to be affected. One of the requisites recognized in Worrell for standing by an association is that “its members would otherwise have standing to sue in their own right.” Hunt v. Washington State Apple Advertising Commission, supra, 343. The presence in the appeal of the named plaintiffs, whose aggrievement has been adequately established, satisfies that requirement. The corporation contends, however, that there is no evidence that all members of the association were aggrieved or that all of them have a significant interest in the decision. We have implicitly rejected the notion that aggrievement must be universal among the membership of an association before it may have representative standing. In State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 304-305, 524 A.2d 636 (1987), we approved representative standing for a statewide organization of physicians, many of whom would have had no interest in the treatment of ankles because of the nature of their specialties, in a suit to determine whether the practice of podiatry included treatment of ankle problems. One of the purposes of representative standing, to provide individuals with a method for cooperatively financing litigation affecting their interests that few could otherwise afford, is particularly applicable in zoning cases and has led one court, prior to the advent of Hunt v. Washington State Apple Advertising Commission, supra, to acknowledge “the particular need in zoning cases for a broader rule of standing.” Douglaston Civic Assn., Inc. v. Galvin, 36 N.Y.2d 1, 6, 324 N.E.2d 317, 364 N.Y.S.2d 830 (1974).

We agree with the trial court that the association has established its standing to represent those of its members who have been aggrieved by the decision of the commission.

III

In the association’s appeal from the approval of the sixteen lot subdivision, the trial court relied wholly on the failure of the plan approved by the commission to satisfy the minimum area requirement of 80,000 square feet established by the October 2,1978 amendment to the zoning regulations in holding that the sixteen lot subdivision had been approved illegally. Our decision in Timber Trails I, which has invalidated that amendment, necessarily removes that basis for sustaining the association’s appeal in the second case. Although the association argues to the contrary, claiming that the corporation must be deemed to have waived the illegality of the zoning amendment with respect to the second case by failing to plead it as a special defense, we can hardly ignore our determination in Timber Trails I that the amendment was a nullity. The association has not been prejudiced because these consolidated cases were tried together with the companion case of Timber Trails I, even though they were not consolidated with that case, and the implications of a decision invalidating the amendment involved in Timber Trails I were readily apparent.

In addition to a violation of the minimum lot area requirement, the association in its appeal from the commission alleged several other grounds, which the trial court did not reach, in support of its claim that the commission, in approving a modified subdivision plan, had “acted illegally, arbitrarily and in abuse of the authority and discretion vested in it.” At trial, the association, as indicated by its trial brief, pursued three of these additional grounds in claiming that the evidence before the commission did not support its decision: (1) the requirement of the subdivision regulations for an adequate water supply was not met; (2) the requirements for protection of water quality and for adequate drainage and sewerage were not satisfied; and (3) the roads and bridges for the subdivision as approved were not properly arranged nor of sufficient width to provide an adequate and convenient system for present and prospective traffic needs.

A

As we noted previously, § 3 (e) of the Sherman subdivision regulations provides that “[l]and . . . with inadequate means of potable water supply and sanitary sewage disposal shall not be plotted or approved.” There is no public water supply in the town of Sherman and most residents obtain water from wells. The Timber Trails development, however, operates its own private water system. The association maintained at trial that there was no basis in the record before the commission for finding that the water supply system would be adequate to serve the additional demands that would result from the development of the sixteen lot subdivision the commission had approved. There was evidence that the DPUC had investigated complaints of existing customers and had found several deficiencies, such as interruptions of water service, sedimented and discolored water, inadequate water pressure and inadequate source of supply. The corporation in its trial brief argued, however, that those complaints related primarily to the water delivery system presently installed and were irrelevant to the area of the proposed subdivision, which would be serviced by new installations.

Undoubtedly the commission was seriously concerned with the problems relating to the water supply system, because it conditioned its approval of the subdivision plan as modified on approval of the system by the DPUC. Nothing in the record indicates that such a resolution of the conflicting claims of the association and the corporation over the adequacy of the water supply was inappropriate or beyond the broad discretion of the commission in determining factual issues. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 495-96, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). Such reliance on a state agency with greater experience and competence in the supervision of the operation of private water supply systems cannot be deemed arbitrary or unreasonable as a matter of law.

