author: O’Connell, J.

text:
    State of Connecticut v. Ronald Callahan
    (7747)
    Spallone, O’Connell and Norcott, Js.

      Argued March 8
    decision released June 5, 1990

      Martin Zeldis, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Paul J. Ferencek, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56. The defendant claims that the trial court erred (1) in denying the defendant’s motions for judgment of acquittal, (2) in its instruction concerning circumstantial evidence, and (3) in relying on the defendant’s juvenile record in imposing sentence. We find no error.

The jury could reasonably have found the following facts. On the evening of April 11,1987, the defendant was one of a large number of people attending a party at a home in Woodbridge. At approximately 9:30 p.m., some of the guests, including Paul Healey and the victim, left the party. Healey and the victim climbed into Healey’s Chevrolet Blazer, which was parked on the hostess’ lawn. As Healey drove off, he spun the Blazer’s tires and tore up part of the turf. This angered many of the other partygoers, who were standing on the lawn nearby. They ran toward the Blazer, which reached the street without incident and drove away to safety. Healey, with the victim still as a passenger, then turned around and returned to the scene, driving past the crowd of partygoers at a high rate of speed. As he sped by, individuals in the crowd hurled rocks and bottles at the Blazer. Healey then turned down a side street, where he parked and walked toward the angry mob.

At this point, the defendant approached the Blazer, which was now occupied solely by the victim. The victim slid into the driver’s seat, started the engine and turned the vehicle onto a neighbor’s lawn. As the Blazer turned, the defendant brandished a baseball bat and made for the open window on the driver’s side. No one saw the defendant strike a blow, but a scream was heard, and the Blazer careened off the lawn. It then swerved across the street and crashed into a mailbox. The victim was found unconscious in the driver’s seat with blood spattered around him.

Immediately following the incident, the defendant yelled to an unidentified individual, “Come on, we’ve got to get out of here.” A few moments later, together with his brother and two others, the defendant fled the scene and drove to a local fast food restaurant. On the way there, the defendant remarked, “I think I may have hit the van.” After leaving the restaurant, he stopped his car and threw the bat into a stream. At his father’s request, he later retrieved the bat and surrendered it to the police, pursuant to a duly executed search warrant.

The victim was transported to Yale-New Haven hospital, where he was found to be suffering from a large depressed temporal skull fracture. He died six days later as a result of his injuries.

I

The defendant first claims that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of manslaughter in the second degree. In reviewing an insufficiency of evidence claim, we undertake a twofold task. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). Next, we examine the facts established and the inferences reasonably drawn therefrom to determine whether the jury could reasonably have concluded as it did. Id.; State v. McClary, 207 Conn. 233, 249, 541 A.2d 96 (1988). A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent must preclude every reasonable hypothesis except that which it tends to support, and be consistent with the defendant’s guilt and inconsistent with any other rational conclusion. State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982). We must, however, distinguish between a reasonable hypothesis and a possible hypothesis. State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). “ ‘Proof of guilt must exclude every reasonable supposition of innocence . . . . “[A] mere ‘possible hypothesis’ of innocence will not suffice.” ’ ” Id.

The heart of the defendant’s claim is that the state faded to exclude other reasonable hypotheses as to how the victim was struck. He presents two alternative theories to support his argument.

The defendant’s first theory is that the victim was struck by one of the projectiles hurled at the Blazer. He points out that a number of beer bottles and a large rock were found in the Blazer and, additionally, that expert testimony indicated that the victim’s injuries could have been caused by a smooth object such as a bottle.

The defendant’s reliance on these facts is misplaced. Henry Lee, chief of the state police forensic science laboratory, testified that the rock found in the Blazer was the wrong shape to have caused the victim’s injuries, and, further, it lacked any traces of blood or tissue. He also testified on the basis of the condition of the bottles that they were probably already in the Blazer when the victim was struck. Most significant, several witnesses testified that no objects were thrown at the Blazer while the victim was driving. It was only when Healey was driving that the Blazer came under attack in this manner.

The defendant’s second theory is that the sixteen year old victim, whom the defendant characterized as “a new driver,” may have lost control of the Blazer, thus causing it to hit the mailbox. The defendant speculates that the crash caused the victim to hit his head on some part of the Blazer’s interior. This theory is also completely unsupported by the evidence. There was no evidence of blood or tissue on the dashboard or any other hard surface in the Blazer that would indicate that the victim had struck his head. Furthermore, there was no evidence to show that the victim was an unskilled driver.

It is true, as the defendant contends, that conflicting evidence was presented as to how close the defendant came to the Blazer and as to when people stopped throwing objects. It is also true that because no one saw the defendant strike the fatal blow, his conviction must be based on circumstantial evidence. This is not fatal to the state’s case, however, because there is no legal distinction between the probative force of direct and circumstantial evidence. State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984); see also 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 7c. The fact that the defendant was seen approaching the Blazer with a raised bat in his hands, that he fled the scene, and that he later threw the bat away reasonably support an inference that the defendant had hit the victim. The jury must determine the credibility of conflicting evidence, and we cannot second guess that determination. State v. Robinson, supra, 256. We conclude on the basis of our review of the evidence and the inferences properly drawn therefrom that every reasonable hypothesis of innocence was excluded. State v. Little, supra.

II

The defendant makes two additional claims of error. He contends that the trial court improperly instructed the jury concerning the weight to be given to circumstantial evidence, and he argues that the court violated his due process rights by making improper use of his juvenile record when imposing sentence.

Because neither claim was preserved at trial, the defendant seeks review under the Evans bypass. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will grant such review only if “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40. If any of these conditions is absent, the defendant’s claim must fail. Id. The defendant contends, alternatively, that his claims are reviewable under the plain error doctrine. Practice Book § 4185.

