text:
    Jennifer Lawrence v. New Hampshire Insurance Company

      Donald P. Guerrini, in support of the petition.

      Robert R. Sheldon, in opposition.
    Decided December 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 484 (AC 10851), is denied.


source: Caselaw Access Project

license: Public Domain

text:
    Eugene Gulycz v. Stop and Shop Companies, Inc.

      John R. Williams, in support of the petition.

      Barbara B. Sacks, in opposition.
    Decided December 22, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 519 (AC 10948), is denied.


text:
    State of Connecticut v. Scott Tyrone Andrews

      Susan M. Hankins, assistant public defender, in support of the petition.

      John A. East III, deputy assistant state’s attorney, in opposition.
    Decided January 6, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 533 (AC 10597), is denied.


text:
    FDIC as Receiver for the New Connecticut Bank and Trust Company, N.A. v. Napert-Boyer Partnership et al.

      Raymond L. Baribeault, Jr., in support of the petition.

      Walter E. Paulekas, in opposition.
    Decided January 6, 1993
   The defendant George K. Boyer’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 901 (AC 11132), is denied.


text:
    Christine Arway et al. v. Walter S. Bloom et al.
   The plaintiffs Christine Arway, Arthur Arway, Dan Smith, Kerin McCormick and Christine McCormick’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 469 (AC 11057), is granted, limited to the following issue:

“Whether General Statutes §§ 8-3 (g) and 8-3c (b) require the decision of a zoning commission to be set aside when a decision of the wetlands commission affecting the same property is judicially determined to have been illegal?”

The Supreme Court docket number is SC 14673.

Jan A. Marcus, in support of the petition.

Decided January 6, 1993


text:
    Shawmut Mortgage Company v. Larry Corrone

      Max F. Brunswick, in support of the petition.
    Decided January 6, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 907 (AC 10742), is denied.


text:
    Alice S. Hager et al. v. John Hager et al.

      Edward N. Lerner, in support of the petition.

      John Lackland, in opposition.
    Decided January 6, 1993
   The plaintiff Alan Hager’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 908 (AC 10972), is denied.


text:
    New Haven Savings Bank v. Edward F. Allen

      Edward F. Allen, pro se, in support of the petition.
    Decided January 6, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 916 (AC 10857), is denied.


text:
    Robert E. Houston et al. v. George Krawshuk et al.

      Ronald L. Lepine, in support of the petition.

      Robert J. Reeve, in opposition.
    Decided January 21, 1993
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 11530) is denied.


text:
    Steven Goodson et al. v. State of Connecticut
    The Supreme Court docket number is SC 14679.

      ThaddA. Gnocchi, assistant attorney general, in support of the petition.
    Decided January 21, 1993
   The defendant’s petition for certification for appeal from the Appellate Court (AC 11651) is granted, limited to the following issue:

“Did the Appellate Court properly dismiss the defendant’s appeal because of (1) the defendant’s noncompliance with Practice Book §§ 4049 and 4053; (2) the lack of a final judgment; or (3) mootness?”


text:
    Bristol Federal Savings Bank v. Dorothy E. Gagnon et al.

      Dorothy E. Gagnon, pro se, in support of the petition.
    Decided January 21, 1993
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 11781/11884) is denied.


text:
    State of Connecticut v. Roscoe Johnson
    The Supreme Court docket number is SC 14677.

      Richard Emanuel, assistant public defender, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
    Decided January 21, 1993
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 584 (AC 10084), is granted, limited to the following issues:

“ 1. Did the Appellate Court correctly conclude that an arguably indigent defendant, who has been sentenced to a maximum term of imprisonment of fifteen years and the maximum fine of $50,000 for a single offense, may not challenge the imposition of that fine until he has served the fifteen year sentence?

‘‘2. Did the Appellate Court correctly conclude that the trial court’s definition of reasonable doubt as ‘a doubt for which a valid reason may be assigned,’ was not reviewable, or if it was reviewed on its merits, was not erroneous?”


text:
    Donald Vachon v. General Dynamics Corporation/Electric Boat Division

      Robert M. Fitzgerald, in support of the petition.

      John W. Grenier, in opposition.
    Decided January 21, 1993
   The petitioner Donald Vachon’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 654 (AC 11162), is denied.


text:
    First National Trust Association v. Andrew Daruka et al.

      Noel R. Newman, in support of the petition.

      Stephen R. Griffin, in opposition.
    Decided January 21, 1993
   The defendant Ann Daruka’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 913 (AC 11006), is denied.


text:
    Lois Schallenkamp v. Lawrence DelPonte, Commissioner of Motor Vehicles
    The Supreme Court docket number is SC 14678.

      Francis S. Holbrook, in support of the petition.

      Kathryn Mobley, assistant attorney general, in opposition.
    Decided January 21, 1993
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 576 (AC 10697), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that there was substantial evidence in the record to support the finding that the arresting officer was certified to administer the breathalyzer tests?”


author: Berdon, J.,

text:
    State of Connecticut v. Leroy Dukes
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 409 (AC 11147), is denied.

Berdon, J.,

dissenting. I would grant certification

on the following issue: “In a case in which the defendant is on trial for the crimes of sexual assault in the first degree and has filed a motion in limine to exclude testimony at trial as to the alleged virginity of the victim prior to these offenses, does Practice Book § 288 require defense counsel not only to clearly state the basis of his objection to such evidence at an offer of proof at which the admissibility of such evidence is considered by the court outside the presence of the jury, but to repeat the basis of his objection when excepting to this testimony before the jury?”

Donald Dakers, in support of the petition.

Leon F. Dalbec, Jr., assistant state’s attorney, in opposition.

Decided January 21, 1993


author: Santaniello, J.

text:
    Joan McNally v. Zoning Commission of the City of Norwalk et al.
    (14477)
    Peters, C. J., Borden, Berdon, Norcott and Santaniello, Js.

      Argued September 30, 1992
    decision released March 9, 1993

      Robert A. Slavitt, with whom was Michael P. Sweeney, for the appellant (defendant Catherine Conte).

      Alan R. Spirer, for the appellee (plaintiff).
   Santaniello, J.

This áppeal arises out of the decision of the defendant zoning commission of the city of Norwalk (commission) granting the defendant Catherine Conte permission to build an eight unit conservation development on land located along Long Island Sound. The plaintiff, Joan McNally, who had been granted permission to intervene in the defendant’s application, appealed the commission’s decision to the Superior Court. The court found in favor of the plaintiff. The defendant filed a petition for certification that the Appellate Court granted. We transferred the subsequent appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The defendant claims that the trial court improperly: (1) concluded that the plaintiff owned land within 100 feet of the land involved in the commission’s decision and, therefore, that the plaintiff was statutorily aggrieved pursuant to General Statutes § 8-8 (a) (l); (2) decided zoning issues while General Statutes § 22a-19 confers upon an intervenor standing to raise only environmental issues; (3) reversed the commission’s decision to allow soils below the high water mark to be used for the sole purpose of calculating upland density; and (4) ruled that the commission should have applied an amended version of § 118-410 (C) (3) of the Norwalk zoning regulations to the application rather than the version in effect when the application was filed. We affirm.

The procedural background of the case is as follows. The defendant claims to own a 12.52 acre peninsula of land in Norwalk that is surrounded on three sides by Raymond Creek, also known as Half Mile Island Creek, a body of water connected to Long Island Sound. The plaintiff’s deed indicates that she owns property that abuts the defendant’s property at the centerline of Half Mile Island Creek.

On July 21,1989, the defendant filed an application for a coastal site plan with the commission, and on September 25,1989, she requested a special permit. In the application, the defendant sought approval for an eight unit conservation development on her 12.52 acre parcel. The initial application stated that the property is bounded by Raymond Creek to the north, Half Mile Island Creek to the south and Canfield Avenue to the west. Of the 12.52 acres included in the application, 4.89 acres are located above the mean high water mark and 7.63 acres are tidal wetlands located below the mean high water mark. Although the plans indicated that all eight units would be located outside of the tidal wetlands, the entire 12.52 acres were used in calculating the housing density, pursuant to § 118-410 (C) (3) of the Norwalk zoning regulations.

In October, 1989, pursuant to General Statutes § 22a-109 (d), the commission submitted the plan to the state department of environmental protection (DEP) for comments. The commission first scheduled a public hearing on the application on October 18, 1989. After several postponements, the public hearing on the defendant’s application began on February 21, 1990, and concluded on April 18, 1990. At the hearing, the plaintiff intervened in the administrative proceeding pursuant to General Statutes § 22a-19. On August 15, 1990, the commission approved the application subject to seven conditions.

