author: Norcott, J. Berdon, J.,

text:
    Timothy P. Bresnan v. Emil H. Frankel, Commissioner of Transportation
    (14480)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      (One justice dissenting)

    Argued September 24
    decision released November 17, 1992

      Lucia M. Mercurio, with whom, on the brief, was Kerin M. Woods, for the appellant (plaintiff).

      John L. Hayes, for the appellee (defendant).
   Norcott, J.

The principal issue in this appeal is whether, in a negligence action against the commissioner of the department of transportation for injuries caused by an accident resulting from a defective highway, the plaintiff complied with the notice provisions of General Statutes § 13a-144. The plaintiff, Timothy P. Bresnan, contests the validity of the trial court’s dismissal of his complaint for failure to give the defendant, Emil H. Frankel, the commissioner of transportation, adequate notice of the location where the accident occurred. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We conclude that the notice provided to the commissioner was insufficient as a matter of law and affirm the judgment of the trial court.

The pleadings establish the following facts. On August 12, 1990, the plaintiff sustained injuries as a result of a one car accident on Route 14A in Plainfield. The plaintiff claimed that a flooded portion of the roadway caused him to lose control of his vehicle and to strike a utility pole. Approximately two months after the accident, the plaintiff notified the commissioner of his intent to bring an action pursuant to § 13a-144. The amended notice of injury identified the location of the accident as “Route 14A, Plainfield, Connecticut.”

The commissioner moved to dismiss the complaint on the ground that the plaintiff had not provided adequate notice under § 13a-144. The plaintiff claimed that he had complied with the notice requirements of § 13a-144 or, alternatively, that the question of the sufficiency of the notice should be determined by the jury. The trial court granted the commissioner’s motion to dismiss concluding, as a matter of law, that the description of the location of the accident in the plaintiff’s notice was inadequate to fulfill the statutory requirement.

On appeal, the plaintiff claims that the trial court improperly dismissed the plaintiff’s complaint because: (1) the notice did not mislead the commissioner and the commissioner had actual notice from a third party source of the exact location of the flooding; and (2) the issue of the sufficiency of the notice should have been left to the jury to decide. We disagree.

“ Tt is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases’. . . .” White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). Section 13a-144 creates a legislative exception to this common law rule and therefore must be strictly construed. Id., 321; Ozmun v. Burns, 18 Conn. App. 677, 680, 559 A.2d 1143 (1989). The statutorily required notice is a condition precedent to maintaining a cause of action, and if this requirement is not met, no cause of action exists. Warkentin v. Burns, 223 Conn. 14, 18, 610 A.2d 1287 (1992); Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958); Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 237-38, 56 A.2d 519 (1947). The sufficiency of the notice is tested with reference to the purpose for which it is required. Warkentin v. Bums, supra. The purpose of the notice requirement is to furnish the commissioner with “ ‘such precise information as to time and place as will enable [the commissioner] to inquire into the facts of the case intelligently’ ”; Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952), quoting Shaw v. Waterbury, 46 Conn. 263, 266 (1878); and to protect the state’s interests. Warkentin v. Burns, supra, 20.

The plaintiff claims that the notice of the location of the accident provided in the communication to the commissioner did not mislead the commissioner or prevent him from conducting an investigation of the accident. The notice identified the location of the accident simply as “Route 14A, Plainfield, Connecticut.” This description narrowed the place of investigation to a highway approximately six miles in length. We conclude that such imprecise notice did not set forth the location with the specificity required to enable the commissioner to protect his interest, conduct inquiries and investigate the conditions at the location. See Moffett v. Burns, Superior Court, judicial district of Litchfield, Docket No. 047435 (July 12, 1988, 3 C.S.C.R. 636), aff'd, 18 Conn. App. 821, 559 A.2d 1190, cert. denied, 212 Conn. 806, 561 A.2d 947 (1989) (notice describing location of accident as “Route 109, New Milford, Connecticut 06776” held inadequate).

The plaintiff further argues that even if the description “Route 14A, Plainfield” was insufficient, the commissioner had actual notice of the site of the accident because the Plainfield police had notified the department of transportation of the flooding several hours before the plaintiffs accident. The plaintiff, however, cannot rely on that report of flooding to meet the notice requirement of § 13a-144. The statutory notice must be furnished by the injured parties, “either individually or through a representative,” to the commissioner. Warkentin v. Burns, supra, 18; Zotta v. Burns, 8 Conn. App. 169, 174, 511 A.2d 373 (1986); Moffett v. Burns, supra. Information provided by third party sources to the commissioner, no matter how precise, cannot cure defects in the plaintiffs notice.

Finally, the plaintiff argues that the issue of the sufficiency of the notice under § 13a-144 presented a question of fact that should have been left to the jury to decide. “Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case. Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements.” (Internal quotation marks omitted.) Zotta v. Burns, supra, 173. Without further detail, identification of the site of an accident as a six mile roadway is wholly inadequate to comply with the purpose of the statutory notice. Cf. Schaap v. Meriden, supra, 255-56; Ozmun v. Burns, supra, 679-80; Moffett v. Burns, supra. We conclude, therefore, that it would have been inappropriate to have the jury decide the sufficiency of the notice provided to the commissioner when the notice was inadequate as a matter of law.

The judgment is affirmed.

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

Berdon, J.,

dissenting. I respectfully disagree with the majority. I would hold that the written notice, together with the actual notice furnished to the defendant commissioner by the Plainfield police as recorded in the police log, was sufficient to make the issue of notice a jury question. The commissioner at oral argument conceded that if a copy of the Plainfield police log that described the location of the flooding as being Route “14A by South Camp” was included with the plaintiffs notice instead of having been communicated directly to him by the Plainfield police, it would patently satisfy the statute. Indeed, the commissioner does not allege that he was misled or that his investigation was hampered in any manner.

“Whether the notice fails to meet the requirements of the statute must be determined by examining the purpose of the notice.” Ozmun v. Burns, 18 Conn. App. 677, 680, 559 A.2d 1143 (1989). The majority’s interpretation of the statute is not in accordance with the purposes of the notice requirement. “This requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose was merely to furnish the commissioner with such information as would enable him to make a timely investigation of the facts upon which a claim for damages was being made.” LoRusso v. Hill, 139 Conn. 554, 557, 95 A.2d 698 (1953). Surely, if that were the purpose, the statutory requirements should be satisfied whether the notice or a part thereof was furnished by the injured person or a third party as long as it was sufficient.

When a person is injured as a result of the commissioner’s negligent maintenance of a highway, the public purse should be available to compensate that person for his or her injuries. In this case the plaintiff alleges that he sustained substantial facial injuries resulting in damage to the supraorbital nerve distribution, causing loss of sensation, numbness, and pain in the forehead and in the area of the left eye and permanent and disfiguring scarring of the forehead and left eyelid. The plaintiff, however, will not have his day in court, not because the state was misled or hindered or prejudiced in any manner, but because of the majority’s anachronistic reading of the notice requirement in § 13a-144.

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. ...”