The defendant argues that the court’s instruction deprived him of due process because it allowed the jury to give more weight to the state’s witnesses than to his. We are satisfied that his claim is not truly of constitutional dimension. See State v. Stevenson, 198 Conn. 560, 569, 504 A.2d 1029 (1986) (no Evans review when the jury correctly instructed as to all elements of crime charged and state’s burden of proof). The defendant is simply placing a constitutional label on what is, in truth, a nonconstitutional issue and one that is not supported by the record. “Due process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record.” See State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982). Furthermore, where the defendant fails to object to an instruction, “the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial; State v. Cosby, [6 Conn. App. 164, 172, 504 A.2d 1071 (1986)]; is seriously undercut. See also State v. Kurvin, [supra, 567].” State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Evans review is unwarranted.

The defendant also claims that the trial court violated his due process rights when it considered his juvenile record when imposing sentence, contrary to General Statutes §§ 46b-133a (b), 46b-146, and 46b-124. Regardless of the defendant’s characterization of his claim as constitutional, his claim is based solely on the language of the relevant statutes and is not of constitutional dimension. State v. Gagnon, 18 Conn. App. 694, 712, 561 A.2d 129 (1989). We will not, therefore, review it under Evans.

The defendant’s assertion that his claims merit review under plain error must also fail. He has failed to provide us with any analysis as to why the alleged errors amount to plain error, and the claimed errors are not so egregious or obvious as to merit such review. See State v. Gagnon, supra.

There is no error.

In this opinion the other judges concurred.

       The challenged portion of the court’s instructions is as follows: “Now, you may apply your common sense throughout all of your deliberations in this case. And your common sense will tell you that the conclusions to be drawn from a chain of proven circumstances are often stronger than the testimony of a person who claims to have seen an act. Your own good sense will tell you that if the law imposes upon you the duty of regarding circumstantial evidence as insufficient, or if jury men of their own volition impose upon themselves such a duty then the execution of criminal law will be practically paralyzed. Therefore, your duty is to consider circumstantial evidence in the same way as you consider direct evidence. . . .
      “There is no reason to be prejudiced against circumstantial evidence simply because it is circumstantial evidence in the every day affairs of our lives. There is no reason why decisions on circumstantial evidence should not be made in the courtroom. In fact, proofwise, circumstantial evidence may be as conclusive as would the testimony of witnesses speaking on the basis of their own observations.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Roderick G. Taylor v. Synergy Productions Ltd. et al.
    (8338)
    Dupont, C. J., Norcott and Foti, Js.

      Argued February 14
    decision released June 5, 1990

      James D. Hirschfield, for the appellant (plaintiff).

      Robert E. Pace, for the appellees (defendants).
   Norcott, J.

The plaintiff, Roderick G. Taylor, doing business as Woodbury Ski and Racket, appeals from the trial court’s granting of the defendants’ motion to dissolve a prejudgment remedy for failure to serve the defendants with the notice of rights required by General Statutes § 52-278e (b). The plaintiff claims that the trial court erred in granting the motion for the following reasons: (1) a prejudgment remedy had not been ordered, rather a hearing on the application for a prejudgment remedy of garnishment had been ordered; (2) the notice of rights is required only when a plaintiff’s prejudgment remedy is granted without a hearing pursuant to § 52-278e (a) and was, therefore, not required here.

The plaintiff instituted this action against the defendants, Synergy Productions, Ltd. and Synergy Products, Inc. (Synergy), for breach of a contract and for violation of Connecticut Unfair Trade Practices Act (CUTPA); General Stautes § 42-115e et seq.; as a result of the breach. Taylor and Synergy had entered into a contract whereby Synergy was to provide live bands to perform under the name Reggae Sunsplash 88 at Taylor’s business premises. Taylor paid Synergy $9500 before the bands’ performances began, as required by the contract. Taylor alleged that Synergy demanded an additional payment of $10,000 just before the bands were scheduled to begin playing, that he reluctantly paid the money and that the bands did perform.

The next time that Synergy was in Connecticut to produce a concert at Lake Compounce Festival Park in Bristol, Taylor applied for “a temporary restraining order” and for a hearing on an application for garnishment pursuant to General Statutes § 52-278c. In this application, Taylor requested an order restraining Compounce Associates Limited Partnership and The Joseph Entertainment Group, Inc., from transferring any monies owed to Synergy for the Lake Compounce concert until after a hearing on the application for a garnishment.

The court granted the application for the order restraining the garnishees from transferring funds and further ordered that a hearing be held on the application for a garnishment. Synergy moved to dissolve the so called “prejudgment remedy” claiming that Taylor had failed to provide a notice of rights to which the defendant claimed to be entitled under § 52-278e (b).

On August 7,1989, the date of the hearing, Synergy filed a motion to stay pending arbitration, and, on August 9, 1989, the trial court granted Synergy’s motion to dissolve based upon the failure to provide notice of rights. Thereafter, Taylor filed this appeal claiming that, because he was requesting a “temporary restraining order” and a hearing on garnishment, the notice of rights provision of § 52-278e (b) did not apply. Synergy argues in response that the temporary restraining order was in reality a prejudgment remedy, and that, therefore, this section does apply.

The court granted Synergy’s motion to stay after granting the motion to dissolve; the parties, however, were never provided with notice of this stay order. They did not learn of the stay until this court requested supplemental briefing on the following issue: “Whether or not this case is properly before this court given the fact that the trial court has granted a stay of the action pending arbitration, to which the parties have contractually agreed, and that arbitration has not yet been commenced?”

