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*********************************************** 
ONE ELMCROFT STAMFORD, LLC v. ZONING

BOARD OF APPEALS OF THE CITY

OF STAMFORD ET AL.

(AC 41208)

Sheldon, Elgo and Lavery, Js.*

Syllabus

The plaintiff appealed to the trial court from the decision by the defendant

zoning board of appeals granting the application of the defendant P,

filed on behalf of the defendant P Co., for approval of the location of

a used car dealer on certain real property. The plaintiff claimed, inter

alia, that the board failed to conduct the requisite suitability analysis,

as required by the applicable statute (§ 14-55). The court agreed with

the plaintiff’s argument that § 14-55 applied and acknowledged that the

board’s certificate of approval looked and read like a variance, but

concluded that the board gave due consideration to the suitability of

the proposed use and that the board’s decision was, thus, akin to an

approval under § 14-55. The trial court subsequently rendered judgment

denying the plaintiff’s appeal from the board’s decision, from which the

plaintiff appealed to this court. On appeal, the plaintiff claimed, inter

alia, that although published editions of the General Statutes have stated

that § 14-55 has been repealed, in actuality, it has not been repealed,

and that had the board properly followed § 14-55, it would have considered the suitability factors set forth therein. Although Public Acts 2003,

No. 03-184, § 10 (P.A. 03-184), repealed § 14-55, effective October 1,

2003, Public Acts 2003, No. 03-265, § 9 (P.A. 03-265), which also became

effective October 1, 2003, repealed and replaced § 14-55. Held:

1. The plaintiff could not prevail on its claim that the trial court improperly

concluded that the named applicant, P, had standing to apply to the

board for location approval and, accordingly, was a proper party, which

was based on its claim that P Co., in its business capacity, sought a

used car dealer’s license from the Department of Motor Vehicles, but

the certificate of approval of the location application and subsequent

hearing notification listed P as the applicant and, thus, the board’s

approval of P’s application was improper because its decision was rendered in favor of a person rather than in the name of the proposed

licensee; the record revealed that although P Co. was not the named

applicant on the certificate of approval application, the totality of the

circumstances sufficiently linked P to P Co., such that no one was misled

or misunderstood the nature of the application, and, thus, the trial court

did not err in concluding that P, as a representative of P Co., had standing

to apply to the board for location approval.

2. Because § 14-55 has not been repealed, the board should have reviewed

P’s application under the standard set forth therein; given that there

was no mention in P.A. 03-265, which repealed and replaced § 14-55,

effective October 1, 2003, of P.A. 03-184, which ostensibly repealed § 14-

55, effective October 1, 2003, and it was impossible to simultaneously

give effect to both of those public acts, they were in irreconcilable

conflict, and, thus, pursuant to statute (§ 2-30b), the later public act,

P.A. 03-265, was deemed to have repealed and replaced the older public

act, P.A. 03-184.

3. The board mistakenly treated P’s application as if it were an application

for a variance and, thus, failed to comply with the requirements set

forth in § 14-55 in granting that application; even though P’s application

was a matter to which § 14-55 applied and even though the board heard

evidence and issued several conditions of approval that, to some extent,

could pertain to suitability, the record revealed that on several occasions

P’s application was referred to and treated as an application for a variance, the reasons that the board provided in its certificate of approval

and the conditions provided therein were made with reference to an

application for a variance, the board issued only one factual finding, in

which it expressly applied variance standards provided in the local

zoning regulations, and the board issued no findings as to the suitability

factors enumerated under § 14-55.
4. The trial court erred in searching beyond the board’s stated reason for

approval to find a basis for the board’s decision and improperly upheld

the board’s decision on alternative grounds; because the board had

stated its reason for approval, the trial court was not permitted to search

the record for evidence that could support alternative grounds on which

the board could have granted P’s application, and, thus, when the court

reviewed the record to determine whether the evidence could support

a conclusion that the suitability requirement of § 14-55 was satisfied,

even though the board did not make any findings on that point, the

court was incorrect in substituting its own judgment for that of the board.

Argued February 13—officially released September 3, 2019

Procedural History

Appeal from the decision by the named defendant

granting the application of the defendant Pasquale

Pisano for approval of the location of a used car dealer

on certain real property, brought to the Superior Court

in the judicial district of New Britain and transferred

to the judicial district of Stamford-Norwalk, where the

matter was tried to the court, Hon. Taggart D. Adams,

judge trial referee; judgment denying the plaintiff’s

appeal, from which the plaintiff appealed to this court.

Reversed; further proceedings.

Jeffrey P. Nichols, with whom was John W. Knuff,

for the appellant (plaintiff).

James V. Minor, special corporation counsel, with

whom was Kathryn Emmett, director of legal affairs,

for the appellee (named defendant).

