author: Borden, J.

text:
    John H. Grady et al. v. Robert A. Schmitz et al.
    (5716)
    Borden, Daly and Norcott, Js.
    Argued May 12
    decision released September 20, 1988

      Philip R. McKnight, for the appellants (plaintiff Clifford C. Woods, Jr., et al.).

      Ridgely W. Brown, with whom, on the brief, was Heather M. Brown, for the appellees (named defendant et al.).
   Borden, J.

The plaintiffs appeal from the judgment rendered in favor of the defendants on the plaintiffs’ complaint seeking an injunction to enforce a restrictive covenant. The plaintiffs claim that the trial court erred in concluding that the covenant in question was not created to benefit the plaintiffs’ land, and that its original purpose could no longer be accomplished. We find error.

Certain facts are not in dispute. The plaintiffs own property known as 21 Grove Lane, in Greenwich. Their property is across from the defendants’ property, which is bordered by Grove Lane but is known as 111 Brook-side Drive because it fronts on Brookside Drive. Both parcels are part of a tract of land formerly owned by Seaman Mead, which was bounded by Brookside Drive, Glenville Road, Dearfield Drive and Grove Lane. Before 1900, Mead transferred part of his tract to R. Jay Walsh, who was the common grantor of the plaintiffs and the defendants.

In 1903, Walsh conveyed what ultimately became the defendants’ property to Norman T. Reynolds. That deed contained a provision that stated, inter alia, that the “grantee . . . covenants and agrees for himself, his heirs, executors, administrators and assigns that he will not . . . subdivide said premises for the purpose of erecting more than one house thereon. These covenants and agreements shall run with the land hereby conveyed and be binding upon said grantee, his heirs, executors, administrators and assigns.” In 1976, the defendants acquired their property by virtue of a deed specifically referring to the restrictions contained in the deed from Walsh to Reynolds.

In 1904, Walsh conveyed what ultimately became the plaintiffs’ property to Edward P. Williams. That deed contained a provision identical to the restriction in the deed from Walsh to Reynolds contained in the defendants’ chain of title. In 1966, the plaintiffs acquired their property by virtue of a deed specifically referring to the restriction contained in the deed from Walsh to Williams.

This case arose because the defendants applied to the Greenwich planning and zoning commission for permission to subdivide their property into additional building lots. The plaintiffs sued the defendants, seeking an injunction barring the defendants from violating the restrictive covenant. The trial court, Hon. Margaret C. Driscoll, state trial referee, rendered judgment for the defendants. There were two bases for the court’s decision. The first was that the purpose of a restrictive covenant burdening land adjacent to it is to benefit the grantor’s homestead, and that the plaintiffs’ property was located across the street from the homestead of Walsh, the original grantor. Thus, the court concluded that the covenant was not intended to benefit the plaintiffs’ property. The second basis was that, whether or not the covenant was violated, there had been a change in the character of the area from singléfamily homes to multi-family dwellings. This conclusion was based on the court’s finding that the plaintiffs had rented part of their home and their carriage house to tenants, in violation of a different restrictive covenant in their deed limiting the use of their property to a “strictly private residence.” The court also found that, because Walsh’s homestead was now a building housing dental offices, and because the homestead property had been subdivided, Walsh’s original purpose of protecting his homestead had been vitiated. This appeal followed.

The plaintiffs first claim that the court erred by concluding that the intent of the restrictive covenant was to benefit Walsh’s homestead. They argue that the court misread the applicable case law in reaching this conclusion, and that, viewed properly, the covenant benefits their property and is enforceable by them. We agree.

Both parties agree, as do we, that the trial court’s ultimate task was to determine the intent of Walsh as the grantor of the deeds containing the restrictive covenant at issue here. Although in most contexts the issue of'intent is a factual question on which our scope of review is limited; see, e.g., Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 408, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987); the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984).

In general, restrictive covenants fall into three classes: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee “presumptively or actually for the benefit and protection of his adjoining land which he retains.” Stamford v. Vuono, 108 Conn. 359, 364, 143 A. 245 (1928). With respect to the third class of covenants, the original grantor, who is the owner of the property benefited, “and his assigns may enforce [the covenant] against subsequent purchasers of the property burdened. If the restrictive covenant is for the benefit of the remaining land of the grantor, it is an easement running with the land and may be enforced by a subsequent purchaser of the remaining land against the prior grantee and his successors in title . . . . ” Id., 365.

The restriction in this case falls within this third class of covenants. It was exacted by Walsh from his grantee, namely, Reynolds, presumptively or actually for the benefit of the remaining, adjoining land retained by Walsh. As such, it is enforceable by the plaintiffs, who are the assigns of Walsh, the owner of the retained property benefited, against the defendants, who are the subsequent purchasers of the property burdened. We conclude, moreover, from the language in the deed from Walsh to Reynolds, and from the surrounding circumstances, that it was the intent of Walsh in exacting the covenant to benefit the adjoining land which he retained.

First, since Walsh extracted from Reynolds such a covenant, it must be viewed as “presumptively . . . for the benefit and protection of his adjoining land which he retain[ed].” Id., 364. Second, the language of the deed, namely, that the covenant “shall run with the land hereby conveyed, and be binding upon said grantee, as the heirs, executors, administrators and assigns,” itself suggests a broad rather than limited scope. The fact that Walsh explicitly made the covenant run with Reynolds’ land indicates that Walsh intended it to be enforceable by him as the owner of the land he retained, or by his assigns of that retained land. C.f. Bauby v. Krasow, 107 Conn. 109, 139 A. 508 (1927) (although the covenant did not explicitly run with the land, it was held by the court to do so because of the circumstances surrounding the grant). Third, the surrounding circumstances also indicate such an intent. The limitation to one house on the property is most appropriately viewed as indicating an intent to preserve the residential character and value of the land retained by Walsh. Certainly such a restriction inured to Walsh’s benefit as the eventual seller of all his retained land, since it would affect the value of all that land, not just the portion comprising his homestead. Fourth, we find nothing in either the language or the circumstances of the deed to suggest a limitation on that intent to Walsh’s homestead.

We agree with the plaintiffs that our case law does not support such a limitation. Although at least two of our cases have mentioned the grantor’s homestead; see Bauby v. Krasow, supra, 115; Marion Road Assn. v. Harlow, supra, 335; the question of intent in both cases was determined pursuant to the broader principle that “a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed to be appurtenant to the land, and that it will generally be construed to have been intended for the benefit of the land, since in most cases it could obviously have no other purpose, the benefit to the grantor being usually a benefit to him as owner of the land, and that, if the adjoining land retained by the grantor is manifestly benefited by the restriction, it will be presumed that it was so intended.” (Emphasis added.) Bauby v. Krasow, supra, 115; Marion Road Assn. v. Harlow, supra. The other principal cases are to the same effect. See, e.g., Harris v. Pease, 135 Conn. 535, 539, 66 A.2d 590 (1949) (covenant restricting erection of buildings was “in the nature of an easement inuring to the benefit of the land [the grantor] retained”); Stamford v. Vuono, supra (covenant extracted from grantee is “presumptively or actually for the benefit and protection of [grantor’s] adjoining land which he retains”); Baker v. Lunde, 96 Conn. 530, 537, 114 A. 673 (1921) (restriction intended to “benefit another tract of the grantor adjoining the land on which the restriction is imposed,” constitutes a perpetual easement attached to “the adjoining tract owned by the grantor”). Although the presence of the grantor’s homestead on the retained land may be an indication of an intent to benefit that land, our cases do not suggest, as the trial court reasoned, that the restrictive covenant in this case must be limited to benefit the grantor’s homestead.

