author: Dupont, C. J.,

text:
    In re Grand Jury Investigation by Judge Barry R. Schaller
    Dupont, C. J., Borden, Spallone, Daly, O’Connell, Norcott and Foti, Js.
    Argued September 19, 1989
    decision released January 2, 1990

      Henri Alexandre, assistant attorney general, for the petitioner.

      Hugh F. Keefe, with whom, on the brief, was Michael J. McCleary, for Thomas R. Brown.
   Dupont, C. J.,

The sole issue of this petition for review is whether the petitioner is entitled to the relief sought, namely, the release of the finding, transcripts and record of Judicial Inquiry No. 85-01, as filed with the investigatory grand jury panel that ordered the inquiry. Pursuant to General Statutes § 54-47g (a), we grant review of the action of the grand jury panel denying the petitioner access to the finding, record, and transcripts. We conclude, after review, that the matter must be remanded to the grand jury panel for further proceedings.

Frank D’Amico, the petitioner, is an inspector in the division of criminal justice and was assigned to assist the grand juror with the judicial inquiry that is the subject of this appeal. The petitioner was ordered to keep the inquiry confidential. At the conclusion of the inquiry, he applied for an arrest warrant for Thomas R. Brown. The petitioner sought the warrant, based in substantial part, on the testimony and exhibits introduced at the judicial inquiry. The warrant was issued and Brown was arrested, but the charges against him were dismissed by a trial court on January 24, 1989.

Subsequently, on April 27, 1989, Brown filed a suit in the United States District Court of Connecticut against D’Amico and other unnamed defendants in the office of the chief state’s attorney. This suit, seeking compensatory and punitive damages totalling ten million dollars, was brought pursuant to 42 U.S.C. § 1983. It alleges that the petitioner was acting under the color of state law and in both his official and individual capacities when he deprived Brown of certain constitutional rights. The theme of the suit is that D’Amico and others employed by the Connecticut state police and the office of the Connecticut chief state’s attorney obtained an arrest warrant for Brown based on perjury and a fabrication of physical evidence. Brown alleges that the warrant application and its supporting affidavit used a selective and “tailored” version of available testimony and other evidence, thereby misleading the judicial authority that signed the affidavit into issuing an arrest warrant without probable cause.

On June 12,1989, the petitioner applied to the grand jury panel for release of the transcripts of the inquiry, claiming that he could not otherwise defend himself against Brown’s lawsuit. He claims that he cannot answer motions for disclosure and production filed in that lawsuit because of his oath of secrecy and lack of access to the records. The panel, without hearing, denied the application by letter. The letter, signed by the secretary to the panel, contained one sentence and gave no reason for the denial. Both the attorney general and Brown urge this court to release the transcripts. For the purposes of this petition for review, they are basically in accord as evidenced by their briefs and oral arguments.

After the attorney general filed the petition for review on behalf of D’Amico, this court assigned the matter for oral argument and directed that briefs be filed by the attorney general, the chief state’s attorney and counsel for Brown. The parties were directed to address the following issues: (1) which of several amendments to General Statutes § 54-47 governs the petition; (2) the standard for release of grand jury transcripts; and (3) in the event of release, the conditions of release, if any, including the persons or entities to whom the transcripts should be given.

Public Acts 1985, No. 85-611, now codified as General Statutes §§ 54-47a through 54-47h, governs this case. That amendment became effective on October 1, 1985. The application for the judicial inquiry here was made and authorized in October, 1985. Thus, the 1985 version of the statute, as amended by Public Acts 1985, No. 85-611, applies to the question of whether the finding and record of the investigation shall be disclosed. See In re Grand Jury Investigation by Judge John M. Alexander, 207 Conn. 98, 540 A.2d 49 (1988). The finding and record include the report of the grand juror, the transcript and documentation submitted to the grand juror. Id., 107.

The standard for release is embodied in the language of Public Acts 1985, No. 85-611, § 6. “The finding and record of the investigation shall be sealed, provided the panel, by a majority vote, may disclose such finding and record when such disclosure is deemed by the panel to be in the public interest.” See General Statutes § 54-47g (a). The standard for release prior to the 1985 amendment was “a particularized need.” In re Grand Jury Investigation by Judge John M. Alexander, supra.

The Alexander decision left open the question of whether there is any substantive difference between the pre-1985 standard of particularized need and the 1985 legislative standard of “public interest” now codified in General Statutes § 54-47g (a). Id., 108 n.4. The initial determination of that question should be left to the grand jury panel since it is to that body that the legislature has entrusted the duty of determining when disclosure is in the public interest. That panel is in a better position to determine what the public interest requires in this case because of its prior familiarity with the origin and scope of the judicial inquiry ordered by it. See In re Grand Jury Investigation by Judge John M. Alexander, supra, 107.

A hearing is necessary to determine whether the public interest requires disclosure. See In re Grand Jury Investigation by Judge Hugh C. Curran, 19 Conn. App. 230, 561 A.2d 974 (1989). In the present case, the panel summarily denied disclosure without a hearing. At the hearing ordered by this court, the panel will be able to elicit further information and facts upon which it can determine what the public interest requires.

The matter is remanded to the grand jury panel for a determination of whether the public interest requires disclosure, and, if so, for a further determination of those to whom disclosure should be made, and the conditions, if any, that should be imposed.

In this opinion the other judges concurred.

       General Statutes § 54-47g (a) provides in pertinent part that “[a]ny person aggrieved by an order of the panel shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two hours from the issuance of such order.”

       General Statutes § 54-47b (4) defines the panel as “three superior court judges designated by the chief justice of the supreme court from time to time to receive applications for investigations into the commission of crimes . . . .” General Statutes § 54-47d provides that if the panel approves an application and orders an investigation into the commission of a crime or crimes, the chief court administrator shall appoint an investigatory grand jury to conduct the investigation.

       The petitioner is represented by the attorney general of the state of Connecticut in this matter.

       The office of the chief state’s attorney requested that it be excused from filing a brief because the attorney general “properly addresses the issues raised in the court’s order” and “the brief of the Attorney General will fully and accurately represent the state and ... its officers . . . . ”
      Notice of the order of this court, which scheduled briefs and oral argument, was given to the secretary to the grand jury panel, but the panel did not participate in or attempt to participate in the decision of this court, or in the hearing held by this court on the petition for review.

       General Statutes §§ 54-47a through 54-47h have been amended three times since 1985. Public Acts 1987, No. 87-350; Public Acts 1988, No. 88-148; Public Acts 1988, No. 88-345.

       While the phrase “particularized need” was not contained in the language of the pre-1985 statute, the Supreme Court articulated it as the proper standard for disclosure under that statute in In re Final Grand Jury Report Concerning the Torrington Police Dept., 197 Conn. 698, 709-14, 501 A.2d 377 (1985). See also In re Investigation of the Grand Juror into Cove Manor Convalescent Center, Inc., 4 Conn. App. 544, 495 A.2d 1098 (1985).

       Our conclusion that the panel should make the initial determination of what the “public interest” requires is not in conflict with State v. Breton, 212 Conn. 258, 562 A.2d 1060 (1989). In Breton, the trial court determined that the phrase “especially cruel” in a criminal statute was unconstitutionally vague. The Supreme Court agreed, but independently developed a limiting construction of the phrase, despite the fact that the trial court had not previously done so. Such a construction was necessary in that case to save the statute from unconstitutionality. Here, we are not faced with a constitutional challenge to a statute.


source: Caselaw Access Project

author: Lavery, J. Daly, J.,

license: Public Domain

text:
    State of Connecticut v. Stanley Wells
    (7751)
    Daly, Norcott and Lavery, Js.
    Argued October 18, 1989
    decision released January 9, 1990

      K. Wynne Bohonnon, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, state’s attorney, and Lawrence Tytla, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant is appealing from the judgment of conviction, after a trial to the court, of operating an improperly registered boat in violation of General Statutes § 15-144 (h). The defendant claims that there was insufficient evidence to support the trial court’s finding that the defendant’s boat had been used in Connecticut for more than sixty days in 1988. We find no error.

The following facts are relevant. The Stance is a forty-six foot yacht owned by Stance Maritime Limited, a subchapter S corporation organized under the laws of the state of Delaware. The defendant and his wife are the sole stockholders of Stance Maritime Limited. The corporation purchased the Stance in December, 1987, and brought the boat to Connecticut in May, 1988. The defendant owns the rights to a slip large enough to accommodate the Stance at the Shennecosset Yacht Club in Groton. Neither the defendant nor the corporation owns any other anchorage suitable for the boat.

Stance Maritime Limited is in the “marine trades business,” that is, it charters the Stance for a fee. The defendant had a charter arrangement with the corporation that entitled him to first refusal to charter the boat on weekends. Although he did not execute a separate, formal charter agreement with the corporation each time he chartered the boat, he did pay the daily charter fee.