Gerald M. Fox III, for the appellees (defendant Pasquale Pisano et al.).
Opinion

LAVERY, J. The plaintiff, One Elmcroft Stamford,

LLC, appeals from the judgment of the Superior Court

denying its appeal from the decision of the defendant

Zoning Board of Appeals of the City of Stamford

(board), approving the application of the defendant Pasquale Pisano (defendant) to locate the defendant used

car business, Pisano Brothers Automotive, Inc. (Pisano

Brothers), at 86 Elmcroft Road in Stamford. On appeal,

the plaintiff claims that the court improperly (1) determined that the defendant had standing to apply to the

board for approval of the application, (2) upheld the

board’s decision, despite the board’s failure to review

the application in accordance with General Statutes

§ 14-55,1 and (3) searched beyond the board’s stated

reason for approval of the application.2 We disagree

with the plaintiff’s first claim but agree with the plaintiff’s second and third claims. Accordingly, we reverse

the judgment of the Superior Court.

The following facts and procedural history are relevant. Pisano Brothers is the lessee of the 6500 square

foot parcel located at 86 Elmcroft Road in Stamford

(property), in a General Industrial (M-G) zone. The

plaintiff owns abutting property at 126 Elmcroft Road.

In June, 2016, the defendant, on behalf of Pisano

Brothers, applied for a used car dealer license from the

Department of Motor Vehicles, listing himself as vice

president and his brother as president. Pursuant to General Statutes § 14-54, a license for ‘‘dealing in or

repairing motor vehicles’’ requires a ‘‘certificate of

approval of the location’’ (certificate of approval) from

the appropriate local board. Accordingly, the defendant

additionally applied to the board for its approval of a

‘‘used car dealer’’ on the M-G zoned property (Pisano

application).

The board referred the Pisano application to various

city agencies and boards. The record contains advisements from the Planning Board of the City of Stamford

(planning board) and the Engineering Bureau of the

City of Stamford (engineering bureau). In a letter to

the board dated September 8, 2016, the planning board

‘‘unanimously recommended denial of [the Pisano application],’’ opining ‘‘that the proposed application does

not keep with the character of the neighborhood and

. . . [is] not consistent with the 2015 Master Plan Category #9 (Urban Mixed-Use).’’ The engineering bureau

advised that it found the proposal ‘‘will not result in any

adverse drainage impacts’’ and, further, that approval

of the Pisano application should be conditioned on the

installation of a ‘‘[n]ew concrete curb and sidewalk

. . . along the frontage of the property.’’

On September 14, 2016, the board held a public hearing on the Pisano application. The board posed several

questions to the defendant and his attorney, Gerald
M. Fox III. Two individuals spoke against the Pisano

application. They were concerned about the inability

to conceal the building and parking lot on the property

with fencing, the lack of sidewalks, and the potential

for a crowded parking lot. The plaintiff did not offer

comment. The board, during its deliberations, noted

that the defendant seemed amenable to complying with

various conditions of approval that would make the

property compatible with the local neighborhood. The

board unanimously voted to approve the Pisano application. Subsequently, on September 29, 2016, the board

issued a letter to the defendant, stating its approval and

setting forth several conditions.

Pursuant to General Statutes § 14-57 and the Uniform

Administrative Procedure Act (UAPA), General Statutes § 4-183 et seq., the plaintiff appealed to the Superior

Court. The plaintiff advanced three claims: (1) the

defendant was not a proper party and lacked standing

to apply to the board for location approval, (2) the

board did not comply with hearing notice requirements,

and (3) the board failed to conduct the requisite suitability analysis, as prescribed in § 14-55. As to the first two

claims, the court disagreed. As to the third claim, the

court agreed with the plaintiff’s argument that § 14-55

applied and further acknowledged that ‘‘the board’s

certificate of approval looks and reads like a variance.’’

Upon its review of the transcript from the September

14, 2016 public hearing, however, the court concluded

that the board, nonetheless, gave due consideration to

the suitability of the proposed use. It, therefore, reasoned that the board’s decision was akin to an approval

under § 14-55.3 Accordingly, the court, in its memorandum of decision dated December 13, 2017, denied the

plaintiff’s appeal. Subsequently, pursuant to General

Statutes § 4-184, the plaintiff appealed to this court.4

Additional facts and procedural history will be set forth

as necessary.

I

We first address the plaintiff’s claim that the court

improperly concluded that the named applicant, the

defendant, had standing to apply to the board for location approval and, accordingly, was a proper party. The

plaintiff notes that Pisano Brothers, in its business

capacity, sought a used car dealer’s license from the

Department of Motor Vehicles, but the certificate of

approval application and the subsequent hearing notification listed the defendant as the applicant. Accordingly, the plaintiff contends that the board’s approval

of the Pisano application was improper because its

decision was rendered in favor of a person rather than

in the name of the proposed licensee. The plaintiff cited

no authority in support of this proposition. We are

not persuaded.

