author: LANDAU, J.

text:
    ALAN RAPH ET AL. v. ALAN R. VOGELER, JR.
    (AC 14262)
    Landau, Heiman and Hennessy, Js.
    Argued December 16, 1996
    officially released May 6, 1997

      Stefan Underhill, for the appellant (defendant).

      Thomas Beecher, with whom, on the brief, was Richard D. Arconti, for the appellees (plaintiffs).
   Opinion

LANDAU, J.

The defendant, Alan R. Vogeler, Jr., appeals from the judgment, rendered after a trial to the court, granting a permanent injunction ordering the defendant to remove all encroachments, erections and structures that the defendant placed on the property of the plaintiffs, Alan Raph and Mary Ann Raph, to restore the real property to its original condition, and to refrain from entering the real property for any purpose. The trial court also awarded attorney’s fees in the amount of $8000. On appeal, the defendant claims that the trial court improperly (1) failed to join an indispensable party, (2) exercised its discretion in granting the injunction, and (3) awarded attorney’s fees. We affirm the judgment of the trial court in part and reverse it in part.

The trial court found the following facts. The parties own adjoining properties on Candle wood Isle in New Fairfield. The plaintiffs purchased lots twenty-one and twenty-two and the north half of lot twenty-three in 1971, and the defendant purchased lots nineteen and twenty in 1987. In 1989, the defendant constructed a brick patio and walkway, a tram, tram track and station, a sprinkler system, a retaining wall and parking area and a shed, and placed underground wires, all on the plaintiffs’ land.

In their complaint, the plaintiffs alleged a continuing trespass by the defendant that deprives them of the use and enjoyment of their property and claimed that the defendant’s actions have caused them irreparable harm for which they have no adequate remedy at law. They sought injunctive relief, monetary damages, treble damages pursuant to General Statutes § 52-560, and attorney’s fees.

I

The defendant first claims that the plaintiffs’ failure to join Citibank, N.A., the mortgagee of the defendant’s property, as a party to the action requires reversal because the trial court lacked subject matter jurisdiction to issue its remedy. Specifically, he asserts that Citibank is an indispensable party and that the absence of an indispensable party deprives the court of subject matter jurisdiction. The plaintiffs contend that Citibank is not an indispensable party and, therefore, no issue of subject matter jurisdiction exists. Accordingly, the plaintiffs further contend that since the defendant failed to raise the issue before the trial court, he waived the issue here on appeal.

“It is axiomatic that a tribunal must have jurisdiction over the subject matter it hears and that subject matter jurisdiction is the power of the tribunal to hear and determine cases to which the proceedings in question belong. Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).” Keegan v. Aetna Life & Casu alty Ins. Co., 42 Conn. App. 803, 805-806, 682 A.2d 132, cert. denied, 239 Conn. 942, 686 A.2d 120 (1996). Although Citibank’s absence as a defendant was not raised in the trial court, we are not precluded from addressing the issue of whether its absence implicates the subject matter jurisdiction of the trial court. See Cardillo v. Cardillo, 27 Conn. App. 208, 212-13, 605 A.2d 576 (1992). Moreover, the question of subject matter jurisdiction may be raised at any time and cannot be waived by either party. Cohen v. Cohen, 41 Conn. App. 163, 165, 674 A.2d 869 (1996).

“Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience. . . . Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action], . . . Necessary parties, in contrast, are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.” (Citations omitted; internal quotation marks omitted.) Napoletano v. Cigna Healthcare of Connecticut, Inc., 238 Conn. 216, 225-26 n.10, 680 A.2d 127 (1996).

The defendant asserts that Citibank is an indispensable party in an action for trespass where the defendant is ordered to remove encroachments from the plaintiffs’ property. He is unable, however, to cite any case from any jurisdiction that supports this argument. Our own research also fails to disclose any authority for this proposition. Moreover, the record is devoid of facts in support of this claim. There are no facts to support the defendant’s claim that Citibank’s rights are sufficiently affected to require that it be named a necessary or indispensable party. Further, there are no facts in the record establishing that Citibank has any concern whatsoever regarding the status of its collateral, the present principal balance of the loan, the market value of the property, or the extent to which it relied on the value of the subject improvements in placing its loan. A review of the record clearly demonstrates that Citibank has no legal interest in the outcome.

Additionally, unlike a declaratory judgment, an injunction can be issued even if otherwise necessary parties are not joined. See T. Tondro, Connecticut Land Use Regulation (1996 Sup.), p. 264, citing Mannweiler v. LaFlamme, 232 Conn. 27, 653 A.2d 168 (1996). The defendant claims the holding in Mannweiler v. LaFlamme, supra, 35-36 n.10, suggests the opposite. We disagree.

This case is distinguishable from Mannweiler and Manley v. Pfeiffer, 176 Conn. 540, 409 A.2d 1009 (1979). In Mannweiler and Manley, the requested remedies were, inter alia, injunctive relief accompanied by a claim for a declaratory judgment. “The plaintiffs’ claims for injunctive and declaratory relief both rise or fall on the interpretation of the deeds at issue in the case and are, therefore, inexorably intertwined.” Mannweiler v. LaFlamme, supra, 232 Conn. 35. Here, the plaintiffs did seek injunctive relief, but neither party requested declaratory relief. In Ma/nnweiler, the court did not dispute that a court has subject matter jurisdiction to rule on a plaintiffs request for an injunction if it is contained in a complaint that does not also seek a declaratory judgment. See id., 43 n.9 (Berdon, J., dissenting). The defendant’s reliance on Mannweiler is misplaced. We conclude that Citibank is neither a necessary nor an indispensable party and its nonjoinder does not affect the jurisdiction of the trial court to effectuate a remedy.

II

Having concluded that the appropriate parties are before the court, we now turn to the primary issue of whether the trial court abused its discretion in granting the injunction. The defendant argues that the trial court improperly exercised its discretion in granting the injunction. We disagree.

The following additional facts are relevant to this claim. When the defendant purchased the property, he became familiar with map no. 1533, on file in the office of the town clerk, which was prepared by C. James Osborne, Jr., in 1971. That map refers to a map prepared in 1936 by Leslie A. Davis, a registered engineer, and is referenced in the plaintiffs’ deed. In 1987, the defendant hired Osborne to survey his property in connection with an application for a variance. When the defendant decided to renovate his house, he retained David White to prepare a survey. White prepared a map, dated April 5, 1989, certified to the standards of an A-2 survey. Subsequently, White prepared a boundary plan showing the completed additions and also the encroachment of the plaintiffs’ steps and deck onto the defendant’s property. In preparing his survey, White reviewed Osborne’s 1971 and 1987 surveys and specifically relied on Osborne’s 1987 survey. Approximately eighteen months later, the defendant showed this map to the plaintiffs, who contacted Tracy Lewis to survey then-property.

Lewis reviewed old files, including an original map of Candlewood Isle, researched deeds of the property of the plaintiffs and their neighbors, consulted with other surveyors and had access to Osborne’s worksheets. From his inquiries and examinations, he concluded that Osborne used the wrong angle on Sunrise Road, at the point where lots twenty-one and twenty-two abut, which is south of the Raph-Vogeler property line. Osborne’s use of an incorrect angle skewed all the property lines in a northerly direction off Sunrise Road.

“Injunction is available in a suitable case, and will ordinarily issue at the suit of a landowner to compel the removal of encroachments.” (Internal quotation marks omitted.) Branch v. Occhionero, 239 Conn. 199, 206, 681 A.2d 306 (1996). A decision to grant or deny an injunction must be compatible with the equities in the case and “balance the injury complained of with that which will result from interference by injunction.” Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972).

Our Supreme Court recently set forth the governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction: “A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Citations omitted; internal quotation marks omitted.) Advest, Inc. v. Wachtel, 235 Conn. 559, 562-63, 668 A.2d 367 (1995).