       The plaintiff also appears to argue that because his complaint stated with greater precision the actual location of the accident, the defect did not render his notice patently invalid. The plaintiff cannot avail himself of this argument. Although General Statutes § 13a-144 provides in part that “[t]he requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice,” the plaintiffs complaint was not filed within the ninety days provided under the statute. Therefore, the complaint cannot be considered for the purposes of meeting the notice requirement.

         We need not inquire whether the commissioner was actually misled by the failure of notice. We note that General Statutes § 13a-144 does not contain a savings clause such as that found in the municipal highway liability statute, General Statutes § 13a-149, and therefore the notice requirement must be strictly construed. See Morico v. Cox, 134 Conn. 218, 220-21, 56 A.2d 522 (1947).

       The commissioner asserts that this court cannot consider the police report because it was not admitted into evidence before the trial court and therefore is not properly part of the record. As our disposition of this case explains, whether the police report was in evidence is irrelevant because the notice requirement of General Statutes § 13a-144 necessitates that the injured party or his representative notify the commissioner. See Warkentin v. Burns, 223 Conn. 14, 18-19, 610 A.2d 1287 (1992).


source: Caselaw Access Project

author: Peters, C. J. Berdon, J.,

license: Public Domain

text:
    Elizabeth Calfee v. Ahmed Usman
    (14541)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      (One justice dissenting)

    Argued September 22
    decision released October 30, 1992

      Martin M. Looney, with whom, on the brief, was John A. Keyes, for the appellant (plaintiff).

      Edward V. Walsh, with whom were Robert M. Wechsler and, on the brief, Catherine N. Anderson, for the appellee (defendant).
   Peters, C. J.

The dispositive issue in this appeal is whether, in a tort action, two prejudgment remedy statutes, General Statutes §§ 52-278c and 52-278d, are unconstitutionally vague as a matter of law. The plaintiff, Elizabeth Calfee, made an application for a prejudgment remedy in conjunction with her complaint that the defendant, Ahmed Usman, had negligently operated his automobile so as to cause her serious personal injury. During an adversarial hearing at which the plaintiff made an offer of proof about the automobile accident and its physical sequelae, the trial court denied the application for a prejudgment remedy as a matter of law. When the trial court thereafter denied the plaintiffs motion to open, she filed a timely appeal to the Appellate Court in accordance with General Statutes § 52-2781. We transferred her appeal to this court in accordance with Practice Book § 4023 and General Statutes § 51-199 (c) and now reverse the judgment of the trial court.

The validity of the plaintiffs complaint is not at issue in this appeal, since the trial court reached no conclusion about the sufficiency of the complaint’s allegations or the evidence that the plaintiff proffered in support of her claim to a prejudgment remedy. For present purposes, we note only that the plaintiff alleged that the defendant had struck her with his car as he was backing out of a driveway onto a public street. As a result of the accident, the plaintiff allegedly suffered a hip fracture requiring emergency room admittance, surgery and intensive physical therapy.

To secure the right to collect whatever judgment might subsequently be rendered against the defendant, the plaintiff at an adversarial hearing sought, in accordance with § 52-278d, to establish probable cause to sustain the validity of her claim. The trial court refused to hear the plaintiff’s evidence, but allowed her to make an offer of proof. Relying on Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), the trial court ruled that §§ 52-278e and 52-278d were facially unenforceable as a matter of federal constitutional law. The trial court held that the statutory standards for judicial determination of probable cause were both conflicting and obscure and hence failed to satisfy the constitutional requirements of due process.

The plaintiff’s appeal challenges the validity of this ruling by the trial court. The plaintiff urges us to hold that the two statutes have been interpreted consistently to provide a meaningful standard for a prejudgment remedy determination. She maintains that, in the context of an adversarial hearing, the statutes pass constitutional muster. We agree with the plaintiff.

We begin our analysis with three well established principles that govern constitutional challenges to validly enacted statutes. Because a statute carries with it a strong presumption of constitutionality, a challenger must establish its unconstitutionality beyond a reasonable doubt. Bartholomew v. Schweizer, 217 Conn. 671, 675, 587 A.2d 1014 (1991); State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988). In the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face. Lehrer v. Davis, 214 Conn. 232, 234-35, 571 A.2d 691 (1990); Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 176-78, 502 A.2d 896 (1985). In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent. Bartholomew v. Schweizer, supra, 675-76; State v. Floyd, supra; McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596 (1989).

Applying these principles to the prejudgment remedy statutes, we are persuaded that the provisions for a prejudgment remedy in §§ 52-278c and 52-278d are not unconstitutionally vague on their face. As this court has already indicated in two cases postdating Connecticut v. Doehr, supra, if the defendant is afforded the opportunity, in an adversarial hearing, to contest the validity of the claims made by the plaintiff in support of an application for a prejudgment remedy, a prejudgment attachment may constitutionally be issued without a showing of exigent circumstances. Shawmut Bank, N.A. v. Valley Farms, 222 Conn. 361, 373, 610 A.2d 652 (1992); Union Trust Co. v. Heggelund, 219 Conn. 620, 624 n.3, 594 A.2d 464 (1991). When there is no ex parte impairment of the defendant’s property rights, a judicial finding of probable cause suffices to satisfy the defendant’s constitutional right to due process.

The defendant advances three arguments in support of the contrary ruling of the trial court. He maintains that: (1) the holding of Connecticut v. Doehr, supra, directly addresses and resolves the issue of the vagueness of the probable cause directives in §§ 52-278c and 52-278d in his favor; (2) the analytic model developed in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), upon which Connecticut v. Doehr, supra, relied, renders the statutory probable cause standard violative of due process, especially in the context of a plaintiff’s action sounding in tort; and (3) the plaintiff’s attempt to secure a prejudgment remedy for a single accident on three pieces of property owned by the defendant manifestly impairs his due process rights as a matter of law.

The decision of the United States Supreme Court in Connecticut v. Doehr, supra, did not deal directly with the validity of a prejudgment remedy under §§ 52-278c or 52-278d. The statute that the court found to be constitutionally defective was General Statutes (Rev. to 1991) § 52-278e (a) (1), which authorizes the prejudgment attachment of real property “without affording prior notice or the opportunity for a prior hearing to the individual whose property is subject to the attachment.” Id., 2109. The court’s decision relied on other prejudgment cases in which due process violations had been found in statutes authorizing the ex parte impairment of property rights. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 605-607,95 S. Ct. 719, 42 L. Ed. 2d 751 (1975); Fuentes v. Shevin, 407 U.S. 67, 96, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 342, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). The court’s opinion repeatedly emphasized the ex parte nature of the proceedings before it. It quoted Justice Frankfurter’s concurrence in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-72, 71 S. Ct. 624, 95 L. Ed. 817 (1951): “[Fjairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it.” Connecticut v. Doehr, supra, 2114. In its concluding paragraph on this issue, the court reiterated that § 52-278e failed to comport with the demands of due process “by failing to provide a preattachment hearing without at least requiring a showing of some exigent circumstance.” Id., 2116. The court’s decision, therefore, does not determine the constitutionality of a prejudgment remedy to be issued after an adversarial hearing in accordance with § 52-278d.