‘‘[T]he standard for determining whether a party has

standing to apply in a zoning matter is less stringent
[than the standard that applies to a determination of

whether a party is aggrieved]. A party need have only

a sufficient interest in the property to have standing to

apply in zoning matters. . . . [I]t is not possible to

extract a precise comprehensive principle which adequately defines the necessary interest . . . .’’ (Internal

quotation marks omitted.) RYA Corp. v. Planning &

Zoning Commission, 87 Conn. App. 658, 663, 867 A.2d

97 (2005). Here, the issue is not whether Pisano Brothers has standing but, instead, whether standing, in

effect, was voided by virtue of a technical glitch in

listing the defendant as the applicant.

RYA Corp. v. Planning & Zoning Commission,

supra, 87 Conn. App. 658, presented similar circumstances as in the present case. In that case, the applicable zoning regulations required that an applicant be a

‘‘record owner or developer . . . .’’ (Emphasis omitted;

internal quotation marks omitted.) Id., 669. Although the

plaintiff subdivision applicant, The RYA Corporation

(RYA), did not qualify as such, the plaintiff record

owner, Myers Nursery, Inc. (Myers, Inc.), consented in

writing to RYA filing the application. Id., 667–68. The

defendant planning and zoning commission claimed

that the trial court improperly concluded that Myers,

Inc., had standing to appeal the planning and zoning

commission’s decision, arguing that RYA had not

‘‘established definitively by the terms of the consent

form’’ that it was acting under the authority of Myers,

Inc. Id., 668.

This court concluded that the property owner requirement set forth in the applicable zoning regulations was

satisfied, stating: ‘‘As a matter of law, we are not persuaded that the trial court was required to read these

documents as narrowly as do[es] the [planning and

zoning commission]. Taking into account the totality

of the relationship between Myers, Inc., and RYA, the

court had the authority to conclude that the physical

linkage between the application and the consent form

gave Myers, Inc., a sufficient interest to have standing

to contest the denial of the proposed subdivision. This

conclusion is supported not only by the nature of the

documentation itself but because, as noted previously,

the court reasonably might have found that RYA was

acting as Myers, Inc.’s agent in filing the subdivision

application.’’ Id.; see also Loew v. Falsey, 144 Conn. 67,

73–74, 127 A.2d 67 (1956) (fact that owner of corporation, E. M. Loew, applied for permit in his own name,

rather than in name of his corporation, E. M. Loew,

Inc., did not mislead anyone and there was no reason

why permit could not have been granted under name

provided, and, accordingly, no jurisdictional defect

resulted simply by incorrectly using name of owner in

permit application).

Similarly, the record in the present case reveals that

although Pisano Brothers was not the named applicant
on the certificate of approval application, the totality

of the circumstances sufficiently link the defendant to

Pisano Brothers, such that no one was misled or misunderstood the nature of the application. The application

for a used car dealer license from the Department of

Motor Vehicles lists ‘‘Pisano Brothers Automotive Inc.’’

as the name under which the business was to be conducted, with the defendant and his brother identified

as officers of the company. The proposed improvement

location survey identified ‘‘Pisano Brothers Automotive, Inc.,’’ as the prospective user. Additionally, at the

outset of the public hearing, the defendant was introduced as one of the owners of Pisano Brothers, along

with his brother. Accordingly, we conclude that the

court did not err in concluding that the defendant, as

a representative of Pisano Brothers, had standing to

apply to the board for location approval.

II

The plaintiff claims that the court erred in upholding

the board’s decision, despite the board’s failure to apply

the standard set forth in § 14-55. Although the plaintiff

did not offer comment or argument before the board

during the public hearing, the plaintiff argued before

the trial court that despite the fact that the then current

edition of the General Statutes provided that § 14-55

had been repealed, in actuality, it had not been repealed.

The plaintiff contended that had the board properly

followed § 14-55, it would have considered the suitability factors set forth therein, namely, ‘‘due consideration

to [the proposed use’s] location in reference to schools,

churches, theaters, traffic conditions, width of highway

and effect on public travel.’’ The plaintiff, therefore,

contended that the board not only failed to issue any

findings as to these suitability factors, but, further, it

improperly treated the Pisano application as one for a

variance. The court concluded that the record reflected

that the board gave due consideration to the requisite

suitability factors. The court, therefore, denied the

plaintiff’s appeal.