The trial court acted well within its discretion in determining that the plaintiffs were irreparably harmed and had no adequate remedy at law. The trial court, after hearing and observing the witnesses and viewing the property, found the testimony of Lewis, who testified on the plaintiffs’ behalf, more credible than that of the defendant’s witnesses, Osborne and White. The court found Osborne to be less than forthcoming in his testimony and noted that he did not rebut Lewis’ testimony regarding the correction of the angle. The trial court further did not credit the 1971 and 1987 surveys prepared by Osborne and the survey prepared by White, for which White relied on Osborne’s 1987 survey.

The trial court also balanced the equities between the parties. It found that the following factors weighed in favor of granting injunctive relief to the plaintiffs: the impairment of the plaintiffs’ right to access and use of their property, and, if the Osborne survey was accepted, that the plaintiffs’ steps would encroach on the defendant’s property. Further, the plaintiffs would lose a significant portion of their frontage on Lake Candlewood.

The trial court considered and rejected the following factors weighing against the granting of injunctive relief: removal of the structures would involve a cost, but the patio was not laid in cement and the area could be restored to plantings; the tram, while a convenience, is not a necessity; and, handrails could be provided for the steps leading to the house. In light of these factors, we conclude that the trial court properly determined that the equities lie in favor of granting the permanent mandatory injunction.

Finally, the defendant argues that money damages will adequately compensate the plaintiffs and, therefore, the extraordinary remedy of injunction should not lie. “A remedy at law, to exclude equity jurisdiction, must be as complete and beneficial as the relief in equity. ” Beach v. Beach Hotel Corp., 117 Conn. 445, 453, 168 A. 785 (1933). The trial court found that while the plaintiffs could have valued the land on which the defendant encroached or the value of an easement, no monetary value could be placed on the loss of free access to and the use of the plaintiffs’ property. As a result, the trial court concluded that monetary damages were not an adequate remedy at law. Under the circumstances of this case, it is clear that the plaintiffs’ remedy at law was not adequate.

We hold, therefore, that the trial court properly exercised its discretion in determining that the plaintiffs were entitled to injunctive relief and in fashioning its order for permanent mandatory injunctive relief.

Ill

Finally, the defendant claims that the trial court improperly awarded attorney’s fees to the plaintiffs. We agree.

“In the United States, the general rule of law known as the ‘American Rule’ is that ‘a prevailing litigant ordinarily is not entitled to collect a reasonable attorney’s fee from the opposing party as part of his or her damages or costs. . . .’ There are certain exceptions to this rule. ... In the main, exceptions are based upon statutory or contract provisions authorizing the recovery of attorney’s fees by a prevailing litigant.” (Citations omitted.) Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14-15, 513 A.2d 1218 (1986). Attorney’s fees may also be awarded as a component of punitive damages. O’Leary v. Industrial Park Corp., 211 Conn. 648, 651, 560 A.2d 968 (1989), quoting Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985).

We have been directed to no exception that can fairly be said to authorize the attorney’s fees awarded nor do we perceive any authority to do so on this record. No statutory or contractual basis for such a recovery is evident. The fact that the defendant was informed that such damages were being sought in the plaintiffs’ prayers for relief provides no ground for the foundation of their argument. The plaintiffs rely on the trial court’s finding that the defendant was indifferent to the warning signals that pointed to a boundary dispute. This finding does not amount to wanton or wilful malicious conduct; see Markey v. Santangelo, supra, 195 Conn. 77; sufficient to qualify for an award of punitive damages. Thus, the trial court improperly awarded attorney’s fees in this matter.

The judgment is reversed only as to the award of attorney’s fees and the case is remanded with direction to render judgment as on file except as modified to eliminate the award of attorney’s fees.

In this opinion the other judges concurred.

       The plaintiffs also claim that the defendant violated Practice Book § 4013 by not including this issue in his preliminary statement of issues on appeal. The defendant’s failure to raise this issue in his preliminary statement of issues does not preclude its review unless the plaintiffs are prejudiced thereby. State v. McIver, 201 Conn. 559, 568 n.3, 518 A.2d 1368 (1986). We conclude that the plaintiffs are not prejudiced by our review of this issue.

         The only facts offered by the defendant in support of this belated claim that Citibank is an indispensable party are contained in a one and one-half page affidavit from a vice president of Citibank appended to the defendant’s appellate brief but not offered at trial.

       Moreover, nonjoinder of Citibank will not result in a multiplicity of litigation as there is no feasible or demonstrable reason why Citibank would now litigate this matter.

       Footnote 10 in Mannweiler v. LaFlamme, supra, 232 Conn. 35-36, states: “[W]e would have concluded that a trial court lacks jurisdiction to rule on a request for injunctive relief when that relief depends on a de facto declaratory judgment as to the rights of interested parties who have not been given proper notice. We therefore overrule anything in Manley [v. Pfeiffer, 176 Conn. 540, 409 A.2d 1009 (1979)] to the contrary.” Manley involved an action for a mandatory injunction for the removal of a fence, for a declaratory judgment and for other relief.

       In this appeal, the defendant raises for the first time the claim of laches. At the trial level, the special defense of estoppel was raised and rejected by the trial court. That issue was not argued by the defendant and, thus, is deemed to be abandoned. See Field v. Kearns, 43 Conn. App. 265, 280, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996). We decline to rule as to the claim of laches. See Keeney v. Old Saybrook, 237 Conn. 135, 142 n.7, 676 A.2d 795 (1996).

       We do not reach the question whether the failure to allege punitive damages in the complaint prevents the trial court from awarding such damages.


source: Caselaw Access Project

author: SCHALLER, J. LAVERY, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. JULIUS MARSHALL
    (AC 14408)
    Foti, Lavery and Schaller, Js.
    Argued November 6, 1996
    officially released May 6, 1997

      Pamela, S. Nagy, special assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, John M. Massameno, senior assistant state’s attorney, and David Scanned, legal intern, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, following a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21. He claims that the trial court improperly (1) permitted the state to introduce the videotaped testimony of the minor victim taken outside the presence of the defendant, (2) admitted the testimony of six constancy of accusation witnesses, (3) admitted two videotaped interviews of the victim as constancy of accusation evidence, (4) admitted hearsay testimony under the residual hearsay exception, and (5) instructed the jury regarding consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1992, the defendant was living in Bloomfield with his wife, their two year old daughter, M, and their infant son. Sometime that year, M’s mother watched a television program with M that described how to talk to children about child sexual abuse. After viewing the program, she began teaching M about good and bad touches. Subsequently, on August 17,1992, M’s maternal grandmother, Delrosa DelSol, was babysitting M when she noticed that M was “walking funny.” When DelSol asked M why she was walking this way, M replied, “[D]addy hurt my bottom, daddy put his finger up my bottom.”

After hearing her granddaughter’s allegations, DelSol called her daughter, M’s mother, and told her that she was concerned about what M had said. M’s mother did nothing at this time. The next day while DelSol was babysitting M, M demonstrated a licking action and told DelSol that her daddy did something to her chim-chim and that “he use his like a cat.” DelSol called M’s mother and warned her that, if she did not report these allegations to someone, DelSol would. At that point, M’s mother called Abioseh Cole, the family pastor, and asked to see him.

In the afternoon of August 18, 1992, M’s mother met with Cole at the town hall annex. Ultimately, M’s mother told Cole that M had told her that the defendant was sexually abusing her. Cole then called DelSol and asked her to bring M to the annex. When M arrived, Cole interviewed her and asked her “what has happened.” In response to Cole’s questioning, M went straight to a chair and bent down and started licking the chair and said “Daddy lick me on my chim-chim and my butt.” After the interview, Cole informed M’s mother and Del-Sol that he was required to report what he had learned.