During the summer of 1988, Ronald Wofford, a boating enforcement officer with the department of environmental protection, visited the Shennecosset Yacht Club on twelve days in June and seven days in July. On eighteen of those nineteen occasions Wofford noted in his log that the Stance was docked at the club. On October 8,1988, Wofford saw the defendant operating the Stance both at the Shennecosset Yacht Club and later that day at the Essex Marina. When the defendant docked at Essex, Wofford cited him for operating an unregistered vessel.

General Statutes § 15-144 (h) provides that “[a]ny person who operates or any owner who permits the operation of a vessel on the waters of this state which has not been numbered or registered in accordance with the provisions of this chapter . . . shall have committed a violation . . . .” General Statutes § 15-142 (b) requires each vessel with a Connecticut vessel number to be registered in this state. Vessels numbered by another state or by the United States and vessels whose owners hold valid United States Coast Guard documents must, pursuant to § 15-142 (b), also be registered when such vessels are used in Connecticut waters for more than sixty days in any calendar year. Section 15-142 (a) defines “use” as “any launching, mooring or operation of a vessel upon the waters of this state . . . .”

To determine whether the defendant violated § 15-144 (h), it is necessary to determine whether the vessel he was operating, namely, the Stance, was registered as required by § 15-142 (b). At trial, the state and the defendant stipulated that on October 8,1988, the Stance was documented by the United States Coast Guard. The issue therefore turns on whether the Stance was used in Connecticut waters for more than sixty days in 1988 prior to the October 8 citation.

The defendant’s sole claim on appeal is that there was insufficient evidence to prove that the Stance had been used in Connecticut waters for more than sixty days in 1988. He argues that the only direct evidence was Wofford’s testimony that he noted the presence of the vessel at the Shennecosset Yacht Club on eighteen days during the summer of 1988 and on October 8, the day he issued the citation. The defendant further argues that the circumstantial evidence elicited at trial was insufficient to prove that the vessel was in Connecticut for an additional forty-two days. We disagree.

“Our standard of review on such an issue is well established and limited. The inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence established guilt beyond a reasonable doubt.” State v. Malines, 11 Conn. App. 425, 431, 527 A.2d 1229 (1987). “ ‘Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)].” State v. Malines, supra, 431; see also State v. Whittingham, 18 Conn. App. 406, 413, 558 A.2d 1009 (1989). The following evidence adduced at trial is relevant to a determination of whether the Stance was used in this state for more than sixty days. The defendant testified that he and his wife, the only stockholders of Stance Maritime Limited, are Connecticut residents. The defendant further testified that he owned the rights to a slip at the Shennecosset Yacht Club and that the Stance had been moored there from time to time during the summer of 1988. He was unable to recall specifically, however, the exact periods of time that the Stance spent in Shennecosset. Neither the defendant nor the corporation owns any other slip in Connecticut or elsewhere at which the Stance might have been moored. Moreover, no slip rental receipts were introduced nor was any other evidence offered to show that the corporation stored the boat out of the state between charters. The defendant testified that the Stance had never been to its supposed “home port” of Philadelphia, nor had it plied the waters of the state of the corporation’s organization, Delaware. None of this evidence was contradicted at trial. In sum, the only available evidence leads logically and reasonably to the conclusion that, between charters, the Stance was moored at the Shennecosset Yacht Club.

The defendant testified that the Stance was first brought to Connecticut in May, 1988. Wofford cited the defendant for operating an unregistered vessel on October 8, 1988. If it is assumed that the vessel first entered Connecticut waters on May 31, 1988, the period from June 1,1988, to October 8,1988, includes one hundred thirty days. Evidence from two sources indicates that the Stance was chartered for fifty-seven days during this period. First, the defendant testified that he personally chartered and used the boat forty-four days and that other customers chartered it for thirteen. Second, he testified that during the summer of 1988 the boat generated $17,000 in charter income. Dividing that figure by the $300 daily rental rate yields fifty-seven. When we exclude these days entirely from the one hundred thirty day period, we are still left with seventy-three days on which the only available evidence strongly suggests that the boat was moored at Shennecosset.

“In reviewing claims concerning the sufficiency of the evidence, this court makes no distinction between the probative force of direct and circumstantial evidence. State v. Cates, [202 Conn. 615, 627, 522 A.2d 788 (1987)].” State v. Uretek, Inc., 207 Conn. 706, 715, 543 A.2d 709 (1988). In light of the evidence that the boat’s owners could readily store the boat at the Shennecosset Yacht Club between charters, the evidence that Wofford noted its presence in the yacht club on nineteen different occasions, the defendant’s testimony that the boat was moored there for certain indeterminate periods of time, and, most important, the lack of any evidence suggesting that the boat was kept elsewhere between charters, it was reasonable for the court to find beyond a reasonable doubt that the boat was moored, hence, “used”; General Statutes § 15-142 (a); in Connecticut waters for more than sixty days in 1988.

Given this finding, by October 8,1988, the boat was required to be registered in Connecticut. General Statutes § 15-142 (b). It was not. Immediately before issuing the citation on October 8, Wofford observed the defendant operating the Stance. Thus, the trial court did not err in finding the defendant guilty of operating an unregistered vessel.

There is no error.

In this opinion Norcott, J., concurred.

Daly, J.,

dissenting. The trial court, in responding to the defendant’s motion for articulation that requested an explanation of the court’s finding that there was sufficient circumstantial evidence to convict the defendant of operating an improperly registered boat, stated that “the court has twenty-eight separate dates between May and October 8,1988 when beyond any and all doubt the Stance was in Connecticut waters. From this incontrovertible evidence and considering the span of time (from May to October 8) the court finds and is of the opinion beyond a reasonable doubt that the Stance was used in Connecticut waters during 1988 on more than sixty days.”

Clearly, the incontrovertible evidence that the Stance was in Connecticut waters for twenty-eight days was not sufficient to find that the vessel was used for more than sixty days. Moreover, the “span of time” itself does not rise to the level of supplying the necessary circumstantial evidence warranting the finding that the state proved beyond a reasonable doubt that the Stance was used in Connecticut waters for an additional thirty-two days. The state has thus failed to prove that the boat had been used in Connecticut waters for more than sixty days, an essential element for convicting this defendant of operating an improperly registered boat.

Accordingly, I dissent from the majority’s holding that the trial court could have reasonably concluded that there was sufficient evidence to convict the defendant of this offense.

       See 26 U.S.C. § 1361.


author: Borden, J.

text:
    Oakwood Development Corporation v. Zoning Board of Appeals of the City of Torrington et al.
    (7715)
    Borden, Spallone and O’Connell, Js.
    Argued October 3, 1989
    decision released January 9, 1990

      George B. Simoncelli, Jr., corporation counsel, for the appellant (named defendant).

      James F. McKenna, for the appellee (plaintiff).
   Borden, J.

The named defendant, the Torrington zoning board of appeals (board), appeals from the judgment of the trial court sustaining the plaintiffs zoning appeal. That appeal challenged the board’s denial of the plaintiffs application for a special exception permit under the Torrington zoning regulations to construct multi-family housing in an industrial zone. The dispositive issue is whether the court erred by substituting its judgment for that of the board. We find error.

The plaintiff applied to the board for a special exception permit under the Torrington zoning regulations to construct 180 units of multi-family housing in an industrial zone. Section 606 B.3. of the regulations provides in pertinent part that “no permit for special exceptions shall be issued unless it is found in each case that the proposed building or the proposed use of land: (a) Will not create or aggravate a traffic or fire hazard. (b) Will not block or hamper the town pattern of highway circulation, (c) Will not tend to depreciate the value of property in the neighborhood or be otherwise detrimental to the neighborhood or its residents or alter the neighborhood’s essential characteristics.”

After a public hearing, where evidence both favorable and unfavorable to the application was presented, the board denied it for the following reasons: “(a) that it could tend to create or aggravate a traffic or fire hazard, (b) that it could tend to block or hamper the town pattern of highway circulation, and (c) it could tend to depreciate the value of property in the neighborhood or be otherwise detrimental to the neighborhood or its residents or alter the neighborhood’s essential characteristics.” The board also stated that “[tjhe general consensus of the board Members was that this piece of property was in a prime area for industrial development, it was zoned Industrial and it would not be in the best interest of the City for it to be used for multifamily development. The Industrial Development Commission and the Planning and Zoning Commission, along with the Mayor want to preserve smaller industrial parcels in hopes of recruiting new industry to them. They also felt that it would change the character of the neighborhood which is commercial and industrial.”

The plaintiff appealed to the trial court. The court determined that none of the board’s reasons for denying the application was supported by the record. With specific reference to the finding that the development would tend to alter the essential characteristics of the neighborhood, the court concluded that “[tjhis reason is in reality not a reason but an excuse for the board’s decision. It is apparent from a reading of the entire record that the only reason for the denial was the desire of the board to restrict the property to industrial use,” and that “[i]n doing so . . . the defendant abused its discretion and thereby acted in an arbitrary manner.” On the basis of that conclusion, the court sustained the plaintiff’s appeal and remanded the matter to the defendant for further proceedings. Upon our grant of certification, this appeal followed.