B

The association also claimed that the requirement of § 3 (e) of the regulations for adequate sanitary sewage disposal was not satisfied by the evidence presented to the commission at the hearing on the corporation’s proposal. No public or private sewage disposal system is available in Sherman, and the residents use septic tanks for that purpose. Section 3 (e) provides that before a subdivision may be approved, “a licensed professional engineer shall certify in writing . . . [t]hat each lot has been given a percolation test and a deep pit test in the approximate location of the proposed sewage disposal area for the lot, both in accordance with the procedures and standards of the State Public Health Code . . . [and] [t]hat in his sound professional opinion, each and every lot shown on the subdivision plan has acceptable sites for a private sewage disposal system as prescribed in the regulations of the State Public Health Code. . . .” The association does not contend that this requirement was not satisfied by the corporation in submitting its subdivision proposal. It refers to the reports and testimony of several experts who had examined the site, indicating that there were “severe or very severe conditions which limit installation of septic systems” on many of the lots, geologic conditions “so hostile to septic systems that the chance for failures or other problems is great,” and “questions about the capacity of each lot to dispose of sanitary wastes without polluting its soils and water and that of neighboring sites and the immediate vicinity.”

The concerns advanced by the association relating to sewage disposal systems for the twenty-two proposed lots and the need to safeguard the purity of a lake and several streams on the property are reflected in a memorandum of the chairman of the commission prepared after several public hearings on the corporation’s proposal. The commission responded to these concerns by imposing several modifications on the corporation’s proposal, such as withholding approval of one of the lots until further testing provided assurance that a septic system could be installed with safety and combining several lots, with the result of reducing the number of approved lots to sixteen. Contrary to the association’s claim, however, there was ample evidence to support the commission’s approval of fewer lots than proposed by the corporation. A letter to the commission from the town sanitarian indicated that, despite various problems on the site relating to the installation of septic tanks, “it is possible for all lots to meet State Code Requirements, and it should be possible to meet all Sherman Code Requirements, but I honestly can’t guarantee it.” The letter stressed the importance of critically appraising proposals for sewage disposal systems prior to approval for installation and rigorously inspecting the systems when completed to ensure compliance with state and local codes.

“The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” General Statutes § 4-183 (j)- The decision of the commission to chart a middle course by modifying the corporation’s twenty-two lot proposal so as to result in an approved subdivision of sixteen lots, rather than to deny or grant it in toto, is essentially a factual determination requiring the assessment of the credibility of testimony and the weighing of conflicting concerns. “It is not the function of the court to adjudicate the facts. The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as [§ 4-183 (g)] requires, by substantial evidence.” Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983). From our review we conclude that there was substantial evidence to support the commission’s implicit finding that adequate provision for sewage disposal on the sixteen lots approved would be made when permits for the construction of residences on the lots are issued and that the subdivision as approved did not lack adequate “means of . . . sanitary sewage disposal,” as required by § 3 (e).

C

Finally, the association claimed in its trial brief that the roads and bridges shown on the subdivision plan “are neither arranged nor of such width as to provide an adequate and convenient system for present and prospective traffic needs.” The brief does not refer to any specific subdivision regulation that is claimed to have been violated by the commission in approving the subdivision but does cite two provisions contained in the statement of purpose of the subdivision regulations, § 1: “(b) To provide for the integration of subdivided land into the land surrounding it [and] (d) To insure that land so subdivided may be used without danger to health and public safety.” Section 1 of the regulations includes an additional purpose: “(c) To insure and regulate the layout of roads in accordance with sound engineering principles.”

The town of Sherman has adopted an ordinance that specifies the minimum requirements for road construction, with which § 5 (e) of the subdivision regulations requires compliance for subdivision approval. Section IV of the ordinance provides for a minimum right of way of fifty feet and a minimum pavement of twenty-four feet. It also contains various specifications concerning highway grades, sight line distances, curve radii, lateral slopes and other details of road design and construction. The association’s brief does not claim that the roads shown on the subdivision plan violate any of these provisions.

