author: Peters, C. J.

text:
    In re Manuel R.
    (13332)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.

      Argued April 13
    decision released June 14, 1988

      George R. Oleyer, assistant public defender, for the appellant (respondent).

      Thomas M. OBrien, state’s advocate, with whom, on the brief, was Andrew Chulick, special advocate, for the appellee (state).
   Peters, C. J.

The right to legal representation is guaranteed by statute to any child charged with delinquency. The question in this case is whether, and under what circumstances, that right to counsel can be waived by the child. The respondent, Manuel R., appeals from the disposition of the Superior Court committing him to the department of children and youth services (DCYS) for placement at Long Lane School. We find error and remand for a new dispositional hearing.

I

The record discloses the following chronology of events: On January 5,1987, Manuel was placed on probation by the Superior Court for a period of one year on a burglary charge. The court ordered Manuel, as a condition of his probation, to attend high school and to adhere to its rules and regulations. Approximately four months later, William B. Carlos, a probation officer, filed a petition alleging that Manuel was a delinquent child because he had violated the terms of the court’s probation order. Specifically, the petition charged that Manuel, then fifteen years old, had skipped school and, while in attendance, had brought a radio with him in violation of school rules. An application for Manuel’s detention during the delinquency proceeding was filed at the same time.

A hearing on the application for detention was held on April 22, 1987. According to the transcript of this hearing, the probation department sought to detain Manuel not on the basis of his alleged probation violations but rather because he had allegedly committed a third degree assault on his mother. The court declined to place Manuel in the only then available group home and instead continued the detention review hearing until the following week to allow a further exploration of residential placement possibilities. At this hearing, and at all subsequent detention and adjudicatory hearings, Manuel was represented by Attorney George Oleyer of the office of the public defender.

At the follow-up hearing on April 29, 1987, Manuel was remanded to detention by the trial court, Barnett, J., on the understanding that he could be transferred to a local residential facility if an opening became available. At the close of the hearing, Manuel’s mother, Carmen R., stated that, while she had confidence in Manuel and hoped that the detention would help him, she was “not going to keep letting him pull me down ‘cuz I still have a life to lead, too. f\nd he fails to realize that I’m punished for every time he does something.”

The adjudicative phase of the proceeding took place two weeks later. After a colloquy following Manuel’s admission that he had violated the terms of his probation, the trial court, Barnett, J., accepted the plea of admission and adjudicated Manuel a delinquent child. The alleged assault, having previously been nolled by the state, did not enter into this adjudication. The case was then continued for disposition and Manuel was released into the custody of his mother on the promise that he would abide by the terms of a “contract” with his mother that had been prepared by the probation department.

Manuel next appeared before the Superior Court, so far as the record discloses, on August 17,1987, at proceedings that, although docketed as relating to the entry of pleas on new charges, quickly evolved into a disposition of the previously adjudicated probation violations. These are the proceedings whose validity is presently at issue in this appeal.

According to the docket sheet for juvenile matters on August 17, 1987, Manuel was scheduled to appear at 10:30 a.m. for the sole purpose of entering pleas on three new charges unrelated to this appeal. Before commencing the plea hearing, the trial court, McGrath, J., summoned Attorney Oleyer to the courtroom, having been told by the probation officer that Oleyer represented Manuel. Oleyer appeared on the scene within a few moments and asked the court, “Can we pass this? I haven’t seen him. I didn’t know [Manuel and his mother] were here.” Manuel’s mother objected to a continuance in the following manner: “Excuse me, but I don’t want—I don’t want—if I have to go without an attorney I’ll go without an attorney because Mr. Oleyer’s going to force this thing into where Manuel’s going back home and Manuel’s going to do the same thing again. I’m going to miss more time from work and I’m going to lose my job, and I’m not going for it. If I have to represent my son I’ll represent him.”

In order to allow for further consultation between the parties, the trial court called a five minute recess. Upon its expiration, the hearing resumed when all parties, except Oleyer, reentered the courtoom. Thereafter the following exchange took place:

“Mrs. [R]: I don’t want Mr. Oleyer for my son’s attorney.

“The Court: Well, we have nobody else here.

“Mrs. [R]: Well, I’ll represent him myself then. He tells me—he tells us five minutes then he goes out there and he’s calling everybody else into the office sitting there with him. I mean, I have to go to work ‘cuz I got other kids I gotta support.”

The trial court then moved ahead with the plea hearing by informing Manuel of three new charges against him: larceny in the sixth degree, harrassment and possession of illegal fireworks. Having described the charges, the court expressed its reluctance to proceed any further without representation for Manuel, to which Mrs. R. responded: “Yeah, but Mr. Oleyer—he thinks that he’s gonna come in here and sit here and have Manuel sent home again today, or whatever, and just keep sending him back and forth, back and forth.”

Before Mrs. R. could complete her objections to a continuance on the entry of the pleas, Elizabeth Gleason, the state’s advocate, brought to the court’s attention, for the first time, Manuel’s outstanding adjudication of delinquency and asked the court to enter a disposition in accordance with the recommendation of the probation officer, “which the state strongly supports.” Mrs. R. then commented that if Manuel were sent home again and “he goes and gets in trouble again then I gotta miss work again.” The probation officer informed the court that three residential facilities had rejected Manuel and that the only option was placement at the state training school (Long Lane). In answer to the trial court’s question, “Is this for disposition today?” the probation officer replied, “Well, yes, I was going to ask that it go for disposition because of problems in the home.” After again being told that Manuel had already been adjudicated delinquent for probation violations, the trial court initiated the following discussion between all present:

“The Court: Okay. You want to get rid of those other two files [the probation violations] that he has against him?

“Mrs. [R]: Yes, sir.

“The Court: All right, and you’re waiving on behalf of your son the attorney that would be sitting here? That’s Mr. Oleyer because he was involved in these files.

“Mrs. [R]: Yes, sir.

“Mr. Carlos [the probation officer]: Your Honor, would you like me to get another attorney?

“The Court: No. The mother has indicated that she doesn’t want it—it’s for disposition—a replacement. And it’s recommendation by you is to place him in Mead Hall until other placement is found?

“Mr. Carlos: Oh, well, no, your Honor. My recommendation today is Long Lane. That’s why I was concerned about him not being represented.

“The Court: Do you understand what that recommendation is?

“Mrs. [R]: Yes, I do.

“The Court: And you still don’t want him to be represented?

“Mrs. [R]: Yes.

“Mr. Carlos: I’ve also explained it to the youngster, your Honor. He might have different feelings about it. But I did explain to him what I was recommending.

“Mrs. [R]: Do you want an attorney?

“The Respondent [Manuel]: No.

“The Court: You don’t?

“Mrs. [R]: You sure?

“The Respondent: (Nods no.)

“The Court: You understand that the recommendation is for you to be committed to Long Lane?

“The Respondent: Yes.”

The court thereafter ordered Manuel committed to the custody of the DCYS for a period of two years with placement at Long Lane. Manuel appealed from the disposition to the Appellate Court and we transferred his appeal here pursuant to Practice Book § 4023. We conclude that the record in this case fails to establish that Manuel knowingly and voluntarily waived the assistance of counsel during the dispositional stage of his delinquency proceeding. Accordingly, we find error and remand for a new hearing.

II

Any child in Connecticut is guaranteed the right to assistance of counsel in the defense of a delinquency petition by virtue of General Statutes § 46b-135 (a), which provides that, “[a]t the commencement of any proceeding” involving his or her delinquency, a child “shall have the right to counsel” and, if necessary because of indigency, the state shall incur the cost. Under Connecticut law, a delinquency proceeding is bifurcated into adjudicatory and dispositional phases. Practice Book § 1033. The express language of § 46b-135 (a) is without limitation and therefore encompasses both phases of the proceeding. See In re Juvenile Appeal (1983-3), 39 Conn. Sup. 400, 401-402, 465 A.2d 1107 (1983). This statutory right to counsel comports with governing constitutional requirements. In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (establishing a due process right to counsel at the adjudicatory stage of delinquency proceedings).

The sole issue in this case, then, is whether a valid waiver of the respondent’s right to counsel took place during the dispositional hearing. The respondent makes a two-fold attack on the validity of the waiver, claiming (1) that a child’s right to counsel during a delinquency proceeding is nonwaivable as a matter of law, and (2) that, even if the right to counsel is waivable, the record in this case fails to establish a knowing and voluntary relinquishment of legal representation. While we disagree with the first of these claims, we agree with the second. We conclude that, in the circumstances of this case, the child did not effectively waive his right to counsel and that his mother, given her primary concern for a speedy resolution of the case, had such a conflict of interest that she lacked authority to do so on his behalf.