The plaintiff then appealed to the Superior Court. The trial court sustained the plaintiff’s appeal concluding, inter alia, that: (1) the plaintiff was aggrieved and had standing to bring an appeal pursuant to both General Statutes §§ 8-8 (a) and 22a-19; (2) the defendant did not own the tidal wetlands below the mean high water mark and, therefore, the commission should not have included these wetlands in the calculation of upland density; (3) the commission improperly characterized the property as containing a body of water when, in fact, it bordered on Long Island Sound; and (4) the amended version of the regulation, not the regulation in effect when the defendant’s application had been filed, applied to this case, and the defendant’s property did not comply with the requirements of that amended regulation.

I

The defendant first claims that the trial court’s finding with respect to aggrievement cannot stand. The defendant claims that the trial court was inconsistent in holding that the defendant did not own the soils below the mean high water mark, but that the plaintiff was statutorily aggrieved pursuant to § 8-8 (a) (1) because her property was within 100 feet of the alleged boundary of the defendant’s property that was located below the mean high water mark. Because aggrievement implicates the plaintiff’s standing to appeal, the first issue we address is aggrievement. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 92, 558 A.2d 646 (1989). Unless the plaintiff alleges and proves aggrievement, her case must be dismissed. Smith v. Planning & Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987). Only if the plaintiff has established aggrievement can the court proceed to consider the merits of her claim.

The plaintiff can demonstrate statutory aggrievement pursuant to § 8-8 (a) (1) if she can demonstrate that her property abuts or is within 100 feet of “any portion of the land involved in the decision” of the commission. The deeds of the parties indicate that their properties abut at the centerline of Raymond Creek. Citing Simons v. French, 25 Conn. 346, 352 (1856), the plaintiff contends, however, that, despite what is recorded in her deed, the state owns all the land below the mean high water mark as a public trust for its citizens. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 108 S. Ct. 791, 98 L. Ed. 2d 877 (1988). The plaintiff claims that she is nonetheless statutorily aggrieved because the defendant’s property as described in the application before the commission is within 100 feet of the mean high water mark on her property.

The defendant argues that if the land below the mean high water mark on the plaintiff’s property cannot be considered for the plaintiff’s aggrievement, then the land below the mean high water mark on the defendant’s property should also not be considered. Because the shortest distance between the mean high water marks on the two properties is 142 feet, the defendant contends that the plaintiff is not statutorily aggrieved. The plaintiff, however, interprets the statutory language, “land involved in the decision,” to mean the land described in the application, regardless of ownership, and maintains that she is statutorily aggrieved.

Both parties rely on Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989), to support their positions. In Caltabiano, the applicant had sought a special exception for a “3.8 acre parcel located deep within [a] 110 acre parcel.” Id., 664. The plaintiffs, whose property either abutted or was within 100 feet of the 110 acre parcel, claimed that they were statutorily aggrieved. Id., 664-65. We interpreted the phrase “land involved” to be the complete tract of land owned by the applicant, not the portion of the land containing the proposed activity. Id., 663. In reaching this conclusion, we examined the legislative intent in creating statutory aggrievement. “We conclude that the legislature presumed as a matter of common knowledge that persons owning property within close proximity to a projected zoning action would be sufficiently affected by the decision of a zoning agency to be entitled to appeal that decision to the court. Giving such a right to the narrow class of abutters and those owning property within 100 feet of the land involved would not unduly enlarge the class of those entitled to appeal such a decision.” Id., 668-69. To consider only those persons within 100 feet of the actual site of the proposed activity to be statutorily aggrieved is a restrictive interpretation of the statutory language. “To apply § 8-8 (a) in such a narrow fashion would be to nullify its effect of opening up the courts to litigants with a presumptively legitimate right to challenge such zoning decisions.” Id., 669-70.

“Aggrievement presents a question of fact for the trial court.” Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 343, 573 A.2d 1222 (1990), citing Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). “It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law.” Fuller v. Planning & Zoning Commission, supra, 344. “The conclusion reached by the court cannot be disturbed on appeal unless the subordinate facts found do not support it.” Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 503, 264 A.2d 566 (1969).

The trial court held that “[u]nder the facts of this case, the phrase ‘land involved in the decision’ should be read to mean the land claimed to be owned by the applicant, accepted by the commission as owned by the applicant, and on which the commission based the substance of its decision. In this case, that land is the 12.52 acre parcel [the defendant] claims to own.” Because the trial court found that the plaintiff’s land is within 100 feet of the defendant’s parcel, it found that the plaintiff is statutorily aggrieved. We agree with the trial court. To hold otherwise would be contrary to the legislative purpose of § 8-8 (a). Under the facts of this case, a contrary construction would prevent neighboring landowners from appealing the commission’s decision and challenging the defendant’s claim of ownership of the lands below the mean high water mark.

Because we conclude that the plaintiff established statutory aggrievement by showing that her property is within 100 feet of the property described in the defendant’s application, it is unnecessary to decide whether the plaintiff was also aggrieved pursuant to S 22a-19.

II

The defendant also claims that the trial court improperly applied the amended version of § 118-410 (C) of the Norwalk zoning regulations that was in effect at the time the court reviewed the commission’s decision, rather than the version in effect when the application was fled. It is undisputed that the defendant’s application did not comply with the amended version of the regulations.

The rule followed in Connecticut at the time the defendant filed her application was that the zoning law or regulation in effect at the time the court rendered its decision controlled the outcome. McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223, 492 A.2d 508 (1985); A.D.AM. Land Development Corporation v. Conservation Commission, 21 Conn. App. 122, 130, 572 A.2d 364 (1990). The purpose for this rule was to avoid having zoning disputes settled on the basis of outdated rules. East Lyme v. Waddington, 4 Conn. App. 252, 259, 493 A.2d 903, cert. denied, 197 Conn. 811, 499 A.2d 61 (1985).

Public Acts 1989, No. 89-311 changed this rule. Under that act, an application must be granted if it complied with the regulations in effect at the time the application was filed. This act became effective, however, on October 1,1989. The defendant filed her application on July 21, 1989, and her request for a special permit on September 25, 1989. Because Public Acts 1989, No. 89-311 was a new enactment, it must be applied prospectively. A.D.A.M. Land Development Corporation v. Conservation Commission, supra, 130 n.7; see Darak v. Darak, 210 Conn. 462, 473, 556 A.2d 145 (1989). A statute should not be applied retroactively to pending actions unless the legislature clearly expressed an intent that it should be so applied. New Haven v. Public Utilities Commission, 165 Conn. 687, 726, 345 A.2d 563 (1974).

The defendant’s application was filed before the act became effective. The act does not indicate by its language that it should be applied to pending applications. Therefore, as a new regulation, the act should not be applied retroactively to the defendant’s application. The trial court properly applied the amended version of the regulation in its review of the commission’s decision, as it was required to do by our decision in McCallum v. Inland Wetlands Commission, supra. Because the defendant’s application unquestionably fails to comply with the amended version of the regulation, the trial court properly sustained the plaintiff’s administrative appeal.

The judgment is affirmed.

In this opinion the other justices concurred.

       Although the commission is the named defendant, it has not participated in this appeal. References to the defendant are to Catherine Conte.

       General Statutes § 8-8 (b) provides in pertinent part: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court . . . .”

       General Statutes § 8-8 (o) provides in pertinent part: “There shall be no right to further review except to the appellate court by certification for review . . . .”

       General Statutes § 8-8 (a) (1) provides in pertinent part: “ ‘Aggrieved person’ means a person aggrieved by a decision of a board . . . . In the case of a decision by a zoning commission . . . ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

       General Statutes § 22a-19 (a) provides in pertinent part: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       At the time of the filing of the defendant’s application, § 118-410 (C) (3) of the Norwalk zoning regulations provided in pertinent part: “The maximum number of dwellings permitted in a conservation development shall be determined by dividing the total acreage of the parcel by the minimum lot size permitted in the zone and multiplying the result by ninety hundredths (.90)----
      “(a) Parcels which contain a body of water, a designated inland wetland or watercourse or tidal wetland shall include only fifty percent (50%) of said body of water or designated wetland area in arriving at the maximum number of dwelling units permitted above. . . .”
      On February 21, 1990, the commission amended this regulation, effective March 2,1990, to reduce the first factor from ninety hundredths (.90) to eighty-five hundredths (.85), and the second factor from 50 percent to 33.3 percent.

       The defendant’s deed describes the property as extending to the centerline of Raymond Creek, following that centerline northeasterly for 185 feet and continuing to follow the centerline through the twists and turns of the creek.

       These conditions related to issues of concern raised by the DEP. At the time the commission approved the application, these concerns remained unresolved.

       Public Acts 1989, No. 89-311 provides in pertinent part: “An application filed with a zoning commission ... of a town . . . which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations . . . taking effect after the filing of such application.”