The contract between the parties contains an arbitration clause that provides that “[a]ny claim or dispute arising out of or relating to this agreement or the breach thereof shall be settled by arbitration in New York, New York in accordance with rules and regulations then obtaining of the American Arbitration Association governing three-member panels. The parties hereto agree to be bound by the award in such arbitration and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.”

In his supplemental brief, Taylor concedes that he is bound by the arbitration clause in the contract to settle disputes arising out of that contract. He claims, however, that the underlying action is not really an action for breach of contract, but rather should be viewed as an action claiming extortion. He further asserts that this extortion action does not arise out of the contract and denies that his breach of contract action was indeed a breach of contract action as he originally claimed.

This fanciful claim merits little discussion. Taylor’s original complaint sounds clearly in breach of contract and violation of CUTPA arising out of that breach. He further affirmed the fact that his claim was for breach of contract in the recitation of facts that he provided to the trial court in his application for a prejudgment remedy. He cannot now recharacterize his breach of contract claim as one of extortion in order to avoid the arbitration clause to which he has agreed to be bound.

Synergy argues in its supplemental brief that “[i]f the Superior Court is authorized to grant or deny a prejudgment remedy in support of an arbitration, the Appellate Court should also be authorized to hear an appeal from such an order.” Synergy, however, never addresses the fact that the trial court granted the stay of the action and that the hearing on the prejudgment remedy has not yet been held.

There is no question that the granting or denial of a motion to dissolve an attachment pursuant to General Statutes § 52-2781 is a final judgment from which an appeal can be taken. General Statutes § 52-2781 (b); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 390-91, 480 A.2d 561 (1984). In this case, however, the court granted the motion to dissolve and the motion to stay, leaving the prejudgment hearing that it had ordered to be held.

Synergy claims that in order for the prejudgment remedy to be stayed, Taylor would have had to post a bond pursuant to § 52-2781 (c). That section, however, provides that “[n]o such order shall be stayed by the taking of an appeal except upon the order of the judge who made such order, and any such stay shall be granted only if the party taking the appeal posts a bond . . . .” (Emphasis added.) The stay in this case was not ordered pending appeal, but rather pending arbitration and it is not, therefore, covered by this statute.

When the court granted Synergy’s stay of the action pending arbitration, the hearing on the prejudgment remedy was stayed as well. The fact that his case is stayed merely postpones the disposition of the prejudgment remedy, it does not terminate that action. KND Corporation v. Hartcom, Inc., 5 Conn. App. 333, 337, 497 A.2d 1038 (1985). Because of the stay and because the court has not yet held a hearing on the prejudgment remedy, this case is not properly before this court.

Whether Taylor’s request is viewed as a request for a temporary restraining order or a prejudgment remedy does not affect our conclusion that we need not reach the merits of this appeal. If we view the request as one for a temporary restraining order, then this appeal must be dismissed for lack of final judgment pursuant to Practice Book § 4000. “In the absence of statutory exceptions, decisions either granting or denying temporary injunctions generally are not final judgments and are therefore not immediately appealable.” French v. Amalgamated Local Union 376, 203 Conn. 624, 628 n.6, 526 A.2d 861 (1987); Doublewal Corporation v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985).

If we view Taylor’s request as one for a prejudgmerit remedy, we cannot address this claim either. When the trial court dissolved the order restraining The Joseph Entertainment Group, Inc., from transferring funds to Synergy, it left intact that portion of the order granting a hearing on the prejudgment remedy. Because a hearing has not yet been held on the prejudgment remedy, and because a stay has been granted, Taylor still has the opportunity to obtain the prejudgment remedy that he seeks. See General Statutes § 52-278d.

The question here is academic, and this court need not address such questions. Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 252, 440 A.2d 810 (1982). “ 'Courts will not knowingly determine moot questions, however much both parties desire such determination.’ ” Id. Any opinion by this court could not result in any practical relief given the circumstances of this case. Accordingly, we will not consider the merits of this appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-278e (b) provides that “[iff a prejudgment remedy is granted pursuant to this section [52-278e], the plaintiff shall include in the process served on the defendant the following notice. . . .’’(Emphasis added.) Subsection (a) of § 52-278e permits a court to grant an ex parte prejudgment remedy and then requires that if it is granted, a notice of rights must be served on the defendant.
      General Statutes § 52-278c, on the other hand, provides the requirements necessary for requesting a hearing on an application for a prejudgment remedy rather than the ex parte remedy provided for in § 52-278e. If a hearing is requested, “[t]he clerk upon receipt of all such documents in duplicate, if he finds them to be in proper form, shall fix a date for the hearing on the application and sign the order of hearing and notice except that if the application includes a request for a temporary restraining order, the court or a judge [shall sign the order] of hearing and notice.” (Emphasis added.) General Statutes § 52-278c (c); see also Fermont Division v. Smith, 178 Conn. 893, 399, 423 A.2d 80 (1979). Hence, if a temporary restraining order and a hearing are requested, notice is not required until the hearing has been ordered.


author: Spallone, J. Borden, J.,

text:
    William Krawski v. Planning and Zoning Commission of the Town of South Windsor
    (7942)
    Borden, Spallone and O’Connell, Js.

      Argued December 20, 1989
    decision released May 4, 1990

      Richard M. Rittenband, town attorney, with whom, on the brief, were Ralph J. Alexander and Richard C. Willard, for the appellant (defendant).

      Scott R. Chadwick, for the appellee (plaintiff).
   Spallone, J.

The defendant commission appeals from the judgment of the trial court sustaining the plaintiffs appeal from the denial of his application for subdivision plan approval. The commission claims that the court erred in concluding that approval was unreasonably denied for reasons not based on subdivision regulations. We find error.

