author: Bieluch, J.

text:
    Ruth E. Glendenning et al. v. Conservation Commission of the Town of Fairfield et al.
    (5176)
    Borden, Spallone and Bieluch, Js.
    Submitted on briefs February 2
    decision released August 11, 1987

      Allan R. Johnson and Linda M. Guliuzza filed a brief for the appellants (named plaintiff et al.).

      Donal C. Collimore and Albert L. Harlow filed a brief for the appellees (defendants).
   Bieluch, J.

This is an appeal by the plaintiffs, Ruth E. Glendenning, H. Barclay Morley, Annette Morley, Henry C. Wheeler, Michael Weatherly, Lois Robards and Harbor Research Corporation, from the granting by the named defendant of an inland wetlands and watercourses permit to the defendant Christian J. Trefz to conduct regulated activities within such protected areas of Fairfield in the village of Southport. The trial court dismissed the appeal for lack of aggrievement. From that judgment the plaintiffs have appealed. We find error.

On July 27,1982, Trefz filed an application with the conservation commission of the town of Fairfield, acting as the town inland wetlands agency under the provisions of General Statutes § 22a-42 (c) of The Inland Wetlands and Watercourses Act (IWWA), General Statutes §§ 22a-36 to 22a-45, inclusive, to conduct regulated activities within the inland wetlands and watercourses area of Southport. Trefz proposed to construct a single family residence on Harbor Road, adjacent to Mill River at Southport Harbor. The site is also surrounded on two sides by Long Island Sound.

As part of the proposed construction, Trefz seeks to: (1) raise the grade of the building site by depositing about 425 cubic yards of fill; (2) rehabilitate and heighten the existing retaining wall by installing 360 feet of silt fence within its perimeter; (3) extend an existing sanitary sewer line down Harbor Road to the proposed dwelling; and (4) provide on-site storm water drainage. The plaintiffs are owners of properties on Harbor Road, adjacent to the Trefz lot or in close proximity to it, who are opposed to the granting of the permit.

A public hearing on the application was held by the commission on October 20,1983. The matter was thereafter continued on the agenda of the commission until its meeting of December 15, 1983, when it was “approved with the conditions of the October 14,1983, recommendations of the Town Conservation staff, and with the conditions that the site plan indicate no building extension beyond the wharf retaining wall, and that a revised property map be submitted to show only those portions of the property not in question, i.e., all land above the mean high water line.”

The conditional permit contained the following relevant provisions: “I. REGULATED AREA INVOLVED. The regulated area consists of Southport Harbor, the southernmost extent of the Mill River with its concomitant 144’ setback. The entire property borders the Harbor and is contained within the setback; however, no wetlands soils are located on the land area at the site. Soil on site is predominantly fill. The property currently maintains wooden ramped walkways over the River, a floating dock, and a small scale lobster harvesting operation. . . . III. ANTICIPATED IMPACT. . . . There may be a significant loss of view of the Harbor by the adjacent property owners. This proposal will also displace the existing lobster fishery. From an aesthetic point of view, this proposal is a particularly intensive development of waterfront property, and the applicant has proposed no compensatory activities to ameliorate the loss of unobstructed visual harbor contact. ” (Emphasis added.)

The plaintiffs appealed to the Superior Court from this decision under the provisions of General Statutes § 22a-43 of the IWWA and General Statutes § 4-183 of the Uniform Administrative Procedure Act. They alleged to be aggrieved by the decision of the commission because the proposed regulated activities will result in: (1) obstruction of their view of the harbor; (2) loss of recreation contrary to § 6.1.4.5 of the town’s inland wetlands and watercourses regulations; (3) diminution in value of their properties; (4) traffic congestion; (5) damage to their aesthetic sensibilities contrary to § 6.1.4.5 of the regulations; (6) damage to the environmental and ecological stability of their neighborhood contrary to § 6.1.4.6 of the regulations; and (7) destruction of the scenic and historic values of their neighborhood contrary to §§ 1.1 and 2.14.6 of the regulations.

At the court hearing on the plaintiffs’ appeal, the defendants challenged the claims of aggrievement. After hearing the plaintiffs’ supporting evidence, the court found that they did not sustain their burden of proving aggrievement. In its memorandum of decision, the court, citing Bell v. Planning & Zoning Commission, 174 Conn. 493, 495-96, 391 A.2d 154 (1978), held that “aggrievement requires a showing that the plaintiffs have a specific, personal and legal interest in the subject matter of the decision and that they be specially and injuriously affected in property or other legal rights as distinguished from general interest as members of the community.”

As to the plaintiffs’ various claims and proof of aggrievement, the only finding relative to this evidence, which constituted the court’s sole basis for its conclusion that the plaintiffs failed to prove aggrievement, was expressed as follows: “This court has reservations and finds the claim that the mere construction of a building which might partially interfere with the view. of neighboring landowners significantly depreciates the value of their properties to be highly speculative.” In this brief conclusion as to the plaintiffs’ evidence and claims of law, the court erred.

The question of aggrievement is one of fact to be determined by the trial court. The court’s conclusions, however, will be found to be erroneous if they violate law, logic or reason or are inconsistent with the subordinate facts. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491, 400 A.2d 726 (1978).

The IWWA is a segment of title 22a of the General Statutes, entitled “Environmental Protection,” which describes its scheme. The policy for the achievement of such purpose is declared in § 22a-1 in pertinent part as follows: “[T]he policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment and to . . . manage the basic resources of air, land and water to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations.” The IWWA is a portion of the state’s environmental trust for the benefit of its citizens. General Statutes § 22a-36. Reciprocally, the people of our state have a right to preserve their trust from a breach by the state or any of its municipalities to whom its trusteeship has been delegated. See General Statutes § 22a-42 (authorizing establishment of inland wetlands and watercourses agencies by municipalities).

The basic purpose of the act is expressed in § 22a-36 as follows: “It is, therefore, the purpose of sections 22a-36 to 22a-45, inclusive, to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by . . . preventing damage from erosion, turbidity or siltation; preventing loss of fish and other beneficial aquatic organisms, wildlife and vegetation and the destruction of the natural habitats thereof . . . protecting the quality of wetlands and watercourses for their conservation, economic, aesthetic, recreational and other public and private uses and values ... by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn.” This specific purpose has been adopted as part of the Wetlands and Watercourses Regulations of the Town of Fairfield § 1.1.

The Commission’s inland wetlands and watercourses regulations, as relevant here, provide: “6.1 The Agency shall consider the following in making its final decision on a permit application: 6.1.4 All relevant facts and circumstances, including but not limited to the following: . . . 6.1.4.4 Irreversible and irretrievable commitments of resources which would be involved in the proposed activity. This recognizes that the inland wetlands and watercourses of the Town of Fairfield . . . may be irreversibly destroyed by deposition, filling and removal of material, by the diversion or obstruction of water flow, and by the erection of structures and other uses. 6.1.4.5 The character and degree of injury to, or interference with, safety, health or the reasonable use of property which would be caused or threatened. This includes recognition of potential damage from erosion, turbidity, or siltation, loss of fish and other beneficial aquatic organisms, wildlife and vegetation; and the dangers of flooding and pollution; and destruction of the economic, aesthetic, recreational and other public and private uses and values of wetland and watercourses. 6.1.4.6 The suitability of such action to the area for which it is proposed. This requires the Agency to balance the need for economic growth of the Town and the use of its land, with the need to protect its environment and ecology for the people of Fairfield and the benefit of generations yet unborn.”

Although in considering an application for a permit to engage in any regulated activity a local inland wetlands and watercourses agency under both the IWWA and its regulations must take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, and not the environmental impact in general. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). Any aggrievement claimed on appeal from the grant of a permit for regulated activities must, therefore, arise from or relate to their impact upon the environmental factors required to be considered by the agency under the act and its regulations. Any claimed depreciation or loss of value of real estate must result from such environmental impact. Additional claims of aggrievement may arise from the environmental impact of the permitted activities on the regulated area.

Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).

Environmental matters provide a new breadth to claims of aggrievement, one created by the governmental trusteeship of the environment for the benefit of the public. Monetary loss, such as was the sole consideration of the trial court here, is not the complete measure of aggrievement in environmental appeals and judicial review. Although not relied on here, participation of the public in environmental proceedings, and in any judicial review of such matters, is statutorily allowed by General Statutes § 22a-19 (a), which provides that “any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” Connecticut Fund for the Environment, Inc. v. Stamford, supra, 248 n.2; Mystic Marinelife Aquarium, Inc. v. Gill, supra, 490. An intervenor under § 22a-19 becomes a proper party in the administrative proceeding and has statutory standing to appeal for the limited purpose of raising environmental issues. Mystic Marinelife Aquarium, Inc. v. Gill, supra.