       In her third claim on appeal, the defendant argues that the trial court improperly reversed the commission’s decision to apply § 118-410 (C) (3) of the Norwalk zoning regulations to allow soils below the high water mark to be used to calculate upland density. This claim is rendered moot by our decision that the trial court properly applied the version of the regulation in effect when it reviewed the commission’s decision on the defendant’s application.


author: Per Curiam.

text:
    State of Connecticut v. Michael J. Marsala
    (14553)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.
    Argued February 9
    decision released March 9, 1993

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Richard F. Jacobson, assistant state’s attorney, for the appellee (state).
   Per Curiam.

This court decided, in State v. Marsala, 216 Conn. 150, 151, 579 A.2d 58 (1990), that “a ‘good faith’ exception to the exclusionary rule is incompatible with the constitution of Connecticut, article first, § 7 . . . .” The defendant’s conviction rested in part on evidence that had been seized pursuant to a search warrant validated by the trial court in reliance on such a good faith exception. Because the Appellate Court had agreed with the trial court’s upholding of a good faith exception, our decision required us to reverse the judgment of the Appellate Court. Our rescript noted the reversal and directed that the case be remanded to the Appellate Court “for further proceedings consistent with this opinion.” Id., 172.

The Appellate Court thereafter identified an ambiguity in our rescript. It observed that this court might have intended the Appellate Court to pursue one of three possible agendas. First, the Appellate Court might have been directed to reconsider the defendant’s claim as to the sufficiency of the evidence and to look at the evidence that had not been seized pursuant to the invalidated warrant to determine whether, on the basis of the record as it existed at trial, the defendant’s conviction should be vacated. State v. Marsala, 26 Conn. App. 423, 425, 601 A.2d 542 (1991). Second, the Appellate Court might have been directed to reconsider the validity of the search warrant in light of the subsequent decision of this court in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). State v. Marsala, 27 Conn. App. 291, 294, 605 A.2d 866 (1992). Third, the Appellate Court might have been directed to remand the case to the trial court for a new trial. State v. Marsala, supra, 26 Conn. App. 425.

After the Appellate Court’s decision to pursue the second alternative, we granted the defendant’s petition for certification. State v. Marsala, 223 Conn. 902, 610 A.2d 177 (1992). We regret the lack of clarity in our original rescript and now direct a new trial.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial.

       We granted certification limited to the following issues: “1. Whether the Appellate Court correctly treated a motion for reargument as a motion for reconsideration, and in thereafter deciding a question of substance, which reversed a trial court conclusion, without the benefit of either briefs or oral argument?
      “2. Whether the Appellate Court properly concluded that the search warrant affidavit should be evaluated under the principles of State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991)?
      “3. If the principles of State v. Barton, supra, are applicable to this case, must the validity of the warrant first be reviewed by a trial court, rather than an appellate court?
      “4. Did the Appellate Court have jurisdiction/authority to issue, sua sponte, an amended rescript (26 Conn. App. 423) approximately sixteen months after the issuance of its initial rescript?
      “5. Did the state waive or forfeit its right to assert the warrant’s validity in light of the state’s prior concessions and prior failure to raise this claim as an alternate ground?” State v. Marsala, 223 Conn. 902, 610 A.2d 177 (1992).

       In light of this amended rescript, certified issues Nos. 1, 3 and 4 have become moot. At the retrial, the trial court will have to decide the remaining issues about the applicability of State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), in the circumstances of this case.


author: Borden, J.

text:
    Angelita Tolly v. Department of Human Resources
    (14515)
    Peters, C. J., Callahan, Borden, Norcott and Katz, Js.
    Argued December 8, 1992
    decision released March 9, 1993

      Ann McClure, for the appellant (plaintiff).

      Judith A. Merrill, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Borden, J.

The sole issue in this appeal is whether service of an administrative appeal by certified mail pursuant to General Statutes § 4-183 (c) (l) of the Uniform Administrative Procedure Act (UAPA) requires a citation. The plaintiff, Angelita Tolly, appealed to the Superior Court from a decision of the defendant, the department of human resources, revoking her family day care home registration. The trial court granted the defendant’s motion to dismiss the administrative appeal because the appeal lacked a citation.

The Appellate Court affirmed the judgment of dismissal in a per curiam decision; Tolly v. Department of Human Resources, 26 Conn. App. 938, 600 A.2d 1390 (1992); deeming the issue controlled by its three prior decisions: Shapiro v. Carothers, 23 Conn. App. 188, 579 A.2d 583 (1990); Senie v. Carothers, 22 Conn. App. 253, 576 A.2d 1312 (1990); and DelVecchio v. Department of Income Maintenance, 18 Conn. App. 13, 555 A.2d 1007 (1989). We granted certification to appeal on the following issue: “Did the Appellate Court correctly affirm the judgment of the Superior Court dismissing a petition for administrative appeal that was properly served on all necessary parties by United States certified mail as expressly permitted by Connecticut General Statutes § 4-183 (c) (1), for the stated reason that no citation form was appended to the petition?” Tolly v. Department of Human Resources, 221 Conn. 922, 608 A.2d 687 (1992). We now reverse.

The facts are undisputed. On December 7,1990, the defendant issued a final decision revoking the plaintiffs family day care home registration. On January 17, 1991, the plaintiff filed in the trial court an administrative appeal challenging the validity of that decision. The administrative appeal identified the plaintiff and the defendant, the specific judicial district and location of the court, the return date, and the date and nature of the decision from which the plaintiff appealed. It did not contain a citation, or any language approximating a citation. Attached to the appeal was a certification executed by the plaintiffs counsel indicating that she had served the appeal by certified mail on twelve named persons, including the commissioner of human resources and the attorney general. On January 31, 1991, the plaintiffs counsel filed an “Affidavit Regarding Service of Administrative Appeal Dated January 16,1991,” indicating that she had mailed, by postage prepaid certified mail, return receipt requested, a copy of the appeal to the twelve named persons, and attaching their return receipts dated January 17,1991.

On February 20, 1991, the defendant moved to dismiss the appeal, asserting that “[t]he court has no subject matter jurisdiction because the plaintiff failed to include a citation in her appeal.” The trial court granted the motion on the authority of the Appellate Court’s decision in Senie v. Carothers, supra. This appeal followed.

The plaintiff raises several claims on appeal, all of which, however, distill into the fundamental claim that proper service of an appeal pursuant to § 4-183 (c) (1) does not require a citation. We agree.

Both the plaintiff and the defendant agree, as do we, that whether service of process by certified mail pursuant to § 4-183 (c) (1) requires a citation is a matter of statutory construction. Thus, it is not persuasive that, as the plaintiff suggests, Practice Book § 49 provides that the judicial department form for a summons in a civil action “shall not be used in . . . [administrative appeals.” Nor is it persuasive that, as the defendant points out, Practice Book § 256 provides that, “[f]or purposes of these rules, administrative appeals are civil actions.”

“In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day. 1E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 18. The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command.” (Internal quotation marks omitted.) McQuillan v. Department of Liquor Control, 216 Conn. 667, 671, 583 A.2d 633 (1990); see also Hillman v. Greenwich, 217 Conn. 520, 525, 587 A.2d 99 (1991) (citation is command to duly authorized officer to summon defendant to appear in court on specific day to answer complaint); Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977) (citation is direction to officer to summon agency whose decision is being appealed). A proper citation, therefore, requires not only the signature of a competent authority, such as a commissioner of the Superior Court, but the direction to a competent authority, such as a sheriff, constable or indifferent person, to summon the defendant to appear in court. 1 E. Stephenson, supra.

With this background in mind, we turn to the question of whether § 4-183 (c) (1) requires a citation. Considering the text of § 4-183 (c) (1), in the context of the statute as a whole, its purpose and its legislative history, we conclude that service of process pursuant to § 4-183 (c) (1) does not require a citation.

Section 4-183 (c) (1) provides: “Service of the [administrative] appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer.” There is nothing in this plain language that suggests the need for anything more than mailing copies of the appeal in the specified manner, as the plaintiff did in this case. The text does not, either directly or by way of implication, provide for a citation.

Furthermore, reading the statute as a whole reinforces the conclusion that no citation is required for service pursuant to § 4-183 (c) (1), in contrast to service pursuant to § 4-183 (c) (2). See footnote 1. Section 4-183 (c) provides, in general terms, that an administrative appeal must, within forty-five days of delivery of the final decision to the person appealing, be filed with the court, and served on the agency or the attorney general and on each party listed in the decision. It further provides that such service shall be made by one of two alternative methods: “by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”

Personal service pursuant to § 4-183 (c) (2) requires, by clear implication, a citation commanding the “proper officer or indifferent person” to make service “in the same manner as complaints are served in ordinary civil actions.” “The citation that is used to commence an administrative appeal is analogous to the writ used to commence a civil action.” Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 542 n.l, 610 A.2d 1260 (1992). The process of serving a complaint in an ordinary civil action requires the use of a writ of summons directed to a sheriff or other authority competent to make service of process. See General Statutes §§ 52-45a and 52-45b. Indeed, personal service by such an authority without a writ of summons has long been regarded as a nullity, because without such a writ the sheriff is no more than a delivery person. Hillman v. Greenwich, supra, 525.