The defendant advances a more plausible claim in his contention that § 52-278d cannot withstand the threefold due process inquiry identified in Mathews v. Eldridge, supra. That inquiry requires a consideration of “the private interest that will be affected by the official action,” “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and lastly “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., 334-35. It is unarguable that “the private interest that will be affected by the official action” is the same whether an attachment is ordered after an adversarial hearing or ex parte. Neither party has advanced a contention that the government’s interest in providing prejudgment remedies to private litigants is either enhanced or diminished by an adversarial hearing as opposed to ex parte proceedings. The gravamen of the defendant’s claim is that “the risk of an erroneous deprivation of such interest” continues to be constitutionally unacceptable, even after an adversarial hearing, because such a hearing cannot overcome the unconstitutional obscurity of the statutory standards for probable cause established by §§ 52-278c and 52-278d.

Section 52-278d authorizes a trial court to issue a prejudgment attachment upon a determination of “probable cause to sustain the validity of the plaintiff’s claim.” Although § 52-278c speaks of “probable cause that judgment will be rendered in the matter in favor of the plaintiff,” we have held that both of these probable cause formulations require the trial court to undertake the same inquiry. “[T]he trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. New England Land Co. v. DeMarkey, 213 Conn. 612, 620-21, 569 A.2d 1098 (1990). ‘The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiffs claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities.’ Id., 620. Moreover, this weighing process applies to both legal and factual issues. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).” Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156, 595 A.2d 872 (1991); see also Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984). As a matter of judicial construction, therefore, there is no conflict between the statutory standards contained in §§ 52-278C and 52-278d.

We are unpersuaded by the defendant’s claim that this statutory standard cannot constitutionally be applied in the defendant’s case. The statute affords the defendant the opportunity to challenge the accuracy of the factual representations and the legal contentions upon which the plaintiff relies. The fact that her claim sounds in tort rather than in contract does not leave the trial court without guidance. Probable cause is a standard widely used to validate a preliminary impairment of a broad range of personal and property rights, from the suspension of professional licenses to the issuances of warrants for seizure and arrest. The defendant has cited no case, nor has our research uncovered any, in which the Supreme Court of the United States or this court has found a probable cause standard to be unconstitutionally vague on the ground that such a standard necessarily requires an inquiry into probabilities. The validity of a probable cause standard has regularly been upheld in the criminal law context. Such impairment of liberty rights is undeniably more serious than the impairment of property rights arising out of an attachment. See, e.g., Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879, reh. denied, 338 U.S. 839, 70 S. Ct. 31, 94 L. Ed. 513 (1949); State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991).

The defendant’s final claim contests the scope of the attachment sought by the plaintiff, specifically the plaintiff’s contention that she is entitled to an attachment lien on three pieces of property owned by the defendant. This claim merits little discussion. The trial court has the responsibility, after the adversarial evidentiary hearing, “to consider not only the validity of the plaintiff’s claim but also the amount that is being sought.” Union Trust Co. v. Heggelund, supra, 625. There is no facial unconstitutionality in allowing the trial court, after such a hearing, to make a determination of how much of the defendant’s property may properly be attached in order to safeguard the collectibility of a potential future judgment in favor of the plaintiff.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

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

Berdon, J.,

concurring in part and dissenting in part. I concur with the majority that the provisions for prejudgment remedy in General Statutes §§ 52-278c and 52-278d are not unconstitutionally vague on their face. I agree that a prejudgment remedy in the form of an attachment on real estate based upon probable cause after the defendant is afforded an adversary hearing passes constitutional muster, but only if reasonable protections are afforded to the defendant if the plaintiff is not successful on the underlying claim.

My dissent focuses on the safeguards necessary to protect the defendant from the possibility of an erroneous attachment. The defendant raises an alternate ground for sustaining the judgment of the trial court— that the prejudgment remedy statutory scheme is unconstitutional because it allows the plaintiff to obtain a prejudgment remedy without posting a bond or other security. I would reach that issue and find that, because the plaintiff is not required to post a bond or other security to protect the defendant from a wrongful attachment, the prejudgment statutes violate the federal due process clause.

This is an issue of great public importance. Not only does it involve the validity of the prejudgment statutes for claims of personal injury predicated on torts, but for all causes of action. The parties in this action, as well as the public and other concerned branches of government, have a right to a determination of whether the prejudgment statutes are deficient because they fail to provide for a bond or other security to protect the defendant from an erroneous deprivation of his or her property. Equally important, the majority’s failure to reach this issue leaves our trial judges with no guidance on an issue that comes before them on a daily basis.

Although the issue was squarely raised and briefed by the defendant before this court, the majority refuses to address it because the claim was not presented to the trial court. Whether a bond is required for the prejudgment remedy statutes to pass constitutional muster, however, is a question of law. Furthermore, it is clear that the issues of probable cause and the requirement of security “are intertwined and can fairly be considered facets of [the] same general issue” that was addressed by the majority. Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 2116 n.7, 115 L. Ed. 2d 1 (1991) (White, J., concurring). Instead of deciding this issue, which is ripe for a determination, we turn the parties away to pursue it before the unguided trial court. This subjects them to the possibility of another appeal on this issue and the enormous litigation expense this would entail.

The Supreme Court of the United States in Doehr pointed out that a prejudgment remedy in the form of an attachment on real property significantly affects property interests. “For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause.” Id., 2113.

The prejudgment remedy statutes do not protect the defendant from the consequences of a wrongful attachment even if there is an adversary proceeding. For example, if an insolvent plaintiff secures a prejudgment remedy on a claim, but subsequently fails to prove either liability or damages to the full extent of the prejudgment remedy, the defendant has no practical recourse for the recovery of damages resulting from the erroneous deprivation of his property. The harm caused to the defendant could be significant in view of the long lapse of time that can occur between the granting of the prejudgment remedy and the final resolution of the litigation.

In Doehr, although the majority refused to reach the issue, four justices (Justices White, Marshall, Stevens and O’Connor) opined that our prejudgment remedy statutes were unconstitutional because the statutory scheme did not provide for a bond or other security. Justice White wrote as follows: “Without a bond, at the time of attachment, the danger that these property rights may be wrongfully deprived remains unacceptably high even with such safeguards as a hearing or exigency requirement. The need for a bond is especially apparent where extraordinary circumstances justify an attachment with no more than the plaintiff’s ex parte assertion of a claim. We have already discussed how due process tolerates, and the States generally permit, the otherwise impermissible chance of erroneously depriving the defendant in such situations in light of the heightened interest of the plaintiff. Until a postattachment hearing, however, a defendant has no protection against damages sustained where no extraordinary circumstance in fact existed or the plaintiff’s likelihood of recovery was nil. Such protection is what a bond can supply. Both the Court and its individual members have repeatedly found the requirement of a bond to play an essential role in reducing what would have been too great a degree of risk in precisely this type of circumstance.

“But the need for a bond does not end here. A defendant’s property rights remain at undue risk even when there has been an adversarial hearing to determine the plaintiffs likelihood of recovery. At best, a court’s initial assessment of each party’s case cannot produce more than an educated prediction as to who will win. This is especially true when, as here, the nature of the claim makes any accurate prediction elusive. ... In consequence, even a full hearing under a proper probable-cause standard would not prevent many defendants from having title to their homes impaired during the pendency of suits that never result in the contingency that ultimately justifies such impairment, namely, an award to the plaintiff. Attachment measures currently on the books reflect this concern. All but a handful of states require a plaintiff’s bond despite also affording a hearing either before, or (for the vast majority, only under extraordinary circumstances) soon after, an attachment takes place. Bonds have been a similarly common feature of other prejudgment remedy procedures that we have considered, whether or not these procedures also included a hearing.” (Citations omitted; emphasis added.) Connecticut v. Doehr, supra, 2117.