Although Mystic Marinelife concerned the interrelationship between classical aggrievement and statutory aggrievement under § 22a-19 for the limited purpose of raising certain environmental issues, its discussion is relevant to the question now under consideration, namely, the reach of classical aggrievement for judicial review under General Statutes § 22a-43 (a) of the IWWA and § 4-183 (a) of the Uniform Administrative Procedure Act on environmental issues arising from regulated activities allowed by an inland wetlands agency. “The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, ‘the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’ Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 [1974], and cases cited therein.” Mystic Marinelife Aquarium, Inc. v. Gill, supra, 493. The “interest” which may be the subject of aggrievement need not be confined to an interest in real property. Id., 496. It may also be a legally protected interest under the IWWA and local inland wetlands and watercourses agency regulations. See id.

This well established rule of aggrievement applies to the statutory scheme under which the appeal here was taken pursuant to §§ 22a-43 (a) and 4-183 (a). See Mystic Marinelife Aquarium, Inc. v. Gill, supra, 495. To be aggrieved within the provision of § 22a-43 (a) requires that property rights be adversely affected “by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the [regulating authority]. ...”

In Mystic Marinelife the Supreme Court upheld the lower court’s conclusion that Mystic Seaport lacked classical aggrievement. First, the trial court correctly found no diminution of the value of its abutting property by the proposed structures. Second, on the alleged environmental impact upon its property of greater shoaling by the activity allowed by the permit, the Supreme Court observed: “Shoaling was not even alleged in the substituted complaint as an element of any asserted aggrievement. Mystic Seaport does not refer to any evidence of shoaling offered to the trial court on the issue of aggrievement.” Id., 498.

In the case before us, the commission in its decision specifically found the following anticipated environmental impact from the permitted regulated activities: “There may be a significant loss of view of the Harbor by the adjacent property owners. This proposal will also displace the existing lobster fishery. From an aesthetic point of view, this proposal is a particularly intensive development of waterfront property, and the applicant has proposed no compensatory activities to ameliorate the loss of unobstructed visual Harbor contact.” These stated injurious consequences of the permitted activities were alleged as claims of aggrievement by the plaintiffs in their complaint. While a transcript of the trial testimony has not been supplied with the record in this case, that evidence thereon was submitted to the court is confirmed by its memorandum of decision as follows: “Both during the public hearing and the hearing on aggrievement before this court, the plaintiffs expressed sincere concern that the granting of this application would result in the destruction of a panoramic view of a beautiful and tranquil harbor, the loss of historic and aesthetic values and a diminution of the opportunity of citizens to seek serenity and spiritual renewal from the simple enjoyment of an unencumbered view of a unique vista. The court cannot and certainly does not wish to minimize the importance of such considerations.”

Notwithstanding such evidentiary recognition of the plaintiffs’ claims of aggrievement, as well as the commission’s anticipated environmental impact upon which they are based, the court failed to make any findings or conclusions therefrom concerning the plaintiffs’ asserted aggrievement. The court’s sole finding to support its conclusion of lack of aggrievement was the following: “This Court has reservations and finds the claim that the mere construction of a building which might partially interfere with the view of neighboring landowners significantly depreciates the value of their properties to be highly speculative.” In so limiting its finding, the court erred in the standard of aggrievement that it applied in this case. The court should have considered the plaintiffs’ claims and evidence of aggrievement in relation to the commission’s anticipated environmental impact for the purpose of making findings thereon and drawing its conclusions therefrom as to the plaintiffs’ aggrievement. For that reason, the case should be remanded for a rehearing on the plaintiffs’ claims of aggrievement.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Additional plaintiffs named in the complaint are not parties to this appeal.


source: Caselaw Access Project

author: Hull, J. Bieluch, J.,

license: Public Domain

text:
    Boris Silitschanu et al. v. Frederick Groesbeck, Jr.
    (4484)
    Hull, Spallone and Bieluch, Js.
    Argued March 12
    decision released August 11, 1987

      John Timbers, for the appellants (plaintiffs).

      James E. O'Donnell, with whom, on the brief, was Daniel D. McDonald, for the appellee (defendant).
   Hull, J.

The plaintiffs brought suit against the defendant seeking to enjoin him from constructing a commercial building and a septic tank for that building on residential property adjoining the commercial lot. After a trial to an attorney state trial referee, the court rendered judgment for the defendant, denying the plaintiffs’ request for injunctive relief. From that judgment, the plaintiffs have appealed, claiming (1) that the referee applied an incorrect standard of law to the facts of the case, (2) that he erred in failing to consider testimony of the chief zoning enforcement officer of the city of Stamford, and (3) that he erred in holding that the plaintiffs were not injured by the defendant’s actions.

The referee found the following facts. Prior to 1951, there were several small business areas’in the rural or outlying sections of Stamford. On or about November 30,1951, the city of Stamford, newly consolidated with the town of Stamford, adopted zoning regulations for these outlying areas. Between 1977 and 1980, the defendant acquired and consolidated four parcels of land, totalling under one and one-half acres. Some time during that period, the defendant consulted an architect concerning the preparation of plans for the construction of a three-story office building on the one half acre of land that was zoned for commercial use. The plan called for the septic system for the building to be on the adjoining residential property. A map designating the consolidation of the land was submitted to the Stamford town clerk, and subsequently was referred to the planning board and the corporation counsel. The map was later accepted for filing.

On July 29,1980, the defendant applied for a building permit for his proposed building. He promptly applied to the necessary boards and agencies for approval of his building plans. Various agencies delayed action on the defendant’s request, and ultimately refused to issue the necessary permits. The defendant eventually instituted a mandamus action against the zoning enforcement officer, the building inspector, the deputy building inspector and the municipal engineer. On July 30,1981, the court found in favor of the defendant (the plaintiff in that action), and ordered that the requested building permit be issued. On August 12, 1981, the zoning enforcement officer and the building inspector issued the defendant a building permit. The defendant received the necessary sewer construction permit from the local health department, and began construction soon thereafter. At the time of oral argument, the building was substantially completed.

The complaint in the present action was filed in the Superior Court on November 24, 1981. In their complaint, the plaintiffs sought, inter alia, a permanent injunction prohibiting the defendant from continuing construction, and ordering him to dismantle any parts of the building already constructed. The two major claims made by the plaintiffs in support of injunctive relief were (1) that the location of the septic system on residentially zoned property violates the Stamford zoning regulations, and (2) that the location of the proposed building is in violation of the Stamford zoning regulations with regard to the rear and side yard requirements.

The referee filed a detailed and comprehensive report. He found that there is nothing in the Stamford zoning regulations governing subsurface sewage disposal systems and their location; nor do the regulations make any specific reference to septic systems. He concluded that the defendant is entitled to proceed with the construction of the proposed building notwithstanding the fact that the septic system which will serve the building is on residentially zoned property.

The plaintiffs claimed that if the septic system were located on the commercially zoned portion of the Groesbeck’s property, the size of the proposed building would necessarily be smaller. The plaintiffs also claimed that the proposed building would result in an increase of traffic. The referee found (1) that the plaintiffs offered no evidence as to the size or precise location of such a smaller building on the property, (2) that the plaintiffs did not sustain their burden of proof as to the extent of any injury or damage that will be sustained by reason of the size of the building, and (3) that, even if the referee assumed the use of residentially zoned property for the septic tank to be improper, the plaintiffs failed to show that it would result in any harm to them.

In light of his conclusion that the plaintiffs offered no evidence that the building’s septic system will differ in any material way from septic systems pertaining to residential structures, the referee concluded that the plaintiffs had failed to show that the residential property in question would be used in a manner inconsistent with zoning. He concluded further that use restrictions on the residential portion of Groesbeck’s property protect the property from use inconsistent with its residential classification and are not intended to serve as indirect limits on the size of buildings constructed on adjoining commercial property.

The referee also found that the location of the proposed building met the side yard, rear yard and setback requirements of the Stamford zoning regulations. He concluded from all his findings that the plaintiffs were not entitled to any relief, injunctive or otherwise. On August 26, 1985, the court accepted the referee’s findings and the next day rendered judgment for the defendant.

I

The plaintiffs’ first claim is that the referee erred in adopting an unprecedented and incorrect standard for determining whether the septic system for a commercial building can be located on residentially zoned property. They argue in effect that the defendant’s septic system is subject to the Stamford zoning regulations.

Connecticut appellate courts have never squarely faced the issue of whether, absent specific reference, septic systems are subject to local zoning regulations. “Zoning regulations, being in derogation of common law property rights, should not be extended by construction beyond the fair import of their language and cannot be construed to include by implication that which is not clearly within their express terms. Park Construction Co. v. Planning & Zoning Board of Appeals, 142 Conn. 30, 35, 110 A.2d 614 [1954]; Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 638, 109 A.2d 256 [1954]. . . .’’(Citation omitted.) J & M Realty Co. v. Board of Zoning Appeals, 161 Conn. 229, 233, 286 A.2d 317 (1971).

“[E]very owner of property located in a town which has adopted zoning is entitled to be able to ascertain, with reasonable certainty, what uses he may legally make of any portion of his property. Leveille v. Zoning Board of Appeals, 145 Conn. 468, 473, 144 A.2d 45 [1958].” Lebanon v. Woods, 153 Conn. 182, 191, 215 A.2d 112 (1965).