Before this court, the plaintiff maintains that, despite

the fact that published editions of the General Statutes

have stated that § 14-55 has been repealed, in actuality,

it has not been repealed. The board agrees that the

statute has not been repealed but argues, nonetheless,

that it substantially complied with the statute’s requirements in granting the Pisano application. The defendant

and Pisano Brothers argue that § 14-55 was repealed but

that, even if it was not repealed, the board substantially

complied with the statute. We conclude that (1) § 14-

55 had not been repealed at the time of the board’s

action on the Pisano application, and (2) the board

mistakenly treated the Pisano application as if it were

an application for a variance and, thus, failed to comply

with the requirements set forth in § 14-55 in granting

that application. We will address both matters in turn.
A

As a threshold matter, we address whether § 14-55

had been repealed at the time of the board’s action.

This precise issue was addressed by our Superior Court

in 2011 in an opinion authored by the court, D. Tobin,

J., which concluded that § 14-55 was not repealed. See

East Coast Towing, Ltd. v. Zoning Board of Appeals,

Superior Court, judicial district of Stamford-Norwalk,

Docket No. CV-10-6003028-S (March 2, 2011) (51 Conn.

L. Rptr. 572). The plaintiff submits that the court’s decision in East Coast Towing, Ltd., was sound and, accordingly, that the court correctly concluded that § 14-55

remained in effect, despite its apparent repeal. We agree

with Judge Tobin’s well reasoned decision in East Coast

Towing, Ltd., and, accordingly, conclude that § 14-55

has not been repealed.

‘‘The meaning of a statute shall, in the first instance,

be ascertained from the text of the statute itself and

its relationship to other statutes. If, after examining

such text and considering such relationship, the meaning of such text is plain and unambiguous and does

not yield absurd or unworkable results, extratextual

evidence of the meaning of the statute shall not be

considered.’’ General Statutes § 1-2z. Following the

apparent repeal of § 14-55, we are left with no text

to consider. Accordingly, to determine whether this

statute remains in effect, we will look to extratextual

evidence, such as the legislative history. See State v.

Russo, 259 Conn. 436, 447–48, 790 A.2d 1132 (process

of statutory interpretation involves, inter alia, searching

legislative history to discern legislative intent), cert.

denied, 537 U.S. 879, 123 S. Ct. 79, 154 L. Ed. 2d 134

(2002). Although compilations of the General Statutes

list § 14-55 as having been ‘‘repealed,’’ this fact is not

dispositive of the issue at hand.5

Judge Tobin’s decision in East Coast Towing, Ltd.,

provides a well reasoned and principled basis upon

which we also conclude that § 14-55 has not been

repealed. Judge Tobin’s reasoning was as follows. In

2003, the legislature made a series of changes to § 14-

55. First, in Public Acts 2003, No. 03-184, § 10 (P.A. 03-

184), the legislature ostensibly repealed § 14-55 of our

General Statutes, effective October 1, 2003. East Coast

Towing, Ltd. v. Zoning Board of Appeals, supra, 51

Conn. L. Rptr. 575. The legislature then, in Public Acts

2003, No. 03-265, § 9 (P.A. 03-265), repealed and

replaced § 14-55, also effective October 1, 2003.6

Id.,

575–76. Finally, in Public Acts 2003, No. 03-278, § 40,

which took effect from passage on July 9, 2003, the

legislature repealed and replaced the then current version of § 14-55, making a minor, technical correction

to it without any mention of either P.A. 03-184, § 10, or

P.A. 03-265, § 9, both of which were to become effective

on October 1, 2003.7 See id., 576.
Pursuant to General Statutes § 2-30b (a), ‘‘[w]hen two

or more acts passed at the same session of the General

Assembly amend the same section of the general statutes, or the same section of a public or special act, and

reference to the earlier adopted act is not made in the

act passed later, each amendment shall be effective

except in the case of irreconcilable conflict, in which

case the act which was passed last in the second house

of the General Assembly shall be deemed to have

repealed the irreconcilable provision contained in the

earlier act . . . .’’ Our Supreme Court has held that the

term ‘‘amendment,’’ as used in § 2-30b, applies ‘‘to all

acts which expressly change existing legislation,’’

including public acts. (Internal quotation marks omitted.) State v. Kozlowski, 199 Conn. 667, 676, 509 A.2d

20 (1986).

In the present case, there is no mention in P.A. 03-

265 of P.A. 03-184, and it is impossible to give effect to

both public acts, simultaneously. Accordingly, P.A. 03-

184 and P.A. 03-265 are in ‘‘irreconcilable conflict.’’

Thus, pursuant to § 2-30b, the later public act must be

deemed to have repealed and replaced the older public

act. See also footnote 7 of this opinion.

Public Act 03-184 was passed by the House of Representatives on May 13, 2003, then by the Senate on June

2, 2003, and, subsequently was signed into law by the

governor on June 26, 2003. Public Act 03-265 was passed

by both houses of the legislature on June 4, 2003, and,

subsequently was signed into law by the governor on

July 9, 2003. With both public acts being in irreconcilable conflict, and with P.A. 03-265 being enacted last,

P.A. 03-265 sets forth the version of the statute that

went into effect.