Before reporting the incident, however, Cole called Detective Peter Crombie of the department of children and families (department) and asked him to come to the annex. Upon arriving, Crombie was informed by Cole about what had happened and then he interviewed M. During the interview, M repeated her allegations that “daddy had licked her on the chim-chim and the butt,” and demonstrated the same licking of the chair motion that she had made earlier. Subsequently, Cole called the department and filed an oral report. The next morning Cole faxed a written report to the department.

On August 20, 1992, Deborah Espittia, a department social worker, and Crombie interviewed M at DelSol’s house. Crombie showed M anatomically complete diagrams depicting a young female child and an adult male. During the interview, M indicated, with the aid of the diagrams, that the defendant had touched her on her vaginal and buttocks area. On September 21, 1992, the department requested that M be examined by Frederick Berrien, an expert on the subject of child abuse. Berrien examined M and prepared a written report of his findings. The report indicated that M’s hymenal opening was well beyond normal for a child M’s age and he noted an abnormal cleft and a mound on M’s hymen. Berrien concluded that M’s vagina had been penetrated and that the penetration resulted from blunt trauma.

At trial, the state introduced the videotaped testimony of M, taken outside the presence of the defendant, in which she identified the vaginal and buttocks as areas where the defendant had touched her. The state also introduced two videotaped interviews of M as constancy of accusation evidence. Six other constancy witnesses testified at the trial. Following his conviction, the defendant appealed.

I

The defendant claims first that the trial court improperly allowed the state to introduce the videotaped testimony of M, taken outside the presence of the defendant, thereby violating the defendant’s federal and state constitutional rights to face-to-face confrontation.

Prior to the trial in this case, the state moved for permission to videotape the testimony of M outside the presence of the defendant. An evidentiary hearing was held before the trial court, Espinosa, J. At the hearing, the state introduced the testimony of Bruce Freedman, a psychologist, who met with M for approximately four hours on two separate days. Freedman opined that M’s testimony would be “absolutely unreliable” if she were forced to testify in the presence of the defendant because “[a] child of that age ... is much more interested in pleasing a parent and saying something that will please the parent, than they are in telling the truth or satisfying the conditions of a court, or another person they don’t know well.” In response, the defendant offered the testimony of M’s mother who stated that M would not be intimidated by the defendant and that she did not exhibit any fear of the defendant. The trial court granted the state’s motion over the objection of the defendant.

“[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. ... [A] trial court must balance [in a case-by-case analysis] the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. . . . [The] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or [for any number of reasons] inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. . . . [T]he state bears the burden of proving such compelling need by clear and convincing evidence.” (Citation omitted; emphasis added.) State v. Jarzbek, 204 Conn. 683, 704-705, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).

The defendant claims that the trial court’s finding of compelling need was improper because there was evidence presented at the hearing that M would not be intimidated by or fearful of the defendant. Jarzbek clearly states that “the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony, not on the injury that the victim may suffer by testifying in the presence of the accused.” Id., 705. It is not a prerequisite, therefore, that the state demonstrate that a minor victim will be intimidated or frightened if he or she is required to testify in the presence of the accused. Rather, the state may be able to demonstrate a compelling need by showing that “for any number of reasons [the minor victim would be] inhibited by the presence of the accused.” Id., 703. In this case, the state’s expert testified that M’s testimony would be “absolutely unreliable” if taken in the presence of the defendant. The trial court balanced the defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the minor victim and determined that the state had shown, by clear and convincing evidence, that a compelling need existed to take the testimony of the child victim outside the physical presence of the defendant. We conclude, therefore, that the trial court properly permitted the state to videotape the testimony of M outside the presence of the defendant.

II

The defendant claims next that the trial court improperly admitted into evidence the testimony of six constancy of accusation witnesses. He contends that the cumulative testimony of the six constancy of accusation witnesses prejudiced him at trial. The defendant concedes that he did not preserve this claim at trial. He seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He also seeks review of this claim under the plain error doctrine. Practice Book § 4185.

Because this claim fails the second prong of the test set forth in Golding, we decline to review it further. We have consistently denied review of the same unpreserved claim that the defendant attempts to raise here. See State v. DePastino, 228 Conn. 552, 568, 638 A.2d 578 (1994). Also, “[p]lain error is reserved for extraordinary situations where the existence of the error is so obvious that it affects public confidence in the fairness and integrity of judicial proceedings.” (Internal quotation marks omitted.) State v. Owen, 40 Conn. App. 132, 148, 669 A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114, 237 Conn. 922, 676 A.2d 1376 (1996). The defendant’s claim does not warrant such review.

III

The defendant claims next that the trial court improperly admitted two videotaped interviews of M as constancy of accusation evidence.

Prior to trial, the prosecutor met with M and DelSol at the state’s attorney’s office on three separate occasions. At the first meeting, the prosecutor did not question M regarding the alleged sexual assault, but, instead, showed her around the state office building and attempted to discern if M knew right from wrong. On August 18, 1996, the prosecutor again met with M and DelSol. At this meeting, the prosecutor videotaped M while he interviewed her about her allegations of sexual abuse by the defendant. During this videotaped interview, M indicated that the defendant had touched her in her vaginal and buttocks area with his finger. On September 2, 1996, the prosecutor met with M and Del-Sol for a third time. At this meeting, the prosecutor videotaped M while she answered questions regarding the alleged sexual assaults by the defendant. In this interview, M indicated that the defendant had touched her in her vaginal and buttocks area with his tongue.

At trial, during the testimony of DelSol, the state offered the two videotaped interviews of M as constancy of accusation evidence. The defendant objected to the introduction of these two videotapes claiming that they were made at a time that was unnatural for the victim to disclose the abuse and that they were inherently unreliable because they were taken by the prosecutor. The trial court overruled the defendant’s objection and permitted the jury to view both videotapes at trial.

The defendant first claims that these videotaped interviews were taken at a time unnatural for the victim to disclose the abuse because they were taken two years after M’s initial allegations. Our Supreme Court has held that “[we] leave the evaluation of the timing of a victim’s [constancy] statements and any ‘naturalness’ thereof in the hands of the jury.” State v. Parris, 219 Conn. 283, 292, 592 A.2d 943 (1991). The defendant next claims that these videotaped interviews were inherently unreliable because they were taken by the state prosecutor. Our Supreme Court has addressed this issue in State v. DePastino, supra, 228 Conn. 568-69. In DePastino, a social worker assigned to investigate a case videotaped an interview with the minor victim and the videotape was used by the police in their investigation. The defendant claimed that because this videotape was prepared for use by the prosecution it should not have been admitted at trial as constancy of accusation evidence. The court rejected the defendant’s claim and admitted the victim’s videotaped statements into evidence. Id., 569.

“The trial court has broad discretion in ruling on the admissibility of evidence and only upon a showing of a clear abuse of discretion will this court set aside rulings on evidentiary matters.” State v. Siering, 35 Conn. App. 173, 178, 644 A.2d 958 (1994). Our courts have upheld the admission of tape-recorded statements of the victim as constancy of accusation evidence; State v. Kelley, 229 Conn. 557, 566-67, 643 A.2d 854 (1994); State v. Bethea, 24 Conn. App. 13, 20-21, 585 A.2d 1235, cert, denied, 218 Conn. 901, 588 A.2d 1076 (1991); and a videotaped interview of the victim as constancy of accusation evidence. State v. DePastino, supra, 228 Conn. 569. The timing and the naturalness of the interviews are matters for the jury to weigh. State v. Parris, supra, 219 Conn. 292. In this case, the defendant examined the videotaped interviews before trial and before M’s videotaped testimony. He had the opportunity, thus, to cross-examine M about any claimed inconsistencies between her testimony and the videotaped interviews, and to cross-examine DelSol about the circumstances under which the child’s statements were recorded. See State v. DePastino, supra, 568-69, citing State v. Bethea, supra, 20-21. We conclude, therefore, that the trial court did not abuse its discretion by admitting these videotapes into evidence.