An alternate basis of the trial court’s decision, on which the defendants rely, was its conclusion that there was a change in circumstances which justified withholding enforcement of the restrictive covenant at issue here. The findings underlying this conclusion were that there was a change in the character of the area from single-family homes to multi-family dwellings because the plaintiffs have rented part of their house and carriage house to tenants, in apparent violation of a separate covenant in their deed limiting the use of their property to a private residence. We agree with the plaintiffs that this conclusion was erroneous.

It is difficult to see how the rental of part of residential property to residential tenants changes the residential character of that property. Furthermore, even if that rental activity were in violation of such a covenant in the plaintiffs’ chain of title, that covenant is distinct from the covenant burdening the defendants’ property and benefiting the plaintiffs’ property in issue here; namely, a restriction against subdivision of the defendants’ property for the purpose of erecting more than one house thereon. Violation by a property owner “ ‘of one restriction [will not] estop him to compel the observance of another restriction beneficial to his property.’ ” Maganini v. Hodgson, 138 Conn. 188, 195, 82 A.2d 801 (1951), quoting 3 H. Tiffany, Real Property (3d Ed.) § 873.

The defendants also claim that the judgment should be sustained on the alternate grounds of unclean hands and change of circumstances. They claim that because of the plaintiffs’ unclean hands and the change in circumstances in the neighborhood, the trial court was justified in withholding the equitable relief of injunction sought by the plaintiffs. We disagree.

The defendants’ argument regarding the plaintiffs’ unclean hands is based on evidence that the plaintiffs had rented part of their property to tenants in violation of the separate deed restriction regarding use of their property as a “strictly private residence.” Their argument is disposed of by Maganini v. Hodgson, supra, 194-95, in which the court specifically rejected the application of the clean hands doctrine to bar enforcement of one covenant because of a violation by the plaintiff of another.

The defendants’ argument regarding change of circumstances is based on certain evidence they produced, and on certain findings by the trial court. This evidence and these findings are as follows. The properties of the plaintiffs and the defendants are located one-quarter to one-half mile north of Post Road in Greenwich. Certain property owned by C. Burton Cormier and Lucy T. Cormier, original defendants to this action, which was then sold to another original defendant, Tom S. Ward, trustee, has been subdivided into two lots containing two houses. One of these houses was built in 1910, and the second was described in testimony by the defendant, Robert A. Schmitz, Jr., as “new.” This property is on the north side of Grove Lane, at its intersection with Dearfield Drive. Two of the original plaintiffs, John H. Grady and Alexandra D. Grady; see footnote 2, supra; converted a garage on their property into a dwelling which they have rented for at least ten years. The defendants also point to the evidence that the plaintiffs have had tenants in their main and carriage houses, and that property of another original plaintiff, John W. Lyons, contained a garage apartment that was rented. In addition, on Dearfield Lane, located immediately to the south of the defendants’ property, some houses were converted into professional offices, and there are two three-story medical buildings. Furthermore, the trial court found that Walsh’s original homestead had become a building containing dental offices, and that the homestead property had been subdivided.

The plaintiffs, relying on Fidelity Title & Trust Co. v. Lomas & Nettleton Co., 125 Conn. 373, 376-77, 5 A.2d 700 (1939), argue that in order to justify withholding injunctive relief to enforce a restrictive covenant, there must have “ ‘been a radical change in the conditions existing when the restrictive covenants were created which completely defeats the objects and purposes of the covenants so that they are no longer effective, and their enforcement would not afford the protection which was in contemplation of the parties ....’” Id., 376, quoting Bickell v. Moraio, 117 Conn. 176, 181, 167 A. 722 (1933). We disagree with the plaintiffs that this stringent standard applies to the present case, but we agree that, gauging the evidence by the proper standard, injunctive relief should have issued.

In Fidelity Title & Trust Co. v. Lomas & Nettleton Co., supra, the plaintiffs did not seek to enforce a restrictive covenant by way of an injunction against its breach; they sought instead a judgment modifying the covenant in perpetuity. The court drew a clear distinction between the two remedies. “In an action for removal or relaxation of restrictions the issues are not the same as in one seeking to enforce them by enjoining breach thereof, and the judgment is more drastic. Injunction may be denied because of conditions existing at the time, while as to a judgment which affects the covenants for all time it is to be considered that it is quite possible that another change may occur subsequently which would remove or materially affect the ground upon which the judgment was based.” Id., 376. It is only where a party seeks by way of affirmative relief to have a restrictive covenant modified or nullified on the basis of a change of circumstance that he must make it manifest that its purpose has been permanently frustrated, and that the change is so great as to defeat the object of the covenant. Id., 377. The present case is not an action to modify or nullify the covenant; it is an action to enforce it.

The standard applicable to the defendants’ claim of change in circumstances, therefore, is that “[w]hen presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless the defendant can show that enforcement would be inequitable.” Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 139, 475 A.2d 305 (1984); Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 22, 376 A.2d 381 (1977). Change in circumstances, such as use of the benefited property for purposes other than those contemplated by the original covenant, may justify the withholding of equitable relief to enforce a covenant. Harris v. Pease, supra, 541. Such a change in circumstances is decided on a case by case basis, and the test is whether the circumstances show an abandonment of the original restriction making enforcement inequitable because of the altered condition of the property involved. Armstrong v. Leverone, 105 Conn. 464, 474, 136 A. 71 (1927). The fact that the burdened property would be of more value if the restriction were not enforced “is of no consequence.” Harris v. Pease, supra.

Applying these principles to this case, we conclude that the evidence and findings relied on by the defendants are legally insufficient to justify withholding injunctive relief. Much of the evidence concerns rental of various properties, rather than the covenant at issue here, namely, a restriction on subdivision for the purpose of building more than one house. Although the original Walsh homestead property and the CormierWard lot have been subdivided, the other parcels in the area transferred by Walsh subject to the convenant have not been subdivided and remain essentially the same size as they were originally. Thus, much of the benefited property is still being used for the purpose contemplated by the original covenant, and it cannot reasonably be said that the circumstances show an abandonment of the original plan sufficient to make enforcement of the covenant inequitable. At best, withholding of enforcement of the covenant would make the defendants’ property more valuable, but that is insufficient to justify withholding equitable relief. Harris v. Pease, supra.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiffs.

In this opinion the other judges concurred.