The service required by § 4-183 (c) (2) stands in marked contrast to service pursuant to § 4-183 (c) (1), which specifically provides that service by certified or registered mail may be “without the use of a sheriff or other officer.” That contrast underscores the difference between service made pursuant to the two different statutory methods. Whereas service pursuant to § 4-183 (c) (2) requires an authority competent to make service and, therefore, a citation, service pursuant to § 4-183 (c) (1), by specifically eliminating the intervention of a “sheriff or other officer” for purposes of service, also eliminates the necessity of a citation. Indeed, because a citation requires, not only a competent signing authority, but a command by that signing authority to a competent serving authority, and because under § 4-183 (c) (1) no “sheriff or other officer” is required, it is difficult to conceive what the language of a proper citation would be under § 4-183 (c) (l).* *** Absent a “sheriff or other officer” to receive such a command, a citation would be meaningless. We do not ascribe to the legislature the intent to require the performance of a meaningless act. See, e.g., Atwood v. Regional School District No. 15, 169 Conn. 613, 621, 363 A.2d 1038 (1975).

The conclusion that § 4-183 (c) (1) does not require a citation is buttressed by reference to § 4-183 (d). That subsection provides that a record of proper service be timely filed with the clerk of the court in either of two ways: (1) by the filing of “the sheriffs return”; or (2) by the appellant’s filing “an affidavit . . . stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision . . . .” This latter method of evidencing service of process indicates a legislative awareness that, as in this case, there are instances in which no serving officer, and therefore no citation, is necessary because the appealing party herself effected service pursuant to § 4-183 (c) (1).

The legislative history of § 4-183 (c) (1) further supports our conclusion. As originally enacted in 1971, § 4-183 (b) simply provided that “[c]opies of the petition [for review] shall be served upon the agency and all parties of record.” Public Acts 1971, No. 854, § 18. In 1977, this subsection was amended to provide that the petition for review “shall be served upon the agency and all parties of record in the same manner as process is served in civil actions.” (Emphasis added.) Public Acts 1977, No. 77-603, § 1. Under that provision, the statute plainly required service by a sheriff or other proper authority and, therefore, a citation.

In 1979, the legislature further amended § 4-183 (b) by eliminating the language, “in the same manner as process is served in civil actions,” and by adding a method of service on the agency by certified or registered mail. Public Acts 1979, No. 79-163. As a result of that legislation, subsection (b) provided in part: “Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, thirty days after the decision thereon, except that service upon an agency may be made by mailing a copy of the petition by registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford. ” (Emphasis added.) General Statutes (Rev. to 1981) § 4-183 (b). Accordingly, service of process on the agency, but not on other parties to the appeal, was then permissible by certified or registered mail.

In 1984, however, the legislature further amended § 4-183 (b) specifically to provide that the certified or registered mail could be “without the use of a sheriff or other officer.” Public Acts 1984, No. 84-43, § 1. After that amendment, therefore, subsection (b) provided in part: “Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice [of the final decision] or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.” (Emphasis added.) General Statutes (Rev. to 1985) § 4-183 (b).

The legislative history of this amendment makes clear that it was proposed and adopted in response to a decision of the Appellate Session of the Superior Court; Board of Education v. State Board of Education, 38 Conn. Sup. 712, 461 A.2d 977 (1983); that apparently was understood to hold that even the registered or certified mail service provided by the 1979 legislation required the intervention of a sheriff or other officer. In testimony before the Joint Standing Committee on the Judiciary, Attorney Raphael L. Podolsky explained that House Bill No. 5595, which later became the 1979 public act, was intended (1) to eliminate the need for a sheriff and a citation when service by registered or certified mail was being made on the agency, and (2) to clarify that this had been the original intent of the 1979 legislation. This explanation was echoed on the floor of the legislature. These explanations of legislative intent are, moreover, fully consistent with the language of the 1984 statutory amendment.

The language of General Statutes (Rev. to 1985) § 4-183 (b) remained the same until 1988. By virtue of Public Acts 1988, No. 88-317, §23, §4-183 was amended to provide for the two alternative forms of service now contained in § 4-183 (c) (1) and (2). See footnote 1. Significantly, that amendment did not alter the preexisting provision regarding service by certified or registered mail “without the use of a sheriff or other officer,” except to eliminate the previous limitation thereon to service by mail on the agency. Therefore, since 1988 mail service pursuant to § 4-183 (c) (1), without the necessity of a sheriff or citation, has been permissible with respect to all defendants.

The defendant argues that the service of process in this case was fatally flawed, nonetheless, because, although the petition referred to a return day, it contained no specific language ordering the defendant to appear on or before the second day after the return day. Therefore, the defendant contends that: (1) the court lacked subject matter jurisdiction over this statutory appeal; or (2) in the alternative, this defect deprived the court of personal jurisdiction over the defendant. Consequently, the defendant argues, its timely motion pursuant to Practice Book § 142 warranted dismissal on that basis. We disagree.

Prior to the 1988 amendment to the UAPA, under the case law regarding administrative appeals—at least those appeals served by a sheriff, and not by certified mail—the defendant might have prevailed on this argument. See, e.g., Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356-57, 514 A.2d 749 (1986) (use of improper citation form to commence administrative appeal not fatal to appeal, so long as form gives notice, inter alia, of return day and of “the requirement for filing an appearance”). We are convinced, however, that the 1988 amendment to the UAPA requires a different result in this case.

In 1988, the legislature enacted a comprehensive revision of the UAPA, based upon recommendations made after nearly three years of study and review by the Connecticut law revision commission. See 31 H.R. Proc., Pt. 21,1988 Sess., p. 7320, remarks of Representative Martin Looney; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1988 Sess., p. 185, remarks of David Biklen, executive director of the Connecticut law revision commission; 1987 Thirteenth Annual Report of the Connecticut Law Revision Commission to the General Assembly, March, 1988, p. 31 (Law Revision Commission Report). One of the proposals of the law revision commission involved service of an appeal under § 4-183. That proposal, with minor changes, became what is now § 4-183 (c) and (d). See footnote 1; Public Acts 1988, No. 88-317, § 23; Law Revision Commission Report, supra, p. 63.

Section 4-183 (c) provides, in pertinent part, that the party appealing must, within forty-five days of delivery of the agency decision, “serve a copy of the appeal” on the agency at its office or the office of the attorney general. It also provides: “Within that [forty-five day] time [period], the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.” (Emphasis added.) Section 4-183 (d) provides in pertinent part: “If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal. ” (Emphasis added.)

These two provisions, emphasized above, appear to conflict with respect to the effect of a failure to make service on the agency. The language of § 4-183 (c), that a “failure to make such service within forty-five days on parties other than the agency . . . shall not deprive the court of jurisdiction over the appeal,” implies that a failure to make such service on the agency will deprive the court of “jurisdiction over the appeal,” namely, subject matter jurisdiction. This principle would be consistent with the long-standing, preexisting law that, “[b]ecause the right to take an administrative appeal depends upon statutory authority . . . noncompliance with the statutory requirements of the Uniform Administrative Procedure Act implicates subject matter jurisdiction and renders a nonconforming appeal subject to dismissal. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989); Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326-27, 533 A.2d 852 (1987); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, [supra, 356]; Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985).” McQuillan v. Department of Liquor Control, supra, 670.

The text of § 4-183 (d) provides, however, that “[i]f the failure to make service causes prejudice ... to the agency, the court, after hearing, may dismiss the appeal.” This language provides that even a timely motion to dismiss will not automatically lead to dismissal; dismissal follows only if the court, after hearing, finds that prejudice resulted from the failure to make service. Section 4-183 (d) implies, therefore, that such a failure is not a matter of subject matter jurisdiction, because dismissal based only on a finding of prejudice is inconsistent with the established notion that lack of subject matter jurisdiction requires dismissal, regardless of such factors as prejudice, waiver or consent. See, e.g., United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985).

Statutes should be read so as to harmonize with each other, and not to conflict with each other. See, e.g., Red Rooster v. River Associates, Inc., 224 Conn. 563, 570, 620 A.2d 118 (1993). We resolve the apparent conflict between § 4-183 (c) and (d) by focusing on the language in § 4-183 (c) requiring service on the agency “[wjithin forty-five days.” We read that sentence as imposing a time limitation with respect to subject matter jurisdiction. If there is no service at all on the agency within the forty-five day period, the court lacks subject matter jurisdiction over the appeal by virtue of the clear implication of the language in § 4-183 (c), read against the background of the preexisting law. This reading of § 4-183 (c) is consistent with the recognition that “[tjime limitations for taking appeals do not exist merely for the convenience of the parties but involve a strong public interest in the finality of legal proceedings. For this reason they have generally been regarded as jurisdictional.” Farricielli v. Personnel Appeal Board, 186 Conn. 198, 208, 440 A.2d 286 (1982) (Shea, J., dissenting).