IV

The defendant claims next that the trial court improperly admitted hearsay statements under the residual hearsay exception.

At trial, the state asked Cole to testify as to exactly what M’s mother said to him during their August 18, 1996 meeting concerning M’s allegations of sexual abuse. The defendant objected on the ground that Cole’s testimony as to what M’s mother had said at the meeting was inadmissible hearsay. The trial court heard arguments from both sides on whether the out-of-court statements should be admitted. The trial court con-eluded that the statements were admissible under the residual hearsay exception.

The residual, or catch-all, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985). “The court has properly taken a cautious approach to the use of the catch-all exception.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.25.

We begin the analysis with the reasonable necessity requirement of Sharpe. “Wigmore explains that the necessity requirement [of the residual hearsay exception] is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources. [5 J. Wigmore, Evidence (Chadboume Rev. 1974) § 1421.]” State v. Sharpe, supra, 195 Conn. 665. In this case, the declarants were not dead or otherwise unavailable. Our inquiry, thus, is whether the facts contained in these statements would be lost because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.

At trial, the state asked Cole to testify as to “[e]xactly what it was that [M’s mother] reported and the words that she used.” Cole testified that M’s mother told him “that [M] had accused her father of sexually molesting her.” The state also asked Cole to testify as to what M’s mother told him M had told her. Cole testified that M’s mother told him that “[M] had said that her father had licked her in the chim-chim and her butt,” and that “[M] said, ‘No, daddy, no.’ ” The facts contained in M’s mother’s statements could not have been lost because M recounted them to the court herself in her videotaped testimony. See In re Jason, 9 Conn. App. 98, 106, 516 A.2d 1352 (1986). M testified that the defendant had touched her private parts with his finger and his tongue, that the touches felt bad, and that she told the defendant “No.” Also, the value of Cole’s testimony would not have been lost had the statements not been admitted under the residual hearsay exception. Cole could still testify that M’s mother came to him for counseling because of the allegations M made to her and DelSol that the defendant was sexually abusing her. We conclude, therefore, that the necessity requirement of Sharpe was not met in this case, and, thus, it was improper for the trial court to admit these out-of-court statements under the residual hearsay exception.

Although we conclude that the trial court improperly admitted the out-of-court statements under the residual hearsay exception, our inquiry is not complete. “We must also determine whether the trial court’s failure was harmless in light of the other evidence presented at trial. It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The question is whether the claimed erroneous action of the trial court is likely to have affected the result of the trial. State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067 (1985). State v. Torrice, 20 Conn. App. 75, 91, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989). We further note that our inquiry focuses on the impact of the improperly introduced evidence on the jurors’ perceptions and understanding of the other evidence presented in the case, rather than an analysis of the sufficiency of the remaining evidence to uphold the conviction in the absence ... of the evidence .... See Swenson v. Sawoska, 215 Conn. 148, 152-53, 575 A.2d 206 (1990).” (Internal quotation marks omitted.) State v. Merritt, 36 Conn. App. 76, 92, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995).

Our review of the record reveals that the defendant has failed to sustain his burden of showing that the testimony was harmful in this case. “It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error.” Swenson v. Sawoska, supra, 215 Conn. 155. In this case, these statements are merely cumulative of other evidence admitted at the trial. Furthermore, we cannot conclude that the jury’s perceptions of the other evidence presented in this case, such as the testimony of M implicating the defendant, M’s mother’s testimony that M told her that the defendant had sexually abused her, the evidence that, on two separate occasions, M told DelSol that the defendant sexually abused her, the evidence that M’s mother went to see Cole for counseling regarding M’s allegations of sexual abuse, Cole’s written report, which was admitted at trial, the corroboration of M’s testimony by numerous constancy of accusation witnesses, and a confirming medical examination establishing that M had been abused, were so affected by the improperly admitted testimony, that it is likely that the result of the trial would have been different in the absence of the testimony. We conclude, therefore, that although the testimony was improperly admitted under the residual hearsay exception, its admission was harmless.

V

In his final claim, the defendant contends that the trial court’s jury instruction concerning consciousness of guilt was improper. The defendant properly preserved this claim by objecting to the charge on consciousness of guilt.

During an interview with police detectives, the defendant stated, “I think [M] is lying or maybe somebody else is doing it. Right now everybody is a suspect. Even my wife, my mother-in-law’s day care, the babysitters that we took M to. Everybody’s a suspect.” These statements were admitted at trial. The trial court made a determination that it was sufficient for the jury to infer that from these statements the defendant had a consciousness of guilt, and it instructed the jury on how it could use this evidence.

“In seeking to introduce evidence of a defendant’s consciousness of guilt, ‘[i]t is relevant to show . . . any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.’ . . . State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986), citing State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity in the evidence. State v. Knighton, 7 Conn. App. 223, 508 A.2d 772 (1986).” (Emphasis in original.) State v. Adams, 36 Conn. App. 473, 481, 651 A.2d 747 (1994), appeal dismissed, 235 Conn. 473, 667 A.2d 796 (1995) (certification improvidently granted). In this case, the trial court determined that the defendant’s statements were sufficient to allow the jury to infer that they were influenced by the alleged criminal act; State v. Aleksiewicz, 20 Conn. App. 643, 653, 569 A.2d 567 (1990); and, therefore, “[i]t was proper to instruct the jury that if it found that the defendant intentionally made false statements concerning the crime that the jury could conclude that such statements showed a guilty connection with the crime.” State v. Adams, supra, 482.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

LAVERY, J.,

concurring. I agree with the majority that the judgment of the trial court should be affirmed. I, however, believe that the constancy of accusation doctrine should be used with considerable caution, and that in this case it was abused by the state.

Here, the state introduced the statements of the accusing child witness through the testimony of six constancy witnesses. This type of constancy of accusation evidence is both cumulative and can easily prejudice the defendant.

Our Supreme Court recently examined the constancy of accusation doctrine in State v. Troupe, 237 Conn. 284, 303, 677 A.2d 917 (1996), and narrowed the existing doctrine to include only “testimony regarding the fact of the complaint.” In Troupe, the court stated: “[A] defendant has an interest in not being unreasonably burdened by such accrediting or supporting evidence, which . . . generally is not admissible in the trial of crimes other than sexual assault. Concerns about such evidence are magnified if the victim has reported the alleged offense to a number of persons, all of whom are permitted to testify about the details of the complaint. In such circumstances, there is an enhanced risk that the jury may be unduly swayed by the repeated iteration of the constancy of accusation testimony. Indeed, one commentator has opined that testimony by multiple witnesses about the facts of the victim’s complaint may so unfairly bolster the victim’s credibility that, in such cases, ‘cross-examination of the victim is not a sufficient protection from prejudice.’ C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1995) § 11.22.1, p. 196.” Id., 302-303.

In the present case, the victim testified three separate times, including twice on videotape under the constancy of accusation doctrine, concerning the sexual assault. Furthermore, the two videotaped interviews of the victim child witness were done by the state’s attorney in preparing the victim for trial two years after the initial allegations were made.

“Long standing precedent set by our Supreme Court demands that the following criteria be met before a witness can testify under what has consistently been labeled the constancy of accusation exception to the hearsay rule: (1) the court must balance the probative force of the testimony against its prejudicial effect; (2) the crime charged must be sex related; (3) the witness must be one to whom the victim complained about the offense; (4) the accusation must have been made at a time when it was natural for the victim to have made it; and (5) the victim must first testify, in court, as to the facts of the alleged occurrence.” State v. Bethea, 24 Conn. App. 13, 17, 585 A.2d 1235 (1991), cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). Here, the two videotaped interviews of the victim were not made at a time when it was natural for the victim to have made them, but were staged by the state two years after the victim’s original allegations. This type of evidence is an abuse of the constancy of accusation doctrine.

Nevertheless, given the strength of the state’s case, I concur with the majority in affirming the judgment of the trial court.