       The action was originally brought by the named plaintiff, John H. Grady, and by Alexandra D. Grady, Clifford C. Woods, Jr., Mary Louise Woods, Foucault Settel, John W. Lyons and Margaret Frail Lindsay. The trial court found that proof of property ownership was established regarding Clifford C. Woods, Jr., and Mary Louise Woods, only, and that the Gradys had sold their property, and the court thus confined its decision to the Woods’ property. Settel, Lyons and Lindsay withdrew from the appeal. Despite the plaintiffs’ claim in their brief that the Gradys remain in the appeal, they do not challenge the finding of the trial court that the Gradys sold their property. We therefore consider that the only remaining plaintiffs on this appeal are Clifford C. Woods, Jr., and Mary Louise Woods, and we refer to them herein as the plaintiffs.

       The only remaining defendants are Robert A. Schmitz and Marion B. Schmitz. We refer to them herein as the defendants.

       The defendants, in this part of their brief, also mention the doctrine of laches, but do not present any facts or legal authorities in support of that doctrine. We therefore do not consider it. See Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 249-50 n.3, 524 A.2d 610 (1987).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Carole S. Moscowitz v. Planning and Zoning Commission of the Town of Sherman
    (6043)
    Borden, Spallone and Foti, Js.
    Argued April 7
    decision released September 20, 1988

      Jack Stock, with whom was Peter V. Gelderman, for the appellant (defendant).

      Francis G. Pennarola, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment rendered by the trial court sustaining the plaintiffs administrative appeal, claiming the trial court erred (1) by failing to find that a notation on a subdivision map restricting further subdivisions was valid, (2) by failing to find that the notation was valid where no appeal had been taken from the imposition of the notation, and (3) by failing to find that the plaintiff was estopped from challenging the notation, having taken title to the subject property with full knowledge of the restriction. We find no error.

The following facts are pertinent to this appeal. In 1977, the defendant planning and zoning commission approved an application for subdivision submitted by Marianne E. Ward, the owner of the property at that time. The approval resulted in the subdivision of a 94 acre parcel of land into three parcels: parcel A was set out as 46.4 acres; parcel B was 36.2 acres; and parcel C was 2 acres. At this time, Ward included a notation on the subdivision map that “parcel B shall not be resubdivided into more than 2 parcels.”

In 1979, Ward applied to the defendant for a resubdivision of parcel B into three lots: two lots of 14 acres each and an additional lot of 8.2 acres which was to be added to the previously created parcel A. When the defendant approved this application, it required that the subdivision map bear a notation that “Lots 1 and 2 shall not be resubdivided at any future time.”

Ward subsequently conveyed the two 14 acre lots to the plaintiff. In March, 1985, the plaintiff applied to the defendant to resubdivide the 28 acres into six residential building lots. After a public hearing was held, the defendant denied the application. The defendant’s stated reasons for its denial of the plaintiffs application was the existence of the restrictive notation on the 1979 subdivision map, and its determination that there had not been a “sufficient change in circumstances” to warrant removal of the restriction.

The plaintiff appealed to the Superior Court, contending that the map restriction was unenforceable and that the defendant had acted illegally, arbitrarily and in abuse of its discretion. The defendant countered with the argument that the imposition of the restrictive notation was no more than a “conditional approval” of the 1979 resubdivision application, that such conditional approvals have been found to be permissible under recent state case law, and that any challenge to the validity of the imposition of the condition should have been made in 1979. The trial court sustained the plaintiff’s appeal, finding that the defendant’s actions were beyond the power granted to it by General Statutes §§ 8-25 and 8-26, and ordered that the case be remanded to the defendant for approval of the application if the plaintiff has met all of the relevant zoning and subdivision regulations. From this judgment, the defendant appeals.

I

We agree with the trial court’s conclusion that the defendant did not have the authority in 1979 to impose a condition restricting future subdivisions and, therefore, that condition was void ab initio and could not provide sufficient grounds for the denial of the plaintiffs application.

It is axiomatic that “ ‘ “[a]s a creature of the state, the . . . [town . . . whether acting itself or through its planning commission,] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation.” Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 [1965], and cases cited therein; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 [1964]; State ex rel. Sloane v. Reidy, 152 Conn. 419, 423, 209 A.2d 674 [1965]. In other words, in order to determine whether the [condition] in question was within the authority of the commission to [impose], we do not search for a statutory prohibition against such an [action]; rather, we must search for statutory authority for the [action].’ Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19, 523 A.2d 467 (1987).” Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d 530 (1988).

We begin our analysis with General Statutes § 8-26 which, inter alia, authorizes a municipal planning commission to consider and act upon proposed subdivision applications. Simply stated, “[n]othing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission’s approval of a subdivision plan; the statute merely provides for the commission to ‘approve, modify and approve, or disapprove’ a subdivision application.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979). A planning commission, therefore, is only authorized to take one of three courses of action when considering a subdivision application: it can approve the application exactly as it was submitted; it can make changes to the application to ensure compliance with the subdivision regulations and compatibility with the municipality’s comprehensive plan, and then approve the application as so modified; or it can disapprove the application outright. Any other action taken by a planning commission necessarily falls outside the statutory delegation of powers contained in the enabling act and cannot stand. Carpenter v. Planning & Zoning Commission, supra, 596, citing Wine v. Council of City of Los Angeles, 177 Cal. App. 2d 157, 2 Cal. Rptr. 94 (1960); State ex rel. Strother v. Chase, 42 Mo. App. 343 (1890); Midtown Properties, Inc. v. Township of Madison, 68 N. J. Super. 197, 172 A.2d 40 (1961); see also 4 R. Anderson, American Law of Zoning (3d Ed.) § 25.18, pp. 319, 323; 3 A. & D. Rathkopf, Law of Zoning and Planning § 42.07 [4] [b] n.65; 7 P. Rohan, Zoning and Land Use Controls § 45.01 [5]; T. Tondro, Connecticut Land Use Regulation § IV-B-3, p. 110; 2 E. Yokley, Zoning Law and Practice (3d Ed.) § 12.7, p. 48.

The defendant attempts to justify its actions by referring us to cases where “conditional approvals” have been imposed by planning commissions and upheld by the courts. See, e.g., Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 427 A.2d 1346 (1980); Carpenter v. Planning & Zoning Commission, supra; Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 368 A.2d 24 (1976); Crescent Development Corporation v. Planning Commission, 148 Conn. 145, 168 A.2d 547 (1961); Langbein v. Planning Board, 145 Conn. 674, 146 A.2d 412 (1958).

Of the cases relied on by the defendant, however, only two concern the review of subdivision plans; Nicoli and Crescent Development; both of which are clearly distinguishable from the case now before us. First, the defendant is incorrect in its statement that these cases upheld the imposition of conditional subdivision approvals. In Crescent Development Corporation v. Planning Commission, supra, where a planning board had approved a subdivision application “subject to” changes in the proposed roads and accessways, our Supreme Court noted that “the practical effect of the defendant’s action was to approve the plan after modifying it.” Id., 148. The court noted that the power to modify was given by statute; General Statutes § 8-26; and concluded that both the New Canaan subdivision regulations and General Statutes § 8-25 supported the commission’s actions. Id., 149, 152-53. In Nicoli v. Planning & Zoning Commission, supra, our Supreme Court was presented with a factual scenario almost identical to that in Crescent Development. Again, relying on the provisions regarding traffic safety and adequate thoroughfares contained in both § 8-25 and the municipality’s subdivision regulations, the court found sufficient authority for the modifications ordered by the planning commission.