In April, 1987, the plaintiff sought the commission’s approval for a five lot subdivision on property at Felt Road and Ridgefield Drive in South Windsor. At the public hearing, the commission noted that the slope of at least one lot exceeded town zoning limits. One lot had a slope of approximately 17 percent and was of such size that a house constructed on the lot would be in violation of § 5.1 of town zoning regulations requiring a 10,000 square foot contiguous building area with a slope of less than 15 percent. The plaintiff expressed an interest in retaining the slope to build a solar home, but stated that he would regrade the property if requested to do so. His engineer stated that the lot could be brought into compliance with the zoning regulations with relatively minor regrading. The town engineer stated that the slope could be stabilized and protected from water erosion, adding that the commission could address the issue of the lot gradient upon a subsequent application for a building permit.

The commission also noted that it had previously reviewed a “concept plan” for this parcel and had indicated that it would approve a subdivision of no more than three lots. Although the plaintiff was the owner of the parcel, he had not been involved in presenting the prior application or in submitting the concept plan. The commission indicated that, nevertheless, it expected the plaintiffs current application to reflect the prior limitation.

The commission disapproved the subdivision application on the grounds that it failed to conform with either the zoning regulations or the approved concept plan. On the plaintiff’s appeal, the trial court concluded that the plaintiff was not bound by conditions set on a previous submission and that town subdivision regulations do not include zoning regulations. Moreover, the court concluded that such zoning regulations, even if applicable, did not justify the disapproval of any more than the one lot of excessive grade and so the disapproval of the entire subdivision was unreasonable and arbitrary. The court, therefore, sustained the plaintiff’s appeal and this appeal followed.

The commission claims that it is empowered to consider applicable town zoning regulations in reviewing a subdivision application. We agree. Subdivision regulation is a planning function, and the defendant was sitting here as a planning commission. See Vose v. Planning & Zoning Commission, 171 Conn. 480, 483, 370 A.2d 1026 (1976); Camm v. Hart, 6 Conn. App. 284, 288, 504 A.2d 1388 (1986). Although planning and zoning are separate functions not to be interchanged; Vose v. Planning & Zoning Commission, supra; coordination between the functions is desirable and beneficial to the municipality. Ferndale Dairy, Inc. v. Zoning Commission, 148 Conn. 172, 176, 169 A.2d 268 (1961).

Town subdivision regulations incorporate zoning regulations by reference. Section 2.1 of the town’s requirements for the subdivision of land states in pertinent part that “[a]ll portions of any subdivision shall conform to . . . the Town Zoning Regulations. . . .” The requirement that a subdivision plan comply with zoning regulations “is mirrored in an even more stringently drawn similar requirement in General Statutes § 8-26.” Federico v. Planning & Zoning Commission, 5 Conn. App. 509, 514, 500 A.2d 576 (1985). Section 8-26, which concerns approval of subdivision applications, provides that “nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations.” We conclude that the trial court erred in holding that town zoning regulations may not be the basis for subdivision planning decisions.

The commission, however, does not have unbridled discretion to use a violation of a zoning regulation as the basis for disapproving a subdivision application. “Generally, it is the function of a zoning board or commission to decide ‘within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. . . .’ ” Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). General Statutes § 8-26 bars subdivision plans that conflict with applicable regulations. Federico v. Planning & Zoning Commission, supra, 515.

A zoning commission is endowed with liberal discretion in applying the law to the facts of a case; id.; and we must be cautious about disturbing commission decisions on review. Gagnon v. Municipal Planning Commission, 10 Conn. App. 54, 56-57, 521 A.2d 589, cert. denied, 203 Conn. 807, 525 A.2d 521 (1987). The commission here has determined that the zoning regulation governing slope limitations is applicable to its review of the plaintiffs plan and that the slope of one proposed lot exceeds those limitations. If the commission has reasonably and fairly exercised its honest judgment after a full hearing, we must uphold its decision unless unreasonable, arbitrary or illegal. Id., 57.

The commission here has not arbitrarily reached out for an inapplicable zoning regulation as a basis for its denial of the plaintiffs subdivision application. The slope limitation of § 5.1 of the town zoning regulations is explicitly made applicable to municipal planning by the town’s subdivision regulations. Pursuant to § 2.1 of these subdivision regulations, subdivisions are to be “designed, planned, and constructed in conformance with these regulations and the provisions of Sections 5.1 and 5.2 [for conventional subdivisions or Section 5.3 for open space subdivisions] of the Zoning Regulations of the Town.” The subdivision regulations specifically direct the commission to review the slope grade limitation and the defendant here properly has done so.

The plaintiff argues that the commission impermissibly confused its planning and zoning functions by denying the subdivision application because of a merely potential violation in the use of the land. The gist of the plaintiffs argument is that the commission could not validly base a planning decision on a zoning regulation that is only prospectively violated. We agree with the plaintiff that speculative violations may not be the basis of commission decisions and look to the guidelines enunciated in Federico v. Planning & Zoning Commission, supra, to decide whether the commission correctly determined that this subdivision application contains an existing violation of the town zoning regulations.

In Federico v. Planning & Zoning Commission, supra, 514-15, we concluded that a planning commission had mistakenly relied upon speculative testimony as to the future use of a proposed lot to find zoning violations. These violations of frontage and yard size zoning requirements would occur, if ever, only when a subsequent building permit application positioned a residence on the site. Id. A commission may legally base subdivision application denials on zoning violations “inherent in the plan itself as submitted” but not on those that are “entirely speculative.” Id. A subdivision plan that, as submitted, complies with town zoning regulations should not be disapproved on merely “inchoate” violations. Id.