As the defendant correctly asserts, the plaintiffs have referred us to nothing in the Stamford zoning regulations, nor has our review of the record revealed any provision governing subsurface sewage disposal systems. The regulations make no specific reference to septic systems. The plaintiffs rely only on the broad, general “purpose” language of the zoning regulations in support of their contention. Art. 1, § 2 of those regulations provides that “[n]o building or structure shall be erected, reconstructed, structurally altered, enlarged, moved or maintained, nor shall any building, structure or land be used or be designed for any use other than is permitted in the district in which such building, structure or land is located.”

The definitional section of the zoning regulations defines “structure” as “[a]nything constructed or erected which requires location on the ground or attached to something having a location on the ground.” Stamford zoning regs., art. II, § 3 (A) (97). We concur with the referee that under these definitions, no structure or land is being used for any use other than for a septic system, which is permitted in a residential zone.

The plaintiffs have directed us to no case which supports their claims concerning the septic system. Nor has our research revealed any such authority. Reasoning by analogy, we have examined cases concerning commercial or institutional parking lots on residential land adjoining the principal operation. See Schomer v. Shilepsky, 169 Conn. 186, 190, 363 A.2d 128 (1975); Gada v. Zoning Board of Appeals, 151 Conn. 46, 48, 193 A.2d 502 (1963). Those cases enunciate the general proposition that such a use is improper. We concur fully with the conclusions of these cases. A parking lot is clearly a structure on the ground. It substitutes paving for whatever environmental amenities existed on the property. Depending on the size and use of the lot, it takes little imagination to envision the inconvenience and annoyance that might ensue to adjoining residential owners.

None of the persuasive reasons leading to the finding of impropriety of large scale institutional or business parking lots on adjoining residential property inheres in the use of septic tanks on such adjoining property. We therefore find that the referee did not err in determining that the defendant’s septic system was not subject to the Stamford zoning regulations.

II

The plaintiffs’ second claim is that the referee failed to consider the testimony of the chief zoning enforcement officer, who assumed that a building’s zoning classification turns on the use of the building rather than the physical nature and characteristics of each of its parts. As we have determined that the plaintiffs failed to meet their burden of proving that the defendant’s septic system is in any way subject to the Stamford zoning regulations, any interpretation by a zoning enforcement officer of the zoning regulations would be meaningless. We therefore will not consider this claim.

III

The plaintiffs’ final claim is that the referee erred in holding that the plaintiffs are not injured by the defendant’s violations of the Stamford zoning regulations. We concur with the referee’s finding that even if the Stamford zoning regulations prohibit the placement of the defendant’s septic system on his adjoining residential property, the plaintiffs have failed to prove that they are entitled to an injunction. “ ‘The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court, and the justiciable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury. Bendell v. Johnson, 153 Conn. 48, 51, 212 A.2d 199 [1965]; 42 Am. Jur. 2d, Injunctions, §§ 48, 49; see Herbert v. Smyth, 155 Conn. 78, 85, 230 A.2d 235 [1967]; Brainard v. West Hartford, 140 Conn. 631, 634, 103 A.2d 135 [1954].’ Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 [1971]. It is not enough to show that the defendant has violated the zoning regulations. The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation. See Scoville v. Ronalter, supra; Crouchley v. Pambianchi, 152 Conn. 224, 226, 205 A.2d 492 [1964]; Lavitt v. Pierre, 152 Conn. 66, 77, 203 A.2d 289 [1964]; Lehmaier v. Wadsworth, 122 Conn. 571, 191 A.2d 539 [1937]. ...

“Injunctive relief may not lie where it is predicated on the fears and apprehensions of the party applying for it or where it would be incompatible with the equities of the case; DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 [1977]; Moore v. Serafin, 163 Conn. 1, 11, 301 A.2d 238 [1972]; Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 511, 218 A.2d 383 [1966]; and likewise the power of equity to grant such relief may be exercised only under demanding circumstances. Brainard v. West Hartford, [supra, 634]. The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm. Moore v. Serafin, supra; Scoville v. Ronalter, supra.” Karls v. Alexandra Realty Corporation, 179 Conn. 390, 401-402, 426 A.2d 784 (1980).

The trial referee concluded that “[sjince the Plaintiffs have offered no evidence to show that the building’s septic system and rear yard will differ in any material way from septic systems and rear yards pertaining to residential structures, they have failed to demonstrate that the residential property in question is being used in a manner inconsistent with its zoning classification.” We agree. We have reviewed the record and conclude that the trial court did not abuse its discretion in denying the plaintiffs’ requested injunction.

There is no error.

In this opinion Spallone, J., concurred.

Bieluch, J.,

dissenting. I do not concur in the majority’s holding that the defendant’s subsurface sewage disposal system (septic system) is not subject to the Stamford zoning regulations, and that the location on residentially zoned land of a septic system attached and necessary to the occupancy of the defendant’s commercial building on adjoining land zoned for business is not in violation of the city’s zoning ordinance. This is a case of first impression in which the defendant is attempting to evade the common zoning principle that business uses cannot encroach on residential properties. The majority’s opinion is unsupported by the zoning regulations of Stamford applicable to the facts of this case.

Zoning is predicated upon the restrictive classification of private property in the interest of promoting public health, safety and general welfare, as well as encouraging the most appropriate use of land and to conserve and stabilize its value. The defendant’s proposed installation on residential property of a septic tank and leaching field for disposal of sewage from a commercial building on adjoining property zoned for business violates these basic principles, as well as the Stamford zoning regulations adopted for their implementation.

The following facts are established by the findings of the attorney state trial referee, the record of the trial court and the exhibits therein. Between March 8,1977, and March 13, 1980, the defendant acquired four adjoining properties on the easterly side of Old Long Ridge Road, Stamford. The first three parcels were zoned RA-1, single-family residence district, and the last parcel acquired was zoned C-N, neighborhood business district. By a straw transaction on August 5,1980, these properties were combined into a single lot, a map of which was filed in the town clerk’s office.

The defendant’s site plan shows the following zoning computations: “Total Lot Area = 1.2439 acres or 52,940.38 square feet”; area of property within C-N zone 19,054.11 square feet, or 0.4374 acre; area of property within RA-1 zone 33,886.28 square feet or 0.7779 acre. The site plan discloses further that the building is located within the area of the C-N business zone, with the side and rear walls in close proximity to the zone boundary. In order to meet the requirements of off-street parking of at least 50 cars, the entire basement consists of a parking garage for 52 cars. Since the basement underneath the superstructure is insufficient to allow for the required parking, the substructure of the building extends underneath the front yard to within ten feet of the street line. This underground extension of the building contains space for the parking of seventeen vehicles and installation of an electric transformer. There is, therefore, no ground area remaining for the installation of a septic system on the land zoned for business.

James J. Sotire, building official and zoning enforcement officer for the city, testified that in his opinion the septic system, similar to a subterranean parking garage, would be a commercial structure in a residential zone supporting and connected to the principal building in the business zone. He stated that all parts of the commercial building must be located on the land zoned for business. A swimming pool, also constructed below grade, is considered by his office to be a structure within the meaning of that term in the zoning regulations. The only specific mention of “sanitary disposal systems” in the zoning regulations is found in the provisions for excavation permits. Under the building code, he stated, a building cannot be constructed without sanitary facilities, either by connection to a sanitary sewer, which is not available in the area involved, or by installation of a septic system. In this case, therefore, a septic system is a necessary structure for the construction and occupancy of the defendant’s office building.

In holding that the defendant’s septic system is not subject to the Stamford zoning regulations, the majority opinion misconstrues the nature and terms of those regulations. The majority reasons as follows: (1) septic systems are not specifically mentioned in the regulations; (2) zoning regulations cannot be extended beyond their literal expression; and (3) septic systems do not fall within the definition of a structure, which requires location on the ground; “[w]e therefore find that the referee did not err in determining that the defendant’s septic system was not subject to the Stamford zoning regulations.”

Article I, § 2 (A), of the Stamford zoning regulations, considered by the majority as inconsequential “broad, general ‘purpose’ language of the zoning regulations,” sets forth the comprehensive and definitive scheme of zoning for the city in these basic terms: “No building or structure shall be erected, reconstructed, structurally altered, enlarged, moved, or maintained, nor shall any building, structure or land be used or be designed for any use other than is permitted in the district in which such building, structure or land is located.” In the light of these clear statements, the regulations are intended to be permissive and not prohibitive. Bradley v. Zoning Board of Appeals, 165 Conn. 389, 394-95, 334 A.2d 914 (1973). “Under these regulations no use is permissible within a given zone unless it is expressly authorized. Park Regional Corporation v. Town Plan & Zoning Commission, 144 Conn. 677, 682, 136 A.2d 785 [1957].” Schwab v. Zoning Board of Appeals, 154 Conn. 479, 481, 226 A.2d 506 (1967). A use not permitted in the regulations is thereby prohibited.

The majority view of the zoning regulations does not recognize their design and considers them to be prohibitive, rather than permissive. The majority holds that since “[t]he regulations make no specific reference to septic systems . . . [w]e therefore find that the court did not err in determining that the defendant’s septic system was not subject to the Stamford zoning regulations.” I would find that the trial referee’s “authorizing a use nowhere permitted in the zoning regulations was not ‘in harmony’ with those regulations and clearly amounted to an amendment thereto.” Bradley v. Zoning Board of Appeals, supra, 395-96.