The board argues that the court erred by substituting its judgment on the issue of whether the plaintiff’s development would alter the essential characteristics of the neighborhood. We agree.

The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984). The court’s review is based on the record, which includes the knowledge of the board members gained through personal observation of the site; id., 49-50; or through their personal knowledge of the area involved. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983). Where a zoning authority has expressed the reasons for its decision, a reviewing court “may only determine if the reasons given are supported by the record and are pertinent to the decision,” and the authority’s action “ ‘must be sustained if even one of the stated reasons is sufficient to support it.’ ” Torsiello v. Zoning Board of Appeals, supra, 50, quoting Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1981).

In this case, one of the board’s stated reasons, namely, that the development would alter the neighborhood’s essential characteristics, was supported by the record. The parcel in question was in an industrial zone. The plaintiff’s proposal was for 180 residential, multi-family units. There was evidence that the neighborhood consisted of residential, commercial and industrial uses, with a preponderance of commercial and industrial uses. More specifically, there was evidence that a lumber yard and concrete plant were directly across the street from the parcel, and that north of the parcel there were other commercial uses, as well as residential uses, including a thirty-six unit condominium complex. There was also evidence that south of the parcel there were numerous commercial and industrial uses, including a construction company yard, as well as some residential uses.

On the basis of this record, including the board members’ knowledge of the area, we cannot say that the board acted arbitrarily in determining, as a factual matter, that the plaintiff’s proposed use of the land would alter the essentially commercial and industrial character of the neighborhood. This was a question of fact committed to the zoning authority, and it is subject to judicial review for the limited purpose of determining whether the board’s decision was a reasonably exercised honest judgment supported by the record. Id., 50-51.

The record does not support the trial court’s conclusions that this basis for the board’s decision was “not a reason but an excuse” for its decision, and that the only reason for the denial was the board’s desire to restrict the property to industrial use. It is true that the board expressed its “consensus . . . that this piece of property was in a prime area for industrial development, it was zoned industrial and it would not be in the best interest of the City for it to be used for multifamily development.” The board also referred to the desires of the industrial development commission, the planning and zoning commission and the mayor “to preserve smaller industrial parcels in hopes of recruiting new industry to them.” It is also true, however, that the board specifically found that the proposed development would “alter the neighborhood’s essential characteristics,” and that it “would change the character of the neighborhood which is commercial and industrial.” The trial court should not have disregarded these other specific findings, which were supported by the record.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the plaintiff’s appeal.

. In this opinion the other judges concurred.

       The Torrington city clerk also was named as a defendant, but is not involved in this appeal.

       In view of our conclusion that the trial court erred by substituting its judgment for that of the board, we need not consider the board’s other elaims of error, one of which was withdrawn at oral argument in this court.


author: Per Curiam.

text:
    Harry K. Boardsen et al. v. Zoning Board of Appeals of the Groton Long Point Association, Inc.
    (7916)
    Borden, Daly and Norcott, Js.
    Argued November 8, 1989
    decision released January 9, 1990

      Jane W. Freeman, for the appellants (plaintiffs).

      Peter M. O’Connor, for the appellee (defendant zoning board of appeals).

      Jackson T. King, Jr., with whom, on the brief, was Jeffrey R. Godley, for the appellees (defendant Nancy J. Adam et al.).
   Per Curiam.

The plaintiffs, Harry K. Boardsen and Nancy C. Boardsen, appeal from the judgment of the trial court dismissing their appeal challenging a decision of the named defendant, the zoning board of appeals of the Groton Long Point Association, Inc. (board). The board had denied without prejudice the plaintiffs’ appeal to it from the denial by the association zoning official of the plaintiffs’ application for a zoning permit to construct a dwelling on the plaintiffs’ rear lot.

Under the zoning regulations, the plaintiffs had the burden of providing notice of the hearing before the board to all owners of land located within 150 feet of the subject property. The plaintiffs mailed notice accompanied by certificates of mailing, rather than by certified mail as required by the regulations. At its meeting on December 11, 1987, because of the improper notice, the board denied the plaintiffs’ application “without prejudice” to the plaintiffs’ right to file a new application. The plaintiffs declined to refile their application, and instead appealed to the Superior Court. The court found that the merits of the plaintiffs’ claim were not discussed at the December 11,1987 meeting, and that it was reasonable for the board to deny the application without prejudice where the plaintiffs had failed to comply with the notice requirements. This appeal followed.

Although the plaintiffs assert multiple claims, they are all variants of one issue, namely, whether the trial court erred in concluding that the board acted properly in denying the plaintiffs’ application without prejudice instead of rescheduling the hearing. The plaintiffs argue that they had a right to a rescheduled hearing, and that if the board had rescheduled the hearing, their application would have been entitled to review under the zoning regulations as they existed prior to certain amendments that became effective on June 15, 1987. We decline to address the merits of the plaintiffs’ claims because they failed to secure an adequate appellate record for review.

All of the claims advanced by the plaintiffs require that we accept the existence of a key predicate fact, namely, that the plaintiffs filed a completed application for a zoning permit prior to June 15,1987. The board disputes this fact, and it was not found by the trial court. In addition, the plaintiffs failed to move for an articulation in the trial court or in this court under Practice Book § 4051 or § 4061.

The factual background is as follows. On June 15, 1987, certain revisions to the zoning regulations took effect, which expanded the scope of the zoning regulations to cover lots that resulted from divisions, or so-called first cuts, as well as subdivisions. As a result of these changes, the plaintiffs’ rear lot was not in compliance with the zoning regulations with respect to the construction of dwellings because it did not have the requisite street frontage. Thus, the plaintiffs sought to have their permit application reviewed under the regulations in effect prior to June 15, 1987, claiming that they were entitled to a permit under those regulations.

Prior to June 15, 1987, the plaintiffs filed, and the zoning official received, an application for a zoning permit to be issued for their rear lot on East Shore Avenue in Groton Long Point. The plaintiffs claim in their brief that “[o]n the date of the filing of the Plaintiffs’ Application for Zoning Permit, the Plaintiffs’ rear lot (Parcel 2) fully complied with the GLPA zoning regulations.” The board, however, submits in its recital of the facts that this was not established and, to the contrary, that the plaintiffs’ application was not accepted as a complete application on that date by the zoning official because information required to determine compliance with the zoning regulations was not submitted as part of that application. The board further claims that the plaintiffs were informed on July 1,1987, that their application was incomplete, that they completed the application during July, and that the zoning official received and accepted the application for a zoning permit on August 5, 1987. The board also claims that on September 2, 1987, the zoning official denied the plaintiffs’ application on the basis of the regulations that had become effective on June 15, 1987, and that notice of this denial was mailed to the plaintiffs on September 15, 1987.

There is ample support in the record for questioning the “fact” asserted by the plaintiffs that their June filing was in compliance with the zoning regulations. The existence of this fact is critical for the resolution of this case, because if the plaintiffs did not file a completed application prior to the effective date of the amendment, they have no basis for arguing that they are entitled to have their application reviewed under the pre-June 15, 1987 zoning regulations, in a rescheduled hearing on their initial application, rather than in a new hearing on a new application.

This record is inadequate because the plaintiffs’ assertion that they timely filed a completed application has not been adjudicated. Indeed, the weight of the record discounts their claim that a completed application was filed in June. In addition, the plaintiffs had an opportunity to file a reply brief in this court to counter the board’s statement of facts, and they did not do so. We do not ordinarily remand a case to correct a deficiency that the appellant should have remedied. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); Dixon v. Trubisz, 17 Conn. App. 216, 218, 551 A.2d 1259 (1988). We see no reason to depart from that policy in this case.

There is no error.

       The defendants are the board, Nancy J. Adam and Constance B. King. Adam and King own property abutting that of the plaintiffs that is the subject of this appeal.

       A subdivision is defined in General Statutes § 8-18 as “the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development. . . ." The plaintiffs’ rear lot was the result of an earlier division of the plaintiffs’ parcel into two lots.

       We note, however, that the zoning official in a letter to the plaintiffs, dated September 15,1987, stated: “Your presentations have contended that your application would fall under the Zoning Regulations existing prior to the revisions effective 15 June 1987; however, the application fails to comply with the aforementioned Sections even as they existed prior to 15 June.” (Emphasis added.)

       The letter to the plaintiffs by the zoning official dated September 15, 1987, corroborates the chronology of events put forth by the board in its statement of facts. His letter stated: “1 July — GLP Zoning Commission meeting . . . Zoning Official indicated that application was incomplete and unacceptable without siting of the proposed dwelling on the lot (3.13.2.e) and without a Class A-2 survey (7.1.1b).