We are aware of no laws that have been passed to

repeal or otherwise amend § 14-55 since Judge Tobin’s

decision in East Coast Towing, Ltd. Additionally, no

appeal was taken from Judge Tobin’s decision and, otherwise, there have been no appellate decisions

addressing whether the version of § 14-55 set forth in

P.A. 03-265 has been repealed. We are persuaded that

Judge Tobin’s analysis is correct, and, therefore, we

adopt his reasoning.

Accordingly, we conclude, in accordance with the

language of P.A. 03-265, § 9, that the current revision

of § 14-55 of the General Statutes, which remains in

effect to this date, provides: ‘‘In any town, city or borough the local authorities referred to in section 14-54

shall, upon receipt of an application for a certificate of

approval referred to in said section, assign the same

for hearing within sixty-five days of the receipt of such

application. Notice of the time and place of such hearing

shall be published in a newspaper having a general

circulation in such town, city or borough at least twice,

at intervals of not less than two days, the first not more
than fifteen, nor less than ten days, and the last not

less than two days before the date of such hearing and

sent by certified mail to the applicant not less than

fifteen days before the date of such hearing. All decisions on such certificate of approval shall be rendered

within sixty-five days of such hearing. The applicant

may consent to one or more extensions of any period

specified in this section, provided the total extension

of any such period shall not be for longer than the

original period as specified in this section. The reasons

for granting or denying such application shall be stated

by the board or official. Notice of the decision shall be

published in a newspaper having a general circulation

in such town, city or borough and sent by certified mail

to the applicant within fifteen days after such decision

has been rendered. Such applicant shall pay a fee of

ten dollars, together with the costs of publication and

expenses of such hearing, to the treasurer of such town,

city or borough. No such certificate shall be issued until

the application has been approved and such location

has been found suitable for the business intended, with

due consideration to its location in reference to schools,

churches, theaters, traffic conditions, width of highway

and effect on public travel. In any case in which such

approval has been previously granted for any location,

the local authority may waive the requirement of a

hearing on a subsequent application. In addition, the

local authority may waive the requirement of a hearing

on an application wherein the previously approved location of a place of business is to be enlarged to include

adjoining or adjacent property.’’

In light of the foregoing analysis, we conclude that

§ 14-55 was not repealed. Accordingly, the board should

have reviewed the Pisano application under the standard set forth therein.

B

We now address whether the board, despite erroneously treating the Pisano application as one for a variance, complied with the requirements of § 14-55. The

plaintiff claims that the board approved the Pisano

application under the wrong standard. It contends that

the board mistakenly treated the Pisano application as

though it was an application for a variance and, in so

doing, applied a set of criteria that did not comport

with the analysis required under § 14-55. The board

contends that the court correctly determined that the

board gave due consideration to the necessary factors.

The defendant and Pisano Brothers essentially contend

that the use of variance language by the board was

merely a clerical error. We agree with the plaintiff.

The record reveals that on several occasions the

Pisano application was referred to and treated as an

application for a variance. On his certificate of approval

application, the defendant requested a variance for the

following section of the Stamford zoning regulations:
‘‘APA TAB II #55 to allow a used car dealer to [b]e

[l]ocated in . . . [M-G] zone.’’ In reviewing the Pisano

application, the engineering bureau referred to the

application as a ‘‘variance to allow for a used car dealer

to be located in the M-G [z]one . . . .’’ At the outset

of the public hearings, a board member further stated,

without correction, that ‘‘[t]he engineering bureau has

reviewed the plans for a variance to allow for a used

car dealer to be located in the [M-G] zone . . . .’’ Further, the board’s certificate of decision regarding the

Pisano application certified that it granted ‘‘the application . . . for a variance of Motor Vehicle approval of

Table II, Appendix A, #55 (Auto Sales Requirements)

of the Zoning Regulations . . . .’’

In approving the Pisano application, the board issued

one finding, in which it directly quoted the following

variance standard provided in the Stamford zoning regulations: ‘‘[S]trict application of the provisions of these

Regulations would deprive the applicant of the reasonable use of such land or building and the granting of

the variance is necessary for the reasonable use of the

land or building.’’8 Stamford Zoning Regs., art. v, § 19

(2.2) (a) (2). In so finding, as the plaintiff contends, the

board expressly (1) applied variance standards provided in the local zoning regulations, instead of certificate of approval standards provided in § 14-55, and (2)

based its decision on the defendant’s private ‘‘deprivation,’’ instead of basing its decision on the suitability

of the proposed use. We agree with the court that ‘‘the

board’s certificate of approval looks and reads like a

variance.’’9

‘‘[W]here a board is acting pursuant to a statute or

an ordinance which requires a specific finding made

after a consideration of enumerated factors, the

minutes of the board should show that due consideration was given to those factors and that the conclusion

reached was within the power given to the board.’’