A

The respondent first urges us to adopt a per se rule declaring that children under the age of sixteen are legally incompetent to waive the assistance of counsel under any circumstance. In support of this claim, the respondent cites empirical research that suggests a definite correlation between youth and lack of comprehension of constitutional rights. See, e.g., T. Grisso, Juveniles’ Waiver of Rights: Legal and Psychological Competence (1981) pp. 88-93; R. Lawrence, “The Role of Legal Counsel in Juveniles’ Understanding of Their Rights,” 34 Juv. & Fam. Ct. J., No. 4, 49, 52-56 (1984); A. Ferguson & A. Douglas, “A Study of Juvenile Waiver,” 7 San Diego L. Rev. 39, 53-54 (1970). This research has special relevance, according to the respondent, because in Connecticut the only persons who are subject to the delinquency jurisdiction of the Superior Court are below the age of sixteen. General Statutes § 46b-120. In light of empirical findings that persons of such tender years are, as a class, prone to misunderstanding legal rights, the respondent argues that a per se rule is justified.

We are not persuaded, however, that a per se rule based on the age of the child is an appropriate response to the admittedly delicate issue of juveniles’ waiver of rights. The empirical evidence to date suggests that age, by itself, is not a reliable touchstone for determining a juvenile’s capacity to exercise fundamental rights. A major study concluded that “age itself is quite limited in its effectiveness as a guide for weighing decisions about juveniles’ understanding.” T. Grisso, supra, p. 90. It is true that, for all children below the age of fourteen, the available evidence suggests that comprehension.of legal rights is elusive. Id., p. 202. With regard to children between the ages of fourteen and sixteen, however, general intelligence level, as well as socioeconomic status and prior court experience, become increasingly significant factors in a child’s ability to grasp and exercise legal rights. Id., p. 90. The empirical literature therefore fails definitively to identify age as a surrogate for incapacity for children below the age of sixteen. For a similar conclusion, see R. Lawrence, supra, 53.

Furthermore, a per se rule of nonwaivability might actually frustrate a principal goal of juvenile law of encouraging children to accept responsibility for their transgressions and take an active role in their rehabilitation. Juvenile law embodies goals of control and treatment that are often difficult to reconcile. On the one hand, protecting society from disruptive and dangerous children often requires that courts control and incarcerate children in prison-like institutions. On the other hand, nurturing children into productive and responsible adults requires that persistent efforts be made toward individualized treatment and rehabilitation. See generally In re Gault, supra, 12-30; State ex rel. D.D.H. v. Dostert, 269 S.E.2d 401, 408-409 (W. Va. 1980); S. Davis, Rights of Juveniles: The Juvenile Justice System (1987) § 1.3. Without minimizing the significance of this inevitable tension, we are persuaded that allowing a child to make an informed and deliberate choice about legal representation, if properly supervised by the trial court, can advance both the goal of control and that of treatment.

In juvenile proceedings, counsel for the child plays an important role in ensuring the reliability of adjudications underlying disposition and in developing alternative placement plans thereafter. To mandate the presence of counsel, however, might serve to reduce the child’s own sense of involvement and might enhance his perception of his own role as merely that of spectator. The difficulty of engaging children meaningfully in their own cases has been recognized as a major challenge: “Courtroom deliberations often make the delinquent highly aware of his own irrelevance and inability to affect the course of the proceeding. Many decisions are reached, for example, without consulting the youth and in ways that suggest his complete incompetence to determine his own future.” R. Emerson, Judging Delinquents: Context and Process in Juvenile Court (1969) p. 178; see also B. Flicker, Standards for Juvenile Justice: A Summary and Analysis (2d Ed. 1982) pp. 41-42. For those concerned with intervening successfully in the lives of troubled young persons, there is an increasing awareness that the procedures followed by the court can have a lasting impact on the child’s development. See, e.g., D. Bliss, The Effects of the Juvenile Justice System on Self-Concept (1977) pp. 3-24; E. Eldefonso & A. Coffey, Process and Impact of the Juvenile Justice System (1976) pp. 74-107; C. Jones, “Problem Formulation in Juvenile Court Interventions with Unruly Children and Their Families,” 36 Juv. & Fam. Ct. J., No. 1, 37, 44 (1986); A. Mahoney, “PINS and Parents” pp. 167-68, in Beyond Control: Status Offenders in the Juvenile Court (L. Teitelbaum & A. Gough, eds., 1977). In light of these principles, we believe that the waiver of counsel decision, in itself, can be a significant rehabilitative moment for the child. We accordingly reject the respondent’s invitation to impose a per se rule of incompetency on all children.

B

We now turn to the central question of this appeal: what standards are to guide the trial court in its determination of whether to find that a child has validly waived his or her right to counsel. As the present proceedings poignantly demonstrate, those standards must take into account the possibility of a conflict of interest when a parent or guardian advocates a waiver on behalf of the child.

We begin our analysis with a reiteration of the standards for the waiver of counsel by adult defendants. A valid waiver is defined, in accordance with the well known test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), as the intentional relinquishment or abandonment of a known right or privilege. The United States Supreme Court has emphasized, subsequent to Zerbst, that a proper waiver of counsel must be intelligent and voluntary and that its basis, having been “clearly determined” by the trial court, should appear on the record. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Von Moltke v. Gillies, 332 U.S. 708, 727, 68 S. Ct. 316, 92 L. Ed. 309 (1948); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942).

In like fashion, Practice Book § 961 mandates a “thorough inquiry” into specific factors about which the court must be “satisfied” before the accused “shall be permitted” to forego counsel. In particular, § 961 establishes four criteria for an effective waiver: (1) clear advisement of the right to counsel; (2) possession of sufficient intelligence and capacity to appreciate the consequences of self-representation; (3) comprehension of the charges and proceeding, the permissible punishment exposure and any additional facts essential to a broad understanding of the case; and (4) awareness of the dangers and disadvantages of self-representation. See State v. Gethers, 193 Conn. 526, 532-34, 480 A.2d 435 (1984).

We conclude that these constitutional and procedural guidelines apply with equal, if not greater, force in the context of a delinquency proceeding. It is now commonly recognized that courts should take “special care” in scrutinizing a purported confession or waiver by a child. Haley v. Ohio, 332 U.S. 596, 599, 68 S. Ct. 302, 92 L. Ed. 224 (1948) (plurality opinion of Douglas, J.). As the United States Supreme Court acknowledged in In re Gault, supra, 45, “special problems may arise with respect to waiver of the privilege by or on behalf of children and . . . there may well be some differences in technique—but not in principle—depending upon the age of the child and the presence and competence of parents.” See also Gallegos v. Colorado, 370 U.S. 49, 53-55, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962) (mandating a “close scrutiny” of the confession of a fourteen year old murder suspect); In re B.M.H., 177 Ga. App. 478, 479, 339 S.E.2d 757 (1986) (describing the “heavy burden” of establishing juvenile waiver of rights).

These judicial pronouncements embody the common sense notion that the validity of a child’s waiver of counsel depends upon furnishing the child full information not only about the child’s own legal rights but also about the overall nature of the proceeding against him or her. The need for broad-gauged advice is underscored by recent empirical studies demonstrating that significant numbers of children erroneously believe that lawyers are responsible for deciding issues of guilt and punishment, that defense lawyers will not advocate the interests of a juvenile who admits to the violation and that defense lawyers have a duty to report to the court any evidence of the juvenile client’s culpability. T. Grisso, supra, pp. 119-20. Only a full colloquy between the court and the child can avoid such misperceptions and provide a solid basis for the intelligent exercise or waiver of the right to counsel. Only a full colloquy will permit the court to make an accurate determination of whether a child who professes to wish to proceed pro se, without counsel, has the developmental and cognitive ability to undertake a realistic assessment of the consequences of such an action. See generally B. Inhelder & J. Piaget, The Growth of Logical Thinking from Childhood to Adolescence (1958) pp. 343-47; H. Ginsberg & S. Opper, Piaget’s Theory of Intellectual Development (1969) pp. 202-206; see also In re Gault, supra, 55; State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978) (valid waiver requires “sufficient awareness of the relevant circumstances and likely consequences”); G.L.D. v. State, 442 So. 2d 401, 402-404 (Fla. App. 1983) (child relinquishes counsel rather than forfeit his guitar and amplifier to pay for the public defender). For all these reasons, our general policy of indulging every presumption against the waiver of fundamental rights; State v. Marion, 175 Conn. 211, 218, 397 A.2d 533 (1978); has special application in the context of juvenile waiver.