In this case, the zoning violations cannot be considered speculative or inchoate. It is not the proposed use of the lot that violates the zoning regulations but rather its existing topographical features. The zoning violations were not brought to the commission’s attention by speculative testimony, as in Federico; these violations are apparent on the face of the submitted subdivision plan. There was no need for the commission to wait for an application for a building permit in order to determine whether a home could be positioned on the lot in conformity with zoning regulations. The town zoning regulations specify that each approved lot contain a ninety foot by ninety foot square of buildable area “on which the dwelling must be located.” (Emphasis added.) See footnote 2, supra (concerning § 5.1.a). Given the size and slope of the lot, it would be physically impossible to site a conforming residence on the parcel, no matter how the building plans were drawn.

The plaintiff next argues that the trial court correctly found that the denial of the entire subdivision plan on the basis of one nonconforming lot was unreasonable and arbitrary. We do not agree. The commission acted within its statutory power to disapprove the entire plan. Pursuant to § 8-26 of the General Statutes, a commission “shall approve, modify and approve, or disapprove . . . application or maps and plans submitted . . . .” Once a zoning violation has been found on the face of a submitted plan, a commission may not approve the plan. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988); Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 309, 547 A.2d 569 (1988). A commission may, at its discretion, choose between disapproval or approval with conditions. Moscowitz v. Planning & Zoning Commission, supra. A commission may even, under appropriate conditions, waive certain requirements by a three-quarters vote. General Statutes § 8-26. The commission here decided to disapprove the subdivision plan and we will not substitute our own judgment. See Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 178, 486 A.2d 646 (1985).

The plaintiff further argues that a mandate to review a subdivision plan for conflicts with zoning regulations does not require a review for strict compliance -with each and every zoning regulation. The plaintiff contends that his plan is in conformance with all major requirements of the zoning regulations, that the lot of excessive slope is only a minor noncompliarice and that regrading would be more appropriately done when home construction is planned. We find no statutory support for a distinction between major and minor zoning violations. Nothing in the empowering statute or the town’s regulations requires the commission to approve plans with even easily remedied nonconformities or to postpone the decision until the commission has before it an application for a building permit.

Moreover, the denial of this subdivision application is a decision appropriately taken at the planning stage of review when the plaintiff has available the widest range of options. The plaintiff here may choose regrading as the most cost effective way to bring this lot into conformity with the zoning regulations. He may alternatively elect to increase the size of the buildable area of the lot and retain the slope, especially in light of the commission’s concerns on the record about the number of lots and driveways in the subdivision. The developer is better able than the zoning commission to weigh the costs and benefits of these options, and the ultimate decision is best made at the planning stage.

We conclude that the record in this case supports the commission’s denial of the plaintiff’s subdivision application on the basis of an inherent zoning violation. It is therefore unnecessary to consider the second reason for the denial based on the violation of the terms set in the prior subdivision review. The commission’s action must be upheld if even one of the stated reasons is sufficient to support the decision. Manchester v. Zoning Board of Appeals, 18 Conn. App. 69, 72, 556 A.2d 1026, cert. denied, 212 Conn. 804, 561 A.2d 946 (1989); Anastasiou v. Zoning Commission, 6 Conn. App. 278, 284, 505 A.2d 8 (1986). The trial court was in error in concluding that the defendant acted improperly.

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

In this opinion O’Connell, J., concurred.

Borden, J.,

dissenting. I disagree with the majority that this subdivision plan violated an applicable zoning regulation. I would also reach the issue of whether the commission’s second reason for denial of the plaintiff’s application was valid, and agree with the trial court in its ruling on that issue as well.

Planning promotes the coordinated development of the municipality by ensuring its uniform and harmonious growth, while zoning regulates the use of land. Ferndale Dairy, Inc. v. Zoning Commission, 148 Conn. 172, 176, 169 A.2d 268 (1961); Kiska v. Skrensky, 145 Conn. 28, 32, 138 A.2d 523 (1958). Subdivision regulation is a part of the planning function. General Statutes §§ 8-25 and 8-26; Vose v. Planning & Zoning Commission, 171 Conn. 480, 483, 370 A.2d 1026 (1976).

Because of this bifurcation of functions, a planning commission, or, as here, a planning and zoning commission sitting as a planning commission, does not have unbridled discretion in disapproving subdivision applications based on any claimed violation of a zoning regulation. The proffered zoning regulation must be one that is applicable at the planning stage.

In Federico v. Planning & Zoning Commission, 5 Conn. App. 509, 500 A.2d 576 (1985), this court considered the effect of a local subdivision regulation requiring subdivision plans to comply with zoning regulations. We required such a subdivision regulation to be read in conjunction with General Statutes § 8-26, under which a planning commission cannot approve any subdivision “which conflicts with applicable zoning regulations.” (Emphasis added.) Federico established a framework for distinguishing those zoning regulations that are applicable when reviewing subdivision applications from those inchoate violations that may not be used by a planning commission at that stage of review. A planning commission may disapprove only those subdivision applications based on “zoning violations inherent in the plan itself as submitted and not potential use violations. Such requirements relate to subdivision plans that in and of themselves would violate zoning regulations. Examples of such conflicts include approval of a subdivision plan involving one-half acre lots in a one acre zone, or approval of a plan for a residential subdivision in an industrial area that prohibited such use. Inchoate violations involving the use of the lot in question, which may never occur, form no bases for a conclusion that a conflict exists between the approved subdivision plan and the zoning regulations so as to render the subdivision approval void.” Id., 515.

The issue here, then, is whether the excessive slope under § 5.1.a is a zoning violation “inherent in the plan as submitted,” or is an “[ijnchoate [violation] involving the use of the lot in question . . . .” Id. I conclude that under the facts of this case, the violation of § 5.1.a because of the 17 percent slope did not involve a zoning violation inherent in the subdivision plan itself.