If, however, as in this case, there is an arguable defect in the process that was timely served on the agency— namely, a lack of specific language in the appeal directing the defendant to file an appearance on or before the second day after the return day—rather than a failure to make service at all within the applicable time period, the court does not lack subject matter jurisdiction over the appeal. Under those circumstances, § 4-183 (d) applies, and the appeal is dismissable only upon a finding of prejudice to the agency. In this case, the defendant does not claim any prejudice, and it would be difficult to perceive any, because presumably the attorney general knew the significance of a return day stated on an administrative appeal.

The conclusion that the subject matter jurisdiction of the court is implicated only if there is a total failure to serve the agency within the statutory forty-five day period, and not if there is merely a defect in the document timely served on the agency, is also consistent with our established jurisprudence regarding subject matter jurisdiction. “Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. LeConche v. Elligers, 215 Conn. 701, 709, 579 A.2d 1 (1990), quoting Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981).” (Internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991). The determination of whether a statutory requirement implicates the subject matter jurisdiction of the court “must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.” (Internal quotation marks omitted.) Id. That presumption counsels that, in resolving the apparent conflict between § 4-183 (c) and (d), we construe the subject matter jurisdictional implications of § 4-183 (c) narrowly. See Brunswick v. Inland Wetlands Commission, supra (improperly executed citation does not affect subject matter jurisdiction of court).

The legislative history of No. 88-317 of the 1988 Public Acts supports this interpretation. That history reflects a general intent to modify the prior law so as to simplify and make more fair the process of appealing an agency decision under the UAPA. That intent would not be furthered by an interpretation of the UAPA that would render an appeal served by certified mail pursuant to the plain language of § 4-183 (c) (1) subject to dismissal solely because the appeal failed to notify the attorney general of the necessity of filing a timely appearance.

The defendant argues that this court “has stated unwaveringly that the essentials of a citation must be included in an administrative appeal,” citing McQuillan v. Department of Liquor Control, supra, Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, and Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 170 A.2d 732 (1961). Those cases are not dispositive. First, in none of those cases was service made by certified mail pursuant to § 4-183 (c) (1). In all of those cases, service was made by a sheriff or other officer, who required a citation for his authority to make service. Second, in none of those cases were we interpreting § 4-183 (c) and (d), in the light of the comprehensive revision of the UAPA enacted by the legislature in 1988.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and remand the case to that court with direction to deny the motion to dismiss, and for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 4-183 provides in relevant part: “APPEAL TO supeBIOE COUET. (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.
      “(b) A person may appeal a preliminary, procedural or intermediate agency action or ruling to the superior court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy.
      “(c) Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford-New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.” (Emphasis added.)

       The administrative appeal was headed as follows:
      “RETURN DATE: FEBRUARY 19, 1991 : SUPERIOR COURT
      ANGELITA TOLLY, : JUDICIAL DISTRICT OF
      Appellant : HARTFORD/NEW BRITAIN
      v. :
      CONNECTICUT DEPARTMENT OF : AT HARTFORD
      HUMAN RESOURCES, :
      Appellee : JANUARY 16, 1991
      PETITION FOR ADMINISTRATIVE APPEAL TO THE SUPERIOR COURT FOR THE JUDICIAL DISTRICT OF HARTFORD/NEW BRITAIN AT HARTFORD comes Angelita Tolly of 7 Duncaster Road, Bloomfield, Connecticut, appealing from the December 7,1990 Final Hearing Decision of the Department of Human Resources revoking appellant’s family day care home registration No. 23,260, petitioning this Court for judicial review thereof, and complains and says:
      The appeal concluded as follows:
      “WHEREFORE, appellant Angelita Tolly appeals from the decision of the Department of Human Resources and petitions this Court to sustain her appeal, vacate and set aside the hearing decision, and order reinstatement of Ms. Tolly’s family day care home registration.
      Dated at Hartford, Connecticut this 16th day of January 1991.
      APPELLANT,
      ANGELITA TOLLY
      By /Signed! Ann McClure Ann McClure
      DAY, BERRY & HOWARD City Place
      Hartford, CT 06103-3499 (203) 275-0100”

       At the time of the plaintiff’s filing of her administrative appeal, Practice Book § 49 provided: “mesne process
      “Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with Form 503.1 (JD-FM-3) in family actions and with Form 103.1 (JD-CV-1) in other civil actions. If any person is proceeding without the assistance of counsel, he shall sign the complaint and present the complaint and proposed writ of summons to the clerk; the clerk shall review the proposed writ of summons and, unless it is defective as to form or does not contain a bond for prosecution pursuant to Sec. 51, shall sign it.
      “Form 503.1 (JD-FM-3) and Form 103.1 (JD-CV-1) shall not be used in the following actions and proceedings which are commenced after the effective date of this amendment (January 16, 1978):
      (1) Applications for change of name.
      (2) Proceedings pertaining to arbitration.
      (3) Probate appeals.
      (4) Administrative appeals.
      (5) Juvenile court appeals.
      (6) Verified petitions for paternity.
      (7) Verified petitions for support orders.
      (8) Any actions or proceedings in which an attachment, garnishment or replevy is sought.
      “A plaintiff may, before service on a defendant, alter printed forms JD-FM-3 and JD-CV-1 in order to make them conform to any amendments to Practice Book Forms 503.1 or 103.1 or to any relevant amendments to Practice Book rules.”

       Practice Book § 256 provides: “administrative appeals are civil actions
      “For purposes of these rules, administrative appeals are civil actions. Whenever these rules refer to civil actions, actions, civil causes, causes or cases, the reference shall include administrative appeals except that (a) appeals from judgments of the superior court in administrative appeals shall be by certification only as provided by Gen. Stat., § 51-197b as amended, and by chapter 55 of these rules; and (b) an administrative appeal shall not be deemed an action for purposes of Gen. Stat., § § 52-591, 52-592 or 52-593.”

       The defendant suggests that the language “sheriff or other officer” does not include service by an indifferent person and that, therefore, a citation under General Statutes § 4-183 (c) (1) would command such a person to make service of process by certified or registered mail. We do not believe, however, that by amending § 4-183 to eliminate the necessity of service by a “sheriff or other officer”; see infra; the legislature intended nevertheless to retain such a slender remnant of the prior practice.

       General Statutes § 4-183 (d) provides: “The person appealing, not later than fifteen days after filing the appeal, shall file or cause to be filed with the clerk of the court an affidavit, or the sheriffs return, stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision, and, if service was not made on a party, the reason for failure to make service. If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.”

       Attorney Raphael L. Podolsky testified: “The third one I want to address is House Bill No. 5595 which is an act concerning the service of process in appeals of administrative agency decisions. This is a bill basically to correct what I believe to be an erroneous appellate session decision, interpreting a statute you passed in 1979 to accomplish a particular purpose.
      “Prior to 1977, there were different procedures for taking appeals from different administrative agencies, and some of them when you took the appeal, you could serve the agency by mail. You basically sent [a] certified letter to the commissioner. In others, you have to have the sheriff serve. In 1977, the General Assembly attempted to make these procedures uniform and the law that they passed required sheriff service in all cases. It wasn’t really noticed at the time that this changed the process, for example, serving welfare appeals. In 1979, the legislature looked at that and decided it had made the wrong decision. That is to say, the simpler and more efficient way was that when you’re serving the agency you could serve the agency by certified mail, and you do it yourself, you don’t have to pay sheriff fees for that. And the bill was adopted and that’s basically what it says. If you examine the legislative history from 1979, there is no question that the intention was to dispense with the sheriff in those cases.
      “There are at least two superior court cases that I know of in which that interpretation was confirmed. In 1983 in the case of Board of Education of the City of New Britain v. Connecticut State Board of Education, which is reported at 38 Conn. Supp. 712, [461 A.2d 997 (1983),] the appellate session without looking at the legislative history, ruled that the legislature could not possibly have intended to dispense with the sheriff, and thereby interpreted the statute to require that there be a citation and that the sheriff do the service. What this bill does, it restates the 1979 statute. The problem with doing nothing is it has created a great deal of confusion for administrative appeals. Because many people took administrative appeals without citing in the sheriff. Without putting a citation to the sheriff, so what’s happened is, they have been faced with jurisdictional motions under the 1983 appellate case saying that they do not have the right to bring the appeal because they failed to serve the process properly and of course, at this point in time, the limit for taking the appeal is passed and it’s too late to correct the mistake.
      “And it seems to me that what the legislature ought to do is treat this as a clarification of reassertion that from 1979 on, what this statute did, was to mean you don’t need the sheriff for that purpose.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1984 Sess., pp. 396-97.