The fact that, at juvenile proceedings, a child is often accompanied by a parent or guardian does not diminish judicial responsibility for a searching inquiry into the validity of a potential waiver of the right to counsel. At a minimum, the presence of a lay parent or guardian, with no training in law, is no guarantee that a child will be fully informed or meaningfully represented. K.E.S. v. State, 134 Ga. App. 843, 847-48, 216 S.E.2d 670 (1975); State ex rel. J.M. v. Taylor, 276 S.E.2d 199, 203 (W. Va. 1981). Moreover, as judicial and scholarly authorities attest, parents may, for their own reasons, exert pressure on children to confess to alleged offenses and to waive the assistance of counsel. United States v. Fowler, 476 F.2d 1091, 1093 (7th Cir. 1973); In re Matter of C.P.D., 367 A.2d 133, 134-35 (D.C. App. 1976); Anglin v. State, 259 So. 2d 752 (Fla. App. 1972); T. Grisso, supra, pp. 179-80.

The potential for undue parental influence is greatly increased in the event of a specific conflict of interest between parent and child. See generally B. Flicker, supra, pp. 39-40. Such a potential conflict may arise, for example, when the parent bears fiscal responsibility for the cost of retained counsel; In re Ricky H., 2 Cal. 3d 513, 525, 468 P.2d 204, 86 Cal. Rptr. 76 (1970); or acts as the complaining witness in the delinquency petition; K.E.S. v. State, supra, 848; or harbors anger and resentment about the child’s misbehavior. T. Grisso, supra, p. 167. Recognizing the possibility of such conflicts of interest between parent and child, Practice Book § 1045 (2) (b) expressly provides that the court “shall appoint . . . counsel for the child, whether a request is made or not ... if in the opinion of the court the interests of the child and his parents conflict . . . .” For similar provisions in other states, see, e.g., Ariz. Rev. Stat. Ann. § 8-225 (1974); N.D. Cent. Code § 27-20-26 (1) (1974); 42 Pa. Cons. Stat. Ann. § 6337 (Purdon 1982). Similarly, once a conflict of interest becomes apparent, the court may not permit a parent to waive counsel for a child.

Applying these standards for the validity of a child’s waiver of the right to counsel to the facts of this case, we conclude that the record fails to establish that Manuel knowingly and voluntarily waived his right to legal representation at his dispositional hearing. The record manifests minimal participation by Manuel himself and substantial deference to the conflicting interests of his mother in immediate disposition of the charges against her son. Our statute and § 961 of our rules of practice require more of the court.

The first of the four inquiries that a court must make, under § 961, before it accepts a waiver of the right to counsel, is whether the defendant, in this case the child, has been advised of his right to counsel. Concededly, that advice was given to the respondent in this case.

The second inquiry that § 961 requires concerns the child’s intelligence and capacity to appreciate the consequence of the decision to represent himself. On this question, the trial court record is sparse at best. The court made no effort to address the respondent directly to determine whether he possessed the qualities described by the rule. In fact, the transcript reveals that Manuel uttered only five words throughout the hearing: the answer “Yes” or “No” on five separate occasions. Of these five monosyllabic answers, two were in response to the questions whether he understood his right to counsel and his right to remain silent and three were in response to the following questions from the bench: (1) “Do you want an attorney?”; (2) “You don’t?”; and (3) “You understand you are going up to Long Lane for a period of time?”

To compensate for the lack of direct inquiry into the respondent’s intellectual capacity to represent himself, the state argues that an eight page predispositional report prepared by the probation officer adequately apprised the trial court of the respondent’s capacity to proceed pro se. We are not persuaded. The record does not show whether the trial court had the opportunity to read the report. Indeed, the fact that the proceeding began as a plea hearing, but was transformed in midstream into a dispositional hearing upon the joint suggestion of the probation officer and the state advocate, makes it doubtful that the court would have fully considered this detailed report before it made its disposition. We note in addition that the trial court, McGrath, J., did not preside over the detention and adjudicatory phases of this case and therefore had no prior opportunity on this record to observe the respondent and form a judgment about his mental capacity. Finally, even if the trial court did evaluate the report, the record contains no indication that its contents were determinative. Accordingly, the record falls short of “affirmatively showing] that [the repondent] was literate, competent and understanding, and that he voluntarily exercised his informed free will.” (Emphasis added.) Faretta v. California, supra, 835; Consiglio v. Warden, 153 Conn. 673, 678, 220 A.2d 269 (1966).

The third requirement of § 961 is that the court satisfy itself that the child comprehends the “charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case.” The record in this regard raises the contrary inference, that the respondent did not understand the proceeding or the range of potential dispositions. According to the probation officer, when told that Long Lane was the proposed disposition, the respondent said he had “different feelings about it.” Only moments later, however, the respondent purported to waive the presence of the one person whose responsibility it was to augment and investigate the state’s recommendation. This curious juxtaposition suggests an incomplete understanding of the possibility that there might be dispositional alternatives other than those recommended by the probation officer.

Finally, it is apparent that the respondent was not “made aware of the dangers and disadvantages of self-representation” as required by the fourth element of § 961. Counsel can perform a variety of useful functions during the dispositional phase of a delinquency proceeding. In particular, the child might be informed that a primary obligation of defense counsel is to augment and investigate the placement recommendation of the state so that the ultimate disposition is tailored to the child’s individual needs. State ex rel. D.D.H. v. Dostert, supra, 412-13; IJA/ABA, Juvenile Justice Standards Project, Standards Relating to Counsel for Private Parties §§ 9.1 through 9.5 (1980). Additionally, counsel can exercise the rights of confrontation and cross-examination; General Statutes § 46b-135 (a); subpoena witnesses, ensure adherence to procedural regularity and assist the child and the family in securing important state services. On the record before us, there was no effort whatsoever to inform the respondent and his mother of the risks of self-representation.

In its totality, this record manifests a canvass that fails to comport with well established rules concerning waiver of the right to counsel. Without a compliance with Practice Book § 961, and in the absence of other evidence sufficient to establish the respondent’s knowing and voluntary waiver of his statutory right to counsel, it was error to order his commitment to the department of children and youth services with placement at the state training school.

There is error, the judgment is set aside and the case is remanded to the trial court for a new dispositional hearing.

In this opinion the other justices concurred.

       General Statutes § 46b-120 defines “child” as “any person under sixteen years of age.”

       According to the court record, this petition (Docket No. 87-04-085) was filed on April 21,1987, and alleged that Manuel was in violation of his probation because of school-related disobedience. The record also reflects that a second petition (Docket No. 87-04-138) was filed on April 22, 1987. The latter petition alleged that Manuel had committed an assault on his mother and had violated a court order. The assault charge was nolled by the state on May 13, 1987.

       The transcript of this hearing indicates that no formal plea was taken on any of these new charges. In fact, the record reflects that two of these charges (Docket Nos. 87-06-044 and 87-07-105) were nolled on January 11, 1988. As to the third charge (Docket No. 87-07-139), there is a lacuna in the record. On remand, the parties will need to clarify the status of this charge. According to the trial court’s order of commitment, the only charges that entered into its disposition in this case were Docket Nos. 87-04-085 and 87-04-138. See footnote 2, supra.

       General Statutes § 46b-135 (a) provides: “right to counsel and cross-examination. (a) At the commencement of any proceeding on behalf of a delinquent child, the parent or parents, guardian and the child shall have the right to counsel and be so informed by the judge, and that if they are unable to afford counsel that counsel will be provided for them, and such counsel and such parent or parents, guardian, or child shall have the rights of confrontation and cross-examination.”

       Given the broad coverage of the statutory right, we need not decide whether due process also mandates the right to counsel at the dispositional phase". Cf. State v. Williams, 199 Conn. 30, 45, 505 A.2d 699 (1986) (adult defendant has a constitutional right to assistance of counsel at sentencing); A.A. v. State, 538 P.2d 1004, 1005 (Alaska 1975) (dispositional phase in juvenile proceeding is equivalent to “critical stage” of sentencing in adult proceeding).