Accordingly, I would find the prejudgment remedy statutes, §§ 52-278a through 52-278n, insofar as they allow a plaintiff to attach a defendant’s property without posting a bond or other security, unconstitutional as violating the due process clause of the United States constitution.

       General Statutes § 52-278c provides in relevant part: “(a) Except as provided in sections 52-278e and 52-278Í, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents: (1) An application, directed to the superior court to which the action is made returnable, for the prejudgment remedy requested; (2) An affidavit sworn to by the plaintiff or any competent affiant setting forth a Statement of facts sufficient to show that there is probable cause that judgment will be rendered in the matter in favor of the plaintiff . . . .”
      General Statutes § 52-278d provides in relevant part: “(a) The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiff’s claim. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j. . . .
      “(c) If a prejudgment remedy is issued and the defendant moves the court for a stay, the court may, if it determines justice so requires, stay such order if the defendant posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damage which may accrue as a result of such stay.”

       General Statutes § 52-2781 provides in relevant part: “(a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d . . . shall be deemed a final judgment for purposes of appeal.
      “(b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.
      “(c) No such order shall be stayed by the taking of an appeal except upon the order of the judge who made such order, and any such stay shall be granted only if the party taking the appeal posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damages which may accrue as a result of such stay. ...”

       As an alternate ground for sustaining the judgment of the trial court, the defendant urges us to consider whether the prejudgment remedy statutes are unconstitutional because the statutes allow a plaintiff to pursue such a remedy without posting a bond or other security to protect the rights of the defendant in the property that is being attached. In Connecticut v.
        Doehr, 500 U.S. , 111 S. Ct. 2105, 2117, 115 L. Ed. 2d 1 (1991), four justices concluded that such a bond was a constitutional requisite, even if probable cause was established after a full hearing.
      The record establishes that the parties presented no claim about a constitutional requirement for a bond to the trial court. The plaintiff contends that it is, therefore, inappropriate for us to reach this issue. We agree. See Practice Book § 4185; Berry v. Loiseau, 223 Conn. 786, 828, 614 A.2d 414 (1992). The very seriousness of this issue commends to us the importance of deciding it only when it has been fully briefed and heard in the trial court as well as in this court.

       In those cases, as in the present case, the court did not consider whether the bonding provisions of the prejudgment remedy statutes pass constitutional muster.

       General Statutes (Rev. to 1991) § 52-278e (a) (1) provides: “(a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiffs claim and (1) that the prejudgment remedy requested is for an attachment of real property.”

       See, e.g., General Statutes § 1-82 (ethical code violations); § 2-71r (bidding disqualification); § 9-7a (elections violations); § 14-227a (arrest for operating an automobile under the influence of alcohol or drugs); § 15-154 (search of a polluting vessel); § 17a-101 (removal of a child in immediate physical danger); § 17a-503 (detention of a person who is mentally ill and dangerous); § 20-13e (institution of disciplinary proceedings against physician); § 21a-8 (hearing on consumer fraud complaint); § 21a-96 (placing embargo on illegal food, drugs or cosmetics); § 21a-340 (placing embargo on misbranded hazardous substances); § 45a-64 (hearing on judicial misconduct); § 46b-127 (transfer of juvenile to regular adult docket); § 46b-161 (paternity claims); § 49-35b (validity of mechanic’s lien); § 51-90g (hearing on attorney grievances); § 52-568 (vexatious suits); § 53-39 (malicious prosecution); § 53-398 (injunction pursuant to the Corrupt Organizations and Racketeering Activity Act); § 54-2a (arrest warrant); § 54-33a (search warrant); § 54-41d (wiretap authorization); § 54-46a (hearings for persons charged with capital crimes); § 54-47c (grand jury investigation); § 54-56d (examination of competency to stand trial); and § 54-64f (hearing on violation of conditions of release).

       The majority opinion points out that, under the federal constitution, the "validity of a probable cause standard has regularly been upheld in the criminal law context.” Of course, it never ceases to amaze me that due process requires an adversary hearing to determine probable cause for a deprivation of a person’s property interest (which does not even affect this person’s right to possession in the ease of a lien on real property); Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 2112-16, 115 L. Ed. 2d 1 (1991); but there is no requirement for an adversary hearing when the state seeks to deprive a person of liberty based upon probable cause. Gerstein v. Pugh, 420 U.S. 103, 120, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); R. Berdon, “Liberty and Property under the Procedural Due Process Clause: The Requirement of an Adversary Hearing to Determine Probable Cause,” 53 Conn. B.J. 31 (1979).

       In answer to the argument that General Statutes § 52-568 (a) (1), which provides for the remedy of double damages for suits that are commenced without probable cause, protects a defendant, Justice White points out the following: “This remedy, however, fails to make up for the lack of a bond. As an initial matter, the meaning of ‘probable cause’ in this provision is no more clear here than it was in the attachment provision itself. Should the term mean the plaintiff’s good faith or the facial adequacy of the complaint, the remedy is clearly insufficient. A defendant who was deprived where there was little or no likelihood that the plaintiff would obtain a judgment could nonetheless recover only by proving some type of fraud or malice or by showing that the plaintiff had failed to state a claim. Problems persist even if the plaintiffs ultimate failure permits recovery. At best a defendant must await a decision on the merits of the plaintiff’s complaint, even assuming that a § 52-568 (a) (1) action may be brought as a counterclaim. Hydro Air of Connecticut, Inc. v. Versa Technologies, Inc., 99 F.R.D. 111, 113 (Conn. 1983). Settlement, under Connecticut law, precludes seeking the damages remedy, a fact that encourages the use of attachments as a tactical device to pressure an opponent to capitulate. Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983). An attorney’s advice that there is probable cause to commence an action constitutes a complete defense, even if the advice was unsound or erroneous. Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978). Finally, there is no guarantee that the original plaintiff will have adequate assets to satisfy an award that the defendant may win.
      “Nor is there any appreciable interest against a bond requirement. [General Statutes §] 52-278e (a) (1) does not require a plaintiff to show exigent circumstances nor any pre-existing interest in the property facing attachment. A party must show more than the mere existence of a claim before subjecting an opponent to prejudgment proceedings that carry a significant risk of erroneous deprivation.” Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 2117-18, 115 L. Ed. 2d 1 (1991).

       Indeed, as the defendant points out in his brief, a party whose property is attached may only obtain a release if he or she posts a bond with sufficient security. Likewise, under General Statutes § 52-278d (c), the defendant may move for a stay of a prejudgment remedy, but it will only be ordered “if the defendant posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damage which may accrue as a result of such stay.” The statutory scheme, which protects the creditor but fails to furnish any protection for the debtor, underscores its unconstitutionality.