A septic system is a structure within the terms of the Stamford zoning regulations. Article II, § 3 (A) (97) of those regulations, defines a “structure” as “[a]nything constructed or erected which requires location on the ground or attached to something having a location on the ground. ” (Emphasis added.) The trial referee and the majority limit the scope of the definition to construction on the ground. The disjunctive “or,” however, extends the meaning to construction below ground which is “attached to something having a location on the ground.” The defendant’s septic system, attached to his office building on land zoned for business, constitutes a business structure on residential one-acre zoned land.

While zoning governs the location of septic systems, the public health code controls their installation and specification requirements. General Statutes § 19a-36; Regs., Conn. State Agencies §§ 19-13-B103a through 19-13-B103f. The technical standards for the design and construction of septic systems contained in the public health code are enforced by the Stamford director of health. Regs., Conn. State Agencies § 19-13-B103e; Stamford Code § 21-41.

Subsurface sewage disposal or septic system “means a system consisting of a house sewer; a septic tank followed by a leaching system, any necessary pumps and siphons, and any ground water control system on which the operation of the leaching system is dependent.” Regs., Conn. State Agencies § 19-13-B103b (c). “Each septic system shall be located on the same lot as the building served.” Regs., Conn. State Agencies § 19-13-B103d (d). Septic tank “means a water-tight receptacle which is used for the treatment of sewage and is designed and constructed so as to permit the settling of solids, the digestion of organic matter by detention and the discharge of the liquid portion to a leaching system.” Regs., Conn. State Agencies § 19-13-B103b (b). Leaching system “means a structure, excavation or other facility designed to allow settled sewage to percolate into the underlying soil without overflow and to mix with the ground water.” Connecticut Public Health Code, Technical Standards for the Design and Construction of Surface Sewage Disposal Systems (1986) § 19-13-B103, standard I (E), p. 15.

The minimum separation distance required between any part of the septic system and: (1) the building served is 15 feet; (2) human habitation on adjacent property is 25 feet; and (3) the property line is 10 feet. Connecticut Public Health Code, supra, § 19-13-B103, standard II, p. 16. A septic tank shall have a removable cover or manhole not greater than twelve to eighteen inches below grade level. At least two manholes shall be provided for a tank ten feet long. On septic tanks of two thousand gallons or more, the manholes shall extend to grade. Connecticut Public Health Code, supra, § 19-13-B103, standard V (A) (2), p. 28.

It is clear from the provisions and definitions of the public health code, and from the technical standards for the design and construction of septic systems specified therein, that the installation of a septic system in the ground is a structure, within the contemplation of article II, § 3 (A) (97), of the Stamford zoning regulations “attached to [a building] having a location on the ground.” The defendant’s use of residential property for the installation of a septic system attached to his commercial building on a business zone would, therefore, violate the zoning regulations.

I also dissent from the majority opinion’s holding that the plaintiffs are not entitled to an injunction “even if the Stamford zoning regulations prohibit the placement of the defendant’s septic system on his adjoining residential property.” The attorney state trial referee concluded that the plaintiffs failed to show that such use of the residential property would result in any injury to them because septic systems are necessary and permitted in both commercial and residential zones. The majority concurs with this conclusion, stating as follows: “The trial referee concluded that ‘[s]ince the Plaintiffs have offered no evidence to show that the building’s septic system and rear yard will differ in any material way from septic systems and rear yards pertaining to residential structures, they have failed to demonstrate that the residential property in question is being used in a manner inconsistent with its zoning classification.’ We agree.”

It is the duty of the zoning enforcement officer to enforce the zoning regulations. Stamford Zoning Regs., art. Y, § 16 (A). He is authorized to institute injunctive proceedings to restrain a violation of the regulations. Stamford Zoning Regs., art. V, § 16 (B). In this case, however, even though he considers the installation of the septic system to be a violation of the zoning regulations, the zoning enforcement officer was unable to take such action because of a writ of mandamus that issued against him as both the city building inspector and zoning enforcement officer on July 30, 1981, ordering him to issue a building permit for the defendant’s office building. For that reason, this action has been instituted by the plaintiffs in their private capacities.

Any person specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation. Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 1230 (1987); Reynolds v. Soffer, 183 Conn. 67, 71, 438 A.2d 1163 (1981); Karls v. Alexandra Realty Corporation, 179 Conn. 390, 401, 426 A.2d 784 (1980). “Though the primary responsibility for enforcing zoning regulations rests with the zoning [authority], where a violation results in special damage to an individual, the injured party has a right to seek injunctive relief. Newington v. Mazzoccoli, 133 Conn. 146, 156, 48 A.2d 729 [1946]; Fitzgerald v. Merard Holding Co., 106 Conn. 475, 482, 138 A. 483 [1927].” Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128 (1975).

At trial, the plaintiffs offered testimony describing how an office building illegally increased in size by placement of its septic system on residential property would adversely affect the use and enjoyment of their homes which were located in the immediate neighborhood in a highly restricted residential area. There was evidence that the size of the office building would cause a significant decrease in the market value of their homes that would not occur if the defendant were to construct a building consistent with the zoning regulations on the property zoned for neighborhood business. Corroborating the decrease in property values was testimony that the city of Stamford reduced the assessment of the named plaintiff’s home by $20,129, from $201,300 to $180,171, or 10 percent, because of its proximity to the defendant’s office building, being approximately 100 feet away.

Other proof of special damage claimed by the plaintiffs alleged loss of privacy, unsightliness of the office building in a highly residential neighborhood, obstruction of the view from their homes, destruction of the countryside and historic neighborhood in which they reside, increased traffic on Old Long Ridge Road, which will create safety problems for the plaintiffs’ children because there are no sidewalks on the narrow and winding roadway, and increased noise and pollution.

The attorney state trial referee failed to rule on these claims of special damage. His findings of fact were limited to finding only that there was no evidence to prove the volume of traffic that would be generated by the proposed building or by a smaller building conforming to the zoning regulations and that there was no evidence to indicate that a smaller building would be less than three stories in height. The conclusions reached were also inadequate. The referee found that since the plaintiffs offered no evidence as to the size or precise location on the property of a smaller building, “[i]t is therefore found that the plaintiffs have not sustained the burden of proof as to the extent of any injury or damage they would sustain by reason of the size of the building.”

As to the claim that the increased size of the building will cause the plaintiffs damage, the referee concluded that “Stamford’s zoning regulations limit building size through maximum height and lot coverage restrictions.” Finally, as described earlier, the referee concluded that since septic systems are necessary to both commercial and residential structures, the location of the septic system in this case in a residential zone would not result in any injury to the plaintiffs. It is only this last conclusion that the majority opinion cites in holding that the attorney state trial referee did not err in concluding that the plaintiffs were not injured even if the defendant violated the Stamford zoning regulations by constructing a commercial septic system on land zoned for one-acre housing to be attached to an office building erected in an adjoining neighborhood business district. The majority opinion does not review the plaintiffs’ proof of special damages or the attorney state trial referee’s lack of findings thereon.

Proof of a substantial interference with the plaintiffs’ right of enjoyment of their homes and property, even owing to increased traffic alone, reasonably supports the issuance of an injunction against a zoning violation. Schomer v. Shilepsky, supra.

For these reasons, I would find error.

       The remaining land was zoned for single-family residential use.

       See Groesbeck v. Sotire, 1 Conn. App. 66, 467 A.2d 1245 (1983). The city of Stamford and its building inspector and zoning enforcement officer, James Sotire, appealed to this court from the trial court’s judgment. The appeal was dismissed on grounds of mootness because the building permit had already been issued.

       See Connecticut Public Health Code § 19-13-B103 et seq.

       In the Superior Court action, there were five plaintiffs. The properties of two plaintiffs, Boris Silitschanu and Fred Mantel, adjoin the defendant’s property. The properties of the remaining three plaintiffs, John Naylor, Newcomb Barger and Grace Ramos Maiola, are closely situated to the defendant’s property.
      On March 6, 1987, while this appeal was pending, the plaintiffs Mantel and Maiola moved this court to drop them from the appeal. That motion was granted.

       The defendant claims that the plaintiffs have “waived any right to attack the subordinate factual findings” of the attorney state trial referee, as they did not properly file a motion to correct and an exception to the referee’s report. He cites Ruhl v. Fairfield, 5 Conn. App. 104, 106, 496 A.2d 994 (1985), and Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 507-509, 508 A.2d 415 (1986), in support of his claim. Ruhl v. Fairfield, supra, states that “[a]bsent a motion to correct and a subsequent exception to the report ... [t]his court is limited to considering whether the ‘facts found and the conclusions reached in the report are adequate to support the judgments.’ ” The plaintiffs’ claims, however, do not refer only to factual findings, as the defendant asserts. The claims are based on assertions of legal error. In order to determine whether the facts and conclusions reached were reasonable, it is essential that we consider the plaintiffs’ argument that the law applied was incorrect.