Lest we be accused of being more concerned with semantics than substance, we must note that it is the nature of the underlying action taken by the planning commission that will determine its legality, not whether it is phrased in terms of a “modification” or “conditional approval.” The commissions in Crescent Development and Nicoli were found to possess the authority to require alterations in the planned road layouts submitted to them on the basis of their legitimate concerns with traffic flow. In contrast, the imposition of the restrictive notation by the defendant in this case is neither a “modification,” within the generally understood meaning of that term, nor does it bear a rational relationship to the enumerated health, safety and public welfare considerations set forth in General Statutes § 8-25.

We conclude that a blanket prohibition on future subdivisions, without reference to a relevant provision in either the local subdivision regulations or the enabling statutes, is an impermissible expansion of the powers wielded by a planning commission. As an administrative body, a municipal planning commission performs ministerial functions. T. Tondro, supra, IV-B-3, p. 113. “If the plan submitted conforms to [the] regulations, the council has no discretion or choice but to approve it.” (Citations omitted.) RK Development Corporation v. Norwalk, 156 Conn. 369, 375-76, 242 A.2d 781 (1968). By placing the restrictive notation on the 1979 map, the commission empowered itself to deny any future applications even if the future applications fully complied with the regulations. This it cannot do.

II

The defendant next claims that because there was no appeal taken from the original imposition of the notation in 1979, the trial court erred in allowing the plaintiff to challenge the restriction on its merits. We disagree.

“We have frequently stated that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. The only relevant exception to this rule is where the administrative action is void.” (Citations omitted.) Carpenter v. Planning & Zoning Commission, supra, 598. The case now before us falls within that exception. We have already concluded that the imposition of the restrictive notation by the commission in 1979 was an impermissible expansion of the powers delegated to it by our statutes. As such, the act of the commission was without statutory authorization and, therefore, the planning commission was without jurisdiction to impose that condition. Where the challenge raised is to the power of the agency to act, the failure to appeal immediately does not deprive the challenger of his right to bring the claim at a later date. See, e.g., DiCamillo v. Clomiro, 174 Conn. 351, 387 A.2d 560 (1978) (jurisdictional claim entertained one year after grant of variance); Smith v. F. W. Woolworth Co., 142 Conn. 88, 111 A.2d 552 (1955) (jurisdictional claim filed one month after grant of variance); Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 83 A.2d 201 (1951) (jurisdictional claim brought three years after change in zone boundaries); National Transportation Co. v. Toquet, 123 Conn. 468, 196 A. 344 (1937) (jurisdictional claim entertained two years after change in zone); Ribeiro v. Andover, 19 Conn. Sup. 438, 116 A.2d 769 (1955) (jurisdictional claim raised three years after amendment to zoning regulations).

Just as the planning and zoning commissions in these cases were acting without jurisdiction due to their failure to comply with statutory prerequisites, the defendant herein acted without jurisdiction when it overstepped the bounds of its statutory authority. A cause of action will be allowed when “[t]he allegations of the complaint clearly show that [the] purpose in bringing suit [is] not to seek a review of what the board did or of the reasons on which it relied [when taking action], but rather to ascertain whether, in doing what it did do, the board had jurisdiction to act at all.” Smith v. F. W. Woolworth Co., supra, 93.

The defendant’s reliance on our recent decision in Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 535 A.2d 382 (1988), is misplaced. In that case, a condition was imposed on the granting of a special permit to run a video arcade that required the plaintiff to control loitering and nuisances in the vicinity of the arcade. When the plaintiff sought a renewal of the special permit, its application was denied on the ground that the condition had not been fulfilled. The plaintiff appealed to the Superior Court claiming, inter alia, that the condition imposed was an “unauthorized semi-policing obligation.” The court sustained the appeal finding that the commission could not impose this type of condition on a special permit applicant. On appeal to this court, we determined that the trial court erred in permitting the plaintiff to attack the validity of the condition and directed judgment to be rendered in favor of the defendant commission.

Rather than furthering the defendant’s claim, Spectrum exemplifies the traditional rule favoring immediate appeals set out in Carpenter, supra. The plaintiff in Spectrum was not challenging the power of the planning and zoning board to impose conditions on a special permit; that authority is specifically granted to the board in its enabling statute, General Statutes § 8-2. Instead, the plaintiff in Spectrum sought a determination of whether the particular condition imposed was the type of condition envisioned by the statute and the applicable zoning regulations. The difference between a challenge to an agency’s jurisdiction and a challenge to the agency’s proper exercise of its jurisdiction is significant. A successful suit on the former renders the action void and, therefore, may be brought at any time. A successful suit on the latter renders the action merely voidable and, therefore, must be instituted within the statutory period. See Cavallaro v. Durham, 190 Conn. 746, 748, 462 A.2d 1042 (1983); Misinonile v. Misinonile, 190 Conn. 132, 136, 459 A.2d 518 (1983); Carpenter v. Planning & Zoning Commission, supra, 598-99.

We conclude, therefore, that the failure to appeal immediately from the commission’s action in 1979 does not bar the plaintiff from challenging that restriction now. Indeed, “[her] rights were unaffected by that action, wherein the planning board had no jurisdiction. Keifer v. Bridgeport, [68 Conn. 401, 36 A. 801 (1896)]. [Her] appeal in the present proceeding from the action taken by the planning board in [1979] involves no collateral attack upon its earlier action but a direct attack upon its later action, which was clearly void and contrary to law. The appeal in no way challenges the validity of the [subdivision] regulations but brings in question, incidentally, only the validity of the action attempted by the planning board thereunder.” Hutchison v. Board of Zoning Appeals, supra, 252; see also Smith v. F. W. Woolworth Co., supra; Miller v. McNamara, 135 Conn. 489, 495, 66 A.2d 359 (1949).

Ill

In light of our foregoing conclusions, the defendant’s final claim merits little discussion. In essence, the defendant contends that the plaintiff should be estopped from now challenging the restrictive notation because she accepted title to the parcel with full knowledge of the existence of this restriction. This argument is a non sequitur. A party cannot be prevented from contesting the validity of any action taken by a zoning or planning board simply because it occurred prior to her taking of title to property affected by that act. Whether the challenge proves ultimately successful is another matter entirely. Moreover, as we concluded, supra, an attack focused on the power of the municipal commission to act may be brought at any time. As the cases cited in part II indicate, a landowner is not estopped from pursuing a legal remedy solely because he had prior knowledge of the commission’s actions. See, e.g., Hutchison v. Board of Zoning Appeals, supra (“The fact, as found by the court, that the plaintiff had knowledge for more than three years prior to [the initiation of his suit], that the purported change of zone had been made did not affect his rights.”). The defendant does not refer us to any case law that holds differently.