       M’s mother testified that “chim-chim” is the term that she taught M to use when she referred to her vaginal area.

       The department of children and families was known as the department of children and youth services when the allegations in this case first came to light.

       As a result of M’s allegations, M went to live with DelSol.

       We note that our courts have held that constancy of accusation testimony presented in this manner is not prejudicially cumulative, but, rather, demonstrates that the victim had reported the incident in a constant and consistent fashion. See State v. Parris, 219 Conn. 283, 293-94, 592 A.2d 943 (1991) (constancy of accusation testimony of four witnesses not prejudicially cumulative); State v. Zoravali, 34 Conn. App. 428, 439-41, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994) (constancy of accusation testimony of seven witnesses not prejudicially cumulative); State v. Parsons, 28 Conn. App. 91, 105-106, 612 A.2d 73, cert. denied, 223 Conn. 920, 614 A.2d 829 (1992) (constancy of accusation testimony of eight witnesses not prejudicially cumulative).

       The defendant claims for the first time on appeal that he was denied his federal and state constitutional rights of confrontation and equal protection because of the admission of the constancy of accusation testimony in this case. As this court has previously noted, that claim has been decided by our Supreme Court. “Constancy of accusation testimony does not violate a defendant’s right of confrontation when, as in this case, the declarant tesi ifies and is subject to full and effective cross-examination. State v. Kelley, 229 Conn. 557, 563-66, 643 A.2d 854 (1994). Similarly, constancy of accusation testimony does not violate a defendant’s state or federal right to equal protection. Id., 564-65. . . . We therefore conclude, on the basis of Connecticut Supreme Court precedent, that the defendant was not denied his right of confrontation or his right to equal protection by admitting constancy of accusation testimony.” State v. Oliver, 41 Conn. App. 139, 146-47, 674 A.2d 1359, cert, denied, 237 Conn. 920, 676 A.2d 1374 (1996). The defendant also claims that this court should abandon the constancy of accusation doctrine. Our Supreme Court recently rejected this claim in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996). We note that our Supreme Court did modify the constancy of accusation doctrine in Troupe, but “that the modification . . . will apply only to those cases in which constancy of accusation testimony hits not yet been admitted into evidence on the date of the publication of [Troupe].” Id., 305. In this case, the modification announced in Troupe does not apply.

       The stale argued that the facts contained in M’s mother’s statements to Cole at the August 18, 1992 meeting' would be lost forever because M’s mother had aligned herself with the defense and because she had stated in interviews close to the time of trial that M had told her that “daddy and the cat hurt my bottom.” (Emphasis added.) This claim was made before M’s mother testified at trial. We do not believe that a party should be able to use the residual hearsay exception by speculating, or even by making an offer of proof, that a witness is going to lie or change his or her story on the stand. There are other appropriate methods to challenge the testimony and credibility of a witness once that witness has testified. These include cross-examination, the use of prior inconsistent statements, or calling rebuttal witnesses.
      At trial, when M’s mother was called as a defense witness, she testified that “[M] said daddy hurt my bottom and the cat hurt my bottom” and that “[M] always mentioned cat and daddy together.” The state did challenge M’s mother’s testimony during cross-examination. It used the reports and statements of four witnesses to establish that M’s mother never once mentioned that M had said that the cat had hurt her bottom. These traditional methods are preferred over admitting hearsay statements under the residual hearsay exception.

       Cole’s report was admitted at trial without objection. The report contained M’s mother’s hearsay statements. The defendant argues that, because the statements were admitted under the residual hearsay exception before the report was offered, any further objection to the report would have been futile. The defendant still has the duty at trial to object to evidence. We note that the state could have called Cole on rebuttal and offered the statements in the report as prior inconsistent statements of M’s mother.

       “[Defense Counsel]: Then, Your Honor, on consciousness of guilt—and I know we discussed this one yesterday—where the court indicated diverting attention from himself to others, I think that was not the evidence .... [The defendant] indicated that he was just indicating people who had access to [M] rather than trying to divert attention of the police officers from himself to others.
      “The Court: Well again, if that evidence is believed by you that’s the qualifying factor within the charge, I think that’s a fair charge. The court will overrule that objection.
      “[Defense Counsel]: Exceptions to all those, Your Honor.”

       The trial court instructed the jury on consciousness of guilt as follows: “Whenever a person is on trial for a criminal offense it is proper to show that the person’s conduct as well as any statements or declarations made by him subsequent to the alleged criminal offense which may fairly have been influenced by that fact, the manner in which the defendant conducted himself when asked by others in respect to the subject of this case may also be shown. If he should make attempts, make any statements in [an] attempt to divert the attention of the authorities from himself to others, if that evidence is believed by you, that may lead you to infer that the defendant was conscious of his guilt and that his statements were influenced by that consciousness. It is up to you as judges of the facts to decide whether certain acts, statements or conduct of the defendant reflects consciousness of guilt, and to consider such in your deliberation in conformity with the law I have given you.”


text:
    RAVINDER SINGH v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES
    (AC 15598)
    O’Connell, Foti and Landau, Js.
    Argued January 24
    officially released May 6, 1997

      Richard J. Lynch, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Jane I). Comerford, assistant attorney general, for the appellant (defendant).

      Michael A. Georgetti, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant department of public health and addiction services (department) appeals from the judgment of the trial court, sustaining the plaintiffs appeal from a declaratory ruling issued by the defendant, denying the plaintiffs application for licensure as a veterinarian in this state. On appeal, the department claims that the trial court improperly (1) remanded the case for a hearing on the issue of disparate treatment, and (2) found that the law required a hearing to be held on a petition for declaratory relief. We reverse the judgment of the trial court.

The following facts are not in dispute. In 1985, the plaintiff received a bachelor’s degree in veterinary science and animal husbandry from Punjab Agricultural University, located in Punjab, India. In November, 1992, he applied to the department for a license to practice veterinary medicine in Connecticut. The department denied the plaintiffs application for a license because he had not graduated with a degree of doctor of veterinary medicine or its equivalent, as required by General Statutes § 20-198. The department further stated that the plaintiff was not eligible to sit for the licensure examination and, even if he qualified for the waiver of the examination requirement, he would not be eligible for licensure due to his educational deficiency.

In May, 1994, the plaintiff requested a declaratory ruling on his eligibility for licensure. The plaintiff also requested that the commissioner of the department (commissioner) hold a hearing in accordance with General Statutes § 4-176 (e) (2) and (g) to permit the plaintiff to present evidence on the issue of disparate treatment of identical applicants. The commissioner declined to hold a hearing and issued a declaratory ruling on October 15, 1994. The commissioner ruled that the degree the plaintiff received from Punjab Agricultural University did not satisfy the requirement in General Statutes § 20-198 that an applicant possess a doctor of veterinary medicine awarded by an accredited United States university or its equivalent. The commissioner found the plaintiffs degree to be the equivalent of a bachelor’s degree, not a doctorate. Therefore, the commissioner concluded, the plaintiff was not eligible for licensure in Connecticut. The commissioner did not address the issue of disparate treatment in its memorandum of decision.

On appeal to the trial court, the plaintiff argued that the commissioner improperly (1) found that he failed to satisfy the requirements of § 20-198, and (2) abused its discretion by denying his request for a hearing. The trial court sustained the plaintiffs appeal and remanded the case to the commissioner to conduct a hearing. This appeal followed.

I

Our standards of review concerning administrative appeals are statutorily mandated: “ ‘[T]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.’ General Statutes § 4-183 (j).” Slimp v. Dept. of Liquor Control, 239 Conn. 599, 604, 687 A.2d 123 (1996).