       Since an acre consists of 43,560 square feet, this conversion is inaccurate. The indicated square footage of the total area, however, is the correct sum of the portions measured for the business and residential zones.

       This judgment in mandamus was rendered in the case of Groesbeck v. Sotire, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 80-49563 (July 30, 1981).


author: Dupont, C. J.

text:
    State of Connecticut v. Mary Diorio
    (4244)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued March 31
    decision released August 18, 1987

      Richard Emanuel, for the appellant (defendant).

      James A. Killen, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Scott Murphy, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction, following a jury trial, of aiding and abetting a breach of the peace, in violation of General Statutes §§ 53a-8 and 53a-181. The defendant claims that the trial court erred (1) by impermissibly restricting her cross-examination of the state’s witnesses, (2) by instructing the jury on an offense not cognizable under Connecticut law, (3) by denying the defendant her right to a unanimous jury verdict, (4) by its charge to the jury on circumstantial evidence, (5) by its charge to the jury on reasonable doubt, and (6) by failing to grant the defendant’s motion for judgment of acquittal.

The jury could reasonably have found certain relevant facts. The defendant’s daughter was a member of the graduating class of a junior high school. Prior to graduation, the dean of students at the school had disciplined the defendant’s daughter. Seeking revenge, the defendant hired and paid one Robert Fuller to dress as a clown at graduation and throw a pie in the face of the dean of students. The dean was hit with a cream pie in front of between one thousand and two thousand people.

I

The defendant first claims that the trial court erred by unconstitutionally restricting her cross-examination of the state’s witness concerning bias, prior acts of misconduct and prior convictions.

A

BIAS

At trial, the defendant attempted to cross-examine Fuller concerning an improper motive for his testimony. The defendant alleged that Fuller’s testimony was in return for the nolle of unrelated charges against him six months prior to the pie incident. The defendant also attempted to cross-examine Fuller’s business partner concerning bias or motive stemming from a prior plea of guilty to a misdemeanor. The trial judge prohibited cross-examination in both instances.

The right of an accused effectively to cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Heinz, 3 Conn. App. 80, 85-86, 485 A.2d 1321 (1984). A claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: (1) whether the constitutional standard has been met; and (2) if so, whether the court nonetheless abused its discretion. State v. Heinz, supra, 86. “The constitutional standard is met when defense counsel is ‘permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980), quoting Davis v. Alaska, supra, 318.

The constitutional standard was met in this case. The defendant was permitted to question Fuller at length regarding any deals made in exchange for his testimony. The trial judge restricted cross-examination regarding the nolled charges, however, since these charges were not pending either at the time Fuller gave his statement to the police or at the time of the defendant’s trial. Similarly, the defendant was allowed to cross-examine Fuller’s business partner extensively as to any bias stemming from the latter’s close relationship with Fuller. Hence, the defendant was “ ‘permitted to expose to the jury the fact from which the jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Gaynor, supra.

This leaves the remaining question of whether the trial court abused its discretion in restricting the scope of cross-examination. “ ‘To establish an abuse of discretion, appellants must show that the restrictions imposed upon their cross-examination were clearly prejudicial.’ ” State v. Gaynor, supra, 510. Our review of the transcript indicates that the defendant was not prejudiced. The defendant was permitted the opportunity to cross-examine the state’s witness extensively regarding bias or improper motive. When the right to cross-examine to demonstrate bias, motive, or prejudice is not altogether denied, the scope and extent of the cross-examination rests in the court’s discretion. State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985); State v. Luzzi, 147 Conn. 40, 46-47, 156 A.2d 505 (1959). The trial court did not abuse its discretion.

B

PRIOR ACTS OF MISCONDUCT

The defendant attempted to cross-examine the state’s principal witness concerning five acts of prior misconduct in order to impeach his credibility. A witness may be impeached during cross-examination by specific acts of misconduct which bear a special significance upon the issue of veracity. State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Horton, 8 Conn. App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986). It does not follow, however, that if the acts inquired about are indicative of a lack of veracity, the court must permit the cross-examination. Whether to permit it lies largely within the court’s discretion. State v. Roma, 199 Conn. 110, 117, 505 A.2d 717 (1986); Vogel v. Sylvester, 198 Conn. 666, 675-76, 174 A.2d 122 (1961). Our review of the record indicates that the trial court did not abuse its discretion in denying the cross-examination. The trial court held a hearing at which defense counsel argued at length for the opportunity to conduct cross-examination concerning the prior acts of misconduct. The court ruled that the acts were, inter alia, remote in time, had a tendency to confuse the jury, were not supported by sufficient evidence, and did not have probative value concerning veracity sufficient to outweigh the potential for prejudicial effect. We agree with its findings and conclude that under these circumstances, the court did not abuse its discretion in restricting cross-examination.

C

PRIOR CONVICTIONS

The defendant claims as error the trial court’s denial of his cross-examination of the state’s principal witness regarding prior criminal convictions. The Connecticut Supreme Court has interpreted General Statutes § 52-145 as permitting the use of a witness’ prior conviction to impeach credibility where the conviction was for a crime punishable by imprisonment in excess of one year. State v. Geyer, 194 Conn. 1, 10, 480 A.2d 489 (1984). The defendant was unable to demonstrate any convictions by the witness which were punishable by imprisonment for more than one year. Consequently, the trial court did not err in denying cross-examination concerning prior criminal convictions.

II

The defendant next claims that the trial court erred by instructing the jury on an offense, accessory to breach of the peace, which is not cognizable under Connecticut law. The defendant argues that conviction as an accessory requires proof of intent to commit the substantive crime. Since breach of the peace may be committed by either intentional or reckless conduct, the defendant asserts that the offense is not cognizable because a breach of the peace may be committed recklessly but the accessory must still be shown to have intended the outcome.

General Statutes § 53a-8 requires that a defendant have the mental state required for the commission of a crime while intentionally aiding another. “[A]n accessory may be liable in aiding another if he acts intentionally, knowingly, recklessly or with criminal negligence toward the result, depending on the mental state required by the substantive crime.” State v. Foster, 202 Conn. 520, 531, 522 A.2d 277 (1987). One may be an accessory to a crime without having a conscious objective to cause the result described by a statute defining the crime. Id. Thus, a person may be held liable as an accessory to a reckless act-in this instance, breach of the peace — if he has the requisite culpable mental state — recklessness—for the commission of the substantive offense, and he intentionally aids another in the crime. Therefore, we find that being an accessory to a breach of the peace is a cognizable crime under Connecticut law. The trial court did not err in instructing the jury with respect to the crime.

Ill

The defendant’s third claim of error is the trial court’s failure to instruct the jury to require that its verdict be unanimous when considering alternatively stated elements of the breach of the peace charge. The defendant did not request such a charge at trial, nor did she enter an objection and exception to the instructions given. We have, however, previously reviewed similar claims concerning jury unanimity not raised at trial pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and will do so here. See State v. Milledge, 8 Conn. App. 119, 122-23, 511 A.2d 366 (1986); State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986); State v. Wist, 3 Conn. App. 650, 654, 491 A.2d 428, cert. denied, 196 Conn. 810, 494 A.2d 906 (1985).

The sixth amendment to the United States constitution guarantees a defendant in a criminal case the right to.a unanimous verdict if her jury, as here, consists of only six members. Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979). The defendant argues that the trial court’s instruction to the jury that it could convict the defendant on the basis of subsection (2) of General Statutes § 53a-181 (“assaults or strikes another”) or, in the alternative, subsection (6) (“creates a public, hazardous, or physically offensive condition by any act which he is not licensed or privileged to do”) indicates that the jury may have agreed that the defendant committed a breach of the peace but may have disagreed as to which subsection was violated. This possibility, the defendant asserts, deprived her of her right to a unanimous jury verdict. We disagree.

“If the actions necessary to constitute a violation of one statute or subsection of a statute are distinct from those necessary to constitute a violation of another, then jurors who disagree on which one the state proves cannot be deemed to agree on the actus reus: the conduct the defendant committed. Where the evidence presented supports both alternatives, the possibility that the jurors may actually disagree on which alternative, if either, the defendant violated is the highest. Under such circumstances, the jurors should be told that they must unanimously agree on the same alternative. We do not now hold that that kind of charge . . . must always be given. Rather, such a charge is required only where a trial court charges a jury that the commission of any one of several alternative actions would subject a defendant to criminal liability, and those actions are conceptually distinct from each other, and the state has presented some evidence supporting each alternative. The determination of whether actions are conceptually distinct must be made with reference to the purpose behind the proposed charge: to ensure that the jurors are in unanimous agreement as to what conduct the defendant committed.” State v. Benite, supra, 674-75.

The state presented evidence to demonstrate that the defendant was accessorily responsible for only one act: the throwing of the pie into the face of the dean. While some of the jurors might have believed that the pie incident violated subsection (6) of General Statutes § 53a-181 by creating a public, hazardous or physically offensive condition, they could not have reached this conclusion without first believing that the pie was actually thrown, in violation of subsection (2). See State v. Jones, 193 Conn. 70, 76-77, 475 A.2d 1087 (1984). In other words, the jury could only have found that the defendant created a public, physically offensive condition by striking the dean of students with the pie. Thus, the evidence presented at trial did not permit significant disagreement as to what conduct the defendant committed.