Indeed, the defendant’s briefing of this claim contains no citation to case law whatsoever; rather, it relies solely on public policy considerations. A recurring theme in this portion of the defendant’s argument is the possible reliance of developers and neighboring landowners on the subdivision restriction placed on the plaintiff’s property. Although we acknowledge that this is an important consideration; see Coombs v. Larson, 112 Conn. 236, 152 A. 297 (1931); due to the defendant’s failure to pursue this aspect in the trial court by introducing evidence regarding the existence and extent of prejudice to the property rights of others in the community, we are powerless to grant the defendant the relief it now seeks.

“The broad language of [Coombs v. Larson, supra,] must be read in the light of the situation which the court had just outlined. Estoppel is necessarily based upon prejudice and in the absence of prejudice does not exist. Tradesmens National Bank of New Haven v. Minor, 122 Conn. 419, 424, 190 Atl. 270 [1937]; Faulkner v. Keene, 85 N.H. 147, 157, 155 Atl. 195 [1931], ... In the absence of anything in the record upon which we could hold that the rights of anyone had been prejudiced by the conduct of the plaintiff subsequent to the [action taken], there is no basis for a finding of such prejudice as would create an estoppel.” National Transportation Co. v. Toquet, supra, 477-78; see also State ex rel. DeGregorio v. Woodruff, 135 Conn. 31, 35-36, 60 A.2d 653 (1948).

There is no error.

In this opinion the other judges concurred.

       The remaining 9.4 acres were designated as open space.

       The parcel is located in a “Zone A” district which allows single family-residences occupying lots of 80,000 square feet or approximately 2 acres.

       “[General Statutes] Sec. 8-25. SUBDIVISION OF land, (a) No subdivision of land shall be made until a plan for such subdivision has been approved by the commission. . . . Before exercising the powers granted in this section, the commission shall adopt regulations covering the subdivision of land. . . . Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, drainage and sewerage and, in areas contiguous to brooks, rivers or other bodies of water subject to flooding, including tidal flooding, that proper provision shall be made for protective flood control measures and that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of development as described in section 8-23, especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs. Such regulations shall also provide that the commission may require the provision of open spaces, parks and playgrounds when, and in places, deemed proper by the planning commission, which open spaces, parks and playgrounds shall be shown on the subdivision plan. Such regulations, on and after July 1, 1985, shall provide that proper provision be made for soil erosion and sediment control pursuant to section 22a-329. The commission may also prescribe the extent to which and the manner in which streets shall be graded and improved and public utilities and services provided and, in lieu of the completion of such work and installations previous to the final approval of a plan, the commission may accept a bond in any amount and with surety and conditions satisfactory to it securing to the municipality the actual construction, maintenance and installation of such improvements and utilities within a period specified in the bond. Such regulations may provide, in lieu of the completion of the work and installations above referred to, previous to the final approval of a plan, for an assessment or other method whereby the municipality is put in an assured position to do such work and make such installations at the expense of the owners of the property within the subdivision. Such regulations may provide that in lieu of either the completion of the work or the furnishing of a bond as provided in this section, the commission may authorize the filing of a plan with a conditional approval endorsed thereon. Such approval shall be conditioned on (1) the actual construction, maintenance and installation of any improvements or utilities prescribed by the commission or (2) the provision of a bond as provided in this section. Upon the occurrence of either of such events, the commission shall cause a final approval to be endorsed thereon in the manner provided by this section. Any such conditional approval shall lapse five years from the date it is granted, provided the applicant may apply for and the commission may, in its discretion, grant a renewal of such conditional approval for an additional period of five years at the end of any five-year period, except that the commission may, by regulation, provide for a shorter period of conditional approval or renewal of such approval. Any person, firm or corporation who, prior to such final approval, sells or offers for sale any lot subdivided pursuant to a conditional approval shall be fined not more than five hundred dollars for each lot sold or offered for sale.
      “(b) The regulations adopted under subsection (a) of this section may also encourage energy-efficient patterns of development and land use, the use of solar and other renewable forms of energy, and energy conservation. ...”
      “[General Statutes] Sec. 8-26. approval of subdivision and resubdiVISION PLANS. WAIVER OF CERTAIN REGULATION REQUIREMENTS. APPLICATIONS INVOLVING INLAND WETLANDS AND WATERCOURSES. All plans for subdivisions and resubdivisions, including subdivisions and resubdivisions in existence but which were not submitted to the commission for required approval, whether or not shown on an existing map or plan or whether or not conveyances have been made of any of the property included in such subdivisions or resubdivisions, shall be submitted to the commission with an application in the form to be prescribed by it. The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . . The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. No plan of resubdivision shall be acted upon by the commission without a public hearing. . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith, including existing subdivisions or resubdivisions made in violation of this section, within the period of time permitted under section 8-26d. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person applying to the commission under this section, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. Such notice shall be a simple statement that such application was approved, modified and approved or disapproved, together with the date of such action. The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. The grounds for its action shall be stated in the records of the commission. . . . The provisions of this section shall apply to any municipality which exercises planning power pursuant to any special act.” (Emphasis added.)

       The court in Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979), held that a subdivision approval conditioned on the acquisition of approval from the highway superintendent was a “failure to act” by the subdivision commission within the meaning of General Statutes § 8-28. The court also noted in passing that this type of “conditional approval” was not a modification within the meaning of § 8-26. Id., 593 n.7.

       Although § 8-25 permits preliminary approvals conditioned on the completion of work ordered by a commission or the issuance of a bond securing the completion of such work; see footnote 3, supra; there is no claim that this type of “conditional approval” is at issue here.

       Although Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 368 A.2d 24 (1976), does not contain a clear expression of its interpretation of the commission’s actions in light of the three avenues of action available, the factual similarity of the changes ordered by the commissions in Nicoli and Crescent Development Corporation v. Planning Commission, 148 Conn. 145, 168 A.2d 547 (1961), as well as the favorable citation in Nicoli to the decision in Crescent Development, lead us to conclude that the Nicoli court also treated the commission’s orders as a modification and approval pursuant to § 8-26.

       For example, § 8-25 mandates that subdivision regulations provide for water, drainage and sewerage; flood controls; harmonious street plans; safe intersections; and soil erosion and sediment control. In its discretion, the commission may provide for such things as the dedication of land for parks and playgrounds; the grading of streets; the installation of public utilities and services; and the encouragement of energy efficient patterns of development. See footnote 3, supra.

       We find the fact that Ward, the applicant in 1977, first suggested the imposition of the notation is of no significant consequence. If Ward had desired a perpetual restriction on this piece of land, she easily could have included a restrictive covenant in the deed that she conveyed to the plaintiff. Her power to limit the future use of those parcels was not a power she could transfer to the planning commission. Nor is it a power that the planning commission has authority to possess. In fact, it has been said that a planning commission cannot base its denial of subdivision approval on the existence of a deed restriction if the application otherwise meets the regulations. Anderson v. Board of Supervisors, 63 Pa. Cmwlth. 335, 437 A.2d 1308 (1981); see also Board of Commissioners v. Haslett, 69 Pa. Cmwlth. 1, 450 A.2d 298 (1982); 4 R. Anderson, American Law of Zoning (3d Ed.) § 25.18, p. 323. The responsibility of enforcing restrictive covenants in deeds is allocated to neighboring landowners, not to a municipal commission.