With these principles in mind, we now consider whether the trial court properly remanded this case to the department to conduct a hearing. The trial court, relying on Karan v. Adams, 807 F. Sup. 900 (D. Conn. 1992), concluded that due process considerations required the department to hold a hearing, and its failure to do so resulted in an abuse of discretion. The trial court sustained the plaintiffs appeal and remanded the case to the commissioner for the purpose of holding a hearing limited to the issue of whether the commissioner failed to afford the plaintiff due process and equal treatment in considering the plaintiffs application for a veterinary license, with particular reference to other graduates of the same education program that the plaintiff completed.

In Karan v. Adams, supra, 807 F. Sup. 902, the plaintiff, Orville Karan, after being rejected for licensure as a psychologist in this state, filed a suit in the United States District Court for the District of Connecticut claiming equal protection and due process violations. Karan received his doctoral degree in 1974 from the University of Wisconsin and, subsequently, received his license to practice psychology in that state. In 1989, Karan applied to the Connecticut department of health services for licensure. The department requested that Karan provide documentation of the doctoral program from the academic institution where he completed his studies. Karan encountered “considerable difficulty” in obtaining the documentation to satisfy the Connecticut educational standards. Karan submitted the documents that he was able to obtain, but the department denied his application on the ground that the doctoral program of studies did not meet the necessary standards. Id., 902-904.

In his only claim relevant to this case, Karan claimed that the department violated the procedural component of the due process clause of the fourteenth amendment to the United States constitution. Id., 907. After concluding that Karan had a constitutional property interest in sitting for the licensure examination, the District Court considered whether the process actually provided by the department was constitutionally sufficient. The court concluded, inter alia, that the “procedures provided no significant opportunity for the candidate to supplement the written record with oral testimony regarding the content of his educational program.” Id., 913. The court’s order provided Karan with the opportunity to appear personally before the Connecticut board of examiners of psychologists (board). Id., 915. It further stated that “[i]t must be emphasized that the remedy prescribed here is a limited one. First, the hearing conducted by the board can be, but need not be, a formal trial-type hearing with opportunity for cross-examination of witnesses. The hearing procedures presented by the Connecticut Administrative Procedure Act . . . may provide useful guideposts for this proceeding, but they are not adopted by this ruling as requirements. . . .” (Citation omitted.) Id., 915.

Thus, Karan turns on the inability and difficulty of Karan to obtain records of courses taken by him, sufficient to satisfy the requirements of the department and, thus, is distinguishable from the present case. Here, the issue is not whether the plaintiff took certain courses at Punjab Agricultural University, and the plaintiff does not claim that the department prevented him from proving that he satisfies the educational standards. Moreover, he had the opportunity to request a new evaluation report from the International Education Research Foundation if he felt that it was not an accurate reflection of his education. In sum, the plaintiff had the opportunity to supplement his application with additional information in an attempt to satisfy the educational requirements, but failed to do so. As a result, we con-elude that the department acted within its discretion in denying the plaintiffs request for a hearing.

The judgment is reversed and the case is remanded with direction to render judgment denying the plaintiffs appeal.

In this opinion the other judges concurred.

       Formerly the department of health services.

       General Statutes § 20-198 provides in pertinent part: “No person shall be granted such a license until the department finds that he (1) was graduated with the degree of doctor of veterinary medicine, or its equivalent, from a school of veterinary medicine . . . .”

       General Statutes § 4-176 provides in pertinent part: “(e) Within sixty days after the receipt of a petition for a declaratory ruling, an agency in writing shall ... (2) order the matter set for specified proceedings ....
      “(g) If Hie agency conducts a hearing in a proceeding for a declaratory ruling, the provisions of subsection (b) of section 4-177c, section 4U78 and section 4-179 shall apply to the hearing. . . .”

       In its memorandum of decision, the trial court noted that “evidence in the record showed [that the plaintiff] held licenses to practice veterinary medicine in Michigan, Illinois and Massachusetts. There were also allegations in the record before the commissioner that one or more other persons who had attended the same university as the plaintiff, and had been awarded the same degree, had been licensed by the commissioner to practice in this state. Although there was no hard evidence of such disparate treatment on the record, the allegations are not entirely unsupported. Communications from the commissioner’s office that are in the record acknowledge, at least implicitly, that the allegations may be true.”
      In response to the plaintiff’s claim of disparate treatment, the department responded that “[w]ith regard to the individuals who attended the same school as [the plaintiff], and received Connecticut licensure, please be advised that the department is in the process of reviewing their files. Should it be determined that the education they received was equivalent to that of [the plaintiff], and they received licensure in error, the department will explore the legal implications of licensure revocation. The department cannot issue licensure to any individual who is not eligible based upon the erroneous issuance of licensure to any other individual.”

       The District Court further noted that “this decision does not require that the procedures found necessary in this case be used in all cases involving the evaluation of candidates’ educational credentials. The state’s obligation to provide the additional procedures required in the circumstances here presented extends to pre-1980 graduates. . . . Candidates who received degrees from unaccredited institutions during or after 1980 . . . would not necessarily be entitled to the same procedural protections that pre-1980 degree recipients deserve. The class of post-1980 degree recipients encompasses many recent degree recipients, who would presumably face relatively few obstacles in demonstrating the content of them educational programs.” (Citations omitted.) Karan v. Adams, supra, 807 F. Sup. 915.

       Even if we found Karan to be applicable, its holding requires merely that an applicant be given a reasonable opportunity to demonstrate that he or she satisfies the requirements the state has imposed. The department gave the plaintiff every opportunity to demonstrate that he met the requirements for licensure. Therefore, the department has complied with Karan.

       The defendant a so claims that the trial court improperly concluded that, an agency is required to conduct a hearing on a petition for a declaratory ruling. This claim is unsupported by the record. In its memorandum of decision, the trial court specifically stated that “the administrative agency has the discretion, but is not required, to hold a hearing in conjunction with the issuance of a declaratory ruling.” The trial court acknowledged that a hearing on a declaratory ruling is discretionary, but concluded that the department’s failure to conduct a hearing, in this case, violated the plaintiffs due process rights. Thus, the defendant’s claim lacks merit.


author: DUPONT, C. J.

text:
    JAMES B. IRWIN, SR. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF LITCHFIELD
    (AC 15831)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued February 24
    officially released May 6, 1997

      Kenneth R. Slater, Jr., for the appellant (plaintiff).

      Gail E. McTaggart, for the appellee (defendant).

      William C. Franklin, for the appellee (intervening defendant).
   Opinion

DUPONT, C. J.

The plaintiff appeals from the judgment of the trial court dismissing the plaintiffs appeal from the decision of the planning and zoning commission of the town of Litchfield (zoning commission), which had denied the plaintiffs application for a special exception and subdivision approval. The plaintiff sought to subdivide an approximately fifteen acre parcel of land, which was situated in a two acre residential zone, into four single-family residential lots, ranging from 2.1 to 6.1 acres in size. The application also sought a special exception for approval of two lots with less than 200 feet of road frontage.

The plaintiff claims that the trial court improperly determined that the zoning commission correctly concluded that the plaintiffs application should be denied because (1) the subdivision plan was not in keeping with the general policy goals of the town’s plan of development, (2) the plan was too intensive and not harmonious or in keeping with the existing and probable future character of the neighborhood, and (3) the character of the land in the neighborhood was open space, farmland or lots much larger than two acres.

Prior to submitting his plan to the zoning commission, the plaintiff had sought approval from the Litchfield conservation commission (conservation commission) because the parcel contains wetlands that would be affected by development of the property. After initial rejection, the plaintiff decreased the number of lots in the subdivision from five to four and increased the buffer area around the brook that flows through the parcel. The conservation commission then approved the plaintiffs application, which restricted development on more than 40 percent of the property and reduced wetlands impact by utilizing a common driveway for two of the lots, thus eliminating the need for a second wetlands crossing.