IV

The defendant also claims that the trial court erred in its charge to the jury on the use of circumstantial evidence, and the inferences to be drawn therefrom. The court, in its charge to the jury on tampering with a witness and bribery of a witness, stated that inferences to be drawn be “strong enough so that you can find” that “it is more probable than not that the inference being drawn is true.”

The facts pertinent to the defendant’s claim of error are as follows: Shortly after the incident, the defendant voluntarily gave a statement to the police in which she denied having hired the clown to throw the pie at the victim. At trial, that statement was introduced as evidence. The clown testified that the defendant and her husband had telephoned his store to inquire about his services, and that the defendant later entered his store, ordered the pie throwing as part of the graduation ceremonies, and paid him for the service. He identified her for the police at a place where she was, or had been employed, and he identified her at trial. The defendant’s niece testified, and stated that the defendant had admitted to being responsible for the incident. The niece further testified that the defendant and her husband had offered her five hundred dollars to assume responsibility for the incident, and as part of that plan, had taken her to have her hair frosted in order to resemble the defendant more closely. Although the defendant did not testify at trial, her husband did and stated that neither he nor his wife had hired the clown.

In the recent past, despite the failure of a defendant to object and except to similar erroneous instructions at trial, such claims of error, under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), have been reviewed. State v. Mullings, 202 Conn. 1, 12-14, 519 A.2d 58 (1987); State v. Whelan, 200 Conn. 743, 756, 513 A.2d 86, cert. denied, 479 U.S. 994,107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Sullivan, 11 Conn. App. 80, 94, 525 A.2d 1353 (1987). Such review is appropriate “where the defendant can demonstrate the deprivation of a fundamental constitutional right and a fair trial. State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1985).” State v. Whelan, supra. The record in this case is adequate to support the contention that the defendant’s claim is reviewable under the Evans doctrine. See State v. Robinson, 204 Conn. 207, 210 n.4, 527 A.2d 694 (1987) .

Our review of the record in this case, however, fails to support the defendant’s claim that the court’s charge, which related to the use of circumstantial evidence to infer intent, clearly deprived her of a “fundamental constitutional right and a fair trial.” State v. Evans, supra, 70. It is by now well established that such a charge, when given once as part of a general charge where the principal factual issue is identity, will rarely if ever lead to the conclusion that it is reasonably possible that the jury was misled as to the state’s burden of proving every element of the crime beyond a reasonable doubt. State v. Miller, 202 Conn. 463, 491-92, 522 A.2d 249 (1987); State v. Reddick, 197 Conn. 115, 132-33, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).

Here, the principal factual issue to be determined by the jury was the identity of the person who solicited the pie throwing services. That element was established primarily by the testimony of the clown who, as an eyewitness, identified the defendant. This testimony of the defendant’s identity as the solicitor of the clown’s services was a matter of direct evidence, and required no inference drawing by the jury. State v. Sullivan, supra, 97. The testimony of the niece, which related the defendant’s admission of her responsibility for the incident, was likewise evidence that the defendant had solicited the clown’s services. The niece’s further testimony about the offer of money to her and the hair frosting, if believed, was circumstantial evidence from which the inference of the defendant’s solicitation could be drawn. Id.

In this case, the language complained of was charged only with respect to the proof of intent of the two crimes of which the defendant was acquitted. That charge was not given to the jury with respect to the proof of the elements of the crime of which she was convicted, nor was an erroneous general charge on circumstantial evidence and inferences given. The record reveals that in this case the element of intent was undisputed by the defendant throughout the course of the trial. The defense consisted of an attempt to discredit the state’s witnesses who testified about the defendant’s involvement by showing their bias and motives, and in so doing to destroy the state’s proof of the identity of the defendant as the perpetrator of the crimes charged. The charge on the use of circumstantial evidence and the drawing of inferences was limited in its use to the issue of intent, was not related to any other element of the crimes charged, and was unrelated to the issue of identity. We conclude, therefore, that it is not reasonably possible that the jury was misled by this charge.

V

The defendant next claims that the trial court erred in its charge to the jury on reasonable doubt. She argues that the court erred (1) by charging the jury that “[a] reasonable doubt is a doubt for which a valid reason can be assigned,” and (2) by not charging the jury, as she requested, that “a reasonable doubt is the kind of doubt that would make you hesitate to act.” Although she did not preserve the first claim at trial, she now seeks a full review under State v. Evans, supra, 70, in reliance upon the review granted to such a claim in State v. Findlay, 198 Conn. 328, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).

The defendant’s challenge to the language “a doubt for which a valid reason can be assigned” in the context of a reasonable doubt charge is essentially identical to both the charge and challenge brought previously to our Supreme Court in State v. Findlay, supra, 346 n.14.

In order to determine whether the defendant’s claim is reviewable under the Evans doctrine we must answer two questions in the affirmative. The first is does the defendant raise an issue which by its terms implicates a fundamental constitutional right, and the second is can we conclude, upon a limited review of the record, that the claim is truly of constitutional proportions, or is only characterized as such by the defendant. State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891 (1987). “In those instances in which our Supreme Court or this court has already clearly indicated that the particular claim is or is not of constitutional proportions and therefore reviewable or not reviewable, a summary ‘yes’ or ‘no’ answer may be sufficient.” Id., 307. The defendant’s claim here implicates a fundamental constitutional right; State v. Findlay, supra, 345-48; but it does not thereby automatically qualify for a full scale appellate review. State v. Thurman, supra, 306-307; see also State v. Farrar, 7 Conn. App. 149, 153 n.3, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986); State v. Cosby, 6 Conn. App. 164, 172, 504 A.2d 1071 (1986).

Our limited review of the record reveals that this claim is characterized by the defendant as being of constitutional proportions, but is not truly of such proportion. The language of this charge was held in Findlay not to be a deprivation of a constitutional right. Thus, we may summarily answer the second question of our Evans analysis with a “no,” and conclude that this claim does not qualify for further review. See State v. Thurman, supra. Preserving Evans as a narrow bypass serves to ensure that claims which might require reversal will be raised at trial, permitting their timely correction, thereby avoiding “needless multiple proceedings which are neither in the defendant’s nor the public’s interest, and which contribute to the economic waste of court congestion. State v. Kurvin, 186 Conn. 555, 563-66, 442 A.2d 1327 (1982); State v. Torrence, 1 Conn. App. 697, 704-705, 483 A.2d 622 (1984), aff'd, 196 Conn. 430, 493 A.2d 865 (1985).” State v. Cosby, supra, 173.

The defendant’s second claim, that the trial court committed harmful error by failing to charge the jury with “hesitate to act” language, was preserved by the defendant by her request to charge. Practice Book § 852. That claim, however, is equally unavailing. The defendant is not entitled to a charge comprised of exactly the words she requests. State v. Estep, 186 Conn. 648, 653, 443 A.2d 483 (1982). The court’s instruction regarding the concept of a reasonable doubt as affecting one’s daily activities fairly conveyed the point to the jury. The charge on this point, reviewed in light of the instruction as a whole, was adequate to guide the jury and protect against injustice. No harmful error is evidenced by the failure to use the words requested by the defendant. State v. Estep, supra, 652.

VI

The defendant's final claim is that the evidence was insufficient to establish her guilt beyond a reasonable doubt. The claim of insufficient evidence was raised by the defendant’s motion for judgment of acquittal at the close of the state’s case, and by her motion to set aside the verdict. The defendant claims that the charge as given allowed the jury to consider the subsections in the alternative and that the evidence was insufficient on both subsections (2) and (6) of General Statutes § 53a-181 as charged to the jury. The defendant did not object to the charge to the jury on either subsection on the ground that the evidence was insufficient to support a conviction. The defendant also neglected to request a jury poll after the verdict to clarify the basis of the defendant’s conviction.

In these circumstances, where the defendant has not taken steps to clarify which subsection she was convicted under, the conviction will be upheld if the evidence is sufficient under either subsection. State v. Duhan, 194 Conn. 347, 353-55, 481 A.2d 48 (1984). The evidence presented at trial is viewed in a light most favorable to sustaining the verdict. State v. Leavitt, 8 Conn. App. 517, 523, 513 A.2d 744 (1986). On review, we must determine whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983); quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

The jury was charged, in part, with respect to subsection (2) of the statute, that “striking” another is “the intentional use of force or violence on the person of another,” and that “the striking must be accompanied with an intent to do harm.” The defendant contends that the evidence adduced at trial fails to support a finding that the defendant intended to do harm to the victim. While harm is not defined in the penal code, it is, in common usage defined as “physical or mental damage” by Webster, Third New International Dictionary; and as “to damage; injure; impair” by the New College Edition of the American Heritage Dictionary (1981).

With respect to subsection (6), the jury was instructed that a “physically offensive” condition “refers to matter, material, or substance which is revolting, disgusting, or repugnant.” A material which is repugnant is one which is “distasteful to a high degree: exciting distaste or aversion,” Webster Third New International Dictionary.