Dubiel v. Zoning Board of Appeals, 147 Conn. 517,

522–23, 162 A.2d 711 (1960); see also New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540,

543–44, 227 A.2d 427 (1967); Ferreira v. Zoning Board

of Appeals, 48 Conn. App. 599, 603–604, 712 A.2d 423

(1998).

Pursuant to § 14-55; see P.A. 03-265; the board must

consider a number of suitability factors: ‘‘No [certificate

of approval] shall be issued until the application has

been approved and such location has been found suitable for the business intended, with due consideration

to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect

on public travel.’’ See New Haven College, Inc. v. Zoning

Board of Appeals, supra, 154 Conn. 543 (zoning board

of appeals should consider ‘‘suitability of the proposed

location in view of the proximity of schools, churches,

theaters, or other places of public gatherings, inter-
secting streets, traffic conditions, width of the highway

and the effect of public travel . . . [and should also

indicate] that use of the proposed location will not

imperil the safety of the public’’). Although the board

need not ‘‘exalt technicality’’ in the manner in which it

states its findings, it is in the interests of ‘‘facilitat[ing]

judicial review . . . assur[ing] a more careful administrative consideration, and . . . keep[ing] the administrative agency within the bounds of its functions and

powers’’; Dubiel v. Zoning Board of Appeals, supra,

147 Conn. 523; to ensure that the record evinces the

board’s due consideration of the requisite suitability

factors.

Although the suitability factors prioritize public concerns, a variance application does not require the board

to consider those same factors. ‘‘[T]he authority of a

zoning board of appeals to grant a variance . . .

requires the fulfillment of two conditions: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict

letter of the zoning ordinance must be shown to cause

unusual hardship unnecessary to the carrying out of the

general purpose of the zoning plan.’’ (Internal quotation

marks omitted.) Grillo v. Zoning Board of Appeals, 206

Conn. 362, 368, 537 A.2d 1030 (1988).

In this case, the board issued only one factual finding,

in which it referenced the need to permit the defendant

to make reasonable use of the land. Although the board

heard evidence that, to some extent, could pertain to

suitability, and also issued several conditions of

approval that accommodate potential concerns within

the neighborhood, the board issued no findings as to

the suitability factors enumerated under § 14-55. The

reasons that the board provided in its certificate of

approval and the conditions provided therein were

made with reference to an application for a variance,

even though the Pisano application was a matter to

which § 14-55 applies. We, therefore, direct the board

on remand to consider the Pisano application in accordance with § 14-55.10

III

The plaintiff claims that the court erred in searching

beyond the board’s stated reason for approval to find

a basis for the board’s decision. It argues that the court

improperly upheld the board’s decision on alternative

grounds, not stated in the board’s decision. In response,

the defendant and Pisano Brothers essentially maintain

that the court’s reasoning and conclusion were sound.

We agree with the plaintiff.

‘‘When considering [an] application for [a certificate

of approval] . . . [a] zoning board of appeals act[s] as

a special agent of the state. . . . When receiving, hearing and eventually deciding whether to grant the application, the [board] does not act pursuant to either the
municipal zoning ordinance or the zoning statutes. . . .

Thus, the [board] does not act as the voice of the people

. . . . Rather, it acts in a special capacity, serving as

the local agency named by the General Assembly to

determine whether a certificate of approval should be

issued . . . .

‘‘As an agent of the state, the [board] must follow

the statutory criteria in determining whether to issue

the certificate of approval. . . . [Section] 14-55 sets

forth the criteria to be followed by an agency when

making its decision. The [board] cannot grant a certificate until the application has been approved and such

location has been found suitable for the business

intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions,

width of highway, and effect on public travel. . . .

‘‘Because the [board] acts as a special agent of the

state in issuing certificates of approval, the trial court’s

scope of review of the [board’s] decision is governed

by the [UAPA].’’ (Citations omitted; internal quotation

marks omitted.) Vicino v. Zoning Board of Appeals, 28

Conn. App. 500, 504–505, 611 A.2d 444 (1992). Section

4-183 (j) provides in relevant part that the trial court

‘‘shall not substitute its judgment for that of the agency

as to the weight of the evidence on questions of fact.

The court shall affirm the decision of the agency unless

the court finds that substantial rights of the person

appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are

. . . (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record

. . . .’’ ‘‘When a [board] states its reasons in support

of its decision on the record, the court goes no further,

but if the [board] has not articulated its reasons, the

court must search the entire record to find a basis

for the [board’s] decision.’’ (Internal quotation marks

omitted.) Azzarito v. Planning & Zoning Commission,

79 Conn. App. 614, 618, 830 A.2d 827, cert. denied, 266

Conn. 924, 835 A.2d 471 (2003). ‘‘Neither this court nor

the trial court may retry the case . . . .’’ (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012).