       We have held, in the related context of Miranda rights, that a juvenile is not per se incompetent to waive his or her right to remain silent. In State v. Oliver, 160 Conn. 85, 94, 273 A.2d 867 (1970), cert. denied, 402 U.S. 946, 91 S. Ct. 1637, 29 L. Ed. 2d 115 (1971), we rejected the claim of a twenty year old juvenile suspect that police must obtain the assent of a parent before waiver of Miranda rights is effective. As a matter of federal constitutional law, the interrogation of a juvenile may proceed if, on the basis of the totality of the circumstances, a valid waiver of Miranda rights occurs. Fare v. Michael C., 442 U.S. 707, 724-25, 99 S. Ct. 2560, 61 L. Ed. 2d 197, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1979).

       This familiar standard for the waiver of constitutional rights is traceable in part to common law antecedents. See, e.g., O’Keefe v. St. Francis's Church, 59 Conn. 551, 561 (1890) (noting that waiver of contract provisions possible if party “intentionally relinquished a known right . . .” but that “[ejquivocal conduct, or conduct of doubtful import, is not sufficient”).

       “[Practice Book] Sec. 961. —waiver
      “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       Analogous conflicts of interest can arise in other areas of the law. In contested child custody cases, the appointment of counsel for minor children is the preferred method of safeguarding their independent interests. General Statutes § 46b-54; Nye v. Marcus, 198 Conn. 138, 146, 502 A.2d 869 (1985); Yontef v. Yontef, 185 Conn. 275, 284, 440 A.2d 899 (1981). Similarly, the risk of conflict when a criminal defense lawyer undertakes the representation of codefendants simultaneously requires trial judges to make a “careful inquiry” before approving of such an arrangement. State v. Marion, 175 Conn. 211, 218 n.5, 397 A.2d 533 (1978).

       As a matter of fact, the psychologist’s report in the predispositional study concludes that “[t]he patient is an impulse-dominated fifteen-and-a-half year old youth who is functioning well below his intellectual potential.” (Emphasis added.)


source: Caselaw Access Project

license: Public Domain

text:
    Danbury Savings and Loan Association, Inc. v. Colin M. Delaney et al.
    (13229)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued May 5
    decision released June 14, 1988

      Robert A. Nagy, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).

      Michael J. Roach, pro hac vice, with whom were John B. Hughes, assistant United States attorney, Lauren McCurry, special assistant United States attorney, and, on the brief, William S. Rose, Jr., assistant United States attorney general, Stanley A. Twardy, Jr., United States attorney for the District of Connecticut, and Gary R. Allen and William S. Estabrook, for the appellee (defendant United States of America).
   Peters, C. J.

The commissioner of income maintenance has authority, under General Statutes § 17-82C, to record a lien on the real property of a recipient of state public assistance grants. The sole issue in this appeal is when such a lien becomes sufficiently choate to give it priority over a competing federal tax lien. This case began as an action by the plaintiff, Danbury Savings and Loan Association, Inc., to foreclose a mortgage lien on real property owned by the defendants Colin M. Delaney and Valerie E. Delaney. In this foreclosure action, numerous other lienholders, including the United States and the state of Connecticut, were named as parties defendant. The trial court, Lavery, J., approved a foreclosure by sale to Jack R. Hanna for $141,000. Thereafter, the United States filed a motion for a determination of priorities, claiming that its status as a holder of federal tax liens entitled it to reimbursement from the foreclosure sale proceeds in advance of reimbursement to the state as a holder of public assistance liens. The state has appealed from a judgment of the trial court, Moraghan, J., assigning first priority to the federal tax liens. We find no error.

The underlying facts are not at issue. The liens of the United States arise out of liabilities of Colin M. Delaney and Valerie E. Delaney for arrearages in federal income taxes for the taxable years 1978 and 1982, together with interest, penalties and lien fees. Pursuant to I.R.C. §§ 6321 and 6322, the United States assessed the 1978 arrearage on September 21, 1981, and the 1982 arrearage on October 23, 1985. These assessments automatically imposed liens on all of the taxpayers’ property. I.R.C. §§ 6321, 6322. Notices of these liens were filed, pursuant to I.R.C. § 6323, on January 11, 1983, with regard to the 1978 deficiency and on September 10, 1986, with regard to the 1982 deficiency. In an affidavit of debt filed in the present proceedings on March 31,1987, the United States asserted that its federal tax liens then totalled $34,410.51.

The liens of the state of Connecticut arise out of grants of public assistance to Valerie Delaney by the department of income maintenance pursuant to the program of aid to families with dependent children. In an affidavit of debt filed herein on May 20, 1987, the state asserted that such assistance payments had begun on December 18,1979, and continued through September 9,1986, in a total amount of $60,248.38. To secure reimbursement of these grants, the state, on August 24, 1981, pursuant to General Statutes § 17-82c, recorded separate certificates of lien against the interests of Valerie Delaney and Colin Delaney in the land records of the town of Bethel where their real property was located.

The trial court ruled that the federal liens should be given priority even though they postdated the filing of the state’s certificates of lien. The court noted that, under applicable precepts of federal law embodied in I.R.C. §§ 6321 and 6322, a federal lien ordinarily takes its place in the priority race at the time when the federal tax is assessed, while a state lien only receives such standing when it has become specific, perfected and choate. United States v. Equitable Life Assurance Society of the United States, 384 U.S. 323, 327-28, 86 S. Ct. 1561, 16 L. Ed. 2d 593 (1966); United States v. Pioneer American Ins. Co., 374 U.S. 84, 87, 83 S. Ct. 1651, 10 L. Ed. 2d 770 (1963); United States v. New Britain, 347 U.S. 81, 85-86, 74 S. Ct. 367, 98 L. Ed. 520 (1954). It held that the state’s liens in this case could not meet this test because they had not been reduced to possession before the attachment of the federal liens. In arriving at this conclusion, the court relied on definitions of choateness that have been developed in cases arising under 31 U.S.C. § 3713. See, e.g., United States v. Gilbert Associates, 345 U.S. 361, 366, 73 S. Ct. 701, 97 L. Ed. 1071 (1953). Although we disagree with the court’s reliance on the insolvency statute, we nonetheless concur in its judgment that the federal tax liens were entitled to priority because the state liens were still inchoate on October 23, 1985.

I

The state maintains, in its first claim of error, that the trial court erred in importing into this litigation, brought under the federal tax lien statutes, the priority standards that govern cases brought under the federal insolvency statute, 31 U.S.C. § 3713. The state makes three arguments: (1) the insolvency statute was not pleaded at trial; (2) no evidence of insolvency was introduced at trial; and (3) the test for determining the choateness of a competing lien is more stringent under 31 U.S.C. § 3713 than it is under the federal tax lien statutes. We agree.

Although there is much to be said in favor of all three of these assertions, the first two are clearly correct and their resolution is dispositive of this issue. The absence at trial of pleading or proof with respect to any claim of insolvency cannot be remedied on appeal. The United States concedes that its trial memorandum in support of its motion for determination of priorities nowhere invoked the federal insolvency statute. Cf. Practice Book § 109A; Orticelli v. Powers, 197 Conn. 9, 14-15, 495 A.2d 1023 (1985); Leone v. Knighton, 196 Conn. 494, 495-98, 493 A.2d 887 (1985). The United States relies nonetheless on two facts dispersed throughout these foreclosure proceedings: Valerie Delaney’s long history of receiving public assistance payments; and her filing of a petition in bankruptcy while the foreclosure was pending. We are unpersuaded. Although insolvency may be determined without a formal adjudication of bankruptcy, such a determination always requires a finding of fact based on a proper evidentiary foundation. Community Progress, Inc. v. White, 187 Conn. 128, 135-36, 444 A.2d 1369 (1982). In this case, the state has not been afforded an opportunity to present evidence, or indeed to make argument, that would inform a trier of fact about the validity of the inference of insolvency that the United States finds so compelling. The trial court therefore erred in determining the choateness of the state’s liens in accordance with the priority rules developed pursuant to the federal insolvency statute.

II

The state further maintains that the trial court could not have found that its liens were inchoate if the trial court had properly employed the test for choateness that pertains to priority contests between federal tax liens and state statutory liens. A state statutory lien is choate, under federal law, when it is specific and perfected so that “there is nothing more to be done” to establish the identity of the lienor, the property subject to the lien, and the amount of the lien. United States v. Equitable Life Assurance Society of the United States, supra. Choateness does not require enforcement of a local tax lien by seizure or sale unless local law itself incorporates a requirement of further judicial proceedings to effectuate the lien. United States v. Vermont, 377 U.S. 351, 358-59, 84 S. Ct. 1267, 12 L. Ed. 2d 370 (1964); United States v. Security Trust & Savings Bank, 340 U.S. 47, 50, 71 S. Ct. 111, 95 L. Ed. 53 (1950). We disagree with the state that its liens can pass this test.