The focus of § 5.1.a is on the slope of the land surrounding a dwelling to be built on the lot. If and when a building permit is sought—that is, when the use of the lot is sought—the owner will be required to comply with § 5.1.a. Where, as here, the slope of the lot in question is not immutable, such compliance cannot be determined until the applicant for a building permit proposes the location of the dwelling on the lot. Under § 5.1.a, the dwelling must be located in a ninety foot square within a contiguous area of at least 10,000 square feet having a slope of less than 15 percent. It is clear from this record that the potential slope violation was minor, and that the owner could regrade the lot at any time prior to seeking a building permit. In that event, there would not be a zoning violation. Thus, the purported violation of § 5.1.a was inchoate and may never occur.

The commission also claims that the court erred in concluding that the defendant’s second reason for disapproval was invalid, namely, that it had already approved a previously submitted “concept plan” for a four lot subdivision on the parcel in question, rather than a five lot subdivision. I believe this claim to be without merit.

The commission relies on § 3.1.a of the subdivision regulations. That section provides in pertinent part: “It is recommended that the applicant prepare a set of preliminary plans for the initial meeting with the Commission. The purpose of the meeting is to afford the subdivider an informal opportunity to avail himself of the advice and assistance of the appropriate town officials before preparation of the final plans, and before formal application for subdivision is made.” (Emphasis added.)

This section does no more than set forth a permissive procedure under which a subdivision applicant may obtain an informal review prior to the submission of a formal application. There is nothing to suggest that this preliminary planning procedure creates binding standards that must be followed when a final application is formally submitted.

Furthermore, there is nothing in General Statutes § 8-26 that provides for the use of binding preliminary or concept plans in the subdivision approval process. A planning commission can exercise only those powers expressly granted to it, and in determining whether it has the authority for a specified act, “ ‘we do not search for a statutory prohibition against such an [action]; rather, we must search for statutory authority for the action.’ ” (Citations omitted.) Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 308, 547 A.2d 569 (1988), quoting Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d 530 (1988).

I therefore would find no error.

       Sections 5.1.a and 5.3.b of the South Windsor zoning regulations provide in pertinent part that “[ejach approved residential lot shall contain a contiguous building area (‘buildable’ defined as exclusive of . . . areas with slopes at or in excess of 15%) of at least 10,000 square feet, into which a square of ninety feet by ninety feet (90' by 90') can be located, and on which the dwelling must be located.”

       Although the plaintiff submitted an application for an open space subdivision that should conform to § 5.3 of the town zoning regulations, the commission references § 5.1, which regulates conventional subdivisions, as the basis for its disapproval of the plan. Conventional and open space plans are merely alternative methods of subdivision design and §§ 5.1.a and 5.3.b contain identical language on the permissible slope percentage. See footnote 1, supra.

      I cannot agree with the majority that a zoning violation cannot be considered speculative or inchoate simply because it involves a physically existing topographical feature. The majority treats the slope variance as if it were an immutable characteristic. Where, as here, the slope variance was minor, this may not necessarily be true. The majority fails to take cognizance of the fact that a slope violation can be corrected by regrading when a building permit is applied for. As a result, under the majority decision, the plaintiff would be forced to regrade the property at the time of subdivision approval rather than when he is ready to build. This result is unnecessary under our statutes, which distinctly separate the planning and zoning functions. Compare General Statutes §§ 8-1 through 8-13a (zoning) with General Statutes §§ 8-18 through 8-30a (planning).


author: Lavery, J.

text:
    Josephine Rivera v. Steven Heintz, Commissioner, Department of Income Maintenance
    (8081)
    Daly, Foti and Lavery, Js.

      Argued February 8
    decision released June 5, 1990

      Judith I. Solomon, for the appellant (plaintiff).

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

This appeal presents the question whether § 2515.05 of the department of income maintenance (DIM) uniform policy manual, which concerns the eligibility of applicants for benefits under the aid to families with dependent children (AFDC) program, is contrary to federal law.

The DIM denied the plaintiffs application for benefits based on her alleged failure to show, in strict accordance with § 2515.05, that the child within her care, Jason Muniz, is her half-brother. She appealed that decision to the DIM fair hearing officer, who upheld the denial of her application.

She then appealed to the Superior Court, which granted her motion for a remand to the hearing officer to present additional evidence. On remand, the stipulation of the parties directed the hearing officer to state whether he understood DIM policy to allow proof of the familial relationship other than by documentary evidence. In the decision after the remand, the hearing officer stated: “I must make my decision based on those conditions spelled out in the policy. If there was no legal documentation that a particular male is the father of a child (#1, 2 and 3 of 2515.05) or a signed statement by a male that he is the father (#4 of 2515.05) then relationship has not been established.” The hearing officer again denied the application and a second appeal to the Superior Court was taken.

The Superior Court held that the hearing officer’s denial of the application was not an abuse of discretion under General Statutes § 4-183 and therefore upheld the decision. The Superior Court did not consider the plaintiff’s argument, which was presented to the hearing officer, that § 2515.05, which limited proof of the familial relationship to documentary evidence, was contrary to federal law.

The hearing officer found the following facts, among others. The plaintiff’s father, Jose Luis Torres, and Marisol Muniz lived together in New York, where the plaintiff and her sister would often visit the couple. Muniz and Torres separated and, a few months after the separation, Muniz telephoned the plaintiff to say that she was pregnant with Torres’ child. Jason Muniz was then bom. The New York welfare department took custody of Jason from Muniz on the grounds that her boyfriend at the time was abusing the child. Upon submission of affidavits by Jason’s mother, the plaintiff and the plaintiff’s sister, the New York State Surrogate Court (Bronx) was satisfied that the plaintiff is the half-sister of Jason, and therefore granted the plaintiff guardianship of Jason.