       In the Senate, Senator Howard T. Owens, Jr., stated: “It would make it clear that a sheriff or other officer is not needed to serve process on an agency in an appeal from an administrative decision. There apparently has been a court decision that has thrown into question some prior action of the legislation, so it is really clarifying what the intention was of that particular piece of legislation.” 27 S. Proc., Pt. 2, 1984 Sess., p. 779.
      In the House of Representatives, Representative Richard D. Tulisano stated: “[T]he purpose of this legislation is to make it clear and acknowledge that service of process does not have to be by sheriff of an appeal from an administrative agency.” 27 H.R. Proc., Pt. 2,1984 Sess., p. 722.

       Practice Book § 142 provides: “motion to dismiss
      “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the court otherwise directs.”

       Before the Joint Standing Committee on the Judiciary, David Biklen, executive director of the law revision commission, stated: “Let me just give you a couple of examples of problems that these amendments attempt to address in the UAPA. . . . [Wje’ve worked on the service in [sic] filing requirements on appeal, an example of that on a state agency level the set of problems that you are now wrestling with on a local level, whereby a local and zoning appeal was dismissed for-failure to [serve] each person in that appeal. At least on the state level this act would avoid that sort of problem." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1988 Sess., p. 186.
      Steve Frazzini, the executive director of the Hartford County Legal Aid Society, and a member of the advisory groüp that worked with the law revision commission on the proposed revision of the UAPA, also testified before the Judiciary Committee: “Those of this committee who are lawyers . . . know that the current laws . . . about appealing Administrative Agency decisions are a trap for the unwary. . . . Basically, the courts have taken the position that there’s no right to appeal from Administrative Agency decisions except by statute and if the statute isn’t followed in every detail, then you’re thrown out of court.... The problem is that the present statute is very hard to follow .... I think it’s really unfair that the appeal process is so difficult to understand and to comply with. What this bill does is it makes . . . things simpler. . . . [TJhe number of cases where appeals have been dismissed because some supposedly vital party, not the agency, but someone else [was] not served are also far too frequent. What this bill says is that if you serve the agency on time, then the authority to serve anybody else who’s concerned at the time isn’t critical as long as you do serve them and as long as that party isn’t prejudiced by your serving them late. ... So that’s the most important thing that . . . makes what you do to appeal [an] agency decision simpler and fairer.” Conn. Joint Committee Hearings, Judiciary, Pt. 1, 1988 Sess., pp. 263-64.
      This line of criticism of our prior jurisprudence echoes that of Justice David Shea of this court: “I believe this court took the wrong course many years ago when we began to treat virtually every deviation from the statutory norm as a defect that deprives a court of subject matter jurisdiction and thus to be unwaivable by the parties or subject to such considerations as lack of prejudice that are applied in other proceedings. We have been traveling down this path for too long, however, to turn back at this late time without some legislative direction.... Consequently, much as I deplore the jurisprudential path we have taken, I am constrained to continue upon it until such time as we may be directed otherwise by legislative authority.” Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 75-76, 540 A.2d 59 (1988) (Shea, J., concurring); see Farricielli v. Personnel Appeal Board, 186 Conn. 198, 207-11, 440 A.2d 286 (1982) (Shea, J., dissenting). We believe that, by enacting General Statutes § 4-183 (c) and (d), the legislature intended to heed these pleas for greater simplicity and fairness in the administrative appeal process.


author: Callahan, J. Berdon, J.,

text:
    Yale University v. Richard Blumenthal, Attorney General
    (14441)
    Callahan, Borden, Berdon, Katz and F. X. Hennessy, Js.
    Argued November 5, 1992
    decision released March 16, 1993

      Mark R. Kravitz, with whom was Dorothy K. Robinson, for the appellant (plaintiff).

      Janet A. Spaulding, assistant attorney general, with whom were David E. Ormstedt, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (defendant).

      Gregory T. D’Auria, Alan E. Lieberman and Theodore M. Space filed a brief for the Connecticut Association of Independent Schools, Inc., et al., as amici curiae.
   Callahan, J.

This case concerns the proper application and use of a bequest made to the Yale School of Medicine in the will of Thomas F. Smallman, a physician. Smallman was an alumnus of the Yale School of Medicine, a member of the class of 1905. He died in Brooklyn, New York, in 1928, leaving a will that he had executed a short time prior to his death. He was survived by his wife, Jane C. Smallman. In article 22 of his will, Smallman left $225,000 in trust for his wife, directing that it be invested and that the net income be paid to her in quarterly installments during her lifetime, or until she remarried.

Article 22 also provided that upon the death or remarriage of Jane Smallman, “the net principal sum and net undistributed income therefrom, shall thereupon be paid to Yale College, at New Haven, Connecticut, to be used for the building of a wing for the Yale Medical School to be known as the Jane Smallman Wing, for the treatment of the sick poor.” Jane Smallman never remarried. She died in 1987 at the age of 106. Upon her death and the termination of the trust, the trustees paid over to the plaintiff, Yale University (Yale), the sum of $312,086.

At the time of the termination of the trust, the Yale School of Medicine no longer maintained separate physical facilities for the treatment of the “sick poor” as it had in Thomas Smallman’s years as a student there. The amount received by Yale from the trust, moreover, was now insufficient to construct a new wing to the medical school. Because it could not comply with the terms of the will as written, Yale sought the advice of the attorney general in an attempt to achieve an agreement concerning an acceptable alternative use of Smallman’s bequest. The attorney general and Yale, however, were unable to agree on a utilization of the fund that would accommodate the decedent’s wishes.

Yale subsequently filed suit in the Superior Court in the judicial district of New Haven pursuant to the Connecticut Uniform Management of Institutional Funds Act (CUMIFA), seeking the release of the restrictions in Smallman’s will that required that his bequest be used to build a wing to the medical school for the segregated treatment of the “sick poor.” Yale- also sought a decree that, in creating a suitable memorial to Jane Smallman, it be allowed to use the fund for the benefit of its school of medicine in whatever manner it chose to further its educational purposes.

Yale alleged in its complaint that it sought release from the restrictions in Smallman’s will because the restrictions were now “obsolete, inappropriate and impractical, in that: (a) The amount of the bequest is insufficient to cover the cost of a wing to a building; (b) The School of Medicine does not maintain, and it would be medically undesirable to maintain, separate physical facilities for the treatment of patients classified by income level; [and] (c) The creation of a facility ‘for the treatment of the sick poor’ would violate the principle of treating all patients, regardless of their income or resources, in the same facilities.” See General Statutes § 45a-533.

In response, the attorney general moved to strike Yale’s complaint, contending that Smallman’s bequest was not an institutional fund as defined by General Statutes § 45a-527 (2) (B),* * and that the complaint consequently failed to state a cause of action under CUMIFA. See Practice Book § 152. The trial court granted the attorney general’s motion to strike and thereafter rendered judgment against Yale. Yale appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

In granting the motion to strike, the trial court agreed with the attorney general that Smallman’s bequest was not possessed by Yale as an institutional fund as defined by § 45a-527 (2). The court held, therefore, that Yale could not avail itself of General Statutes § 45a-533 as an avenue of relief from the restrictions in Smallman’s will. The court reasoned that the building of a wing to the medical school to treat the “sick poor” was “only incidental to the primary purpose of treating the poor when they became ill.” It appears to have concluded that Smallman’s bequest was not held for Yale’s “exclusive use, benefit or purposes,” and also that the bequest was one “in which a beneficiary that is not an institution has an interest.” General Statutes § 45a-527 (2) (B).

If either or both of the trial court’s conclusions are correct, the fund created by Smallman’s will is not an institutional fund as defined by § 45a-527 (2) (B). The court would have been correct, therefore, in striking Yale’s complaint because § 45a-533, pursuant to which Yale sought the release of the restrictions in the will, has application only to institutional funds.

The particular question posed by this appeal is extremely narrow. The issue of whether Yale may ultimately be entitled to a release or a modification of the restrictions in Smallman’s will is not before us. The only issue raised by the trial court’s decision and the only issue that we decide is whether Smallman’s bequest is held by Yale as an institutional fund under § 45a-527 (2). If it is, Yale is entitled to proceed with its action to seek relief from the restrictions in the will under § 45a-533 and the trial court improperly dismissed its complaint.

Not surprisingly, the issue appears to be one of first impression. In the absence of prior authority to aid in the interpretation of § 45a-527 (2) (B), we are guided by the meaning ascribed by its drafters to the parallel provision of the Uniform Management of Institutional Funds Act (UMIFA). Griffin v. S. W. Devanney & Co., 775 P.2d 555, 559 (Colo. 1989); 2B J. Sutherland, Statutory Construction (5th Ed. 1992) § 52.05; see DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 540-41, 391 A.2d 170 (1978). Section 45a-527 (2) requires that in order to qualify as an institutional fund, a fund first must be held by an institution for “its exclusive use, benefit or purposes.” The quoted language was adopted verbatim by the Connecticut legislature from the language of § 1 (2) of UMIFA, 7A U.L.A. 712 (1985). In its published comments to that section, the commission that drafted UMIFA explained that the placing of a restriction on the use of a gift or bequest to an institution does not mean that the gift or bequest is not for the “exclusive use, benefit or purposes” of the institution, provided the appointed use is one that is within the institution’s lawful purposes. The commission commented that “[t]he ‘use, benefit or purposes’ of an institution broadly encompasses all of the activities permitted by its charter or other source of authority.” UMIFA, § 1 (2), comment, 7A U.L.A. 713 (1985). Moreover, the commission noted that a “fund to provide scholarships for students or medical care for indigent patients is held by the school or hospital for the institution’s purposes.” (Emphasis added.) Id.