In this case, the board found that strict application

of the municipal zoning regulations would deprive the

defendant of reasonable use of the land and that granting the Pisano application would be necessary to afford

the defendant such reasonable use. Because the board

stated its reason for approval, the court was not permitted to search the record for evidence that could support

alternative grounds on which the board could have

granted the Pisano application. See Azzarito v. Planning & Zoning Commission, supra, 79 Conn. App. 618.

In the present case, having concluded that § 14-55

applied, the court, thereafter, provided its own inferences as to how the board might have classified and
weighed the public hearing testimony. On the basis of

the transcript of the September 14, 2016 public hearing,

the court was satisfied that the board had given due

consideration to the effect the proposal would have

on neighboring residences, and, accordingly, the court

concluded that the proposal would constitute a suitable use.

Although the board heard testimony that, to some

extent, could pertain to the suitability of operating a

business at the given location, the board did not make

any findings on that point. When the court reviewed the

record to determine whether the evidence, nonetheless,

could support a conclusion that the suitability requirement was satisfied, the court was incorrect in substituting its own judgment for that of the board. See id. By

reviewing the evidence beyond the board’s finding, the

court conducted its own de novo review of the Pisano

application rather than reviewing the board’s decision

under the appropriate abuse of discretion standard.

Moreover, it was incumbent upon the board to make

the requisite suitability findings. See New Haven College, Inc. v. Zoning Board of Appeals, supra, 154 Conn.

543–44 (concluding that trial court did not err in sustaining plaintiff’s appeal where board failed to consider

specific suitability factors). We, therefore, conclude

that the court employed an incorrect standard of

review.

The judgment is reversed and the case is remanded

to the trial court with direction to remand the case

to the board for further proceedings consistent with

this opinion.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 Although § 14-55 is reported as ‘‘repealed,’’ effective October 1, 2003, in

our official state statute books, the parties dispute whether § 14-55 has been

repealed. This matter will be discussed in part II A of this opinion.

2 The plaintiff advances a number of additional claims that are collateral

or inconsequential to our decision. Accordingly, we do not address them.

See footnote 10 of this opinion.

3 The court, in its memorandum of decision, indicated: ‘‘[T]he court finds

that the [board] properly considered the suitability of locating the Pisano

business at 86 Elmcroft Road. The court has reviewed the full transcript of

the [board] hearing and subsequent deliberations of the board on September

14, 2016 . . . and finds more than substantial evidence of the board’s careful

scrutiny of, and resulting conditions on, the Pisano application.’’ (Citation

omitted.) The court then referenced instances in which ‘‘board members

questioned [the defendant] about the scope of his towing operation, the

hours of operation and the location and the type of his repair work,’’ the

board noted that Pisano Brothers was ‘‘not a general towing operation,’’

and that ‘‘repairs would take place inside the building.’’ Additionally, the

court noted that, during deliberations, the board considered that other businesses within the parameters of M-G zoning ‘‘could move in tomorrow’’

without board approval, considered several conditions of approval that

would make the use more ‘‘acceptable to neighbors,’’ and that the board

even issued several conditions of approval. (Internal quotation marks omitted.) The court concluded that the board’s conditions of approval constituted

‘‘stark evidence of the careful attention paid by the [board] to the issue

of suitability.’’

4 General Statutes § 4-184 provides: ‘‘An aggrieved party may obtain a

review of any final judgment of the Superior Court under this chapter. The
appeal shall be taken in accordance with section 51-197b.’’

5 This court has held that compilations of public acts prepared by the

Legislative Commissioners’ Office do not constitute the actual law of this

state: ‘‘[T]he compilations of the public acts are not published on the day

a law effective on passage is approved by both houses and signed by the

governor, allowed to become law without signature of the governor or

repassed by a two-thirds majority of the legislature following a gubernatorial

veto. . . . [I]t is not the publication of these acts in the [p]ublic [a]cts

compilations that makes them effective against members of the public, but

their lawful passage by the General Assembly.’’ Figueroa v. Commissioner

of Correction, 123 Conn. App. 862, 870, 3 A.3d 202 (2010), cert. denied, 299

Conn. 926, 12 A.3d 570 (2011).