       The defendant has failed to raise an independent claim under the due process clause of article first, § 10, of the Connecticut constitution.


author: Borden, J. Berdon, J.,

text:
    John F. Carr, Jr. v. Town of Bridgewater et al.
    (14149)
    Callahan, Glass, Borden, Berdon and F. X. Hennessy, Js.
    Argued April 3
    decision released October 30, 1992

      Ralph G. Elliot, for the appellants (named defendant et al.).

      Neil F. Murphy, Jr., with whom were Wesley W. Horton and JeanneS. Roberts, for the appellee (plaintiff).

      Everett Newton and Richard S. Emmett filed a brief for the Conservation Law Foundation of New England, Inc., as amicus curiae.
   Borden, J.

The dispositive issue in this appeal is whether the plaintiff, John F. Carr, Jr., established that he had a constitutional entitlement to the zoning permit for which he had applied. The defendants, the town of Bridgewater, the Bridgewater planning and zoning commission (zoning commission), the Bridgewater conservation and inland wetlands commission (inland wetlands commission) and certain individuals, appeal from the judgment of the trial court, Moraghan, J., rendered after a jury verdict for compensatory and punitive damages in favor of the plaintiff. This appeal stems from the plaintiffs suit pursuant to 42 U.S.C. § 1983 for damages claiming that his civil rights were violated by the defendants’ failure to issue him a zoning permit to construct a sixty unit “hotel” for residential housing for senior citizens. Although the complaint was framed in four counts, the trial court permitted the jury to consider only the counts that alleged a violation of substantive due process and conspiracy. We reverse and direct judgment in favor of the defendants.

The following facts are not in dispute. The plaintiff is the owner of a fifty acre parcel of land in Bridge-water, of which approximately one half is commercially zoned. On July 6,1983, he informally presented to the zoning commission his idea of developing twenty-seven acres of the parcel for an “elderly hotel,” which would consist of a restaurant and sixty units for housing senior citizens. Hotels, although not defined, were a permitted use in a commercial zone under § 2.2.3.1.g of the Bridgewater zoning regulations. The commission was not receptive.

On September 20, 1983, a resident of Bridgewater petitioned the zoning commission to amend the regulations to delete § 2.2.3.1.g in order to eliminate hotels, among other things, as a permitted use in a commercial zone. On October 11, 1983, the plaintiff filed his application for a zoning permit together with a site plan for his “hotel.” On October 24, 1983, the zoning commission held a hearing on the petition for the zoning amendment. Because the plaintiff had filed a valid protest against the proposed changes, the zoning commission could only amend the regulations “by a vote of two-thirds of all the members of the commission.” General Statutes § 8-3 (b). Of the five members of the zoning commission, three members voted to amend the regulations by deleting § 2.2.3.1.g and two members abstained. The counsel for the zoning commission advised the members that the abstentions were to be counted as affirmative votes. In accordance with this advice, the zoning commission deemed that hotels were eliminated as a permitted use in a commercial zone and returned the plaintiff’s application.

The plaintiff appealed to the Superior Court (the zoning appeal) on the ground that “two-thirds” of the zoning commission did not vote in favor of the amendment and, therefore, hotels continued to be a permitted use. The plaintiff also filed in the Superior Court a mandamus action seeking an order directing the zoning commission to issue the permit for the hotel on the ground that its failure to act on the application within the time permitted under General Statutes §§ 8-3 (g) and 8-7d (b) resulted in automatic approval of the permit.

On February 6,1985, the Superior Court, Pickett, J., decided both the zoning appeal and the mandamus action. In the zoning appeal, the court held that the zoning commission had not legally amended the regulations because abstentions could not be counted as affirmative votes and, therefore, the court sustained the plaintiff’s appeal. The defendants did not appeal the trial court’s decision in the zoning appeal.

In the mandamus action, the trial court ordered the zoning commission to issue a certificate of approval for the plaintiff’s application for a zoning permit because the zoning commission had failed to act on the application within the sixty-five day time period as required by § 8-3 (g). The mandamus court rejected the defendants’ claim that the statutory time period was tolled because the plaintiff had failed to submit, with his application, the town sanitarian’s written approval of the sewage disposal facility in accordance with § 2.2.12.b of the zoning regulations. The court construed the requirement of including a copy of the sewage facility permit to be “separate and distinct” from the application for the zoning permit. The mandamus court went on to state in its memorandum of decision: “The permit and site development plan submitted by the plaintiff conformed to the requirements of the regulations. The court finds that the defendants failed to act upon the plaintiffs application within sixty-five days and that therefore he is entitled to a writ of mandamus.”

The zoning commission and its chairman, the defendant Elliott Woolwich, appealed from the judgment in the mandamus action to the Appellate Court. The Appellate Court, in Carr v. Woolwich, 7 Conn. App. 684, 700, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), viewing the site plan as inseparable from the application for the zoning permit, affirmed the trial court’s grant of the writ of mandamus to issue the permit on the ground that the defendant had failed to act on the site plan in the time allotted by § 8-3 (g). Upon the denial of the defendants’ petition for certification to this court; Carr v. Woolwich, 201 Conn. 804, 513 A.2d 698 (1986); the zoning commission promptly issued a permit to construct the “hotel” to the plaintiff.

The plaintiff then brought this § 1983 action for damages. Through interrogatories submitted by the trial court, Moraghan, J., the jury found that each defendant had violated the plaintiff’s constitutional right to substantive due process, and that all the defendants had entered into a conspiracy to deprive the plaintiff of his constitutional right to substantive due process. The jury returned a verdict for the plaintiff awarding $1.1 million in compensatory and punitive damages. The trial court, upon denial of the defendants’ motion to set aside the verdict, rendered a judgment on the verdict. This appeal followed.

The defendants raise numerous claims that, they assert, require that the judgment of the trial court be reversed and that either judgment be directed in their favor or a new trial be ordered. Because we conclude that the plaintiff failed to establish in his § 1983 action that he had a constitutional entitlement to the zoning permit, and because that conclusion is fatal to the plaintiffs causes of action, we need not address all of the defendants’ claims.

In Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739, 610 A.2d 1238 (1992), we recently decided to follow the United States Court of Appeals for the Second Circuit and adopt the entitlement analysis developed in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), when presented with a § 1983 claim of a substantive due process violation in a land use case. Under this analysis, in order to have a protected property right, the applicant must have a “ ‘clear entitlement’ to the approval he was seeking from the land use regulating body.” RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911, 915 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989) (RRI).

“In Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985), the court determined that the plaintiff had a clear entitlement to a permit when, absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted. (Emphasis added.) The court affirmed the dismissal of the plaintiff’s claim of a protected property interest in the permit sought by [the plaintiff] because the licensing authority responsible for the issuance of that permit had broad discretion to either grant or deny the permit. Basically, [the court’s] focus is on the extent of the issuing agency’s discretion to grant or deny the permit in question. Natale v. Ridgefield, 927 F.2d 101, 105 (2d Cir. 1991). The Second Circuit [Court of Appeals] has adhered to the property interest analysis, and Yale Auto Parts and its progeny have committed [the Second] Circuit to the entitlement inquiry in land use regulation cases. RRI, supra, 917-18.” (Internal quotation marks omitted.) Red Maple Properties v. Zoning Commission, supra, 737-38.