The zoning commission then denied the plaintiffs subdivision application on the ground that the proposed common driveway was prohibited by the regulations. The regulations permit common driveways only to interior lots or to three or more full frontage lots. Here, because the common driveway was for two lots, one of which had full frontage, the town’s zoning and subdivision regulations would not allow the common driveway.

The plaintiff then filed with the zoning commission the application for subdivision approval and a special exception that is at issue here. The only change from the previous application was that the lot lines were moved so that the two lots to be accessed by the common driveway now both qualified as interior lots, thus making the use of the common driveway proper according to the regulations. The wetlands impact did not change. A special exception was required because the plan included interior lots.

Public hearings were held on March 6 and April 3, 1995, pursuant to General Statutes § 8-3c. At a May 15, 1995 meeting, the zoning commission voted five to two to deny the application. A letter dated May 16, 1995, was sent to the plaintiff, stating that “the Subdivision application with the proposed interior lots [is] too intensive for this limited and fragile piece of land and it does not comply with the following standards and requirements of the Zoning Regulations relating to a Special Exception for an Interior Lot(s) in a subdivision .... The Commission finds that the application does not meet the requirement that ‘[t]he applicant shall show that the design and layout of the subdivision with the proposed interior lots will be in keeping with the Town Plan of Development’. . . . The Commission finds that the application does not meet the requirement that ‘ [t]he applicant shall show that the subdivision with the proposed interior lots will preserve important natural resource features as identified on the Town Plan of Development maps and other studies adopted by the Commission, including, but not limited to streambelt lands, farmlands (especially active farmland), land on ridge lines, and will result in the preservation of the natural landscape along a Town road or the view from a Town road or proposed subdivision road’ .... The Commission finds that the proposed subdivision with the interior lots does not comply with ‘the existing and probable future character of the neighborhood in which the use is located.’ It is too intensive development for a limited and fragile piece of land .... The Commission finds that the proposed subdivision with the interior lots does not comply with ‘[t]he provision for creation of a harmonious relationship between proposed and existing buildings in the vicinity; specifically with regard to the visual relationship of said buildings in terms of their terrain, use, scale proportions and, particularly, the historic significance of the existing buildings.’ ” The portions of the letter in quotations are from sections of the Litchfield zoning regulations.

The plaintiff appealed to the trial court pursuant to General Statutes § 8-8 (b) from the zoning commission’s decision. Karen Grimes, the owner of the abutting property, was allowed to intervene as a defendant. In a memorandum of decision dated December 21,1994, the trial court affirmed the decision of the zoning commission. We granted certification of the plaintiffs appeal to this court.

It is unclear whether the zoning commission denied only the application for the special exception or denied both it and the application for subdivision plan approval. The zoning commission’s reasons for denial, however, describe both. We, therefore, treat the zoning commission’s action as a denial of both.

“[T]he special permit is not subject to the variance rule that it is to be issued sparingly. The . . . zoning commission . . . has already made the decision that the use authorized by the special permit is acceptable in the district if potential adverse side effects can be controlled or eliminated through the use of conditions on the permit or modifications of the plan. Hence the issue in special permit cases is how to mitigate side effects. In theory, the special permit is a device for delegating to an administratively acting agency power to decide whether a proposed land use falls within that class of uses as previously established by the local legislative body acting in ‘its constituted role as a formulator of public policy.’ . . .

“Since the special permit is an administrative device, the formal rule is that the granting agency cannot exercise any discretion in deciding whether to approve an application. Its role is to cany out the policy established by . . . the zoning commission that wrote the regulations. If the standards for issuance of the special permit have been met by the application, a permit must be issued.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992), pp. 178-79.

“In Mobil Oil Corporation v. Zoning Commission, 30 Conn. App. 816, 819-20, 622 A.2d 1035 (1993), we said: The terms special permit and special exception have the same legal import and can be used interchangeably. ... A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values. . . . Acting in this administrative capacity, the [zoning commission’s] function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied. . . .A.P.& W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974).

“The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied. . . . When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. . . . The zoning [commission’s] action must be sustained if even one of the stated reasons is sufficient to support it. . . . Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56-57, 549 A.2d 1076 (1988).” (Internal quotation marks omitted.) Felsman v. Zoning Commission, 31 Conn. App. 674, 677-78, 626 A.2d 825 (1993).

“A decision to deny any of these administrative review applications, or to subject them to conditions . . . must be based on sufficiently specific authority in the regulations to support a conclusion that the decision made is in accordance with the policies established by the legislatively acting commission that established the policy in the first place.” T. Tondro, supra, p. 188.

“Failure to include sufficiently specific standards in the regulations establishing a reviewing procedure deprives the administratively acting agency of the power to grant a permit. ‘To hold otherwise, to permit an administrative agency to develop an ad hoc plan as a yardstick against which to measure any given proposal, is to substitute whimsy for sound judgment. . . . Giving an administrative agency such absolute power could deprive a landowner of his property, without due process of law. . . . Although due process is not intended to hold administrative agencies under a short leash, it is designed to restrain them from roaming at will over the adjudicative landscape.’ ” (Citations omitted.) Id., pp. 189-90, quoting Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 484, 447 A.2d 1 (1982).

The zoning commission’s first reason for denying the plaintiffs application is that the plaintiff did not show that the subdivision and interior lots “will be in keeping with the Town Plan of Development.” Litchfield Zoning Regs., article VI, § 5A (5) (a). This standard, as set forth in the town’s zoning regulations, is extremely vague and nearly impossible to satisfy.

The town plan of development, drafted in 1984, set forth certain goals for Litchfield. It does not specify particular standards for development but, rather, defines terms such as farmland, conservation areas and stream belts and states that the town should have a goal of preserving them. The town’s zoning regulations, however, do not necessarily correspond with the development plan’s lofty goals. If the town intended that the area in which the plaintiffs property is located be preserved as farmland, the zoning regulations needed to so specify. By using and attempting to apply such a vague standard, the town has made it nearly impossible for any developer to determine, with any certainty, whether a proposed plan would meet with the zoning commission’s approval.

We cannot say that the plaintiffs plan is harmful to the stream belts in contravention of the plan of development because the conservation commission, after considering a substantial amount of evidence, has already stated that it is not. In fact, the use of the common driveway would seem actually to decrease deleterious effects to the wetlands.

The zoning commission’s second reason for denying the plan, that the applicant did not show that the plan would preserve important natural resource features, we conclude is equally nebulous. As we have already stated, the plan does not harmfully impact the wetlands features of the land according to the conservation commission. The claim that a driveway leading to two lots will alter the view from the Grimes’ property is not a reason, let alone a persuasive reason, for denying the application in its entirety. Although several cases hold that zoning decisions made for aesthetic reasons are valid, the factual situations in those cases are contrary to the facts here. See Carlson v. Fisher, 18 Conn. App. 488, 506-507, 558 A.2d 1029 (1989) (allowing planning commission to impose design conditions on subdivision approval in order to preserve established character of town); Farmington v. Viacom Broadcasting, Inc., 10 Conn. App. 190, 196, 522 A.2d 318, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987) (allowing town’s injunctive action to enforce condition of special permit that defendant dismantle existing broadcast tower because town was permitted “to impose conditions related to aesthetics and property values on the granting of the special exception”). While a large broadcast tower is visible to many people, the proposed residences on the properties in question here will be only partially visible through the trees and mostly only to the neighboring defendant Grimes. No one has alleged that the houses will be distasteful in design. The objection is to the fact that houses will be there at all. The fact that houses or a driveway will be visible is not a sufficient reason to deny the permit.

The trial court pointed to the Grimes’ abutting property’s identification in a historical and architectural resources survey as a consideration for denying the plaintiffs applications because the development would impair the “ ‘splendid view of the surrounding open land [and] scattered old trees in the vicinity.’ ” That the plaintiffs subdivision would alter slightly the Grimes’ view is not a significant enough reason to deny the permit.