6 P.A. 03-265, § 9, provides: ‘‘Section 14-55 of the general statutes is

repealed and the following is substituted in lieu thereof (Effective October

1, 2003):

‘‘In any town, city or borough the local authorities referred to in section

14-54 shall, upon receipt of an application for a certificate of approval

referred to in said section, assign the same for hearing within sixty-five days

of the receipt of such application. Notice of the time and place of such

hearing shall be published in a newspaper having a general circulation in

such town, city or borough at least twice, at intervals of not less than two

days, the first not more than fifteen, nor less than ten days, and the last

not less than two days before the date of such hearing and sent by certified

mail to the applicant not less than fifteen days before the date of such

hearing. All decisions on such certificate of approval shall be rendered

within sixty-five days of such hearing. The applicant may consent to one

or more extensions of any period specified in this section, provided the

total extension of any such period shall not be for longer than the original

period as specified in this section. The reasons for granting or denying such

application shall be stated by the board or official. Notice of the decision

shall be published in a newspaper having a general circulation in such town,

city or borough and sent by certified mail to the applicant within fifteen

days after such decision has been rendered. Such applicant shall pay a fee

of ten dollars, together with the costs of publication and expenses of such

hearing, to the treasurer of such town, city or borough. No such certificate

shall be issued until the application has been approved and such location

has been found suitable for the business intended, with due consideration

to its location in reference to schools, churches, theaters, traffic conditions,

width of highway and effect on public travel. In any case in which such

approval has been previously granted for any location, the local authority

may waive the requirement of a hearing on a subsequent application. In

addition, the local authority may waive the requirement of a hearing on

an application wherein the previously approved location of a place of

business is to be enlarged to include adjoining or adjacent property.’’

(Emphasis added.) The italicized sentences indicate the portions that were

added to the 2003 revision of § 14-55.

7 Because this amendment to § 14-55 was effective on July 9, 2003, and

P.A. 03-265, § 9, took effect on October 1, 2003, we conclude that P.A. 03-

265, § 9, replaced the July amendment on October 1, 2003.

8 The board’s certificate of decision stated: ‘‘THE BOARD FINDS:

‘‘1. That the aforesaid circumstances of conditions is/are such that the

strict application of the provisions of these Regulations would deprive the

[defendant] of the reasonable use of such land or building(s) and the granting

of the application is necessary for the reasonable use of the land or

building(s).

‘‘The [b]oard GRANTS a Motor Vehicle approval of Table II, Appendix A,

#55 (Auto Sales Requirements) of the Zoning Regulations in order to allow

a Used Car Dealer to operate and be located in an [M-G] zone. This application is exempt from Coastal Area Management Approval, Exemption Number

10C, subject to the following restrictions:

‘‘1. All concerns of the [e]ngineering [bureau] shall be adhered to.

‘‘2. There shall be no more than [six] cars parked in the front.

‘‘3. The [defendant] shall make an effort to contact the [e]ngineering

[b]ureau and discuss having [it] add sidewalks to the area.

‘‘4. The hours of operation shall be [8 a.m. to 6 p.m.], Monday through

Saturday.

‘‘5. There shall be no vehicular parking between the front property line

and the curb on Elmcroft Road.

‘‘6. There shall be one tow truck only on the premises.

‘‘7. There shall be year round evergreen screening around the property.
‘‘8. There shall be no auto body shop or painting of cars on the premises.

‘‘9. All cars belonging to visitors, patrons or employees shall be parked

on the site at all times.

‘‘10. No vehicle repairs shall be permitted outside of the building.

‘‘11. No impact tools shall be used outside of the building.

‘‘12. No storage of inoperative vehicles shall be permitted outside of

the building.

‘‘13. Outside visible storage of any automotive equipment, including tires,

batteries, auto parts, etc., shall not be permitted.

‘‘14. The location, size, and appearance of the building and improvements

shall be as per plan depicted on IMPROVEMENT LOCATION SURVEY, dated

revised [July 15, 2016], copies of which are on file in the office of the [board].

‘‘The applicant is allowed one year from the effective date of approval in

which to obtain a building permit.’’ (Emphasis omitted.)

9 During the pendency of the plaintiff’s appeal to the Superior Court, the

board issued a ‘‘Revised Certificate of Decision’’ (revised decision), stating:

‘‘NOTE—This corrected Certificate eliminates ‘variance’ language on the

original Certificate of Decision . . . since [the Pisano application] . . . is

an application for [certificate of approval] of a Used Car Dealership.’’ This

revised decision was submitted to the Superior Court in a supplemental

return of record. The record contains no indication as to how this revised

decision was made, and it does not appear to have been issued in accordance

with the modification procedures set forth in General Statutes § 4-181a et

seq. It does not appear that the Superior Court considered the revised

decision when rendering its judgment. We also have not considered it in

rendering our opinion.

10 Our conclusion that § 14-55 was not repealed and sets forth the applicable certificate of approval application procedures, in effect, resolves several

of the plaintiff’s remaining claims. Therefore, we do not reach their merits.

See First Church of Christ, Scientist v. Friendly Ice Cream, 161 Conn. 223,

228–29, 286 A.2d 320 (1971) (‘‘The plaintiffs have pursued several other

assignments of error. We need not review these conclusions, however, since

they would not affect the final result.’’).