One of the modifications of the subdivision plan made by the commission pertained to the road design and required the elimination of a dead-end spur road entirely. Presumably the commission was not persuaded that any other modifications of the road layout were necessary. Its members were not compelled to accept at face value the proposition of the association that the addition of sixteen new homes in the area would create so much more traffic on the roads of the development as to endanger the public safety. As we have previously observed, on factual questions of this nature a reviewing court cannot substitute its judgment for that of the agency.

We conclude that the association cannot prevail on the alternative grounds advanced in its complaint for reversing the commission’s approval of the subdivision plan as modified.

The judgment in the first case, in which the trial court dismissed the appeal of the corporation from the refusal of the commission to approve its subdivision plan for twenty-two lots without modification, is affirmed. The judgment in the second case, sustaining the plaintiffs’ appeal from the commission’s approval of a modified sixteen lot subdivision, is reversed, and the case is remanded with direction to render judgment dismissing the plaintiffs’ appeal.

In this opinion the other justices concurred.

       The original plaintiffs were Stephen Eisner, Marie Ray, Margery Porter, Carlo Henze and Edwin Barber, each of whom owned property in the Timber Trails development at the time of their appeal, March 11,1980. By the time these cases were argued in this court on February 19,1992, only Edwin Barber still owned property within the development. He had withdrawn as a named plaintiff, but remained a member of the Timber Trails Property Association.

       Three of the mooted issues relate to the application of General Statutes §§ 8-28a and 8-28b, which contain so-called “grandfather” provisions that the corporation claims would insulate its subdivision plan from the application of the increased lot area requirement imposed by the October 2,1978 amendment to the zoning regulations that this court invalidated in Timber Trails I. Another moot issue involves a proposed settlement agreement from which the association withdrew its consent during the course of the proceedings for approval of the agreement by the trial court pursuant to General Statutes (Rev. to 1979) § 8-8 and which can no longer be resurrected in view of the absence of such consent. The remaining issue that we find unnecessary to discuss is whether the state trial referee, because of his involvement during the proceeding for approval of a settlement of the appeals pursuant to § 8-8, was disqualified from filing the memorandum of decision disposing of the cases on their merits, which he had prepared long before the occasion for the claim of disqualification arose, but had delayed filing to allow time for the parties to reach a settlement, pursuant to their request. There is no basis for any claim that the alleged disqualification of the trial referee arising during the settlement proceeding had any influence on the judgments rendered.

       General Statutes (Rev. to 1979) § 8-26 provided in part: “All plans for subdivisions and resubdivisions, including subdivisions and resubdivisions in existence but which were not submitted to the commission for required approval, whether or not shown on an existing map or plan or whether or not conveyances have been made of any of the property included in such subdivisions or resubdivisions, shall be submitted to the commission with an application in the form to be prescribed by it. . . . The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. No plan of resubdivision shall be acted upon by the commission without a public hearing. Notice of the public hearing shall be given by publication in a newspaper of general circulation in the municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days prior to the date of such hearing, and by sending a copy thereof by registered or certified mail to the applicant. The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith, including existing subdivisions or resubdivisions made in violation of this section, within the period of time permitted under section 8-26d. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person applying to the commission under this section, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. Such notice shall be a simple statement that such application was approved, modified and approved or disapproved, together with the date of such action. The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. The grounds for its action shall be stated in the records of the commission.” (Emphasis added.)
      General Statutes (Rev. to 1979) § 8-26d provided in relevant part: “In all matters wherein a formal application, request or appeal is submitted to a planning commission under this chapter and a hearing is held on such application, request or appeal, such hearing shall commence within sixty-five days after receipt of such application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period specified in this subsection, or may withdraw such application, request or appeal.” (Emphasis added.)

       The agency has since been renamed the department of public utility control. See Public Acts 1980, No. 80-482.