The DIM policy of which the plaintiff complains is § 2515.05 of the DIM uniform policy manual. Subsec-tion B of that section provides: “The Department considers a male to be the father of the child if: 1. legal marriage existed between the male and the natural mother of the child at time of the child’s birth and this fact is not contested by the natural mother; or 2. he has legally adopted the child; or 3. he has been adjudged to be the father by the court; or 4. he has signed a statement recognizing that he is the natural father of the child. This statement need not be notarized or witnessed.” The DIM denied the plaintiff’s application because the evidence she presented did not fit into any of these four categories. Moreover, the hearing officer refused to take the plaintiff’s evidence into consideration.

The plaintiff contends that her evidence was sufficient to prove her relationship with Jason, by a preponderance of the evidence, and that the DIM’s policy of considering only evidence that falls within one of the four categories of § 2515.05 contravenes federal law in that it places an unduly strict burden of proof upon her. The plaintiff would have this court rule that the DIM must consider all relevant evidence in determining whether an applicant is a relative of a dependent child, and that the applicant must prove the familial relationship by only a preponderance of the evidence. We go further, however, and hold that it is contrary to federal law to place the burden of proving a familial relationship upon the applicant.

The AFDC program is established by part IV of the Social Security Act, 42 U.S.C. §§ 601-609. “The category singled out for welfare assistance by AFDC is the ‘dependent child,’ who is defined [at 42 U.S.C. § 606 (a)] as an age-qualified ‘needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent and who is living with’ any one of several listed relatives.” King v. Smith, 392 U.S. 309, 313, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968).

“The AFDC program is based on a scheme of cooperative federalism. . . . States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of [the secretary of health and human services]. . . . One of the statutory requirements is that ‘aid to families with dependent children . . . shall be furnished with reasonable promptness to all eligible individuals.’ [42 U.S.C. § 602 (a) (10) (A)].” Id., 316-17. “Thus, King v. Smith establishes that, at least in the absence of congressional authorization for [an] exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy clause.” Townsend v. Swank, 404 U.S. 282, 286, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971). What is dispositive of this appeal, therefore, is our determination that § 2515.05 of the DIM policy manual excludes persons eligible under federal AFDC standards.

Section 2515.05 must be examined closely to determine who exactly is excluded. In this regard, only the effect of the regulation is relevant and it is immaterial whether that effect is intended or not. See Buckner v. Maher, 424 F. Sup. 366, 373 (D. Conn. 1976), aff'd, 434 U.S. 898, 98 S. Ct. 290, 54 L. Ed. 2d 184 (1977). (“This court finds that the Connecticut rule has the effect, if not the avowed intent, of presuming that transferred assets are still available to the transferor.”)

Section 2515.05 has the effect of denying AFDC benefits to dependent children who reside with paternal relatives. Rarely will a child residing with a maternal relative be denied benefits under § 2515.05 (C) because if the child is born in a hospital, the mother’s name will appear on the child’s birth certificate, and the maternal relatives will be able to establish their familial relationship to the satisfaction of the DIM. A child abandoned by his father and residing with paternal relatives, as in the present case, will rarely receive benefits because the requirements of § 2515.05 (B) are much more difficult to meet.

Having looked at the impact of § 2515.05, we next consider whether the requirements of proof of familial relationships contained therein can also be found in part IV of the Social Security Act. If the federal laws do not require verification of a familial relationship as a condition for eligibility for benefits, then the DIM cannot impose such a condition itself. King v. Smith, supra.

Turning to the federal laws, we find that the Social Security Act and the health and human services regulations place the burden of proving paternity on the DIM, and not on the applicant. 42 U.S.C. § 602 (a) provides: “A state plan for aid and services to needy families with children must . . . (26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required . . . (B) to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child, unless (in either case) such applicant or recipient is found to have good cause for refusing to cooperate as determined by the State agency in accordance with standards prescribed by the Secretary . . . .” In addition, each state AFDC plan under 42 U.S.C. § 602 (a) must provide that the state have in effect a IV-D program plan approved by the secretary of health and human services. 42 U.S.C. § 602 (a) (27). Each state IV-D program plan must “provide that such State will undertake—(A) in the case of a child born out of wedlock with respect to whom an assignment under section 602 (a) (26) ... of this title is effective, to establish the paternity of such child, unless the agency administering the plan of the State under part A of this subchapter determines in accordance with the standards prescribed by the Secretary pursuant to section 602 (a) (26) (B) of this title that it is against the best interests of the child to do so . . . and (B) in the case of any child with respect to whom such assignment is effective, including an assignment with respect to a child on whose behalf a State agency is making foster care maintenance payments under part E of this subchapter, to secure support for such child from his parent (or from any other person legally liable for such support) . . . 42 U.S.C. § 654 (4).

The IV-D program places upon the state the duty to undertake to legally establish paternity once application for benefits is made. Smith v. Puett, 506 F. Sup. 134 (M.D. Tenn. 1980); 45 C.F.R. 302.31. Under 42 U.S.C. 602 (a) (26) (B), the caretaker and the child born out of wedlock must cooperate with state efforts to determine paternity unless good cause is shown for refusing to cooperate. Even in a case where there is no good cause for refusing to cooperate, however, the only consequences are that the caretaker will be denied assistance and that the child will receive assistance in the form of protective payments that will be determined without regard to the needs of the caretaker. 45 C.F.R. 232.12 (d). A dependent child may not be denied AFDC benefits based on the caretaker’s refusal to cooperate with the state’s efforts to determine paternity. 42 U.S.C. § 606 (f); 45 C.F.R. 233.90 (b) (4). In the present case, the plaintiff cooperated with the DIM, but her cooperation is not at issue because she sought benefits only for the child and not for herself.