A court can “properly consider the official comments as well as the published comments of the drafters as a source for determining the meaning of an ambiguous provision [of a uniform act].” 2B J. Sutherland, supra, § 52.05; Hill v. Blake, 186 Conn. 404, 408, 441 A.2d 841 (1982); General Products Co. v. Bezzini, 33 Conn. Sup. 654, 656-57, 365 A.2d 843 (1976); Griffin v. S. W. Devanney & Co., supra, 560-61. Moreover, it is manifest that the legislature in enacting CUMIFA intended to implement the intention, meaning and objectives of the commission that drafted UMIFA. In § 45a-534 the legislature explicitly stated that “[s]ections 45a-526 to 45a-534, inclusive, [CUMIFA] shall be so applied and construed as to effectuate their general purpose to make uniform the law with respect to the subject of said sections among those states which enact them.” Only if the intent of the drafters of a uniform act becomes the intent of the legislature in adopting it can uniformity be achieved. Manufacturers Hanover Trust Co. v. Bartram, 158 Conn. 48, 64 n.3, 255 A.2d 828 (1969); Layne-Minnesota Co. v. Regents of University of Minnesota, 123 N.W.2d 371, 376 n.13 (Minn. 1963). Otherwise, there would be as many variations of a uniform act as there are legislatures that adopt it. Such a situation would completely thwart the purpose of uniform laws.

The treatment of the “sick poor” is an activity in which the Yale School of Medicine can, and does, lawfully engage. The fund received by Yale from Smallman’s will therefore fits within the first prong of the definition of an institutional fund as contemplated by the commission that drafted the uniform law from which CUMIFA is derived.

Section 45a-527 (2) (B) also requires that, in order to qualify as an institutional fund, a fund may not be one “in which a beneficiary that is not an institution has an interest, other than possible rights that could arise upon violation or failure of the purposes of the fund.” CUMIFA does not define “beneficiary” and its meaning in the context in which it is used, contrary to the protestations of the attorney general, is ambiguous. We therefore are not confined to the words of the statute for insight as to the meaning of “beneficiary.” Zachs v. Groppo, 207 Conn. 683, 690, 542 A.2d 1145 (1988); King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987).

The commission in its comments addressed to § 1 (2) (ii) of UMIFA; 7A U.L.A. 713 (1985); which was adopted word for word by the legislature when it enacted § 45a-527 (2) (B), explained that a fund held by an institution for “an individual beneficiary such as an annuity trust or a unitrust” would not be an institutional fund. (Emphasis added.) The commission stated, however, that a fund held by a school for scholarships or by a hospital for the medical care of indigent patients “is not deemed to be held for the benefit of a particular student or patient as distinct from the use, benefit or purposes of the institution, nor does the student or patient have an interest in the fund as a ‘beneficiary which is not an institution.’ ” UMIFA, § 1 (2), comment, 7A U.L.A. 713 (1985). Although the “sick poor” can be said to have an interest in Smallman’s bequest in the sense that they might have rights that accrue should the bequest fail or Yale violate its purposes, that situation is explicitly anticipated by § 45a-527 (2) (B) and does not take the bequest outside the definition of an institutional fund. UMIFA, § 1 (2), comment, 7A U.L.A. 713 (1985). From the explanatory comments of the commission that drafted UMIFA and a plain reading of § 45a-534, we discern that it was the legislative intention that a fund bequeathed to an institution, for the ultimate benefit of an inchoate group or class, through the medium of the institution, is held by the institution for its “exclusive use, benefit or purposes” within the meaning of § 45a-527 (2) (B) and therefore is an institutional fund.

If the decision of the trial court were affirmed, it would eviscerate § 45a-533. An institution that is a recipient of a gift without restrictions would have no need for recourse to § 45a-533. It is only gifts upon which restrictions have been imposed that might require the release or variation of those restrictions. If, however, every gift to an institution, encumbered by restrictions, were excluded from the definition of an institutional fund under § 45a-527 (2) (B), institutions that desired to seek the release of such restrictions as are “obsolete, inappropriate or impracticable” would be unable to endeavor to secure their release pursuant to § 45a-533. Such a result would render § 45a-533 a superfluous piece of legislation. We do not attribute the intent to achieve such a result to the legislature. Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984); State v. Cambria, 137 Conn. 604, 610, 80 A.2d 516 (1951). We conclude consequently that the fund derived from Smallman’s will is held by Yale as an institutional fund and Yale may seek relief pursuant to § 45a-533 (b) from the restrictions imposed by the will.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion Borden, Katz and F. X. Hennessy, Js., concurred.

Berdon, J.,

dissenting. In this case the majority leaves behind basic tenets of statutory construction in reaching the result that the Connecticut Uniform Management of Institutional Funds Act (CUMIFA), governs Dr. Thomas F. Smallman’s bequest made for the benefit of the “sick poor.” The statutory interpretation lays the ground work for the bequest ending up in the coffers of Yale University for the benefit of its medical school. The majority concludes that Smallman’s bequest comes within CUMIFA because it is an “institutional fund” pursuant to General Statutes § 45a-527 (2). Because I believe that Smallman’s bequest does not come within the definition of an institutional fund under CUMIFA, I dissent.

Smallman’s bequest is simple and forthright. He left the sum of $225,000 in trust to pay the income to his wife and upon her death, “the net principal sum and net undistributed income therefrom, shall thereupon be paid to Yale College, at New Haven, Connecticut, to be used for the building of a wing for the Yale Medical School, to be known as the Jane Smallman Wing, for the treatment of the sick poor.” (Emphasis added.) It is clear that when the trustee paid $312,000 to Yale University (Yale), which sum represented the balance of the fund, Yale held it as trustee for the benefit of the sick poor. Dwyer v. Leonard, 100 Conn. 513, 518, 124 A. 28 (1924); see Averill v. Lewis, 106 Conn. 582, 590, 138 A. 815 (1927); 2 Restatement (Second), Trusts § 348 (1959).

By labeling this bequest an institutional fund under CUMIFA, the majority gives the Superior Court the power to “release the restriction in whole or in part” if “the restriction is obsolete, inappropriate or impracticable.” General Statutes § 45a-533. There is no question that in 1993 Smallman’s bequest of $312,000 cannot build a “wing for the Yale Medical School . . . for the treatment of the sick poor,” and is therefore obsolete and impracticable. Under these circumstances, if CUMIFA applies, the trial court may release the restriction and the $312,000 becomes a gift to Yale. A review of Yale’s prayer for relief in this matter indicates that this is exactly the direction the gift is headed; Yale seeks to release the restriction and obtain a decree from the court permitting the fund to be used by “Yale University for the benefit of its School of Medicine in whatever manner it may choose in the furtherance of its educational purposes . . . .” (Emphasis added.)

If, however, Yale were required to petition the court for relief under the doctrine of cy pres, the court would be authorized to release the restriction, but only by directing that the fund be used to approximate the general intent of Smallman—that is, to benefit the sick poor. Duncan v. Higgins, 129 Conn. 136, 140, 26 A.2d 849 (1942). The difference is critical—under CUMIFA, Yale may use the fund for its own purposes; under the doctrine of cy pres, Yale must maintain and expend the funds for the sick poor.

The plain language of § 45a-527 (2) sets forth a two part test for determining whether a fund is an institutional fund under CUMIFA: (1) the fund must be held by the institution “for its exclusive use, benefit or purposes”; and (2) the institution must be the beneficiary of the fund. Under ordinary principles of statutory construction, we look first to the plain language of the statute to ascertain its meaning. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Instead, the majority looks to comments published not by Connecticut legislators, but by the drafters of the Uniform Management of Institutional Funds Act. Only if the statutory language is ambiguous may we refer to such commentary. See State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986).

In the present case, the plaintiff is unable to satisfy either requirement of the two part test. In making this determination, we must focus on the clear and unequivocal language of the bequest. The fund is not for Yale’s “exclusive use,” nor is it for Yale’s “exclusive . . . benefit,” nor is it for Yale’s “exclusive . . . purposes.” Rather, Smailman’s gift was designated for the exclusive use and benefit of an identifiable group—the sick poor. Yale, the institution, is not the beneficiary of Smallman’s bequest, but merely the trustee. The gift to build a hospital wing was intended to benefit the sick poor.