In this case, the state’s recordation, on August 24, 1981, of certificates of lien under § 17-82c clearly fulfilled some of the requirements for a choate state statutory lien. The certificates identified each lienor by name and described with specificity the property subject to the state’s lien. The certificates were, however, entirely open-ended with regard to the amount of the secured indebtedness, which, without any dollar amount, was described only as “assistance payments heretofore or hereafter made to or in behalf of the said Valerie Delaney and said dependent child or children.” No supplemental recordations ever detailed the amounts of the secured indebtedness. Even in the priority proceedings herein, the state’s affidavit of debt did not allocate assistance payments to periods predating either its filings or the federal tax lien filings. To this date, therefore, the record does not reveal the precise amount of the state’s liens that antedate those of the United States. Furthermore, the record indicates that, prior to the mortgage foreclosure proceedings initiated by the named plaintiff, the state had taken no steps to foreclose its liens, a process that, under the express terms of § 17-82c would have required the commissioner of income maintenance to bring “an action . . . in a court of competent jurisdiction.” The question that we must answer is whether under these circumstances the state has established that, when the federal tax liens arose, it had liens for which, under federal law, “there is nothing more to be done.”

The United States would have us answer this question “No.” It maintains that the amount of the state’s liens could not be determined unless and until the commissioner of income maintenance obtained a judgment in a specific amount and an order directing foreclosure. Until that time, it argues, the state’s liens were contingent as a matter of state law and therefore inchoate as a matter of federal law.

The state maintains, to the contrary, that its liens had become fully matured and certain as to amount before the effective date of the federal tax liens. This claim has two aspects: the state’s liens were fully perfected upon filing, because § 17-82c so provides, and they secured the state’s rights to reimbursement in an amount measured by grants of public assistance to or for the benefit of each of the Delaneys up to the date of each of the federal assessments. The state comes close to conceding that the liens may have been inchoate in amount when filed but contends that they matured into specificity thereafter by virtue of each unreimbursed public assistance payment. The state invokes analogous concepts in the law of consensual security arrangements, in which a real property mortgage or a commercial security interest may secure future advances as well as contemporaneous or past indebtedness.

We need not decide today whether federal law would permit state statutory liens to include state claims for reimbursement that were uncertain in amount at the time of their recordation. The United States Supreme Court has characterized as inchoate an assignee’s or mortgagee’s lien to secure future indebtedness of the taxpayer-debtor. United States v. Pioneer American Ins. Co., supra, 91; United States v. Ball Construction Co., 355 U.S. 587, 587-88, 78 S. Ct. 442, 2 L. Ed. 2d 510 (per curiam), reh. denied, 356 U.S. 934, 78 S. Ct. 770, 2 L. Ed. 2d 763 (1958); see 2 G. Gilmore, Security Interests in Personal Property (1965) pp. 1068-70; W. Plumb, Federal Tax Liens (3d Ed. 1972) pp. 87-90; F. Kennedy, “From Spokane County to Vermont: The Campaign of the Federal Government Against the Inchoate Lien,” 50 Iowa L. Rev. 724, 734-35 (1965). In United States v. Pioneer American Ins. Co., supra, 89, the United States Supreme Court also stated that it understood the Congress to have intended the same rule of choateness to apply to “the whole spectrum of state-created liens,” whether consensual or statutory in origin. Thereafter, the Federal Tax Lien Act of 1966 included provisions that specifically validate various liens in competition with the federal tax lien in precise terms that distinguish sharply between consensual mortgages and state statutory liens. Those distinctions cast considerable doubt upon continued Congressional acquiescence in the analogy upon which the state would have us rely. Under I.R.C. § 6323 (d), special priority for future advances is confined to advances made in connection with a consensual security interest. Neither the Federal Tax Lien Act nor the Supreme Court of the United States has specifically considered whether an inchoate statutory lien for future advances is rendered partially choate by unfiled advances actually made to the taxpayer-debtor prior to the attachment of the federal tax lien.

That difficult question need not be decided because § 17-82c itself incorporates conditions on the state’s right to pursue its statutory lien. The state’s lien does not encompass an automatic right to seize the debtor’s property once unreimbursed public assistance grants have accrued. The statute contemplates that recipients of public assistance may, despite their default, continue to occupy their homes. Although the statute does not spell out the circumstances under which such continued occupancy will no longer be countenanced, we have indicated, in interpreting related provisions in General Statutes § 17-83e, that the state has no power to enforce its rights to reimbursement through summary seizures “giving rise to possible due process deprivations.” Thibeault v. White, 168 Conn. 112, 118, 358 A.2d 358 (1975). Undoubtedly these concerns prompted the legislature to make explicit, in § 17-82c, that “[a]ny such lien may, at any time during which the amount by it secured remains unpaid, be foreclosed in an action brought in a court of competent jurisdiction by the commissioner [of income maintenance] on behalf of the state.” Such a foreclosure action, far from being a ministerial act, invokes the equitable exercise of judicial discretion. Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980).

For federal tax lien purposes, the significance of the requirement of a judicial foreclosure action in § 17-82c is that, prior to its completion, it cannot be said that “there is nothing more to be done.” This case is therefore similar to State v. Bucchieri, 176 Conn. 339, 351-52, 407 A.2d 990 (1978), in which we concluded that state forfeiture of contraband pursuant to General Statutes § 54-33g did not give the state a choate lien “when the section itself provides for a hearing at which competing claims may be heard and at which forfeiture is to be adjudicated.” Id., 351. We held that such a lien resembles an attachment lien which, according to federal law, is inchoate until the time of judgment, and can be defeated by an intervening recorded federal tax lien. United States v. Security Trust & Savings Bank, supra, 50. Our conclusion found further support in United States v. Vermont, supra, 358-59, in which the United States Supreme Court expressly held Vermont’s tax lien to be choate once assessed because, under Vermont law, the assessment was immediately given the force of a judgment that could be summarily enforced.

We therefore agree with the United States that the filing of the state’s liens pursuant to § 17-82c did not create liens that were, in advance of foreclosure proceedings, choate as a matter of federal law. Such liens amounted to no more than “ ‘a lis pendens notice that a right to perfect a lien exists.’ ” United States v. Vermont, supra, 355, quoting United States v. Security Trust & Savings Bank, supra. Because the state’s liens were still inchoate according to federal law at the time when the federal tax liens arose, the federal liens were entitled to priority in this case.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 17-82c. eligibility of person having interest in real property, lien of state. No person shall be deemed ineligible to receive an award under this chapter for himself or for any person for whose support he is liable by reason of having an interest in real property, maintained as his home, provided the equity in such property shall not exceed the limits established by the commissioner. The commissioner may place a lien against any property to secure the claim of the state for all amounts which it has paid or may thereafter pay to him or in his behalf under the provisions of this chapter, except for property maintained as a home in aid to families of dependent children cases, in which case such lien shall secure the state only for that portion of the assistance grant awarded for amortization of a mortgage or other encumbrance beginning with the fifth month after the original grant for principal payment on any such encumbrance is made, and each succeeding month of such grant thereafter. The claim of the state shall be secured by filing a certificate in the land records of the town or towns in which any such real estate is situated, describing such real estate. Any such lien may, at any time during which the amount by it secured remains unpaid, be foreclosed in an action brought in a court of competent jurisdiction by the commissioner on behalf of the state. Any real estate to which title has been taken by foreclosure under this section, or which has been conveyed to the state in lieu of foreclosure, may be sold, transferred or conveyed for the state by the commissioner with the approval of the attorney general, and the commissioner may, in the name of the state, execute deeds for such purpose. Such lien shall be released by the commissioner upon payment of the amount by it secured, or an amount equal to the value of the beneficiary’s interest in such property if the value of such interest is less than the amount secured by such lien, at his discretion, and with the advice and consent of the attorney general, upon a compromise of the amount due to the state. At the discretion of the commissioner the beneficiary, or, in the case of husband and wife living together, the survivor of them, so long as he or she lives, or a dependent child or children, may be permitted to occupy such real property.”

       “[I.R.C.] § 6321. lien FOR taxes. If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with.any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”
      “[I.R.C.] § 6322. period OF lien. Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or become unenforceable by reason of lapse of time.”