The facts which the jury could reasonably have found from the evidence introduced at trial are that the victim was hit in the face by a pie, which caused his vision to be blurred and a burning sensation to be felt in his eyes for several hours afterward, as well as shock and embarrassment from the event. This evidence clearly supports a finding that by use of force his vision was impaired, and that he suffered some degree of physical damage. The evidence of being struck by a pie in the face in front of somewhere between one and two thousand people, and the testimony of embarrassment and humiliation suffered, is sufficient to uphold a rational trier’s finding that the incident was thus highly distasteful, and would cause distaste or aversion to a reasonable person. Thus, the evidence was sufficient to sustain the conviction not only under one subsection, as is required here, but under both subsections of the statute. Compare State v. Duhan, supra, 353-55; with State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983).

There is no error.

In this opinion the other judges concurred.

       The defendant was also charged with, and acquitted of, the crimes of tampering with a witness, in violation of General Statutes § 53a-151, and bribery of a witness, in violation of General Statutes § 53a-149a.

       General Statutes § 52-145 provides in pertinent part: “(a) A person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise, (2) his disbelief in the existence of a supreme being, or (3) his conviction of crime, (b) A person’s interest in the outcome of the action or his conviction of crime may be shown for purpose of affecting his credibility.”

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and maybe prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-181 provides: “(a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or his property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public, hazardous or physically offensive condition by any act which he is not licensed or privileged to do.”

       In its general instructions, the court charged the jury that: “By the evidence I mean not only the testimony of the witnesses which you heard, but also the exhibits which will be provided to you in the jury room. And any reásonable inferences which you may draw from either the testimony or from the exhibits, you may draw reasonable inferences from the established facts in the case. The inference which you draw, however, must not be from a guess on the evidence or a surmise upon the evidence, but it must be from a fact which the evidence has established. And I think you may recall that during'the course of the trial I may have referred to that matter as well and it is the facts which must be presented to you and it is on the facts as presented to you that you must make your decision.
      “Inferences that you may draw from these established facts must be logical and reasonable and well founded upon facts which have been proven in the trial of the case.”
      In charging the jury on the elements of tampering with a witness, in violation of General Statutes § 53a-151, the court stated: “What the defendant’s intent was in this respect is subject to proof just as in any other fact in the case. In determining what the person’s intent was at any given time, in addition to the direct evidence which you would have before you, you may infer intent from what the person’s conduct was at the time and what the circumstances were surrounding that conduct. Such an inference may be drawn provided two elements are satisfied.
      “The first is that the conduct of the defendant at the time and the circumstances surrounding such conduct from which you are being asked to draw an inference have themselves been proven beyond a reasonable doubt, and secondly, that the inference asked to be drawn is not only logical and reasonable, but it is strong enough so that you can find that it is probable, more probable than not that the fact that you are asked to infer is true. ” (Emphasis added.)
      The court then charged the jury on the elements of the crime of bribery of a witness, a violation of General Statutes § 53a-149a, and stated: “The defendant’s intent is to subject to proof just as any other fact in the case. In determining what is her intent was at the time of the issue you may in addition to any direct testimony, infer from what the defendant’s conduct was at the time or from what the circumstances were concerning that conduct and you may make such an inference provided that you are satisfied, one, that the conduct of the defendant and the circumstances surrounding such conduct had been proven beyond a reasonable doubt, two, that the making of such an inference is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the inference being drawn is true.

      “If you find that the State has failed to prove beyond a reasonable doubt any one of the elements on which you have been instructed, you will find the defendant not guilty.”

       The court charged the jury on the concept of reasonable doubt as follows: “Now the phrase ‘reasonable doubt' has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word ‘reasonable.’ A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt that is something more than a guess or a surmise. It is not a conjecture or fanciful or captious doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts, nor is it a doubt suggested by the ingenuity of counsel or a juror which is not warranted by the evidence. A reasonable doubt in other words is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or in the lack of the evidence. It is such a doubt as in the serious affairs which concern you in everyday life you would pay some heed to.” (Emphasis added.)

       The defendant’s request to charge on the hesitation to act relied upon Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972), and states: “A reasonable doubt is the kind of doubt that would make you hesitate to act in pursuing the most important affairs of your life. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character as to cause you not to hesitate in the most important of your affairs.”


text:
    Planning and Zoning Commission of the Town of Lebanon v. William Craft et al.
    (4538)
    Dupont, C. J., Daly and Bielucp, Js.

      Submitted on briefs April 3
    decision released August 18, 1987

      Mary E. Holzworth and John R. Fitzgerald filed a brief for the appellant (plaintiff).

      John L. Stawicki and Jean M. Stawicki filed a brief for the appellees (defendants).
   Bieluch, J.

The plaintiff appeals from the judgment of the trial court denying its request for an injunction to enforce a cease and desist order issued by the town zoning enforcement officer. The cease and desist order prohibited the defendants from occupying certain premises on a year-round basis in violation of the town zoning regulations. The plaintiff claims that the trial court erred (1) in allowing the defendants to challenge the validity of the cease and desist order despite their failure to appeal said order to the zoning board of appeals, (2) in concluding that the defendants’ use of the subject property established a nonconforming use allowing year-round occupancy, and (3) in finding that the defendants’ nonconforming use was not abandoned. We find no error.

The trial court made the following relevant factual findings: On or about December 6, 1958, the defendant Marion Craft purchased property at 157-58 Ledge Road, Lebanon. At the time of the purchase, Marion Craft resided in New Rochelle, New York. From the date of acquisition to February, 1981, she used the premises year-round on weekends, holidays and vacations, that is, whenever she could get away from her employment. At the time of purchase the dwelling was insulated. In addition, it has at all times since then been serviced by water, electricity, heat and indoor plumbing. In February of 1981, she retired and moved into the property on a full-time year-round basis.

There were no zoning regulations for the town of Lebanon prior to April 14,1962. On that date, zoning regulations were adopted which restricted the use of the defendants’ property as a residence to the period from May 1 to October 31. By amendment in 1966, continuous occupancy was allowed from June 1 through November 1, and limited occupancy was permitted during the remainder of the year for not more than thirty days. Subsequently, the current regulations were adopted, effective June 1,1980, permitting occupancy from May 1 to November 1, and for not more than thirty days during the balance of the year.

On January 24, 1978, the defendant Marion Craft applied to the zoning board of appeals for a variance of the zoning regulations which would allow use of the premises on a year-round basis and to recognize the existence of a nonconforming use. The zoning board of appeals denied both requests, citing as its reasons: “Failure to establish satisfactory nonconforming use-hardship caused by the applicant.” On appeal, the court affirmed the denial of the variance, but held that the zoning board of appeals exceeded its authority in purporting to determine the status of the nonconforming use.

After the first appeal, the defendants on March 2, 1983, again sought a variance of the seasonal use regulation which was denied. Subsequently, on February 11, 1984, the town zoning enforcement officer issued and caused to be served on the defendants an order directing that they discontinue their use of the premises as a year-round residence. The defendants did not comply with this order. The plaintiff thereafter, brought this action to enjoin the defendants’ use of the premises as a year-round home.

The trial court denied the plaintiff’s request for an injunction, finding that Marion Craft had established a nonconforming year-round use of the premises by virtue of her occupancy of the dwelling, prior to zoning, on every weekend, holiday and vacation during the year since 1958. The court found that “at all times her occupancy was year-round on weekends, holidays, and vacations; and it became full-time occupancy year-round when she retired from employment in 1981.” The court concluded “that the defendants had a valid nonconforming use upon the initial adoption of zoning and that their present full-time, year-round occupancy does not constitute an illegal enlargement of their nonconforming use.”

The plaintiffs first claim on appeal is that the trial court erred in allowing the defendants to challenge the zoning officer’s cease and desist order when they had failed to appeal said order to the zoning board of appeals. It is axiomatic in the area of zoning law that a party must exhaust its administrative remedies before appealing to a court of law. Greenwich v. Kristoff, 2 Conn. App. 515, 519, 481 A.2d 77, cert. denied, 194 Conn. 807, 483 A.2d 275 (1984); see General Statutes § 8-6 (1) (authorizing the zoning board of appeals to hear appeals from enforcement orders). This requirement “reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment.” Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980). An exception to this general rule is made where the available administrative relief is inadequate or would prove futile. See Greenwich v. Kristoff, 2 Conn. App. 515, 519; see also Cummings v. Tripp, 204 Conn. 67, 74-81, 527 A.2d 1230 (1987) (failure to appeal from the inaction of the zoning enforcement officer in enforcing town zoning regulations did not preclude the plaintiff from bringing an action for injunctive relief).

In the present case, the defendants maintain that they should not be precluded from challenging the zoning enforcement officer’s order, despite their failure to appeal from such order to the zoning board of appeals. They assert that such an appeal would have been futile in light of the prior decision of the zoning board of appeals denying their request for a variance and recognition of their nonconforming use. They rely upon the unanimous decision of the zoning board of appeals, rendered on February 15,1979, denying their two-fold application for the following reasons: “Failure to establish satisfactory nonconforming use-hardship caused by the applicant.”