In Red Maple Properties, we made clear that “[application of the test must focus primarily on the degree of discretion enjoyed by the issuing authority, not on the estimated probability that the authority will act favorably in a particular case. . . . Yale Auto Parts rejected the claim of a property interest in the permit being sought because of the discretion of the local regulating body. Even if, in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest. The strong likelihood aspect of Yale Auto Parts comes into play only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured; an entitlement does not arise simply because it is likely that broad discretion will be favorably exercised.” (Internal quotation marks omitted.) Red Maple Properties v. Zoning Commission, supra, 739-40.

Moreover, as RRI makes clear, for purposes of determining whether there was a constitutional entitlement, the zoning authority’s discretion must be measured at the time the application is filed, and the constitutional entitlement that the applicant claims cannot be created by the passage of time. Thus, the court in RRI rejected the plaintiffs claims that the administrative agency “forfeited its discretion by not acting on the application within the statutory thirty-day period, and thus was required to approve the permit .... It may be that on the thirty-first day, [the plaintiff] was entitled to the permit, as a matter of state law, as the state court held. But [the plaintiffs] claim to the permit, as a matter of constitutional law, cannot be fragmented into two claims, one subject to the [administrative agency’s] discretion within thirty days and one subject to a mandatory duty to issue after thirty days. For purposes of a property interest under the Due Process Clause, the claim to the permit is indivisible. The [administrative agency’s] discretion to deny the permit during the thirty-day interval deprived [the plaintiff] of the property interest in the permit, regardless of how unlawful under state law the ultimate denial may have been.” RRI, supra, 919.

Finally, as we pointed out in Red Maple Properties v. Zoning Commission, supra, 740, because the “focus of the inquiry is on the degree of discretion of the authority, the question of whether an applicant has a property interest is normally a matter of law for the trial court.” Furthermore, this determination is subject to our de novo review on appeal. Id.

With this background in mind, we turn to the degree of discretion of the zoning commission regarding the plaintiffs application and site plan at the time they were filed with that commission. See Carr v. Woolwich, supra, 7 Conn. App. 700 (the plaintiffs application and site plan considered as one document). The plaintiff’s application was for a “hotel,” a permitted use under § 2.2.3.1.g of the zoning regulations. See footnote 5. Section 2.2.12.a of the regulations required the plaintiff to submit a site plan together with his application for a hotel. In reviewing the plaintiff’s application and site plan, “the commission act[ed] in an administrative capacity. Goldberg v. Zoning Commission, 173 Conn. 23, 29, 376 A.2d 385 (1977). Furthermore, in reviewing [the plaintiffs] site [plan] the commission [had] no independent discretion beyond determining whether the plan complie[d] with the applicable regulations . . . [and] [was] under a mandate to apply the requirements of the regulations as written. Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984); Kosinski v. Lawlor, [177 Conn. 420, 427, 418 A.2d 66 (1979)].” (Internal quotation marks omitted.) Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 12-13, 544 A.2d 152 (1988).

In this case, therefore, the question of whether the plaintiff had a constitutional entitlement to the zoning permit he sought, at the time he filed his application and site plan with the zoning commission, turns on the question of whether his application and site plan complied with the applicable regulations. If they did comply with those regulations, the zoning commission had no discretion to deny his application, and he had a constitutional entitlement to the permit because there was a certainty that, absent the alleged denial of due process, the application would have been granted. Red Maple Properties v. Zoning Commission, supra; see Sullivan v. Salem, 805 F.2d 81, 85 (2d Cir. 1986) (if houses for which the plaintiff sought certificates of occupancy complied with applicable requirements, no discretion in building official to deny certificates, and the plaintiff constitutionally entitled thereto). If, however, his application and site plan did not comply with those regulations, the zoning commission was entitled to deny the application, and there was neither a certainty nor a very strong likelihood that the application would have been granted. Thus, the plaintiff would have no constitutional entitlement. We conclude that the plaintiff had no constitutional entitlement to the zoning permit that he sought because, although the plaintiff in his application and site plan labeled the building he sought to construct as a “hotel,” the record in this case makes unmistakably clear that the application was not for a hotel but was, in fact, for long term, permanent elderly housing and, therefore, his application did not comply with § 2.2.3.l.g of the zoning regulations.

“Hotel” is not defined in the regulations. See footnote 5. Accordingly, we look to its ordinary meaning and conclude that the plaintiff’s project does not fall therein. Absent a technical meaning or the use of a term of art, or except where the context requires otherwise, “[wjords used in statutes and regulations are to be construed according to their commonly approved usage.” (Internal quotation marks omitted.) Westport v. Norwalk, 167 Conn. 151, 163, 355 A.2d25 (1974); see General Statutes § 1-1 (a).

In ordinary parlance, “hotel” means “a building of many rooms chiefly for overnight accommodation of transients . . . .” (Emphasis added.) Webster’s Third New International Dictionary; see also Bourque v. Morris, 190 Conn. 364, 368, 460 A.2d 1251 (1983) (“[t]o be a guest of an inn or hotel it is essential that the person should be a transient”); Black’s Law Dictionary (6th Ed.) (“[a] building held out to the public as a place where all transient persons who come will be received . . .”); 40 Am. Jur. 2d § 2 (“a house which is held out to the public . . . as a place where transient persons . . . will be received and entertained as guests for compensation”); 40 Am. Jur. 2d § 14 (“a guest is one who is a transient, that is free to go and come as he pleases, and who does not sojourn in the inn for a specified time or permanently”); 28 A.L.R.3d 1243 (transitory nature of patronage is distinguishing characteristic of a hotel).

The conclusion that the plaintiff’s proposed elderly housing did not come within the meaning of “hotel” as used in § 2.2.3.1 of the zoning regulations is reinforced by a reading of the entire section of the regulation. “In construing a zoning regulation, it is our primary goal to ascertain and give effect to the intent of the local legislative body as expressed in the regulation as a whole.” Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 601, 539 A.2d 101 (1988).

Section 2.2.3. l.a makes clear that only transient lodging was intended in a commercial zone. Subsection (a) provides that only preexisting residential uses are allowed and that “there shall be no increases in the present number of dwelling units.” Subsection (b) of this section authorizes “[professional and business offices, financial institutions, medical and dental offices and clinics not designed for overnight patients.” Subsections (c), (d), (e), (f), (h) and (j) allow a variety of retail businesses, stores and services, none of which involve any type of lodging. Under subsection (i), a veterinarian animal hospital is permitted, but only if it excludes “boarding of healthy animals.” Finally, the close linkage in the regulation between “hotels” and “motels and restaurants” further suggests the transient nature of the permitted uses under the regulation. Read as a whole, the regulations permit the transitory housing of guests at a hotel, but do not anticipate long term housing of any sort, aside from existing residential uses.