      “5 August — GLP Zoning Commission meeting; Zoning Official indicated that application was still incomplete and unacceptable without site plan and Class A-2 survey; site plan submitted.
      “30 August — Class A-2 survey delivered to my home, completing the application; date of receipt of application.

      “2 September — Zoning Commission meeting; Zoning Official indicated Zoning Permit application complete as of 30 August . . . Zoning Commission voted 5-0-1 to advise Zoning Official that the Boardsen application does not comply with the Zoning Regulations.” (Emphasis added.)


text:
    State of Connecticut v. William Bawza
    (7973)
    Borden, Spallone and Lavery, Js.
    Argued November 15, 1989
    decision released January 9, 1990

      William Bawza, pro se, the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the trial court’s denial of a motion to modify his sentence or to place him on intensive probation. We find no error.

On April 14, 1988, the defendant pleaded guilty to assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The trial court found that the plea was made freely and voluntarily and that there was a factual basis for it. On May 27,1988, the court imposed the agreed upon sentence of five years. Shortly thereafter, the defendant, acting pro se, applied for intensive probation in accordance with General Statutes § 53a-39. The trial court, Noven, J., referred the motion to the office of adult probation for investigation. The probation office did not recommend intensive probation and the trial court denied the motion. In January, 1989, the defendant filed another motion for modification of the sentence or for intensive probation. The trial court, Shaughnessy, J., again referred the motion to the probation department, which recommended against the motion. The trial court denied the motion and the defendant appealed. The defendant did not appeal from the original conviction or the agreed upon sentence.

The defendant claims that the trial court erred because (1) the factual basis of the plea as adduced at the plea hearing supports only a conviction of assault in the second degree, and (2) the sentencing court was under the mistaken impression that the defendant was subject to a mandatory minimum sentence of five years.

Because § 53a-39 allows a judge to modify a sentence of three years or less and the agreed upon sentence in this case was for five years, the court had no power to modify the sentence. As to the application under § 53a-39 for intensive probation, the office of adult probation twice gave the defendant an unfavorable recommendation and twice the trial court in the proper exercise of its discretion denied the motion.

-The claims of error concerning the plea and sentencing are not reviewable in this appeal. The defendant’s claim concerning the factual basis for his plea was untimely, because he did not raise it prior to his sentencing. State v. Smith, 19 Conn. App. 646, 648-50, 563 A.2d 1034 (1989). Similarly, his claim concerning the sentencing procedure was not raised by motion to the trial court until approximately eight months after the sentence was imposed. This defendant cannot convert what are essentially attempts to withdraw his guilty plea and to challenge his sentence into viable appellate issues simply by seeking relief under § 53a-39 that he was not entitled to receive.

There is no error.

       General Statutes § 53a-39 provides in pertinent part: “At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced. At any time during the period of a definite sentence of at least two years but not more than five years, the sentencing court or judge shall refer any application of a defendant seeking placement in the intensive probation program to the office of adult probation for assessment and recommendations and may, after hearing and for good cause shown, order the defendant discharged on intensive probation in accordance with subsection (b) of section 54-105 for a period of at least one year but not more than the unexpired portion of the sentence.”

       In any event, the claims of error concerning the plea and sentencing have not been properly preserved and we will comment on them only briefly. A review of the plea shows that, not only were there sufficient facts to justify a plea of guilty to a charge of assault in the first degree, but there were sufficient facts to justify a charge of robbery in the first degree in violation of General Statutes § 53a-134 (a), which is a class B felony. It is beyond dispute, therefore, that the defendant profited from his plea bargain. As to the second ground, the sentence of five years was agreed upon as part of the plea bargain. In State v. Coleman, 17 Conn. App. 307, 312-13, 552 A.2d 442 (1989), this court held that an error in the recitation of the mandatory minimum sentence did not affect a determination that the plea was knowingly and voluntarily made.
      Neither of these claims is truly of constitutional proportion; see State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987); and they are therefore not reviewable under the bypass doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The sentence in the present case was the one for which the defendant bargained.


author: Lavery, J.

text:
    William J. Beck v. Stephen B. Heintz, Commissioner of Income Maintenance
    (7719)
    Dupont, C. J., Daly and Lavery, Js.
    Argued October 17, 1989
    decision released January 9, 1990

      Michael E. Paris, for the appellant (plaintiff).

      Martin Rosenfeld, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Lavery, J.

The plaintiff is appealing from the judgment of the trial court dismissing his administrative appeal from the defendant’s decision not to grant the plaintiff a hearing. The plaintiff claims that the trial court erred in deciding that he was not entitled to a hearing because he was not aggrieved by a decision of the defendant. We find no error.

The trial court found the following facts. On May 11, 1988, the department of human resources (DHR) obtained a money judgment, after a plenary hearing in Superior Court, against William Beck, the plaintiff in the present case. Rivera v. Beck, Superior Court, judicial district of Fairfield, docket no. 87-0242914S (May 11,1988). The judgment was for an arrearage that Beck owed to the department of income maintenance (DIM) for support of and lying-in expenses paid by DIM, on the behalf of Beck’s minor child, from February 3, 1987, to December, 1987, pursuant to General Statutes § 17-82d. General Statutes § 17-83e makes parents liable for public assistance paid by DIM on behalf of a minor child. The authority to recover these funds, however, is vested not in DIM but in DHR, pursuant to General Statutes § 17-31b. Thus, it was DHR, not DIM, that brought this action against Beck that resulted in the May 11 judgment. Beck did not appeal the Superior Court’s judgment of May 11, 1988.

On June 1, 1988, Beck petitioned for a hearing with DIM, pursuant to General Statutes § 17-82Í, to review the judgment. Section 17-82f allows applicants for or beneficiaries of DIM assistance who are aggrieved by a decision of the commissioner of DIM made without a hearing to request a hearing. Section 17-2a requires the petitioner to be aggrieved and requires the request for a hearing to be made within sixty days of the commissioner’s decision. DIM refused to grant the hearing.

Beck appealed DIM’s refusal to grant a hearing to the Superior Court. Beck’s complaint and petition stated: “(1) On or about May 11, 1988 the defendant commissioner [of DIM] assessed a money judgment of $2,487.85 against the plaintiff father .... (4) On or about June 1,1988 the plaintiff father, pursuant to Connecticut General Statutes §§ 17-82f and 17-2a, duly requested a fair hearing to review the defendant commissioner’s assessment of the above-mentioned money judgment against the plaintiff father.” (Emphasis added.) The judgment described in Beck’s complaint, however, was not a ruling by DIM, but the Superior Court judgment obtained by DHR against Beck. The trial court dismissed the appeal, finding that Beck was not an applicant for or beneficiary of DIM assistance, as required by'§ 17-82f, and that his request was not filed within sixty days of a decision by the commissioner of DIM to grant assistance. The court further found that since the decision in question was a judgment of the Superior Court, Beck failed to meet the statutory requirement of aggrievement by a decision of the commissioner of income maintenance. Beck appealed to this court.

The plaintiff claims that the trial court erred in finding that he was not entitled to a hearing pursuant to § 17-82f. We disagree.

“Appeals from final judgments or actions of the superior court shall be taken to the appellate court . . . .” General Statutes § 51-197a. The only exceptions to this statutory mandate involve appeals in those cases that are either appealable directly to the Supreme Court; id.; General Statutes § 51-199 (b); or not appealable at all. See, e.g., General Statutes § 51-197a (small claims judgments not appealable). Just as the judicial department lacks the power to perform administrative or nonjudicial functions; Pittsburgh Plate Glass Co. v. Dahm, 159 Conn. 563, 568, 271 A.2d 55 (1970); so do administrative agencies within the executive branch lack the power to exercise appellate jurisdiction, which is vested in this court by the constitution. Conn. Const., art. Y, § 1. Although Beck's complaint in this case mischaracterized the Superior Court’s earlier judgment in favor of DHR in Rivera v. Beck, supra, as a decision of the commissioner of DIM, the trial court correctly found that the decision Beck was attempting to relitigate was in fact a judgment of the Superior Court. Furthermore, the complaint stated explicitly that the purpose of the requested hearing was “to review the defendant commissioner’s assessment of the above-mentioned money judgment . . . .” (Emphasis added.) Thus, from the facts found by the trial court and the allegations in the complaint, the procedural posture of this case emerges unmistakably as an attempt to appeal a judgment of the Superior Court to DIM.

DIM had no jurisdiction to hear such an appeal, and the agency properly refused to hear Beck. Beck failed to take a proper appeal from the judgment in Rivera v. Beck, supra, and thus he is not entitled to any review of that decision. In addition, the trial court correctly found that the plaintiff was neither an applicant nor a beneficiary pursuant to § 17-82f, supra, and that he did not file a petition for a fair hearing within sixty days of the decision of the commissioner of DIM as required by § 17-2a.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 17-82f provides: “Any applicant or beneficiary aggrieved by a decision of the commissioner made without a fair hearing may request a hearing in accordance with the provisions of section 17-2a.”