In the present case, the trial court concluded that the unanimous prior finding of the zoning board of appeals that the defendants had failed to establish a nonconforming use indicated the futility of a further appeal to the board for similar relief. We agree with the trial court that the defendants’ showing was adequate proof that another appeal to the board would be futile. See, e.g., Kosinski v. Lawlor, 177 Conn. 420, 425, 418 A.2d 66 (1979). “The law does not require the doing of a useless thing.” Corsino v. Grover, 148 Conn. 299, 308, 170 A.2d 267 (1961); cf. Greenwich v. Kristoff, 180 Conn. 575, 578 (issue of futility not raised).

The plaintiff’s second claim is that the trial court erred in concluding that the sporadic use of the subject property by Marion Craft, prior to the enactment of zoning regulations, established a nonconforming use allowing year-round occupancy. The plaintiff does not dispute that Marion Craft used the premises year-round during weekends, holidays and vacations from the outset. To that extent, the plaintiff does not challenge the defendants’ nonconforming use. The plaintiff argues, however, that such periodic use is different from year-round occupancy on a full-time basis, and that the trial court’s finding created an illegal expansion of the defendants’ use beyond what it was at the time the zoning regulations were enacted.

Zoning regulations “shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.” General Statutes § 8-2. Section 6.1 of the town zoning regulations provides that “[ljawful uses of land and structures becoming nonconforming by adoption of these regulations may continue subject to the following conditions: ... (6) No existing structure devoted to a use not permitted by these regulations in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered in a manner which increases the nonconformity except in changing the use of the structure to a use permitted in the district in which it is located.”

Zoning regulations in general seek the elimination of nonconforming uses, not their creation or enlargement. Baccante v. Zoning Board of Appeals, 153 Conn. 44, 47, 212 A.2d 411 (1965). In enforcing zoning regulations, which are in derogation of common law property rights, they are to be construed strictly and should not be extended by implication. Park Construction Co. v. Planning & Zoning Board of Appeals, 142 Conn. 30, 35, 110 A.2d 614 (1954).

Not every intensification of a nonconforming use constitutes an impermissible extension of such use. See T. Tondro, Connecticut Land Use Regulation, p. 68-69. “ ‘While it is true that mere intensification of a nonconforming use is permissible so long as the nature of use is not substantially changed, it is generally recognized that the right of a landowner to continue the same kind of use to which the property was devoted on the critical date does not confer on him a right to subsequently change or add to that use a new and different one amounting to a drastic enlargement or extension of the prior existing use.’ ” (Citation omitted.) 1 R. Anderson, American Law of Zoning (3d Ed.) § 6.50, p. 598. “The issue of whether the new use or structure is a prohibited extension of the established nonconformity, or simply an intensification of that established use or structure, has involved the court in a series of highly factual, individualized decisions.” T. Tondro, supra, p. 69. “To be illegal, an extension of a permitted use need not necessarily consist of additional uses of a different character. It may consist of uses of the same character carried on over a substantially additional period of the year.” Hackett v. Roosevelt School, Inc., 145 Conn. 119, 123, 139 A.2d 608 (1958), citing Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 734, 137 A.2d 756 (1958); Weyls v. Zoning Board of Appeals, 161 Conn. 516, 520, 290 A.2d 350 (1971). “ ‘The legality of an extension of a nonconforming use is essentially a question of fact/ ” Cummings v. Tripp, supra, 84, quoting Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986).

We agree with the trial court’s finding that the defendant Marion Craft’s full-time year-round occupancy was in substantial conformity with her prior part-time, but year-round, nonconforming use, and does not, therefore, constitute an illegal enlargement of such use which was carried on year-round. It was uncontroverted that she occupied the premises on a year-round basis before and after the advent of the zoning regulations. The transition from part-time to full-time use, under the circumstances here, does not constitute such a change in the type of use as to create an enlargement of such nonconforming use which was a year-round use of the premises.

The aim and thrust of the seasonal restriction on property is the nonoccupancy of premises such as that of the defendants during the remainder of the calendar year. The nonconformity of use by the defendants was created by the year-round use of the premises, not by whether such use was part-time or full-time. The part-time year-round use was unmeasured in scope and extended over the calendar year to weekends, holidays and vacations, whenever defendant Marion Craft could get away from her work, limited only by her inability to do so. The annual total of months, weeks and days of such nonconforming use is not recorded or measured, but is indefinite and restricted to her leisure, which is now extended because of her retirement. There is no extension of the nonconforming use, but at most an unmeasurable intensification of an unmeasured nonconforming use. Any abrogation or diminution of this nonconforming use by the zoning authorities is unwarranted and an arbitrary and abusive application of the zoning regulations. The “volume” of use has been increased, but the “scope” of the nonconforming use has not been increased or extended.

In so holding, it is necessary to distinguish our result from that reached in Cummings v. Tripp, supra, Weyls v. Zoning Board of Appeals, supra, and Beerwort v. Zoning Board of Appeals, supra.

In Cummings v. Tripp, supra, the plaintiff sought an injunction to compel compliance with zoning regulations which prohibited the rental of rooms or cabins except as a nonconforming use. The defendants purchased seven cottages which had been rented in accordance with a nonconforming use during the summer months of June, July and August. After renovating the cottages, the defendants proceeded to rent them year-round.

In upholding the trial court’s finding of an illegal extension of a nonconforming use, the Supreme Court found that the renovation and year-round rental of the cottages was a new business undertaking and a substantial departure from the original nature and purpose of the legal nonconforming use. The Supreme Court acknowledged that a nonconforming use carried on over a substantially additional period of the year is an illegal extension of the nonconforming use. Id., 85.

In Weyls v. Zoning Board of Appeals, supra, the plaintiffs purchased land within a zoned area from persons who had used such property only during the summer months. The plaintiffs subsequently occupied the premises year-round. In upholding the validity of an order directing that the plaintiffs cease and desist from using the property in violation of the town zoning regulations, the court held that the plaintiffs’ prolongation of a nonconforming use into a season in which such use had not existed at the time of the passage of the zoning regulations was an impermissible extension of a nonconforming use in conflict with the zoning regulations of the town. Id., 519-20.

In Beerwort v. Zoning Board of Appeals, supra, the plaintiff operated a trailer park on a seasonal basis. Prior to the adoption of zoning regulations, the plaintiff made some improvements in the park with the expectation that there would be year-round occupancy. Such use did not materialize and on October 2, 1951, the town adopted zoning regulations limiting the use of the plaintiff’s park to the non-winter months. Again, the court held that the “extension of the use of the park beyond the months during which it had previously been used would be in fact, as well as in law, the extension of a nonconforming use at the expense of a conforming one.” Id., 734.

In these three cases, Cummings, Weyls and Beerwort, the court acknowledged that the extension of a nonconforming use over a substantially additional period of the year constitutes an illegal use. See Cummings v. Tripp, supra, 85; Weyls v. Zoning Board of Appeals, supra, 520; Beerwort v. Zoning Board of Appeals, supra, 734. In the present case, however, we uphold the trial court’s factual finding that the defendants’ use extended to every period of the year, through winter, spring, summer and fall. While the change in use from two or so days a week to seven days a week, or from vacation time to full-time, may constitute an intensification of use, we do not find upon the facts of this case, that it compelled a factual finding by the trial court that such additional use was an illegal expansion or extension of a nonconforming use.

The plaintiff’s third claim is that the trial court’s conclusion that the nonconforming use was not abandoned was clearly erroneous. The well established clearly erroneous standard of appellate review of such a factual finding is provided in Practice Book § 4061. See Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987).

In support of its argument, the plaintiff relies upon the following: (1) testimony of the town zoning enforcement officer that the defendants did not begin year-round occupancy until the early 1980s; and (2) a letter dated January 13,1982, from the defendants to the zoning enforcement officer stating that the premises were not being occupied on a year-round basis. It is argued that this evidence renders clearly erroneous the trial court’s finding that the defendants did not voluntarily abandon their nonconforming use. We disagree. The defendants introduced evidence of their year-round use of the property from 1958 to the date of trial. We are not compelled to hold the trial court’s finding in this regard clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       Defendant Marion Craft, known before marriage as Marion Buckingham, is the wife of the named defendant, William Craft. The property was purchased by her prior to their marriage. For clarity, we shall refer to Marion Buckingham by her married name, Marion Craft.

       The plaintiff does argue, however, in its third claim of error that the defendants had abandoned said nonconforming use. We have treated this claim separately.

       In Cummings v. Tripp, 204 Conn. 67, 527 A.2d 1230 (1987), the East Lyme zoning regulations made no distinction between seasonal and year-round use. Id., 86-87 n.16.

       In Weyls v. Zoning Board of Appeals, 161 Conn. 516, 518, 290 A.2d 350 (1971), “there was no finding that the applicable zoning regulations differentiated between seasonal and year-round use.” Cummings v. Tripp, 204 Conn. 67, 86-87 n.16, 527 A.2d 1230 (1987).