       We are also mindful of the defendant’s interpretation of the nature of the restrictive covenant. When the defendant denied the plaintiff’s subdivision application, it stated that no “significant change of circumstances” had yet occurred to warrant removal of the notation. This statement clearly indicates that the defendant is of the belief that, having imposed the restriction unilaterally, it can also lift the restriction whenever it chooses; in fact, the defendant states as much in its brief. The difficulty raised is that the defendant’s eventual decision to remove the notation would, of necessity, be arbitrary and subject to challenge by neighboring landowners on that ground. Without the existence of provisions in the subdivision regulations to guide the commission to the ultimate decision to lift the restriction because of a “change in circumstances,” the commission’s determination would be bereft of the support necessary for the decision to be upheld by the courts. Furthermore, the plaintiff, or her successors in title, would have no way of knowing when a sufficient change in circumstances had occurred which would result in a successful subdivision application.
      On the basis of these considerations, we believe that if the restriction were to be upheld by this court, the prohibition against future subdivisions must exist in perpetuity. Not only would this allow the defendant to exercise powers over the future use of specific lots of land usually invested in the owners of the parcels; see footnote 9, supra; but it would also create a curious dichotomy in the authority possessed by a planning commission as opposed to other municipal decision making boards, which ordinarily do not make permanent, irreversible decisions.

       General Statutes § 8-2 provides in pertinent part: “REGULATIONS. The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, and the height, size and location of advertising signs and billboards. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." (Emphasis added.)


author: Norcott, J.

text:
    State of Connecticut v. Donald W. Fenn, Jr.
    (6019)
    Spallone, Norcott and Foti, Js.
    Argued June 3
    decision released September 20, 1988

      John R. Williams, for the appellant (defendant).

      Jay Huntington, deputy assistant state’s attorney, with whom were Susann E. Gill, assistant state’s attorney, and, on the brief, Dennis Santore, former state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), robbery in the third degree in violation of General Statutes § 53a-136, and assault of a victim sixty or older in the third degree in violation of General Statutes § 53a-61a. The defendant claims that the trial court erred (1) in admitting the victim’s in-court and out-of-court identifications of the defendant, (2) in restricting the defendant’s cross-examination of the victim, (3) in refusing to give a requested jury instruction on the problems of eyewitness identification, and (4) in giving jury instructions which usurped the factfinding role of the jury and shifted the state’s burden of proof. We find no error.

The jury could reasonably have found the following facts. On July 7, 1986, at approximately 12:30 p.m., a man came to the door of the home of the victim, Philomena Gooley. Posing as a utility company employee, he asked Gooley to replenish his water jug. Gooley took the jug and locked the screen door. When she returned with the water, the man burst into the house and a struggle ensued. Gooley kicked the intruder. He hit her, kicked her, and pushed her against the wall. She bit his right index finger and tore off his false moustache. The intruder then dragged her into the bedroom and demanded money, which she gave him. He then pushed Gooley into the bathroom, immobilized her with tape, threatened to kill her, and then left the premises. Gooley freed herself and called the police. When the police arrived, Gooley was taken to the hospital emergency room, treated and released.

On the day after the assault, Gooley described her attacker to the police as a dark complexioned white male, five feet eight to ten inches tall, weighing about 180 pounds, with a husky build, short dark hair, brown eyes and wearing a yellow construction hat, dirty white cotton gloves, jeans and a dirty short sleeve shirt. The same day, when shown a photographic array in which one of the pictures was of the defendant, Gooley was unable to identify the assailant, although she returned to the defendant’s photograph several times saying that it was “pretty close” and that her assailant looked “something like that.” Thereafter, Gooley participated in the preparation of a composite picture of her assailant, the results of which did not completely satisfy her. Two weeks after the attack, she positively identified the defendant as her assailant while he was being arraigned in the Torrington courthouse on traffic charges. She also positively identified the defendant at trial.

The attack took place in full daylight and lasted thirty to thirty-five minutes. During this time, the victim was wearing her glasses and had an opportunity to observe her assailant at very close range. The victim also made every effort to observe the man in order to be better able to identify him later.

I

The defendant claims that the trial court violated his constitutional right to due process by denying his motion to suppress the victim’s out-of-court identification and by admitting her in-court identification of him. The defendant contends that the procedure whereby the victim viewed the defendant at an unrelated arraignment was unnecessarily suggestive and that the resulting out-of-court identification was unreliable. He also contends that the victim’s in-court identification was tainted by the earlier improper identification and should not have been admitted. We disagree.

“The determination of whether an identification procedure offends a defendant’s due process rights depends on (1) whether the procedure was impermissibly and unnecessarily suggestive, and (2) if so, whether the identification was nevertheless reliable based on the totality of the circumstances.” State v. Bell, 13 Conn. App. 420, 424, 537 A.2d 496 (1988), citing State v. Pollitt, 205 Conn. 132, 162, 531 A.2d 125 (1987). “An identification procedure is unnecessarily suggestive when it ‘ “give[s] rise to a very substantial likelihood of irreparable misidentification.” ’ State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).” State v. Williams, 203 Conn. 159, 174, 523 A.2d 1284 (1987).

Our Supreme Court has held that arraignment observations are inherently suggestive because of the “real possibility that the victim of one crime, armed with the knowledge that the suspect is being charged with another crime, possibly of the same character, is more likely to leap to the conclusion that the person being arraigned in front of him committed both crimes.” State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981). The court has also held, however, that such procedures, while suggestive, may not be constitutionally infirm if the identification is “ ‘ “nevertheless reliable based on examination of the ‘totality of the circumstances.’ ” ’ ” State v. Fullwood, supra, 244; State v. Hinton, 196 Conn. 289, 295, 493 A.2d 836 (1985).

In this case, even though the identification procedure may have been unnecessarily suggestive, we conclude that the victim’s identification of the defendant was clearly reliable in light of the totality of the circumstances. The factors to be considered in determining the reliability of a victim’s identification are (1) the victim’s opportunity to view the criminal at the time of the crime, (2) the victim’s degree of attention, (3) the accuracy of the victim’s prior description of the criminal, (4) the level of certainty demonstrated by the victim at the confrontation, and (5) the length of time between the crime and the confrontation. State v. Amarillo, 198 Conn. 285, 293, 503 A.2d 146 (1986).