The remaining reasons that the zoning commission gave for rejecting the plaintiffs application relate to the subdivision requirements. The zoning commission stated that the subdivision with the interior lots does not comply with the existing and probable future character of the neighborhood and does not create a harmonious relationship between proposed and existing buildings in the vicinity. We disagree.

The “probable future character” of the neighborhood is not a sufficiently precise term that a reasonable person could follow. If the town desires a neighborhood to have a particular character in the future, it should zone the area accordingly. This neighborhood is presently zoned for single-family residential lots with a two acre lot minimum. That is the existing character of the neighborhood. That is also exactly what the plaintiff proposed to build. The plaintiffs subdivision plan cannot be at odds with the present character of the neighborhood when it falls within all relevant requirements of the zoning regulations.

The defendants point to the case of Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994), as supporting the premise that as long as a zoning commission gives reasons for denying a special permit and the reasons are supported by the record, the courts must uphold the zoning commission’s decision. Whisper Wind can be distinguished from the present case on the facts. In Whisper Wind, the plaintiff had sought approval from the zoning commission to excavate and remove sand and gravel from its land. The zoning commission denied the application on the ground that the use would not comport with the general health, safety and welfare requirements of the town’s zoning regulations. The zoning commission concluded that the proposed use would not be harmonious with the existing neighborhood development, and it would conflict with traffic characteristics of the surrounding neighborhood when large trucks drove through, carrying the excavated material. Id., 517-18.

In the present case, the proposed use of the land does not disturb the general health, safety or welfare requirements of the town’s zoning regulations. Also, the conclusion of the zoning commission here is that a town plan of development, rather than zoning regulations, would be contravened. The plaintiff seeks to build residences in a residential neighborhood. No traffic hazard is alleged; neither public health nor safety is endangered; no inconvenience to anyone is alleged. See Felsman v. Zoning Commission, supra, 31 Conn. App. 677-78. The only problematical aspect to the plaintiffs proposal is that two of four lots on a fifteen acre parcel are to be interior lots of 6.1 and 2.8 acres each, utilizing a shared driveway. This is hardly the case of asking for permission to excavate and drive large dump trucks through a quiet neighborhood. See Whisper Wind Development Corp. v. Planning & Zoning Commission, supra, 32 Conn. App. 517; see also Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 680, 192 A.2d 886 (1963) (denying special permit for apartments in district restricted primarily to one-family dwellings because it would concentrate population, add to traffic congestions, and not be most appropriate use of land). The function of a special permit is to allow property owners to use their property as expressly permitted by zoning regulations, subject only to the protection of public health, safety, convenience, and surrounding property values. Mobil Oil Corp. v. Zoning Commission, supra, 30 Conn. App. 819. There is no evidence in the record before the zoning commission that the public health, the public’s safety or convenience, or property values in the area as a whole would be detrimentally affected by the plan of the plaintiff submitted to the zoning commission.

We conclude that the trial court improperly upheld the zoning commission’s denial of the plaintiffs application for subdivision approval and for a special exception.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal and ordering the zoning commission to grant the plaintiffs application for subdivision approval and a special exception.

In this opinion the other judges concurred.

       Arliele II, § 2.3.6, of the Litchfield subdivision regulations requires that ‘'[wjhenever an application involves land regulated as an inland wetland or wa1 ereourse by the Litchfield Conservation (and Inland Wetlands) Commission, the applicant shall file a copy of the subdivision application with the Conservation Commission within 10 days after filing with the Planning and Zoning Commission. Any application not so filed shall be considered incomplete. The Planning and Zoning Commission shall give due consideration to any report filed by the Conservation Commission prior to rendering a decision on the subdivision application.”

       Article VI, § 5A (8), of the Litchfield zoning regulations provides: “In any Residential Zone, as pari, of a subdivision, the Planning and Zoning Commission may approve two interior lots served by a single accessway provided:
      “a. That the accessway has a minimum 50 foot width at all points, and
      “b. The accessway is under joint ownership of the owners of the lots it serves, and
      “e. A deed provision to this effect is approved by the commission’s attorney, and
      “d. The application approval is conditional upon the use of the said deed requirement, and
      “e. In the R-30II Zone all of the above shall apply and in addition the traveled surface of the accessway shall be no more than 12 feet in width.”

       Article VI, § 5B (1) (b), of the Litchfield zoning regulations provides: “The number of lots permitted on a Common Driveway shall be more than two (2) but not more than a total of six (6) lots. There shall be no more than four (4) interior lots on a Common Driveway.”

       Karen A. Grimes, who owns the adjacent property and is a defendant in this action, claims in this appeal that the zoning commission had no authority to grant the plaintiffs application because the plaintiff had not submitted the final application to the conservation commission for approval. The plaintiff does not deny that the final application was not submitted but claims that the conservation commission had already approved the application because the previous application was essentially the same. With respect to the effect on the parcel’s wetlands, the applications were identical. The chairman of the conservation commission wrote, in a letter to the chairman of the zoning commission, that the plaintiffs new subdivision plan did not affect the previous approvals and permit. Thus, no new application was required. We agree with the plaintiff that, given the circumstances, the letter from the conservation commission was adequate to satisfy the requirements of General Statutes §§ 8-3c and 8-26.

       Article VI, § 5A, of the Litchfield zoning regulations provides in relevant part: “An interior lot is defined as a lot that does not meet the requirement for minimum lot width. (See Article IV)
      “An interior lot maybe permitted in any Residential Zone upon the granting of a Special Exception subject to the general standards of Article VIII, and subject to the following specific requirements . . . .”
      Article IV sets forth the minimum lot sizes for the various zoning districts, including the dimension of lot width.

       The text of the regulations that the zoning commission found the plainliffs plan was violating is as follows:

        “5. Interior lots may be permitted in a subdivision only where the application meets the following criteria and requirements:
      “a. General: The applicant shall show that the design and layout of the subdivision with the proposed interior lots will be in keeping with the Town Plan of Development.
      “b. Specific: The applicant shall show that the subdivision with the proposed interior lots will preserve important natural resource features as identified on the Town Plan of Development maps and other studies adopted by the Commission, including, but not limited to streambelt lands, farmlands (especially active farmland), land on ridge lines, and will result in the preservation of the natural landscape along a Town road or the view from a Town road or proposed subdivision road.” Litchfield Zoning Regs., art. VI, § 5A.
      “4. In deciding upon a proposed Special Exception application, the Commission shall consider the following and record its findings in its meeting record. . . .
      “b. The existing and probable future character of the neighborhood in which the use is located.
      “c. The provision for creation of a harmonious relationship between proposed and existing buildings in the vicinity; specifically with regard to the visual relationship of said buildings in terms of their terrain, use, scale proportions and, particularly, the historic significance of the existing buildings.” Litchfield Zoning Regs., art. VIII.

       General Statutes § 8-8 (b) provides: “Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147Í, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (e) and (f) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

       Grimes participated in the zoning commission’s hearings. She introduced evidence concerning the impact of this subdivision on the neighborhood and, specifically, on her own property. The exhibits include a letter from an appraiser who estimated that the plaintiffs subdivision would decrease the value of the Grimes’ property by 5 to 10 percent because the quiet country appearance of the area would be undermined by the visible driveway adjacent to the Grimes’ property. There was no evidence, however, of any undermining of property values as a whole in the neighborhood or in the town.

       General Statutes § 8-26 provides in relevant part: “If an application [for subdivision] involves land regulated as an inland wetland or watercourse . . . the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations .... The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency. . . .” (Emphasis added.) We recognize that “shall give due consideration” does not make the conservation commission’s report binding, but, here, given the plaintiffs many changes and concessions with his applications and the conservation commission’s ultimate acceptance, we find it extremely persuasive that the conservation commission did not find the plaintiffs plan to be harmful to the stream belt.

       We note that article VI, §6.5.1, of the Litchfield zoning regulations requires that a common driveway have a gravel surface.