       I.R.C. § 6323 provides in relevant part: “validity and priority AGAINST CERTAIN PERSONS, (a) PURCHASERS, HOLDERS OR SECURITY INTERESTS, MECHANIC’S LIENORS, AND JUDGMENT LIEN CREDITORS. The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lienor creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary.
      (b) PROTECTION FOR CERTAIN INTERESTS EVEN THOUGH NOTICE FILED. . . .
      (c) PROTECTION FOR CERTAIN COMMERCIAL TRANSACTIONS FINANCING AGREEMENTS, ETC. . . .
      (d) 45-DAY PERIOD FOR MAKING DISBURSEMENTS. . . .
      (e) PRIORITY OF INTEREST AND EXPENSES. . . .
      (f) PLACE FOR FILING NOTICE; FORM. . . .”

       The state, in its reply brief, has acknowledged that its original appellate brief incorrectly assumed that federal liens take no priority over state statutory liens until notice of the federal tax liens is filed. Because the state does not qualify as a purchaser, a holder of a security interest, a mechanic’s lienor, or a judgment lien creditor under I.R.C. § 6323 (a), the priority of the state’s liens is measured, in accordance with I.R.C. § 6322, from the date of the assessment of the federal taxes.

       This statute, which is often referred to as § 3466 of the Revised Statutes (1875), governs federal claims against insolvent debtors. Recently recodified as 31 U.S.C. § 3713 (a), it provides: “priority of government claims. (a) (1) A claim of the United States Government shall be paid first when— (A) a person indebted to the Government is insolvent and—(i) the debtor without enough property to pay all debts makes a voluntary assignment of property; (ii) property of the debtor, if absent, is attached; or (iii) an act of bankruptcy is committed; or (B) the estate of a deceased debtor, in the custody of the executor or administrator, is not enough to pay all debts of the debtor. (2) This subsection does not apply to a case under title 11.”

       To invoke 31 U.S.C. § 3713 (a), the United States would have had to prove not only that the taxpayers were insolvent but also that while insolvent, they made a voluntary assignment of property, their property was attached or they committed an act of bankruptcy.

       Despite the filing of notice of a federal tax lien, a priority over such a federal lien is given to specially defined real property and special assessment taxes by I.R.C. § 6323 (b) (6) and to certain commercial transactions financing agreements by I.R.C. § 6323 (c). The state’s liens do not qualify under either of these provisions.

       I.R.C. § 6323 (d) provides: “45-day period for making disbursements. Even though notice of a lien imposed by section 6321 has been filed, such lien shall not be valid with respect to a security interest which came into existence after tax lien filing by reason of disbursements made before the 46th day after the date of tax lien filing, or (if earlier) before the person making such disbursements had actual notice or knowledge of tax lien filing, but only if such security interest—(1) is in property (A) subject, at the time of tax lien filing, to the lien imposed by section 6321, and (B) covered by the terms of a written agreement entered into before tax lien filing, and (2) is protected under local law against a judgment lien arising, as of the time of tax lien filing, out of an unsecured obligation.”

        United States v. Vermont is particularly instructive because the court pointedly distinguished between the test for a choate lien under the federal tax lien statute and the test for a lien that would be valid under the federal insolvency statute. The lien in United States v. Vermont was choate under the former test. United States v. Vermont, 377 U.S. 351, 357-59, 84 S. Ct. 1267, 12 L. Ed. 2d 370 (1964).


text:
    Leonard Udolf v. Plan and Zoning Commission of the Town of West Hartford et al.

      Wesley W. Horton, in support of the petition.

      Richard P. Weinstein and Patrick G. Alair, in opposition.
    Decided January 12, 1988
   The plaintiffs petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Terrence Biggs

      William M. Bloss, special public defender, in support of the petition.

      Leah Hawley, deputy assistant state’s attorney, in opposition.
    Decided January 21, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 12, is denied.


text:
    State of Connecticut v. Chester High

      Leopold P. DeFusco, in support of the petition.
    Decided February 2, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 685, is denied.


text:
    State of Connecticut v. Augustus J. Simmons

      Augustus J. Simmons, pro se, in support of the petition.

      Geoffrey Marrion, deputy assistant state’s attorney, in opposition.
    Decided February 2, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 804, is denied.


text:
    Ronald Tyler v. George D. Bronson, Warden

      Suzanne Zitser, assistant public defender, and Joette Katz, public defender, in support of the petition.

      Judith Rossi, deputy assistant state’s attorney, in opposition.
    Decided February 2, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 621, is denied.


text:
    State of Connecticut v. Angel Nieves

      David A. Moraghan, special public defender, in support of the petition.

      Susan C. Marks, deputy assistant state’s attorney, in opposition.
    Decided February 2, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 60, is denied.


text:
    State of Connecticut v. Joaquin Rodriguez

      Dennis F. O’Toole, assistant public defender, in support of the petition.

      Vincent J. Dooley, deputy assistant state’s attorney, in opposition.
    Decided February 2, 1988
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    David D’Amico v. Clifford J. Willis, Chief of Police of the City of New Britain

      F. Gina Gelb, in support of the petition.

      Joseph E. Shelly, Jr., in opposition.
    Decided February 2, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 124, is denied.


text:
    Connecticut Bank and Trust Company v. Sylvan Katske et al.

      William H. Clendenen, Jr., in support of the petition.

      Mary E. Holzworth, in opposition.
    Decided February 2, 1988
   The defendants’ petition for certification for appeal from the Appellate Court, 13 Conn. App. 174, is denied.


text:
    State of Connecticut v. George Navikaukas

      John Watson, assistant public defender, in support of the petition.

      MarciaB. Smith, assistant state’s attorney, in opposition.
    Decided February 2, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 679, is denied.


text:
    Housing Authority v. Mary Melvin

      Richard McCarthy, in support of the petition.
    Decided February 2, 1988
   The defendant’s petition for certification for appeal ■ from the Appellate Court, 12 Conn. App. 711, is denied.


text:
    Spectrum of Connecticut, Inc. v. Planning and Zoning Commission of the Town of Ellington

      Martin A. Clayman, in support of the petition.

      Atherton B. Ryan, in opposition.
    Decided February 11, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 159, is denied.


text:
    Elihu Club, Inc. v. Board of Tax Review of the City of New Haven

      Francis G. Pennarola, in support of the petition.

      Martin S. Echter, in opposition.
    Decided February 11, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 806, is denied.


text:
    Robert O’Donnell v. Arthur A. Rindfleisch et al.

      Peter Schwartz, in support of the petition.
    Decided February 25, 1988
   The defendants’ petition for certification for appeal from the Appellate Court, 13 Conn. App. 194, is denied.


text:
    Reynold Pelletier v. Caron Pipe Jacking, Inc., et al.

      William F. Gallagher, in support of the petition.

      Marjorie Howes Drake, in opposition.
    Decided February 25, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 276, is denied.


text:
    Hartford Federal Savings and Loan Association v. Stanley V. Tucker et al.

      Stanley V. Tucker, pro se, in support of the petition.
    Decided February 25, 1988
   The named defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 239, is denied.


text:
    In re Shavoughn K. et al.

      Margaret P. Levy, in support of the petition.

      Patricia Lilly Harleston, assistant attorney general, in opposition.
    Decided March 10, 1988
   The mother’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 91, is denied.


text:
    Myrna LaBow v. Ronald LaBow

      Leonard Bieringer, in support of the petition.

      Myrna LaBow, pro se, in opposition.
    Decided March 10, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 330, is denied.


text:
    Kalman I. Nulman’s Appeal from Probate Kalman I. Nulman v. Joseph Weill

      William A. Phillips and James F. Stapleton, in support of the petition.

      JohnR. Whelan, assistant attorney general, and Paul J. Pacifico, in opposition.
    Decided March 10, 1988
   The petition by the plaintiff and the defendants The Daphne Seybolt Culpeper Foundation, Inc., et al. for certification for appeal from the Appellate Court, 13 Conn. App. 811, is denied.


text:
    Elizabeth O’Neill v. Edward O’Neill

      Reuben S. Midler, in support of the petition.

      Ronald D. Japha, in opposition.
    Decided March 10, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 300, is denied.


text:
    State of Connecticut v. Michael Raucci

      Donald D. Dakers, public defender, in support of the petition.

      Steven M. Sellers, assistant attorney general, in opposition.
    Decided March 10, 1988
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Frederick C. DeVita v. Pasquale F. Esposito, Jr., Administrator (Estates of Pasquale F. Esposito, Sr., et al.)

      David M. Reilly, in support of the petition.