In this case, the victim had an excellent opportunity to observe her assailant face to face for a significant period of time. She testified that she paid a high degree of attention to the assailant so that she could later identify him. She also gave police a description of her assailant that was detailed enough for the police to put together a photographic array of suspects and to create a composite picture. As to the level of certainty demonstrated at the confrontation, the victim was unequivocal in her belief that the defendant was her assailant. At the arraignment, the first time the defendant entered the courtroom, the victim told the police officer sitting with her that she thought that he was her assailant but was unsure because he was wearing glasses. The defendant left the courtroom, returning a few minutes later without the glasses. At this point the victim became nervous and upset, began crying and appeared very frightened. She told the officer that she was sure that the defendant was the person who had assaulted and robbed her. The victim’s “ ‘reluctance to make an immediate uncategorical identification of the defendant is not evidence of an initial misidentification but rather demonstrates the conduct of a witness exercising independence of judgment under stressful conditions.’ ” State v. Arroyo, 13 Conn. App. 687, 691, 539 A.2d 581 (1988), quoting State v. Perez, 198 Conn. 68, 74, 502 A.2d 368 (1985). As for the time factor, since only two weeks had elapsed between the attack on the victim and her identification of the defendant, the assault was still fresh in her mind. See State v. Ledbetter, supra, 616.

“ ‘The reliability inquiry ... is factbound and made on an ad hoc basis. Generally, where the admissibility of evidence depends upon a preliminary question of fact to be determined by the court, “its decision is not to be reversed unless there is clear and manifest error.” Engelke v. Wheatley, 148 Conn. 398, 410-11, 171 A.2d 402 (1961); see Practice Book § 4061; State v. Brigandi, 186 Conn. 521, 530, 442 A.2d 927 (1982).’ State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, 484 U.S. 927 [108 S. Ct. 293, 98 L. Ed. 2d 252 (1987)].” State v. Vega, 13 Conn. App. 438, 442-43, 537 A.2d 505 (1988).

We find that, under the facts of this case, the trial court’s denial of the defendant’s motion to suppress the arraignment identification was not erroneous. Since this identification was properly admitted, the identification of the defendant at trial was not tainted and was also admissible.

II

The defendant’s next claim is that the trial court’s restriction of his cross-examination of the victim violated his constitutional rights of confrontation under the federal and state constitutions.

It is undisputed that the day after the attack, the victim was unable positively to identify her assailant from a photographic array containing a ten year old black and white profile photograph of the defendant. This photographic array was an exhibit at trial. While cross-examining the victim, defense counsel asked whether she could then identify any of the photographs in the array as being of the defendant. The state’s objection to the question as irrelevant was sustained by the trial court.

“ ‘The Confrontation Clause of the Sixth Amendment [to the United States constitution] guarantees the right of an accused in a criminal prosecution “to be confronted with witnesses against him. . . . ‘[T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of crosexamination.’ ” ’ (Emphasis omitted.) Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). While ‘ “ ‘[c]ross-examination is the principal means by which the believability of a witness and the truth [or reliability] of his testimony are tested];] Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982)[;]’ ” ’ State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985); a defendant’s right to cross-examination ‘is not absolute and is subject to reasonable limitation by the [trial] court.’ State v. Thompson, 191 Conn. 146, 147-48, 463 A.2d 611 (1983); see also State v. Jackson, 198 Conn. 314, 318-19, 502 A.2d 865 (1986); State v. Vitale, [197 Conn. 396, 401, 497 A.2d 956 (1985)]. ‘The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge. This discretion comes into play, however, only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. State v. Castro, 196 Conn. 421, 424, 493 A.2d 223 (1985); State v. Gaynor, 182 Conn. 501, 508, 435 A.2d 1022 (1980). The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness. United States v. Vasilios, 598 F.2d 387, 389 (5th Cir. 1979), cert. denied, 444 U.S. 967, 100 S. Ct. 456, 62 L. Ed. 2d 380 (1979), reh. denied, 444 U.S. 1049, 100 S. Ct. 742, 62 L. Ed. 2d 737 (1980), and cert. denied sub nom. Alexander v. United States, 444 U.S. 932, 100 S. Ct. 277, 62 L. Ed. 2d 190 (1979); State v. Castro, supra, 425.’ State v. Vitale, supra, 402; see also State v. Weidenhof, 205 Conn. 262, 270, 533 A.2d 545 (1987); State v. Milum, supra, 609; State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985); State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).” State v. Milner, 206 Conn. 512, 524-25, 539 A.2d 80 (1988).

A review of the defendant’s cross-examination of the victim reveals that he had every opportunity to question her about the details of her original description of her assailant. This questioning exposed the jury to significant differences between the physical characteristics of the defendant and those of the assailant as reported by the victim, as well as inconsistencies in the victim’s description of the assailant’s clothing. The defense was able to cross-examine the victim extensively regarding the accuracy of the composite picture that she aided the police in producing, and her earlier inability to identify her assailant from the photographic array containing a photograph of the defendant. The defense also raised questions about whether the victim’s identification of the defendant at the Torrington courthouse was unduly influenced by the suggestive setting. Although the defense counsel did not question the victim about her in-court identification of the defendant, he was not prevented from doing so by the trial court.

We find that this examination provided the defendant with an opportunity to expose before the jury any facts upon which the jury could determine the victim’s credibility sufficient to satisfy the confrontation clause of the sixth amendment.

“ ‘Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply “[e]very reasonable presumption ... in favor of the correctness of the trial court’s ruling in determining whether there has been an abuse of discretion.” State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).’ State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). ‘ “ ‘To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.’ United States v. Elliott, 571 F.2d 880, 909 (5th Cir. 1978); Gordon v. United States, 438 F.2d 858, 865 (5th Cir. 1971).” State v. Gaynor, [182 Conn. 501, 510, 438 A.2d 749 (1980)].’ State v. Castro, supra, 426.” State v. Warren, 14 Conn. App. 688, 698, 544 A.2d 209 (1988).

The court sustained the state’s objection to the question posed to the witness on the ground that it was not relevant. “[T]he question in determining the relevancy on cross-examination is not ‘whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness. . . .’” State v. Delgado, 8 Conn. App. 273, 286, 513 A.2d 701 (1986), quoting State v. Denby, 198 Conn. 23, 31-32, 501 A.2d 1206 (1985).

As set out in our discussion of the defendant’s constitutional claim, the defense was allowed to cross-examine the victim extensively on matters relating to the reliability of her previous identifications. Inconsistencies in her description of the assailant, her inability to identify him when first presented with the photo array, and the possible influence of suggestive settings on her identifications of the defendant were all brought out on cross-examination. If the trial court had allowed the witness to answer the question posed, she might have been unable to identify the defendant’s picture in the photo array. While this would have been yet another factor relevant to the credibility of the witness’ testimony, we do not believe that the failure to allow the defendant to pursue this line of questioning clearly prejudiced the defendant’s case.

We find that the trial court allowed sufficient latitude on cross-examination for the defendant to attempt to discredit the victim’s testimony before the jury.

Ill

Next, the defendant contends that the refusal of the trial court to give the requested charge on problems relating to eyewitness identification violated his constitutional rights to due process. Specifically the defendant claims that the trial court erred in not giving an instruction based on United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). “Although such an instruction may be given in an appropriate case; see State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); it is not reversible error for a trial court to refuse to give a Telfaire instruction where the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent. State v. Davis, 198 Conn. 680, 685, 504 A.2d 1372 (1986).” State v. Elliott, 8 Conn. App. 566, 573, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986); see State v. Hardison, 16 Conn. App. 142, 146, 546 A.2d 968 (1988).