       General Statutes § 17-82 defines beneficiary as “any adult or minor child receiving assistance under the provisions of this chapter.”

       General Statutes § 17-2a provides in pertinent part: “An aggrieved person authorized by law to request a fair hearing on a decision of the commissioner of income maintenance . . . may make application for such hearing in writing over his signature to the commissioner and shall state in such application in simple language the reasons why he claims to be aggrieved. Such application shall be mailed to the commissioner within sixty days after the rendition of such decision.”


text:
    Town of Preston et al. v. Connecticut Siting Council et al.
    (7882)
    Borden, Foti and Lavery, Js.

      Argued November 1, 1989
    decision released January 16, 1990

      Kathleen Eldergill, with whom, on the brief, was Frank A. Manfredi, for the appellants (plaintiffs).

      Phyllis E. Lemell, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (named defendant).

      Francis J. Brady, with whom were Mary Adamowicz and, on the brief, David F. Weber, for the appellee (defendant Connecticut Resources Recovery Authority).

      William H. Narwold, with whom was Karen L. Goldthwaite, for the appellee (defendant American Ref-Fuel Company).

      Roger E. Koontz, for the appellee (defendant Southeastern Connecticut Regional Resources Recovery Authority).

      Philip M. Small and Cynthia Brodhead filed a brief for the appellee (defendant Connecticut Light and Power Company).
   Borden, J.

The plaintiffs appeal from the judgment of the trial court, Koletsky, J., dismissing their administrative appeal challenging a decision of the named defendant, the Connecticut siting council (council). That decision approved an application by three defendant applicants to locate a proposed electric generating regional resource recovery facility in Preston.

The plaintiffs claim that the trial court erred in dismissing the appeal because (1) the applicants failed to comply with the service and notice requirements of General Statutes § 16-50Ü of the Public Utility Environmental Standards Act (PUESA), (2) the council’s revocation of the decision of the Preston planning and zoning commission denying site plan approval exceeded its jurisdiction and was based on an improper standard of review, (3) the proposed facility was not subject to the council’s jurisdiction because it was an exempt “facility” within the meaning of General Statutes § 16-50Í (a) (3) of PUES A, and (4) the council erred in finding that a public need existed for the proposed facility and in failing to consider the facility’s significant adverse environmental effects. We find no error.

The applicants filed an application with the council pursuant to PUES A; General Statutes §§ 16-50g et seq.; for a certificate of environmental compatibility and public need (certificate) to construct and operate a regional resource recovery facility in Preston. The proposed facility was designed to incinerate approximately 180,000 tons per year of municipal solid waste in order to produce steam that would be used solely to generate electricity. After public hearings, the council approved the application.

The applicants also filed an application with the Preston planning and zoning commission for zoning approval of the proposed facility and for approval of a coastal site plan. After the commission issued its decision denying the application, the applicants appealed to the council. The council revoked the commission’s decision in connection with the issuance of the certificate and substituted its own decision and order.

The plaintiffs appealed the council’s decisions to the trial court, which dismissed their appeal. This appeal followed.

I

The plaintiffs first claim that the council should have denied the application because the applicants failed to comply with the service and notice requirements of General Statutes § 16-50Í (b) of PUESA. We disagree.

On August 29, 1986, the applicants filed with the council an application for a certificate. The council assigned docket number seventy to this application. This application was accompanied by proof of service of a copy of the application on the governmental parties specified in General Statutes § 16-50l (b) (A) through (F). See footnote 5, supra. On November 7, 1986, the applicants withdrew the August 29, 1986 application and simultaneously refiled an identical one so that they would be in compliance with a recent amendment to § 16-50Í (b) requiring that notice of an application for a certificate also be sent to abutting owners of record. See footnote 5, supra. The council assigned docket number seventy-four to this refiled application. The proof of service accompanying the refiled application consisted of a copy of the prior proof of service of the initial application on those entities listed in § 16-50Z (b) (A) through (F), and a certification that the listed entities received notice that the application they had previously received had been withdrawn and an identical one refiled.

The plaintiffs argue that the receipt of notice of the refiled application in lieu of a copy of the refiled application itself did not comply with the service requirements of § 16-50Í (b). The plaintiffs base their contention on the distinction in the statute between those entities that must be served a copy of the application, namely, the governmental entities listed in § 16-50Z (b) (A) through (F), and those entities entitled only to notice that an application has been filed, namely, the general public by publication in newspapers, and abutting property owners by certified or registered mail. See footnote 5, supra.

The initial service of copies of the August application on the § 16-50Z (b) (A) through (F) entities fully satisfied the statutory service requirement, and the applicants were not required to serve them with copies of the identical November refiled application. We disagree with the plaintiffs’ characterization of the refiled application as a “new” application for purposes of § 16-50Z, simply because the council assigned it a new docket number. For purposes of the statutory service requirements, these two applications were one and the same. It is undisputed that the refiled application was identical to the first. It is also undisputed that all of the entities requiring copies of the application received notice that an identical copy of the application already in their possession was refiled with the council. The plaintiffs’ argument would elevate form over substance, and would serve neither the letter nor the purpose of § 16-502 (b).

The plaintiffs also claim that the applicants failed to comply with General Statutes § 16-502 (b) because they did not send notice to Theodore Schulz, an abutting owner, at the same time they gave notice to the general public by newspaper publication. This claim is without merit.

Schulz was not identified as an abutting landowner when the applicants refiled their application in November, 1986, and, therefore, was not served. When the applicants learned of this omission, they moved and the council ordered that Schulz be served, that the hearing be stayed for thirty days following service on him in order to provide him with the same minimum amount of time to prepare for the hearing as any other party, and that the docket be opened to him regarding all prior proceedings concerning the application. Although Schulz requested and was granted party status, he subsequently informed the council in writing that he would no longer participate in the administrative proceedings. In addition, Schulz did not appeal to the trial court, and is not involved in the appeal to this court.

The plaintiffs base their argument on the language of § 16-502 (b) that notice to abutting property owners “shall be sent at the same time that notice of such application is given to the general public.” They argue that the published notice was defective because it did not coincide in time with the notice to Schulz, and that, therefore, under such cases as Brazo v. Real Estate Commission, 177 Conn. 515, 518, 418 A.2d 883 (1979), and Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957), the defect rendered the administrative appeal jurisdictionally invalid. The plaintiffs’ reliance on this line of cases is misplaced.

Under this statute, the timing of the notice to abutting owners is geared to the publication of notice to the general public. This does not mean, however, that a late notice to an abutting owner invalidates an otherwise proper notice to the general public. The purpose of notice by publication to the general public is to “ ‘advise all affected parties of their opportunity to be heard and to be apprised of the relief sought.’ ” Schwartz v. Hamden, 168 Conn. 8, 14, 357 A.2d 488 (1975), quoting Slagle v. Zoning Board of Appeals, supra. That purpose was fulfilled in this case. Any defect of notice was in the timing of the personal notice to Schulz, and that was fully cured by the council’s orders and by his conduct waiving any such defect. See Schwartz v. Hamden, supra, 15.

II

The plaintiffs next claim that the council exceeded its jurisdiction in overruling the decision of the Preston planning and zoning commission denying the site plan approval, and that the council employed an improper standard of review of the commission’s decision. We disagree.

A

The plaintiffs first argue that the application initially submitted to the commission “was the subject of the Applicants’ appeal to the Siting Council,” and that the applicants’ withdrawal of that application prior to its consideration by the council effectively rendered any appeal from the commission’s decision denying the zoning and coastal site plan a nullity. The plaintiffs contend, therefore, that the council exceeded its jursidiction by rendering its decision on the refiled application, council docket number seventy-four, because, under the provisions of General Statutes § 16-50x (d), it had no authority to review the refiled application without first presenting the refiled application to the commission. This argument fails for two reasons.

First, it blurs the fact that there were two separate applications, each of which followed a separate procedural path. The applicants’ initial application, council docket number seventy, was an application for a certificate made directly to the council, and was replaced by the refiled, identical application, council docket number seventy-four. This initial application was not, as the plaintiffs state in their brief, the subject of the applicants’ appeal to the council from the action of the commission. The appeal to which the plaintiffs refer concerns an altogether different application, namely, the applicants’ application to the commission for local zoning and coastal site plan approval, the denial of which the applicants appealed to the council.

Second, and more fundamentally, this argument is based upon the erroneous hypothesis that the commission had jurisdiction to review an application to the council for a certificate. It did not. With respect to the certification process under General Statutes § 16-50x (a), the council has “exclusive jurisdiction over the location and type of facilities . . . .” With respect to the separate and distinct application process before the zoning commission, under General Statutes § 16-50x (d), the decision of the zoning commission may be appealed to the council, “which shall have jurisdiction, in the course of any proceeding on an application for a certificate or otherwise, to affirm, modify or revoke such order [of the local agency] or make any order in substitution thereof . . . .” See footnote 6, supra. Pursuant to this provision, the council decided the applicants’ appeal from the commission concurrently with their application for a certificate.