      Peter M. Sipples, in opposition.
    Decided March 23, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 101, is denied.


text:
    Georgianna Czaja v. Joseph Sallak et al.

      Donald J. McCarthy, Jr., in support of the petition.

      Gregory M. Harris and Jean M. D’Aquila, in opposition.
    Decided March 23, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 411, is denied.


text:
    State of Connecticut v. Carlos Maldonado

      Eugene J. Riccio, special public defender, in support of the petition.
    ■ LindaN. Knight, assistant state’s attorney, in opposition.
    Decided April 5, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 368, is denied.


text:
    Frederick J. Zivic v. Kay Brooke

      Larry R. Levine, in support of the petition.
    Decided April 5, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 821, is denied.


text:
    Amr A. Wasfi v. Board of Veterinary Registration and Examination et al.

      Noel R. Newman, in support of the petition.

      Paul J. Lahey, assistant attorney general, in opposition.
    Decided April 5, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 817, is denied.


text:
    In re Troy M.

      Lynn B. Cochrane, in support of the petition.
    Decided April 5, 1988
   The respondent’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 821, is denied.


text:
    Commissioner of Motor Vehicles v. DeMilo and Company, Inc.

      Lorraine W. Osborne, in support of the petition.

      Michael J. Lombardo, assistant attorney general, in opposition.
    Decided April 5, 1988
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Karen Greene v. Richard Greene

      Charles T. Busek, in support of the petition.

      Robert K. Lesser, in opposition.
    Decided April 5, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 512, is denied.


text:
    Gary Kerpa v. A & A Brothers, Inc., et al.

      Gary Kerpa, pro se, in support of the petition.
    Decided April 5, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 807, is denied.


text:
    Edward A. Currie v. Louis Marano et al.

      William C. Franklin, in support of the petition.

      Richard Bruno, in opposition.
    Decided April 5, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 527, is denied.


text:
    Allan Pagni et al. v. Phyllis Corneal et al., Coexecutrices (Estate of Mildred Browning)

      William J. Anastasi, in support of the petition.

      David E. Wyskiel, in opposition.
    Decided April 5, 1988
   The defendants’ petition for certification for appeal from the Appellate Court, 13 Conn. App. 468, is denied.


text:
    The Stop and Shop Companies, Inc. v. Town of East Haven

      Christopher M. Reeves, in support of the petition.
    Decided April 5, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 393, is granted, limited to the issue: , “Does General Statutes § 12-71 (b) permit a town to assess personal property-on the basis of annual valuation when real property is assessed on the basis of a decennial revaluation?”


text:
    Parkview Paving Company, Inc. v. City of New Haven et al.

      Steven B. Kaplan, in support of the petition.

      H. Gordon Hall, in opposition.
    Decided April 15, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App."574, is denied.


text:
    State of Connecticut v. Patrick Kennedy

      Gail A. Heller, deputy assistant public defender, in support of the petition.

      Irving A. Aronson, assistant state’s attorney, in opposition.
    Decided April 15, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 576, is denied.


text:
    Stanley V. Tucker v. Hartford Electric Light Company et al.

      Stanley V. Tucker, pro se, in support of the petition.

      Barbara B. Sacks, William J. Melley III and Karen P. Blado, in opposition.
    Decided April 15, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 825, is denied.


text:
    In re Saba P.

      Conrad Ost Seifert, in support of the petition.

      Judith Merrill Earl, assistant attorney general, in opposition.
    Decided April 21, 1988
   The respondent’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 605, is denied.


text:
    Frank X. Lo Sacco v. Debra M. Young et al.

      Frank X. Lo Sacco, pro se, in support of the petition.
    Decided April 21, 1988
   The plaintiff’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 827, is granted, limited to the issue: “Does unexcused untimeliness in the filing of a motion to set aside a verdict and for a new trial automatically limit the scope of appellate review, even when there was no objection at the trial to the untimeliness of the motion?”


text:
    State of Connecticut v. John A. Graham

      John A. Graham, pro se, in support of the petition.
    Decided April 21, 1988
   The defendant’s petition for certification for appeal from the Appellate Court, 13 Conn. App. 554, is denied.


author: Glass, J.

text:
    City of Norwich et al. v. Norwalk Wilbert Vault Company, Inc.
    (13200)
    Healey, Shea, Callahan, Glass and Santaniello, Js.
    Argued March 3
    decision released June 21, 1988

      Mary E. Holzworth, with whom were John R. Fitzgerald and, on the brief, Michael D. Colonese, for the appellant (defendant).

      Sally S. King, with whom were Brian R. Smith and Raymond T. DeMeo, for the appellee (named plaintiff).
   Glass, J.

The named plaintiff, the city of Norwich, instituted an action seeking to enjoin the defendant, Norwalk Wilbert Vault Company, Inc., from operating a trucking terminal on its property located in Norwich, claiming that the defendant was in violation of Norwich zoning ordinance because it did not file a site plan with the commission on the city plan (commission) prior to engaging in this use of the property. The trial court rendered judgment for the plaintiff enjoining the defendant from using its property as a trucking terminal. The defendant appealed to the Appellate Court claiming, inter alia, that the ordinance delegating to the commission the authority to approve or disapprove site plans was an impermissible delegation of a zoning function. The Appellate Court held that this claim was not properly before the court because the defendant had not been aggrieved by the ordinance it challenged, as the defendant had not sought to obtain site plan approval under the Norwich zoning ordinances.

We granted certification limited to the issue as to whether, in an action by a city to enjoin certain activities of a landowner as violative of a zoning ordinance, the defendant landowner may attack the validity of the ordinance without first having attempted to secure such administrative relief as may be available under the ordinance. The plaintiff filed a preliminary statement of alternate grounds of affirmance, which presents the additional issue of whether, assuming that the defendant can challenge in this action the delegation of site plan review authority to the commission, that delegation was proper and constitutional under the city charter.

The underlying facts are fully set forth in Norwich v. Norwalk Wilbert Vault Co., 11 Conn. App. 332, 527 A.2d 716 (1987). The defendant operated a concrete manufacturing business on its property in Norwich, which was a conforming use in an area which was classified as a heavy industrial zone. In 1982, the defendant began renting space to various trucking companies that used the property as a trucking terminal. The heavy industrial zone permits trucking terminals. Under § 10.2.2 of the Norwich zoning ordinances, “[a]ll uses permitted in [the heavy industrial zone] shall be subject to site plan approval by the commission in accordance with the provisions of Chapter 17, hereof.” Chapter 17 of the Norwich zoning ordinances provides criteria for a site plan approval, and sets forth specific factors to be considered when a heavy industrial zone borders a residential zone. The trial court found that the use of the defendant’s property as a trucking terminal was an increased use of the property, and therefore, that site plan approval was needed. Because the defendant had not sought site plan approval prior to engaging in the increased use of the property, the trial court issued an injunction enjoining the defendant from using the premises as a trucking terminal. The Appellate Court upheld the decision of the trial court on the ground that the defendant had not exhausted the available administrative remedies and therefore did not reach the issue of delegation of authority.

I

The Appellate Court held that the defendant’s claim, that the ordinance delegating the authority to the commission to approve or disapprove site plans was an impermissible delegation of a zoning function, was not properly before the court. The court reasoned that “[t]he defendant in this case has not been aggrieved by the ordinance it challenges. . . . Until the commission on the city plan functions as contemplated by the ordinances, it cannot possibly be said that the defendant has been denied due process by that ordinance. . . . If the defendant applies for and is denied site plan approval under the ordinance, it may then challenge, in a declaratory judgment action, the constitutionality of the ordinance.” Norwich v. Norwalk Wilbert Vault Co., supra, 337-38. We disagree with the holding of the Appellate Court.

It is well settled that a jurisdictional prerequisite to seeking relief in a court of law is that all available administrative remedies must have been exhausted. Concerned Citizens of Sterling v. Sterling, 204 Conn 551, 556, 529 A.2d 666 (1987); Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 1230 (1987); Doe v. Heintz, 204 Conn. 17, 34, 526 A.2d 1318 (1987). We have held, however, that under limited circumstances, there are exceptions to this principle. One such exception is that where the available relief is inadequate or futile, the administrative process may be bypassed. Greenwich v. Liquor Control Commission, 191 Conn. 528, 541, 469 A.2d 382 (1983); Sullivan v. State, 189 Conn. 550, 553-54, 457 A.2d 304 (1983); Kosinski v. Lawlor, 177 Conn. 420, 425, 418 A.2d 66 (1979); Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969). In LaCroix v. Board of Education, 199 Conn. 70, 79 n.7, 505 A.2d 1233 (1986), we noted that “[e]xhaustion of administrative remedies is generally not required when the challenge is to the constitutionality of the statute or regulation under which the board or agency operates, rather than to the actions of the board or agency. Conto v. Zoning Commission, 186 Conn. 106, 115, 439 A.2d 441 (1982); General Dynamics Corporation v. Groton, 184 Conn. 483, 490, 440 A.2d 185 (1981); Friedson v. Westport, 181 Conn. 230, 233, 435 A.2d 17 (1980).” Generally, such challenges have been instituted by a plaintiff in a declaratory judgment action. Bierman v. Planning & Zoning Commission, 185 Conn. 135, 440 A.2d 882 (1981); Bencivenga v. Milford, 183 Conn. 168, 438 A.2d 1174 (1981).