Although the conviction in this case turned in major part on the identifications of the defendant by the victim, both the identification at the arraignment and the identification at trial were clear, certain and consistent, and therefore the court was not required to give a Telfaire-type instruction. In addition, while the court’s charge was not exactly as requested by the defendant, it in fact covered the substance of the written request and contained many of the elements covered by the model charge in Telfaire.

“It is not error for a trial court to refuse to charge a jury in the exact words of a requested instruction, as long as the requested charge is given in substance. See State v. Harrell, 199 Conn. 255, 269-70, 506 A.2d 1041 (1986); State v. Falcone, 191 Conn. 12, 26, 463 A.2d 558 (1983).” State v. Jenkins, 8 Conn. App. 35, 40, 510 A.2d 1370 (1986). The court instructed the jury to consider the victim’s capacity and opportunity to observe her assailant, taking into consideration the time she had to observe him, her proximity to him, and whether she had known him prior to the attack. The jury was also instructed to consider the initial description the victim gave to the police and to scrutinize carefully the victim’s identification of the defendant, in order to determine whether, in the jury’s opinion, the identifications were products of the victim’s own recollection or were unduly influenced by the manner in which the defendant was presented to her for identification.

We find that these instructions sufficiently apprised the jury of the appropriate standard for determining the credibility of the victim’s eyewitness testimony.

IV

In his final claims, the defendant asserts that the trial court erred in its instructions to the jury. Specifically, the defendant claims that the court made certain comments on the evidence which either directed the jury to find certain elements of the crimes with which he was charged or removed those elements from the jury’s consideration. We disagree.

At the outset, we note that the defendant did not properly preserve these claims for appeal. Nonetheless, we will review these claims at this time because they implicate the defendant’s “ ‘constitutional right to a jury trial and due process of law in light of the assertion that the court effectively directed the jury on some of the factual issues by virtue of its comments on the evidence . . . .’ State v. Collette, 199 Conn. 308, 316 n.6, 507 A.2d 99 (1986).” State v. Flynn, 14 Conn. App. 10, 32, 539 A.2d 1005 (1988).

In reviewing a claim that the court improperly commented on the evidence, we first note that “ ‘ “[i]t has been established by repeated decisions in this State that a court, in submitting a case to the jury, may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point of evidence in issue in the case, and may comment upon the weight of the evidence, so long as it does not direct or advise the jury how to decide the matter . . . State v. Cabaudo, 83 Conn. 160, 163, 76 A. 42 (1910).’ State v. Nims, [8 Conn. App, 631, 640-41, 513 A.2d 1280, cert. denied, 201 Conn. 812, 516 A.2d 887 (1986)]. ‘The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done . . . State v. Storlazzi, [191 Conn. 453, 466, 464 A.2d 829 (1983)]. ‘Individual comments are not to be judged in isolation from the charge as a whole; State v. Moss, 189 Conn. 364, 367, 456 A.2d 274 (1983); State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); and should be examined not in a vacuum, but in the context of the factual issues raised at trial. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).’ State v. Collette, 199 Conn. 308, 316-17, 507 A.2d 99 (1986).” State v. Flynn, supra, 34.

In this case, the defendant first contends that the trial court directed a finding on certain of the identification testimony given by the victim. Specifically, the defendant contends that the court directed the jury to find that the defendant fit the description given by the victim of her assailant. We disagree.

In the course of its instructions, the court recounted the description the victim had given the police of her assailant. The court noted that the victim had told the police that the man who assaulted her had “short dark hair with a dark complexion and dark eyes, was five foot eight to five foot ten, weighed about 175 to 180 pounds, and talked slowly.” After giving that description, the court commented that “I think it’s fair to say that that general description would certainly fit the defendant.” In finding that this statement was a permissible comment on the evidence and not a case of judicial factfinding, we first note that the. statement was made in the midst of an explanation by the court that the victim’s identification had to be carefully scrutinized. Immediately after making that statement the court went on to point out that the description given by the victim “omitted any mention of several prominent physical characteristics of the defendant . . . braces on the teeth, scars on the face, and tatoos on both arms.” We further note that the trial court had instructed the jury that it was the sole and exclusive determiner of the facts of the case and that it was free to accept or reject any facts the judge used in illustrating legal principles. Reading the charge as a whole, we conclude that the court’s statement was a permissible comment on the evidence and not a case of judicial fact-finding.

The defendant next contends that the trial court erred in charging the jury that the procedure resulting in the Torrington arraignment identification was legal and proper. We disagree.

As we noted in part I, despite the fact that the procedure which resulted in the Torrington arraignment identification was unnecessarily suggestive, the resulting identification was nevertheless reliable. Accordingly, the trial court did not err in instructing the jury that there was nothing illegal or improper about the procedure. In reaching this conclusion, we further note that the trial court did not refer to the legality of the procedure in a way which usurped the jury’s role in determining the reliability of the victim’s identification of the defendant. The court instructed the 'jury “I want to emphasize that there wasn’t anything illegal or improper about the procedure followed by the Thomaston police. But, if you believe that [the victim’s] identification of the defendant was influenced by the circumstances on July 21st in the Torrington courthouse, and that her identification of the defendant is not entirely a product of her independent recollection then you should scrutinize her identification of the defendant with great care. You need not reject it on that count, but you should examine all the more carefully.” We find that the court’s instruction was proper and did not remove the question of the reliability from the jury.

The defendant’s final claim is that the trial court erred in instructing the jury that if it believed the victim’s entire testimony it must find the defendant guilty on all counts. The defendant claims that this instruction removed the element of intent from the jury’s consideration. We disagree.

In addressing this claim, we first note that the court never told the jury that it must convict the defendant if it believed the victim’s entire testimony. The trial court merely instructed the jury that if it believed the testimony of the victim, it could find that certain crimes were perpetrated upon her, or that it could infer that the perpetrator had the intent necessary to be convicted under the statute.

In giving these instructions, the trial court did not remove the issue of intent from the jury’s consideration. The jury was specifically instructed that intent was an element of each of the crimes with which the defendant was charged. It was further instructed that in order to convict the defendant, it must find each and every element of the crimes charged beyond a reasonable doubt. Finally, the trial court gave a lengthy description to the jury of the manner in which intent could be inferred from the actions of an accused. Reading the charge as a whole, we conclude' that the issue of intent was not removed from the jury’s consideration.

There is no error.

In this opinion the other judges concurred.

       “Although the defendant relies on both the sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution as a basis for a disparate treatment between the two. We see no reason to undertake such an analysis. See State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985).” State v. Cosby, 6 Conn. App. 164, 166 n.1, 504 A.2d 1071 (1986).

       The defendant raises one additional claim of error. He claims that the trial court erred in instructing the jury that it could convict the defendant even if it believed his alibi. A review of the record, however, reveals that there was an error in the transcription of the proceedings. The trial court actually informed the jury that it could convict the defendant if it disbelieved his testimony. The instruction actually given was not erroneous, and the defendant does not take issue with it.