B

The plaintiffs also argue that the council erred by failing to apply a limited scope of review to the decision of the commission. The plaintiffs contend that because General Statutes § 16-50x (d) sets forth no scope of review to be used by the council in considering such an appeal, the council’s proper standard is similar to a trial court’s limited scope of review in administrative appeals under the Uniform Administrative Procedure Act (UAPA); General Statutes §§ 4-166 et seq.; and in zoning appeals under General Statutes § 8-8. We disagree, and we conclude that the council properly engaged in a de novo adjudication, unlimited by the record before the commission, on the appeal from the commission’s decision.

The council, when it approved the application for a certificate, also revoked the commission’s denial of the applicants’ application for zoning and coastal site plan approval, “for the same reasons that it had decided to grant a certificate.” The council is empowered to review decisions from zoning commissions on a de novo basis, applying concerns that transcend those involved in local zoning decisions, and that review may, as it did in the present case, result in the approval of a particular site although the facility failed to meet the requirements of local zoning regulations.

Under the UAPA, a court may affirm an agency decision, sustain the appeal or remand the case for further proceedings; General Statutes § 4-183 (j); and upon sustaining the appeal, may order the agency to take particular action only “[i]f a particular agency action is required by law.” General Statutes § 4-183 (k). The court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact”; General Statutes § 4-183 (j); and must affirm the agency decision unless it is “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record,” or it is affected by certain other errors of law. Id. Review is, with certain exceptions, limited to the record. General Statutes § 4-183 (i).

Similarly, under § 8-8 (f), a “court may reverse or affirm, wholly or partly, or may modify or revise, the [zoning] decision appealed from,” and may order the zoning agency to take certain actions only if no other course is legally available to the agency. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 753, 345 A.2d 9 (1974). The court, moreover, must not substitute its judgment for that of the zoning agency. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984); and with certain exceptions must limit its review to the record. See General Statutes § 8-8 (e); Troiano v. Zoning Commission, 155 Conn. 265, 268-69, 231 A.2d 536 (1967).

In contrast, under § 16-50x (d), the council may, “in the course of any proceeding on an application . . . affirm, modify or revoke” the order of a local zoning agency, and it may “make any order in substitution thereof.” This sweeping language suggests a broader scope of review than that permitted under the UAPA or General Statutes § 8-8, because it permits the council to review a local zoning agency’s decision together with or apart from an application for a certificate, and because it expressly gives the council the power to substitute its own judgment.

It is clear that, under PUES A framework, the role of the council in its review of local zoning decisions was meant to be comprehensive and plenary. Pursuant to General Statutes § 16-50x (a), the council has, with one exception inapplicable here, “exclusive jurisdiction over the location and type of facilities . . . .” General Statutes § 16-50g mandates that the council, in performing its statutory functions, do so in a manner consistent with its purposes, namely, to balance the need for public utility services at a reasonable cost with environmental, ecological, scenic, historic and recreational values; to ensure that the environmental quality standards of utility service facilities are at least equal to analogous federal standards, and are technically sufficient; to encourage research for the development of new methods of providing such services with minimal damage to such values; to require forecasting of the demand for electricity; and to facilitate local, regional and interstate planning in order to implement the purposes of the council. These purposes go far beyond local zoning concerns.

Further, upon the filing of an application for a certificate, the act provides the council with numerous means of acquiring information in addition to that which must be submitted by the applicant. These include the employment of independent consultants to study and measure the consequences of the proposed facility on the environment; General Statutes § 16-50n (d); consultation with and solicitation of written comments from the departments of environmental protection, health services, public utility control, economic development and transportation, the council on environmental quality, and the office of policy and management; General Statutes § 16-50j (g); and the submission of data by parties other than the applicants, including organizations formed to promote conservation, to protect the environment, to preserve historical sites, to promote consumer interests, to represent commercial or industrial groups or to promote the orderly development of the areas in which the facility is to be located. General Statutes § 16-50n (a).

It is incompatible with this statutory framework that the council should have such broad based factfinding powers for purposes of rendering a decision on an application for a certificate, yet be constrained to the record, as suggested by the plaintiffs, when it reviews zoning decisions by local agencies. In the final analysis, under General Statutes § 16-50x (d) it is the council’s responsibility to evaluate a proposed facility from a broad, statewide perspective, and it is empowered to decide if and when local concerns must give way.

Finally, the operative language of General Statutes § 16-50x (d), regarding the function of the council in reviewing local zoning decisions, is virtually identical to the language óf General Statutes § 16-235, which governs the similar function of the department of public utility control (DPUC) in reviewing local zoning decisions affecting other public utility facilities. That power of the DPUC has been held to give the DPUC broad authority to override local zoning decisions. See Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 140 A.2d 874 (1958); Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 103 A.2d 535 (1954). The identical language of § 16-50x (d) should be similarly construed.

III

The plaintiffs next claim that the proposed facility was not subject to the council’s jurisdiction because it was an exempt “facility” utilizing cogeneration technology within the statutory definition of General Statutes § 16-50Í (a) (3) of PUES A. General Statutes § 16-1 (21) defines “ ‘[c]ogeneration technology’ [to mean] the use for the generation of electricity of exhaust steam, waste steam, heat or resultant energy from an industrial, commerical or manufacturing plant or process . . . but shall not include steam or heat developed solely for electrical power generation.” (Emphasis added.) The plaintiffs argue that the proposed facility in this case is a cogeneration facility because it uses steam or heat to reduce the volume of solid waste. We disagree.

The council reviewed the technical information describing the facility and concluded that it was not a cogeneration facility because the steam or heat involved in the operation of the facility would be developed solely for electrical power generation, and would not be used for an additional industrial, commercial, heating or cooling purpose. “[A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988). Such deference is appropriate here, because whether a facility employs cogeneration technology is a factual question.

Cogeneration technology means the use of exhaust steam, waste steam, heat or resultant energy from an industrial, commercial or manufacturing plant or process. General Statutes § 16-1 (21); see P. McCary, Cogeneration in Connecticut, 59 Conn. B.J. 365, 369 (1985). If heat or steam is developed solely for electrical power generation, however, the process is not “cogeneration technology.” General Statutes § 16-1 (21); see McCary, supra. We agree with the conclusion of the trial court that the use of steam or heat to incinerate fuel, which in this case happens to be solid waste, for the sole purpose of generating electricity, is excluded from the statutory definition of cogeneration technology.

IV

The final claim of the plaintiffs is that the council erred in finding that a public need existed for the proposed facility and in failing to consider the facility’s significant adverse environmental effects. This argument is without merit.

A

The plaintiffs argue that the council erred in considering the need for solid waste disposal in making its finding of public need under General Statutes § 16-50p (a), which requires that the council find prior to granting a certificate that there is, inter alia, “[a] public need for the facility and the basis of the need.” They contend that “public need” should be construed in this case to mean solely the need for an electrical facility. They base their argument on two grounds. First, the council is limited to reviewing only those facilities listed in § 16-50Í, which excludes solid waste disposal facilities. Second, in balancing public need and environmental impact, “public need” is limited to the need for an energy generating facility in accordance with one of the purposes of PUES A stated in General Statutes § 16-50g, namely, “[t]o provide for the balancing of the need for adequate and reliable public utility services at the lowest reasonable cost to consumers with the need to protect the environment and ecology of the state and to minimize damage to scenic, historic, and recreational values.”

The plaintiffs’ narrow construction of “public need” in § 16-50p is unavailing. Under the plaintiffs’ suggested construction, adverse environmental impacts resulting from the operation of a facility would be a proper consideration for the council, whereas positive environmental benefits flowing from the same operation would not. Such an interpretation is at odds with the broad mandate of PUES A to protect the environment. We see nothing in the plain meaning of the statute to indicate that the council’s decision making should be artificially skewed in this manner. Protection of the environment and the ecology can be achieved not only by restricting the number and size of electric facilities to be built in this state, but also by employing resource recovery facilities to eliminate solid waste. The council was correct to take that environmental need into account, along with the need for electrical power.

The plaintiffs further claim that both the record in this case and the findings of fact made by the council demonstrate that there is no public need for this energy generating facility. The plaintiffs assert that, because the council recognized that there will be no need for additional energy in the Connecticut Light and Power Company system until 1995 at the earliest, it could not justify constructing and commencing operation of a facility prior to that time.

The council’s finding of a public need for electricity from the facility is supported by substantial evidence. The determination by the council that the facility would meet a public need for electrical power by contributing to forecasted generating capacity requirements, reducing dependence on imported energy resources, diversifying the state’s energy supply mix and enhancing supply system reliability are amply supported by the findings of fact. Regarding the timing of making the facility operational, we will not substitute our judgment for that of the council where the council’s findings are supported by substantial evidence. Tanner v. Conservation Commission, 15 Conn. App. 336, 339, 544 A.2d 258 (1988).