Furthermore, the majority’s construction of CUMIFA renders meaningless the statute on charitable trusts, General Statutes § 45a-514, which requires that a trust “shall forever remain to the uses and purposes to which it has been granted according to the true intent and meaning of the grantor and to no other use.” Moreover, General Statutes § 47-2 provides that all “estates granted ... for the relief of the poor ... or for any other public and charitable use, shall forever remain to the uses to which they were granted, according to the true intent and meaning of the grantor, and to no other use whatever.” The majority refuses to consider these statutes in interpreting CUMIFA and considering whether Smallman’s bequest is an institutional fund because they were not the basis for the attorney general’s motion to strike and were not raised before the trial court. No authority or rationale is cited for this unusual standard of review.

Not only is the construction of a statute a question of law; Southington v. State Board of Labor Relations, 210 Conn. 549, 559, 556 A.2d 166 (1989); but there is a fundamental rule of statutory construction that “statutes relating to the same subject matter may be looked to for guidance in reaching an understanding of the meaning of a statutory term.” Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 (1978). The entire statutory framework of administering charitable bequests must be harmonized; see Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989); and we cannot ignore this body of statutory and common law merely because the attorney general failed to raise it in the trial court.

Finally, because CUMIFA provisions for releasing restrictions are in derogation of the common law, the provisions must be strictly construed. Yale University School of Medicine v. Collier, 206 Conn. 31, 36, 536 A.2d 588 (1988). Only when it is clear that the donor intended to make the institution the object of his or her charitable bequest, should a fund be labeled an institutional fund. In this case, the unequivocal object of the bequest was to benefit the sick poor.

I am not quite certain of the majority’s meaning when it states in footnote 5 that “the doctrine of cy pres or approximation applies to institutional funds. General Statutes § 45a-533 (d).” If the majority is suggesting that § 45a-533 (d) gives the trial court authority to apply the principles of cy pres, even though Yale’s complaint in this matter seeks relief solely under CUMIFA, it should say so. Although such a holding would take the sharp edges off CUMIFA by giving the trial court the discretion to apply the doctrine of cy pres, I believe this would be a legislative excursion on the part of the majority. Section 45a-533 (d) merely states that “[t]his section does not limit the application of the doctrine of cy pres or approximation.” (Emphasis added.) In other words, the statute permits a trustee to bring a petition under cy pres, but it does not give the court the power to employ cy pres principles when the complaint seeks relief under CUMIFA only. The comments published by the commission that drafted the Uniform Management of Institutional Funds Act, although not completely clear, tend to support this interpretation. The comments to § 7 provide in part: “Subsection (d) makes it clear that the [Uniform Management of Institutional Funds] Act does not purport to limit the established doctrine of cy pres. . . . The Uniform Act provision is far less broad; it applies only to the release of restrictions on the gift under limited circumstances. ” (Emphasis added.) Uniform Management of Institutional Funds Act, § 7 (d), comment, 7A U.L.A. 723, 724 (1985).

Accordingly, I dissent.

       See General Statutes §§ 45a-526 through 45a-534.

       “[General Statutes] Sec. 45a-533. (Formerly Sec. 45-100o). release OF RESTRICTION IN GIFT INSTRUMENT: WRITTEN CONSENT, COURT ORDER. LIMITATIONS. DOCTRINE OF CY PRES applicable, (a) With the written consent of the donor, the governing board may release, in whole or in part, a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund.
      “(b) If written consent of the donor cannot be obtained by reason of his death, disability, unavailability or impossibility of identification, the governing board may apply, in the name of the institution, to the superior court for a judicial district in which the institution conducts its affairs for release of a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund. The attorney general shall be notified of the application and shall be given an opportunity to be heard. If the court finds that the restriction is obsolete, inappropriate or impracticable, it may by order release the restriction in whole or in part. A release under this subsection may not change an endowment fund to a fund that is not an endowment fund.
      “(c) A release under this section may not allow a fund to be used for purposes other than the educational, religious, charitable or other eleemosynary purposes of the institution affected.
      “(d) This section does not limit the application of the doctrine of cy pres or approximation.”

       General Statutes § 45a-527 (2) (B) provides: “definitions. As used in sections 45a-526 to 45a-534, inclusive . . .
      “(2) ‘Institutional fund’ means a fund held by an institution for its exclusive use, benefit or purposes, but does not include . . . (B) a fund in which a beneficiary that is not an institution has an interest, other than possible rights that could arise upon violation or failure of the purposes of the fund.”

       The attorney general in his brief voices concerns with regard to the constitutionality of General Statutes § 45a-533, its relationship to the statute of charitable trusts, General Statutes § 45a-514, the statute of charitable uses, General Statutes § 47-2, and the doctrines of cy pres and approximation. Those concerns were not the basis for the attorney general’s motion to strike, were not raised in the trial court, are not the subject of this appeal and are premature. We therefore decline to address them.

       Under CUMIFA, the doctrine of cy pres or approximation applies to institutional funds. General Statutes § 45a-533 (d). We believe that the dissent misconstrues the relationship between CUMIFA and the doctrines of cy pres and approximation. CUMIFA is not mutually exclusive of these doctrines; the trial court may apply, and indeed has a responsibility to apply, these doctrines to an institutional fund as equity dictates. Cf. Lockwood v. Killian, 172 Conn. 496, 508, 375 A.2d 998 (1977).
      “New England courts apply a rather strict doctrine of separation of powers to deny legislative encroachment on judicial cy pres. The [Uniform Management of Institutional Funds] Act is compatible with the New England cases because the final decision is in the courts. See City of Hartford v. Larrabee Fund Association, 161 Conn. 312, 288 A.2d 71 (1971); Opinion of Justices, 101 N.H. 531, 133 A.2d 792 (1957).” Uniform Management of Institutional Funds Act, § 7 (d), comment, 7A U.L.A. 723, 724 (1985).

       It is undisputed that Yale is an “Institution” within the meaning of General Statutes § 45a-527 (1).

       The Connecticut legislature adopted the Uniform Management of Institutional Funds Act (UMIFA) in 1973. Public Acts 1973, No. 73-548, now codified as General Statutes §§ 45a-526 through 45a-534, the Connecticut Uniform Management of Institutional Funds Act (CUMIFA).

       An annuity trust is a form of trust calling for payment of a fixed amount of income regardless of the amount of principal. Black’s Law Dictionary (5th Ed.).

       A unitrust is a trust from which a fixed percentage of the net fair market value of the trust’s assets, valued annually, is paid each year to the trustee. Black’s Law Dictionary (5th Ed.).

       See footnote 2.

       General Statutes §§ 45a-526 through 45a-534.

       General Statutes § 45a-527 (2) provides: “ ‘Institutional fund’ means a fund held by an institution for its exclusive use, benefit or purposes, but does not include (A) a fund held for an institution by a trustee that is not an institution, other than a fund which is held for a charitable community trust or (B) a fund in which a beneficiary that is not an institution has an interest, other than possible rights that could arise upon violation or failure of the purposes of the fund.”

       “Ordinarily it is of little consequence whether a gift to a charitable corporation for one or more of its corporate purposes be in form a gift outright or a gift in trust. In either case the corporation holds it upon a trust which may be enforced through the visitorial power of the State.” Dwyer v. Leonard, 100 Conn. 513, 518, 124 A. 28 (1924).

       Yale’s prayer for relief claims: “1. A decree releasing the restrictions on the use of the bequest of Dr. Smallman to the effect that it be used ‘for the building of a wing for Yale Medical School’ and that the wing be used ‘for the treatment of the sick poor.’
      “2. A decree permitting the bequest of Dr. Smallman to be used by Yale University for the benefit of its School of Medicine in whatever manner it may choose in the furtherance of its educational purposes as a suitable memorial in the name of Jane Smallman.
      “3. Such other relief as may be appropriate.”

       See footnote 7 of the majority opinion.

       General Statutes § 45a-514 provides: “Any charitable trust or use created in writing or by deed by any resident of the state, or any public and charitable trust or use for aiding and assisting any person or persons to be selected by the trustees of such trust or use to acquire education, shall forever remain to the uses and purposes to which it has been granted according to the true intent and meaning of the grantor and to no other use.”

       General Statutes § 45a-533 (b) gives the trial court discretion to release a restriction that is obsolete, inappropriate or impracticable in whole or in part without regard to cy pres. Notwithstanding § 45a-533 (b), the majority seems to be holding that the trial court must apply the doctrine of cy pres to an institutional fund as equity dictates. If this is the case, what is the purpose of § 45a-533 (b)? Indeed in the comments to the uniform act there is not even a suggestion that it was the intent of the drafters to require the application of cy pres, even if equity dictates, if the fund is designated an institutional fund. The institution may choose to invoke cy pres, but if it fails to do so, the court’s discretion under CUMIFA is to release in whole or in part the restriction or to deny the application.