As the present case illustrates, § 2515.05 of the DIM policy manual excludes persons from the AFDC program who are eligible under federal law. The class of persons excluded by § 2515.05 is coextensive with the class excluded by the Tennessee regulation that was struck down in Smith v. Puett, supra. We hold, therefore, that § 2515.05 is invalid as it violates the supremacy clause. King v. Smith, supra.

The DIM may not impose the burden of proving a familial relationship with a dependent child on the AFDC applicant. If an application for AFDC benefits contains on its face an allegation of familial relationship, that application must be approved, and the applicant’s eligibility for benefits shall not be discontinued until such time as the DIM is able to show by a preponderance of the evidence that the alleged relationship does not exist in fact.

The defendant DIM contends that this court lacks subject matter jurisdiction in this appeal because the plaintiff did not exhaust her administrative remedies. According to the DIM, the plaintiff was required to petition the agency for a declaratory ruling as to the validity of § 2515.05 pursuant to General Statutes § 4-176 before she could appeal the denial of her application under General Statutes § 4-183. The opposite is true. “[A] party who has a statutory right of appeal from the decision of an administrative agency may not, instead of appealing, institute an independent action to litigate the very issue which the appeal is designed to test.” Butzgy v. Glastonbury, 203 Conn. 109, 116, 523 A.2d 1258 (1987).

There is error, the judgment is set aside and the case is remanded with direction to sustain the appeal.

In this opinion the other judges concurred.

       The DIM uniform policy manual is published pursuant to chapter 54 of the General Statutes as required by General Statutes § 17-3f (c). The sections of the policy manual are therefore regulations of the agency.

       Section 2515.05 provides as follows:
      “A. The child is considered to be living with a relative who is within a specified degree of relationship if such child is living with an individual who meets the degree of relationship listed in one of the following groups:
      1. Blood relatives, including those of half-blood, and person of preceding generations as denoted by prefixes of grand, great, or great-great:
      father
      mother
      grandfather
      grandmother
      brother
      sister
      half-brother half-sister
      half-brother of father or mother (Equiv. to uncle)
      half-sister of father or mother (Equiv. to aunt)
      uncle
      aunt
      immediate first cousins
      nephew
      niece
      great uncle
      great aunt
      great grandfather
      great grandmother
      great-great grandfather
      great-great grandmother
      great-great uncle
      great-great aunt
      2. Stepfather, stepmother, stepbrother, and stepsister regardless of marital status.
      3. Relatives whose relationship to the dependent child is based on legal adoption:
      adoptive father
      adoptive mother
      father of adoptive parent (equivalent to grandfather)
      mother of adoptive parent (equivalent to grandmother)
      child of adoptive parent (equivalent to brother or sister)
      other relatives as listed, in the paragraphs above.
      4. Spouses of any individuals named in the above groups even after the marriage is terminated by death or divorce.
      5. Blood relatives listed above are still considered to be an acceptable degree of relationship even when the child is subsequently adopted.
      B. The Department considers a male to be the father of the child if:

        1. legal marriage existed between the male and the natural mother of the child at time of the child’s birth and this fact is not contested by the natural mother; or
      2. he has legally adopted the child; or
      3. he has been adjudged to be the father by the court; or
      4. he has signed a statement recognizing that he is the natural father of the child. This statement need not be notarized or witnessed.
      C. The Department considers a female to be the mother of the child if:
      1. legal marriage existed between her and the natural father at the time of the child’s birth; or
      2. she has legally adopted the child; or
      3. her name is on the child’s birth certificate.”

       The Tennessee regulation provides as follows: “Evidence Regar ding Relationship

      In order to receive AFDC for a child, it must be established that the applicant/grantee relative is within one of the specified degrees of relationship to the child. Documentary evidence of relationship is required except as specified in 9 below. The following sources of verification are listed in order of priority:
      1. Birth certificates or copies of birth certificates or BVS records which establish relationship of the child to his parents; and in instances when applicant/grantee relative is other than the parent, which establish the relationship of the child’s parents to the relative requesting AFDC for the child. Adoption and legitimation records also establish relationship of the child to his parents).
      2. Census Bureau Records listing the children belonging to a particular family.
      3. Statements of physicians or midwives who attended the births and remember the names of the people involved.

        4. Family Bible or other family records which are written in ink and have not been altered, wills and deeds to property naming individuals and specifying relationships.
      5. Social Agency records including those of DHS which are at least one year old and which consistently specify the degree of relationship of the applicant/grantee relative to the child.
      6. Juvenile Court, other Court and Hospital Records.

        1. Insurance policies at least one year old in which relationship of the child to the applicant/grantee relative is specified.
      8. Copies of income tax returns listing the child as a specific relative, and school records which specify relationship.
      9. In the absence of any documentary proof of relationship, the relative’s statement as to the reason(s) there is no proof, plus his detailed statement as to how he is related to the child, plus at least one notarized statement from a person in a position to know the facts of the situation in which he describes the relationship and how he knows it to be true will be acceptable.
      Copies of marriage and divorce records, legitimation records or legitimation records or statements from Court Clerks concerning marriages and divorces or legitimation will be required to establish relationship when the relationship is through the paternal line.” Tennessee Public Assistance Manual § 2151; Smith v. Puett, 506 F. Sup. 134, 146-47 (M.D. Tenn. 1980).