B

The plaintiffs also argue that the council, in considering the significant adverse environmental effects of the proposed facility, abdicated its responsibility by relying on the permit process of the department of environmental protection to regulate air emissions, rather than engaging in an independent analysis of the evidence submitted. In addition, the plaintiffs argue that the certificate should not have been approved without a plan to dispose of the ash residue generated by the facility. We disagree.

These arguments are not borne out by the record. The council found that the potential adverse impacts were ameliorated by the design and efficiency of the facility, and the requirement that the facility meet other state laws and regulations prior to and during operation. The council found, in addition to numerous other findings, that the facility’s air pollution control system met state requirements. Substantial evidence existed for the council’s findings.

Further, the council was required to consult with and solicit written comments from the department of environmental protection as well as other state agencies. See General Statutes § 16-50j (g). The legislature clearly contemplated the involvement of other state agencies to supply information to the council in order to render its decision on the granting or denying of a certificate. The council acted properly by taking into account the department of environmental protection’s standard setting function in determining the degree of impact of air emissions, as well as other pollutant discharges.

Finally, the plaintiffs claim that the certificate should not have been approved without a plan for residual ash disposal, and that the imposition by the council of a condition of operation — that the applicants have a legally permitted site for five years of ash disposal — is inadequate. The plaintiffs argue that the environmental impacts of the facility must be treated prior to granting a certificate, and that such a condition would allow the facility to be constructed without a provision for ash disposal residue.

General Statutes § 16-50p (a) empowers the council to grant an application “upon such terms, conditions, limitations or modifications of the construction or operation of the facility as the council may deem appropriate.” The council granted this certificate upon the condition that a landfill site permit be obtained. The council was well within its statutory authority in imposing such a condition, and we will not substitute our judgment for that of the council regarding the adequacy and reasonableness of the condition.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are the named plaintiff, the Preston conservation commission, the Preston planning and zoning commission, the Bittersweet Homeowners Association, Citizens for Alternatives to the Incineration of Refuse (CAIR), Residents Against an Incinerator in our Neighborhood (RAIN), the Mohegan Indian Tribe, and Joseph A. Carano. The trial court dismissed the appeal of the plaintiff Thames River Watershed Association, an intervenor in the administrative proceedings, for lack of aggrievement.

       The council is a state agency that has exclusive jurisdiction over the location, or “siting,” and type of certain statutorily defined utility and communications facilities, with a mandate to balance the public need for utility services with the adverse environmental effects of the proposed facility. See General Statutes §§ 16-50x and 16-50Í (a).

       The three defendant applicants are the Southeastern Connecticut Regional Resources Recovery Authority (SCRRRA), the Connecticut Resources Recovery Authority (CRRA), and the American Ref-Fuel Company (Ref-Fuel). The first two applicants, the SCRRRA and the CRRA, are state instrumentalities authorized to implement a long term, regional solid waste management program through the development of resource recovery facilities. General Statutes §§ 22a-259 et seq., 7-273aa et seq. Those applicants hired Ref-Fuel to design, construct and operate the proposed resource recovery facility that is the subject of this appeal. The three applicants filed a consolidated brief, and will be referred to collectively as the applicants. In addition to the council and the applicants, a fifth defendant, the Connecticut Light and Power Company, an electric public service company required to purchase the electrical output of the facility, requested and was granted party status by the council.

       The applicants claim, as an alternate ground for upholding the trial court’s dismissal of the plaintiffs’ appeal, that the trial court, R. Flanagan, J., erred in denying the applicants’ motions to dismiss the appeal for lack of subject matter jurisdiction, claiming that the plaintiffs failed to cite and serve three certain individual parties of record to the administrative proceedings. We have fully reviewed the parties’ contentions regarding this claim, which involves a confused administrative scenario. Suffice it to say that we are satisfied that the court did not err in denying the motions to dismiss. We therefore reach the merits of the plaintiffs’ claims.

       General Statutes § 16-50Í (b) provides: “Each application shall be accompanied by proof of service of a copy of such application on: (A) Each municipality in which any portion of such facility is to be located, both as primarily proposed and in the alternative locations listed, which copy shall be served on the chief executive officer of the municipality and shall include notice of the date on or about which the application is to be filed, and the zoning commissions, planning commissions, planning and zoning commissions, conservation commissions and inland wetlands agencies of each such municipality, and the regional planning agencies which encompass each such municipality; (B) the attorney general; (C) each member of the legislature in whose assembly or senate district the facility or any alternative location listed in the application is to be located; (D) any agency, department or instrumentality of the federal government that has jurisdiction, whether concurrent with the state or otherwise, over any matter that would be affected by such facility; (E) each state department, agency and commission named in subsection (g) of section 16-50j; and (P) such other state and municipal bodies as the council may by regulation designate. A notice of such application shall be given to the general public, in municipalities entitled to receive notice under subdivision (A) of this subsection, by the publication of a summary of such application and the date on or about which it will be filed. Such notice shall be published under the regulations to be promulgated by the council, in such form and in such newspapers as will serve substantially to inform the public of such application and to afford interested persons sufficient time to prepare for and to be heard at the hearing prescribed in section 16-50m. Such notice shall be published in not less than ten point, boldface type. A notice of such application for a certificate for a facility described in subdivision (3), (4), (5) or (6) of subsection (a) of section 16-50Í shall also be sent, by certified or registered mail, to each person appearing of record as an owner of property which abuts the proposed primary or alternative sites on which the facility would be located. Such notice shall be sent at the same time that notice of such application is given to the general public.”

       General Statutes § 16-50x (d) provides: “Any town, city or borough zoning commission and inland wetland agency may regulate and restrict the proposed location of a facility as defined in subdivisions (3) and (4) of subsection (a) of section 16-50L Such local bodies may make all orders necessary to the exercise of such power to regulate and restrict, which orders shall be made within thirty days of any application and shall be in writing and recorded in the records of their respective communities, and written notice of any order shall be given to each party affected thereby. Each such order shall be subject to the right of appeal within thirty days after the giving of such notice by any party aggrieved to the council, which shall have jurisdiction, in the course of any proceeding on an application for a certificate or otherwise, to affirm, modify or revoke such order or make any order in substitution thereof by a vote of six members of the council.”

       General Statutes § 16-BOi (a) (3) defines facility as “any electric generating or storage facility using any fuel . . . but not including a facility (i) owned and operated by a private power producer, as defined in section 16-243b, (ii) which is a qualifying small power production facility or a qualifying cogeneration facility under the Public Utility Regulatory Policies Act of 1978, as amended, or a facility determined by the council to be primarily for a producer’s own use and (iii) which has, in the case of a facility utilizing renewable energy sources, a generating capacity of one megawatt of electricity or less and, in the case of a facility utilizing cogeneration technology, a generating capacity of twenty-five megawatts of electricity or less.”

       The need for energy produced by nontraditional sources, such as resource recovery facilities, has been firmly documented in state energy policy, state resource recovery policy and state solid waste management policy. See General Statutes §§ 16a-35k, 22a-258, 22a-259 and 7-273aa. In addition, our Supreme Court has recognized that “[t]he Preston facility will not only serve the salutary function of producing electricity, but will also provide the member towns with a means of disposing of their solid waste at a time when the available landfill space is dwindling rapidly.” Connecticut Light & Power Co. v. Department of Public Utility Control, 210 Conn. 349, 354, 554 A.2d 1089 (1989).


author: Dupont, C. J.

text:
    Anele R. Harrington v. Alfred T. Harrington et al.
    (7633)
    Dupont, C. J., Spallone and Lavery, Js.
    Submitted on briefs November 17, 1989
    decision released January 16, 1990

      Gordon R. Raynor filed a brief for the appellant (named defendant).

      Jean L. Welty filed a brief for the appellee (plaintiff).
   Dupont, C. J.

The sole issue of this appeal is whether exclusive possession of realty by a holder of record title to one half of certain premises will prevent the other cotenant from obtaining a judgment of partition pursuant to General Statutes § 52-495 or a judgment of sale of the realty pursuant to General Statutes § 52-500.

The marriage of the plaintiff and the named defendant was dissolved in 1970. In that judgment, the defendant husband was ordered to convey his one-half interest in the marital realty to the plaintiff wife, who also had a one-half interest, in lieu of alimony to her. The plaintiff also was given custody of the parties’ five children. After the dissolution, therefore, the plaintiff had title to the entire fee. In 1973, the plaintiff entered Connecticut Valley Hospital for treatment of alcohol addiction. The defendant sought and was given custody of the children. In 1974, the plaintiff conveyed a one-half interest in the home to the defendant pursuant to an agreement that required the defendant, in consideration of the conveyance, to pay certain expenses relating to the property. In 1975, the plaintiff was again hospitalized and the defendant moved into the house with the children.