A review of the plaintiffs application and site plan are not revealing. The application contained only the conclusory statement that a sixty unit “hotel” was proposed. Likewise, the site plan merely illustrated the proposed “hotel.” The admissions by the plaintiff in his letter to Bridgewater senior citizens, which was admitted as an exhibit during his testimony, however, reveal that what was labeled as a hotel was in fact elderly housing. In the letter dated June 17, 1983, the plaintiff asked Bridgewater senior citizens: “As part of a private program to develop senior citizen housing . . . we are conducting a survey of town senior citizens to determine what type and variety of housing and services are desired and needed.” During cross-examination at trial, the plaintiff described his hotel as a “place . . . where people lived.” He also acknowledged that “[t]he intention was not that [the residents] would be transients” but that they would be “permanent residents.” The only reasonable conclusion to be drawn from this record is that the plaintiffs application was in fact not for a “hotel” within the meaning of the applicable zoning regulation, because it specifically did not contemplate use by transients. Rather, the application was for permanent, long term elderly housing. This conelusion is fatal to the plaintiffs claim of a constitutional entitlement to the zoning permit that he sought, and to his causes of action in this case.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion Callahan, Glass and F. X. Hennessy, Js., concurred.

Berdon, J.,

concurring. I concur in the result, but write separately to stress the analytical framework that should be used for deciding whether there is a constitutional entitlement.

In Red Maple Properties v. Zoning Commission, 222 Conn. 730, 610 A.2d 1238 (1992), our inquiry as to whether there was a constitutional entitlement necessarily stopped when we determined that the zoning commission in that case was vested with broad discretion to grant or deny the permit application under the statute and regulations. In cases such as this, however, there is a second element that must be satisfied before a constitutional entitlement can exist—that is, whether the plaintiff-applicant has fulfilled the requirements of the regulations. “In Littlefield v. City of Afton, 785 F.2d 596, 602 (8th Cir. 1986), the Eighth Circuit [Court of Appeals] held that state law creates a constitutionally protected property interest in a building permit if (1) the municipality lacks discretion and must issue a building permit to an applicant who complies with the statutory requirements and, (2) the applicant has fulfilled the requirements. Accord Carolan v. City of Kansas City, 813 F.2d 178, 181 (8th Cir. 1987) (noting that both conditions must be met before a constitutionally protected property interest in a building permit arises).” (Emphasis in original.) Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir. 1989).

The requirement that the application comply with the regulations is underscored in Sullivan v. Salem, 805 F.2d 81 (2d Cir. 1986). The trial court, in Sullivan, granted summary judgment in favor of the defendant in a § 1983 action on the issue of whether the plaintiff had a constitutional entitlement to a certificate of occupancy. The trial court reasoned that because “the building official was required to exercise discretion in determining whether or not to issue a certificate of occupancy . . . [the plaintiff] could not have had a legitimate claim of entitlement to the certificates. Therefore, according to the [trial] court, with no property interest in the certificates, [the] plaintiff had no claim under the due process clause even if the refusal to issue the certificates of occupancy was in clear violation of state law.” Id., 84. The Second Circuit Court of Appeals reversed the trial court and held that if “the houses complied with the applicable state and municipal requirements, there was no element of discretion or judgment remaining for the building official to exercise in determining whether to issue the certificates.” Id., 85. The court then remanded the case for further proceedings to determine “whether in fact the houses did meet all applicable requirements and whether the certificates of occupancy were refused solely [on an unlawful basis].” Id.

In sum, for there to be a constitutional entitlement to a property interest under a § 1983 action in a land use case there must be a determination that: (1) under the statute or other regulations, the agency either had no discretion to deny the permit or had such limited discretion that there would have been, “absent the alleged denial of due process ... a very strong likelihood that the [permit] would have been granted”; Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985); and (2) the application for the permit must conform to the requirements of the regulations. It is clear that the constitutional entitlement claimed by the plaintiff fails because his application for the zoning permit did not conform to the regulations, which permitted a hotel for transients but did not permit elderly housing. The plaintiffs failure to establish such an entitlement is fatal to his cause of action.

We depend heavily upon citizen participation in state and town boards and commissions. This is particularly true in the regulation of land use, which is of the utmost importance not only for a town’s orderly development, but also for the protection of our environment. Our legislature has delegated this regulation to the towns. E.g., General Statutes §§ 8-1 and 8-2. The amicus curiae brief of the Conservation Law Foundation of New England, Inc., appropriately notes the following: “This important regulatory function is performed by members of local commissions, elected or appointed, who serve without compensation. They receive little or no formal training, legal or otherwise; and unlike many who appear before them, they are not supported by any full-time professional staff. They have to make innumerable on-the-spot decisions, procedural and substantive, that may have significant legal effects; but in many cases their only source of legal advice is a part-time town attorney, otherwise engaged in private practice, who generally is available for consultation only before or after the fact.” At the same time, I am concerned with the rights of property owners, such as the plaintiff, and their right to develop their property in a manner permitted by the regulations.

I believe that our adoption of the entitlement approach to determine damages for substantive due process violations in land use cases under § 1983, together with the protection of individual town commissioners under the doctrine of qualified immunity, strikes an appropriate balance between protecting the interests of the public and those of private property owners to develop their land in a manner which is consistent with valid government regulations.

In this case, the conduct of the individual defendants as found by the jury in the processing of the plaintiffs project was arbitrary and capricious and should not be condoned. Nevertheless, such conduct on the part of the individual defendants becomes relevant to the issue of damages only after the plaintiff has proven a clear entitlement to the permit.

       Also named as defendants were the following individuals: William Kin-solving, a member of the inland wetlands commission; Burton Bernstein, then chairman of the inland wetlands commission; Elliott Woolwich, then chairman of the zoning commission; and R. James Allen, then secretary of the zoning commission and a member of the inland wetlands commission. The defendants in this appeal will be referred to collectively as the “defendants.”

       Title 42 of the United States Code, § 1983 provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       The trial court dismissed the counts that alleged violations of procedural due process and of antitrust laws, and those counts are not involved in this appeal.

       We need not discuss separately the defendants’ claims regarding the conspiracy count because that count is also predicated on the issue of whether the plaintiff had a constitutional entitlement to the permit in question.

       Section 2.2.3.1.g of the Bridgewater zoning regulations set forth the following as permitted uses in a commercial zone: “Hotels, motels and restaurants, where food is served at tables within a building, including catering service as an accessory use, but specifically excluding food service to parking lots or outside service counters.”

       General Statutes § 8-3 (b) provides: “Such regulations and boundaries shall be established, changed or repealed only by a majority vote of all the members of the zoning commission, except as otherwise provided in this chapter. If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by the owners of twenty percent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed change, such change shall not be adopted except by a vote of two-thirds of all the members of the commission.”

       The plaintiff also appealed the zoning amendment to the Bridgewater zoning board of appeals (board). On March 19, 1984, the board sustained the plaintiffs appeal and ordered the zoning commission to process the plaintiffs application on the ground that, because the regulations were not amended, a hotel continued to be a permitted use. Upon advice of counsel, the zoning commission ignored the board’s order and continued to refuse to process the plaintiff’s application.

       General Statutes (Rev. to 1983) § 8-3 (g) provides in relevant part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired. A decision to deny or modify a site plan shall set forth the reasons for such denial or modification.” (Emphasis added.)
      General Statutes § 8-7d (b) provides: “Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods, or may withdraw such plan.”