       The commission voted to approve the corporation’s application with the following modifications:
      “(1) Lot #1 not be approved at this time but continue as a maintenance and equipment storage area until such time as a new area is approved by the Commission and all necessary facilities completed. At such time lot status will be reconsidered.
      “(2) Combine lots #2 and #3.

        “(3) Combine lot #4 with the northern two-thirds portion of lot #5.
      “(4) Combine south one-third of lot #5 with lot #6 and join the new north line of #6 with south line #17.
      “(5) Combine #7 and #16; provide 20 foot access on the north side of the ski slope to the combined lots #7 and #16 from Big Trail.
      “(6) Discontinue dead-end spur road entirely, just continue loop at lots #4 and #18, provide two 20 foot access ways for lots #6 and #17. This alone will save the developer thousands of dollars in road costs.
      “(7) Withhold approval of lot #18 until such further testing is done to satisfy the Town Sanitarian that a septic system can be installed with safety.
      “(8) Combine Lots #9 and #10.”

       See also § 3 (e) of the Sherman subdivision regulations, which provides in part: “All land to be subdivided shall be of such character that each lot intended to be used for building purposes can be so used without danger to health or the public safety. Land subject to flooding or with inadequate means of potable water supply and sanitary sewage disposal shall not be plotted or approved.”

       The report contains the following findings of fact:
      “1. The Timber Trails Water Company, by supplying more than 50 customers, is a public service company subject to the Division’s regulation as provided by Section 16-1 of the Connecticut General Statutes.
      “2. Service complaints have been experienced by customers on both of the Company’s unconnected systems.
      “3. The existing two-inch pipe is inadequately sized to meet the demands of the system and is indicated to be in disrepair and in need of replacement.
      “4. The Company has charged a rate for water which was not approved by this Division.
      “5. The Company has not been operating the Company in compliance with all the regulations and Statutes governing water companies.”

       The report provided: “As there is merit to the Customer’s petition, the Company is hereby directed to comply with the following:
      “1. The Company shall charge $80 per customer per year effective for service rendered on and after January 1,1980; and such rate shall be clearly and separately delineated from the other non-utility related assessment charges. Likewise, starting immediately, the revenues and expense accounts of the water utility operation shall be separately maintained in accordance with the Division’s Uniform System of Accounts.
      “2. Effective immediately, the Company shall become more familiar with the Regulations Governing Service Supplied by Water Companies of the Regulations of Connecticut State Agencies as detailed in Sections 16-11-50 through 16-11-98 and 16-3-100, and be prepared to submit evidence of compliance on request of the Division.
      “3. Within 90 days of this Decision, the Company shall submit evidence to the Division that it has installed acceptable production meters on all its unmetered wells and is maintaining accurate periodic production records.
      “4. Within 90 days of this Decision, the Company shall submit drafts of a revised bill form and rules and regulations to this Division for review and approval.
      “5. Within 120 days of this Decision, the Company shall submit evidence that it has chlorinated Well No. 7 and is maintaining a periodic flushing program in accordance with the recommendation of the Department of Health Services.”

       See footnote 1, supra. Edwin Barber has remained an owner of property in the Timber Trails development and a member of the association throughout these proceedings.

       See footnotes 1 and 9, supra.

       In its original brief as an appellee in this court, the association did not discuss the additional grounds included in its complaint and briefed at trial as an alternative basis for sustaining the judgment of the trial court, which had relied solely on the minimum lot area requirement of the October 2, 1978 amendment that we invalidated in Timber Trails I to sustain the association’s appeal. During oral argument, after questioning by this court about the consequences that a decision in Timber Trails I invalidating that amendment would have on the issues in these cases, permission was granted to all parties for supplementary briefs on that subject. The association included in the appendix to its supplementary brief excerpts from the trial briefs that it and the corporation had filed. The supplementary brief of the corporation does not address the merits of the alternative grounds advanced in the trial court by the association for reversing the commission’s approval of the sixteen lot subdivision. The commission’s supplementary brief does contain a detailed review of the record before the commission in attempting to justify the modifications made by the commission in the plan submitted by the corporation.