The plaintiff brought an action against the defendant, seeking partition or sale of the premises, and a division of the proceeds after the payment of expenses. The court rendered a judgment ordering a sale. The defendant essentially contends that because he denied the plaintiff occupancy and possession of the premises on two occasions and because the plaintiff allowed the defendant to have sole possession of the house, the plaintiff is not entitled to the remedy of partition of sale.

It is not controvertible that the plaintiff has record title as a tenant in common to one-half of the fee. An owner of real estate need not have actual possession in order to maintain an action for partition or sale. General Statutes §§ 52-495 and 52-500. An owner need have only the right to possession to maintain such an action. Penfield, v. Jarvis, 175 Conn. 463, 467, 399 A.2d 1280 (1978).

The possession of realty by one cotenant is ordinarily not adverse to the title of the other cotenant because the possession is subservient to that title. Ruick v. Twarkins, 171 Conn. 149, 157, 367 A.2d 1380 (1976). The plaintiff in this case is a record title holder and the sole fact that the plaintiff did not have possession would not be sufficient to deprive her of the remedy of partition or sale. The court correctly concluded that the plaintiff was entitled to the remedy of sale because the realty did not lend itself to a partition and because General Statutes § 52-500 requires only that the party seeking the sale have an ownership interest. The plaintiff’s record title ownership of one-half interest entitled her to the remedy of sale despite the exclusive possession by the defendant.

There is no error.

In this opinion the other judges concurred.

       The New Haven Savings Bank, the mortgagee, was also named as a defendant. All the parties stipulated that the payment due the bank, including interest, principal and attorney’s fees, would first be satisfied from any sale, prior to disbursement of any funds to the plaintiff and the named defendant. As used in this opinion, the term defendant refers to the named defendant only.

       General Statutes § 52-495 provides in relevant part: “Courts . . . may . . . order partition of any real property held in . . . tenancy in common . . . .”
      General Statutes § 52-500 provides in relevant part: “(a) Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.”


author: Norcott, J.

text:
    State of Connecticut v. James Kristy
    (7771)
    Borden, Daly and Norcott, Js.
    Argued November 7, 1989
    decision released January 16, 1990

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Mark Hurley, deputy assistant state’s attorney, for the appellant (state).

      Timothy H. Everett, with whom were Michael R. Sheldon and Christine Curtiss, certified legal intern, and, on the brief, ToddFemow, for the appellee (defendant).
   Norcott, J.

The state appeals, with the permission of the trial court, from the judgment of the court granting the defendant’s motion to dismiss the information on double jeopardy grounds.. On appeal, the state argues that the trial court erred in concluding that the institution of this second prosecution against the defendant violated his constitutional protection against successive prosecutions for the same offense. We find no error.

The following facts are relevant to this appeal. On December 21, 1983, at approximately 9:45 p.m., the defendant, while accompanied by four passengers, was operating a motor vehicle on the Boston Post Road in Milford. The defendant failed to negotiate a turn at the intersection of West Street and the Boston Post Road, and lost control of the vehicle causing it to slide and then collide with a telephone pole and guard rail. It was later determined that the speed of the defendant’s vehicle at the time of the accident was 61.6 miles per hour and that the defendant had been drinking prior to the accident. Two of the passengers died as a result of the crash.

At the first trial, the defendant was charged with two counts of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b (a). At the close of the trial, the trial court instructed the jury, at the state’s request, on the purported “lesser included offense” of misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a). The jury subsequently returned a verdict of guilty of two counts of misconduct with a motor vehicle.

Thereafter, the defendant appealed to this court, arguing that because misconduct with a motor vehicle was not a lesser included offense of manslaughter in the second degree with a motor vehicle while intoxicated, his conviction of that crime violated his constitutional right to be apprised of the charges against him. We agreed, reversed the convictions, and remanded the case with direction to render judgment of not guilty to the charge of manslaughter in the second degree with a motor vehicle while intoxicated. See State v. Kristy, 11 Conn. App. 473, 481-85, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987) (Kristy I).

After our decision in Kristy I, the state charged the defendant with two counts of misconduct with a motor vehicle arising out of this same incident. On April 18, 1988, the defendant filed a motion to dismiss on double jeopardy grounds. On September 20,1988, the defendant entered a plea of guilty to both counts of the information, and the case was continued until October 20, 1988, for a presentence investigation. On that date, the defendant filed a supplemental memorandum in support of his motion to dismiss on double jeopardy grounds dealing primarily with this court’s decision in State v. Lonergan, 16 Conn. App. 358, 548 A.2d 718 (1988), aff’d, 213 Conn. 74, 566 A.2d 677 (1989). Thereafter, on November 15,1988, the state filed a memorandum in opposition to the defendant’s motion to dismiss. On November 23, 1988, the court, Gray, J., heard oral argument on the motion and continued the hearing until January 5,1989, so that the parties could submit additional briefs addressing Lonergan and so that the state could determine whether it would be relying upon the same evidence for the second prosecution.

At the hearing on January 5, 1989, the court reviewed the defendant’s supplemental memorandum and ascertained from the state that it planned to rely upon the same evidence in the second prosecution. The court, relying on our decision in Lonergan, vacated the defendant’s guilty pleas and granted the defendant’s motion to dismiss on double jeopardy grounds. This appeal ensued. The defendant now contends that the Supreme Court’s recent resolution of the appeal in State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), is dis-positive of this case and requires that we affirm the trial court’s action in this case. We agree.

In Lonergan, our Supreme Court adopted the test, initially applied in that case by this court, that in successive prosecutions, “ ‘if the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not.’ State v. Lonergan, supra, [16 Conn. App. 358,] 368.” State v. Lonergan, supra, 213 Conn. 74, 92. Here, the state concedes, as it did in Lonergan, that the present prosecution arises out of the same transaction as did the prior prosecution and that the state will rely on the same evidence this second time. Nevertheless, it argues that the second prosecution does not violate the double jeopardy protection because Lonergan is distinguishable from this case. The essence of the state’s argument is that in Kristy I, unlike Lonergan, the state obtained a jury conviction, albeit on an erroneous basis, and that conviction was later successfully appealed. Arguing that retrial after a successful appeal of previously litigated matters does not offend double jeopardy rights, the state cites Ball v. United States, 163 U.S. 662,16 S. Ct. 1192, 41 L. Ed. 300 (1896), for the proposition that the successive prosecution here does not involve a double jeopardy analysis. We are not persuaded by this argument.

In Kristy I, the acquittal on the charges of manslaughter in the second degree, not the conviction on the erroneously charged misconduct counts, is the proper judgment on which we must focus our attention for the purposes of our double jeopardy analysis. In Kristy I, had the trial court not instructed the jury, at the state’s request, on misconduct with a motor vehicle as a “lesser included offense,” and had the jury acquitted the defendant of manslaughter with a motor vehicle while intoxicated, as it actually did, the state would now be barred under Lonergan from reprosecuting the defendant for misconduct with a motor vehicle. Having obtained an improper conviction because of the érroneous jury charge in Kristy I, the state would enjoy an unjust benefit if we were to allow it to reprosecute the defendant on the same charges in a second trial.

We note that the state correctly draws our attention to a footnote in Kristy I suggesting that there would be no double jeopardy bar to the reprosecution of the defendant for misconduct with a motor vehicle. See Kristy I, supra, 483-84 n.6. This court, of course, did not have the benefit of the Supreme Court’s recent Lonergan decision. In light of that decision, the footnote language in Kristy I to which the state refers, has been superseded by the Supreme Court’s decision in Lonergan.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-56b provides: “manslaughter in the second DEGREE WITH A MOTOR VEHICLE: CLASS C FELONY, (a) A person ÍS guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.”

       General Statutes § 53a-B7 provides: “misconduct with a motor vehicle: class d felony, (a) A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.”

       The court noted that the state had filed no memorandum.

       In State v. Lonergan, 213 Conn. 74, 92, 566 A.2d 677 (1989), our Supreme Court, applying this test, held that the prosecution of the defendant for operating a motor vehicle while under the influence of liquor or drugs, which followed his acquittal in a prior trial of the charge of manslaughter in the second degree with a motor vehicle while intoxicated, violated the double jeopardy clause.

       We note that, at the time of oral argument in this court, the Supreme Court’s decision in State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), had not yet been released. At oral argument, however, the state argued that if affirmed, the Lonergan case would be distinguishable from the present case, but, if reversed, Lonergan would be undistinguishable and dispositive.

       The case of Ball v. United States, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896), dealt with a fatally defective indictment from which a guilty verdict was obtained. The defendants successfully appealed, and the guilty verdicts were overturned. When the state corrected the defects and reprosecuted the defendants for the same crime, the United States Supreme Court held that the defendants’ double jeopardy rights were not violated because they waived those rights by appealing from the convictions. The state argues that Ball stands for the proposition that whenever a defendant successfully challenges on appeal a jury’s verdict of guilt, on retrial, double jeopardy conditions are not at play.