       The plaintiff, on October 12,1983, also submitted the same plans to the inland wetlands commission. At a meeting on April 18, 1984, the inland wetlands commission denied a permit to build the hotel complex by a vote of five to one. The plaintiff again appealed to the Superior Court. After a meeting in which the plaintiff and town officials attempted to resolve their differences, the plaintiff submitted a new application to the inland wetlands commission for permission to cross a stream with a road and to direct storm drainage into a stream. On September 5,1984, the inland wetlands commission voted to deny the application. The plaintiff appealed this decision to the Superior Court and, on December 23, 1985, the court sustained the plaintiffs appeal. The inland wetlands commission, on April 9, 1986, issued a permit to the plaintiff for the stream crossing.

       On March 12, 1985, the zoning commission held another public hearing on whether to delete § 2.2.3.1.g of the Bridgewater zoning regulations. Again, the zoning commission voted to delete this section, from which vote the plaintiff appealed. Because of concern over improper notice of the March 12, 1985 hearing, the zoning commission decided to hold another public hearing. Subsequently, the Superior Court upheld the second attempt by the zoning commission to delete this section and, in so doing, ruled moot the plaintiff’s appeal from the third deletion attempt.

       The trial court also based its holding on General Statutes § 8-7d. The Appellate Court, however, ruled that the mandatory time constraints of § 8-7d did not control the plaintiff’s application. Carr v. Woolwich, 7 Conn. App. 684, 700, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986).

       Section 2.2.12.b of the Bridgewater zoning regulations provides: “A copy of the permit to construct sewage disposal facilities shall accompany the application for a zoning permit.
      “All proposed construction shall conform to the Zoning and Sanitary Regulations.”

       The jury awarded the plaintiff the following: $300,000 compensatory damages from the town; $150,000 compensatory damages from the zoning commission; $150,000 compensatory damages from the inland wetlands commission; $100,000 compensatory damages and $50,000 punitive damages from Elliott Woolwich; $40,000 compensatory damages and $50,000 punitive damages from R. James Allen; $100,000 compensatory damages and $50,000 punitive damages from Burton Bernstein; and $60,000 compensatory damages and $50,000 punitive damages from William Kinsolving. The plaintiffs total jury award was $900,000 in compensatory damages and $200,000 in punitive damages.

       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 and General Statutes § 51-199 (c).

       The defendants claim that the trial court improperly: (1) instructed the jury regarding the plaintiffs constitutional entitlement to the zoning permit; (2) failed to identify the date on which to determine whether the plaintiff had such an entitlement; (3) instructed the jury regarding the issue of deprivation of such entitlement; (4) refused to set aside the verdicts against the inland wetlands commission and the town; (5) instructed the jury on the conspiracy count; and (6) instructed the jury regarding the doctrine of qualified immunity.

       We therefore reject the plaintiffs claim, which the trial court endorsed in this case, that his constitutional entitlement was created by the zoning commission’s failure to act on his application within the statutory sixty-five day period. Whether he had a constitutional entitlement must be determined at the time he filed his application, and the legal effect of the subsequent passage of time cannot affect that analysis.
      We also reject the plaintiff’s reliance, which the trial court in this case also endorsed, on the statement of the mandamus court, Pickett, J., that the “permit and site development plan submitted by [Carr] conformed to the requirements of the regulations.” To the extent that the trial court in this case relied on that statement to support a determination that the plaintiff was constitutionally entitled to the permit, that reliance was misplaced. The sole issue in the mandamus action was whether the permit should have been issued because of the passage of time, and that was the sole issue before the Appellate Court in Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986). Indeed, the point of the mandamus action was that the plaintiff was entitled to the permit by virtue of the passage of time, regardless of whether his application complied with the regulations. See id. The mandamus court had no legitimate occasion to compare the application with the regulations. Thus, that statement was dictum, and could not form the basis of the plaintiffs claim of constitutional entitlement.
      The plaintiff also argues that because the jury found, through interrogatories, that the defendants’ conduct was “arbitrary and capricious,” we should conclude that his constitutional rights were violated. In Red Maple Properties v. Zoning Commission, 222 Conn. 730, 738, 610 A.2d 1238 (1992), which was decided after oral argument in this case, we recognized that some Circuit Courts of Appeals “assumed that the pertinent property interest is the property the plaintiff owns and simply examined whether the action of local regulators in denying an application for the proposed use of the land was arbitrary and capricious . . . .” (Internal quotation marks omitted.) We went on, however, specifically to reject that approach and opted instead to follow the Second Circuit Court of Appeals’ “entitlement test.” Id., 739.

       Section 2.2.12.a of the Bridgewater zoning regulations provides: “Before any new building or structure shall be started, or existing buildings altered, a sketch or plans of the proposed work shall be filed with the Commission, not less than one week before a regular meeting, together with an application for [a] permit, and no work shall be done on the building until the Commission shall have given its written approval. The sketch or plans submitted should show the specific address and location, the plot plan, the driveway entrance, the location of existing and proposed buildings on the site, the location of the water supply and sewage disposal system.”

       We recognize, of course, that in some cases the RRI Realty Corporation and Red Maple Properties entitlement inquiry will focus on the language of the regulations, that is, whether the regulations themselves give a degree of discretion to the zoning authority sufficient to defeat a constitutional entitlement. Indeed, that was the case in Red Maple Properties itself, where the regulations required the applicant to satisfy discretionary design review requirements. Red Maple Properties v. Zoning Commission, 222 Conn. 730, 740-42, 610 A.2d 1238 (1992). In other cases, the inquiry may focus on both the regulations and the applicant’s compliance therewith. See, e.g., RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911, 918-19 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989). In this case, however, because the regulations import no degree of discretion apart from the issue of the applicant’s compliance therewith, that compliance is the only relevant focus of the constitutional entitlement inquiry.

       After oral argument, we ordered the parties to file simultaneous supplemental briefs on the following issue: “Based upon the evidence produced at trial, including the testimony of the plaintiff regarding the nature of the facility he sought to build, did the plaintiffs application and site plan comply with the applicable regulations?”

       This conclusion renders it unnecessary to consider the defendants’ additional argument that the plaintiffs application and site plan failed to comply with other provisions of the applicable regulations regarding a sewage disposal certificate, maximum height of the proposed structure, location of water supply, landscaping schedule and detail, parking area detail, and restaurant loading area.

       In RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989) (RRI), the court in its analysis also stopped with the regulation which conferred on the regulatory agency a broad discretion. The agency in RRI was “charged with the duty of exercising sound judgment and of rejecting plans which, in its opinion, are not of harmonious character because of the proposed style, materials, mass, line, color. . . .’’(Internal quotation marks omitted.) Id., 919.

       The Supreme Court of the United States in Harlow v. Fitzgerald, 457 U.S. 800, 818-14, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), noted the problem of balancing the appropriate interests between these sometimes competing forces as follows: “The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative. In situations of abuse of office, an action for damages may offer the only realistic avenue for vindications of constitutional guarantees. ... It is this recognition that has required the denial of absolute immunity to most public officers. At the same time, however, it cannot be disputed seriously that claims frequently run against the innocent as well as the guilty—at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.” (Citations omitted; internal quotation marks omitted.)