Today we apply this exception to the exhaustion principle to a case in which a defendant challenges the constitutional validity of a municipal ordinance in an action to enforce its provisions against him. This exception has gained acceptance by a number of state courts that have specifically considered this issue. The seminal case is Lake v. MacNeal, 24 Ill. 2d 253, 181 N.E.2d 85 (1962), where the court held that the exhaustion principle does not apply to an action brought by a local government to enforce its own ordinances. The court stated that “there is . . . the sound principle, based upon the assumption that one may not be held civilly or criminally liable for violating an invalid ordinance, that a proceeding for the violation of a municipal regulation is subject to any defense which will exonerate the defendant from liability, including a defense of the invalidity of the ordinance.” (Emphasis added.) Id., 260. The rule is that “[s]o long as local authorities institute an action, a defendant should be entitled to defend on the ground of the invalidity of the ordinance and to have the issue determined.” Id. The court also stated: “[W]e believe there are substantial differences between a property owner who is the moving party in an action to declare an ordinance invalid as to his property, and one who is summoned into court and charged with illegally violating the ordinance . . . in the latter instance the very act of filing a complaint reflects a judgment on the part of the local authority that . . . they see no particular hardship and no necessity to correct the zoning regulation.” Id. Thus, the MacNeal court based its holding on the premise that appealing the validity of an ordinance to the body charged with enforcing the ordinance is a futile act.

Moreover, the MacNeal rule has been adopted in many jurisdictions that have addressed the issue. See Board of Commissioners v. Goldenrod Corporation, 43 Colo. App. 221, 601 P.2d 360 (1979); Freeborn v. Claussen, 295 Minn. 96, 203 N.W.2d 323 (1972); Londonderry v. Faucher, 112 N.H. 454, 299 A.2d 581 (1972); New Paltz v. Pencil Hill Properties Corporation, 60 App. Div. 2d 738, 400 N.Y.S.2d 908 (1977); Johnson’s Island, Inc. v. Board of Township Trustees, 69 Ohio St. 2d 241, 431 N.E.2d 672 (1982); Yakima County Clean Air Authority v. Glascam Builders, Inc., 85 Wash. 2d 255, 534 P.2d 33 (1975). We agree with the defendant’s contention that where a party contests the very validity of a zoning ordinance, relief under the ordinance would be inadequate or futile. Under Connecticut law, local administrative bodies lack the competency to adjudicate the facial validity of an ordinance. See Bencivenga v. Milford, supra. This situation is distinguishable from a case where a landowner challenges the validity of an ordinance as applied. See Florentine v. Darien, 142 Conn. 415, 115 A.2d 328 (1955). We are persuaded that in this instance, where the plaintiff city has haled the defendant into court, the defendant may defend on the ground of the general invalidity of the ordinance, without exhausting all available administrative remedies.

The plaintiffs argument, relying on Bierman v. Planning & Zoning Commission, supra, that the defendant should have brought a declaratory judgment action to challenge the validity of the zoning ordinance does not take into consideration the different procedural framework of a challenge made by a defendant rather than a plaintiff. In Bierman, we stated that “[t]he rule extant under our zoning cases is that a party who has sought to avail himself of a zoning ordinance by making an application thereunder is precluded in the same proceeding from raising the question of its constitutionality. ... A party, however, could of course attack the constitutionality of the zoning regulations in an independent proceeding.” Id., 139-40. In Bierman, a plaintiff was seeking redress under a zoning ordinance that it contended was invalid. The important policy we enunciated was that a declaratory judgment action would be the proper procedure for resolving the validity of the ordinance in order to ensure that all affected landowners would be provided with an opportunity to become involved in the proceedings. It is incongruous, however, to say that when property rights are at stake, in an action instigated by the municipality, a defendant may not challenge the validity of an ordinance in the proceeding that implicates his or her property rights. A defendant who does not abide by a zoning ordinance may be subject to fines, injunctions, penalties and imprisonment. See General Statutes § 8-12; Norwich Zoning Ordinances § 18.4. Thus, an appeal at a later date may not provide appropriate relief. We adhere to the principle that an invalid ordinance should not be enforced. Ruttenberg v. Dine, 137 Conn. 17, 19, 74 A.2d 211 (1950).

II

Having determined that the defendant was entitled to defend upon the ground of the unconstitutionally of the ordinance without having exhausted all available administrative remedies, we must examine the validity of the ordinance itself. The plaintiff claims that the judgment of the Appellate Court should be upheld on the alternate ground that the Norwich city council’s delegation of authority to the commission to review and approve site plans did not deprive the defendant of due process of law under the United States and Connecticut constitutions. We agree.

The city of Norwich exercises its zoning power by virtue of a special act. Spec. Acts 1951, No. 573. This act established the Norwich city charter, which is the source of authority for the zoning ordinance that the defendant has challenged. O’Meara v. Norwich, 167 Conn. 579, 581, 356 A.2d 906 (1975). The defendant claims that the ordinance, by delegating the authority to approve site plans to the commission, is unconstitutional because the charter does not specifically confer such power upon the commission.

In our recent decision in Cilley v. Lamphere, 206 Conn. 6, 535 A.2d 1305 (1988), we examined the Norwich city charter and noted these basic principles of law. “ ‘ “It is well established that a city’s charter is the fountainhead of municipal powers. . . .’’’Lombardi v. Bridgeport, 194 Conn. 601, 604, 483 A.2d 1092 (1984). ‘The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised.’ West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983). Agents of a city, including commissions, have no source of authority beyond the charter. Perretta v. New Britain, 185 Conn. 88, 92, 440 A.2d 823 (1981). When a charter is construed, the rules of statutory construction generally apply. Arminio v. Butler, 183 Conn. 211, 217, 440 A.2d 757 (1981). Common sense must be used in construing a statute. Murach v. Planning & Zoning Commission, 196 Conn. 192, 196, 491 A.2d 1058 (1985).” Cilley v. Lamphere, supra, 12. We also note that “[t]he ordinance must rest primarily upon the enabling act and must not go beyond the power delegated by it.” Bishop v. Board of Zoning Appeals, 133 Conn. 614, 619, 53 A.2d 659 (1947).

Our examination of the Norwich city charter indicates that it confers broad power upon the city council to enact ordinances governing land use. Chapter 15, § 6, of the charter vests the city council with the power to regulate land use. Chapter 5, § 8, of the charter provides in pertinent part that “every act [of the city council] . . . placing any burden upon or limiting the use of private property, shall be by ordinance.” Chapter 15, §§ 6 and 13, of the charter provide for the manner in which land use ordinances are enforced. Finally, chapter 17 of the Norwich zoning ordinances establishes the substantive criteria governing the review and approval of site plans and provides for their enforcement through the commission on the city plan. Thus, the charter has conferred power to regulate land use on the city council, and this authority must be exercised by ordinance. By ordinance, the city council established the criteria required for site plan approval. By ordinance, the city council also established the commission on the city plan as the body to examine the criteria and apply them to the individual applications.* ***** In reviewing and approving site plans the commission acts in an administrative capacity. Goldberg v. Zoning Commission, 173 Conn. 23, 29, 376 A.2d 385 (1977). Furthermore, in reviewing site plans the commission has “no independent discretion beyond determining whether the plan complies with the applicable regulations . . . [and] is under a mandate to apply the requirements of the regulations as written.” Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984); Kosinski v. Lawlor, supra, 427. This delegation of power is consistent with the city council’s power to provide, by ordinance, for the manner in which land use ordinances are enforced. We find that the delegation was proper.

Therefore, we affirm the decision of the Appellate Court on the basis of the plaintiff’s alternate grounds for affirmance.

In this opinion the other justices concurred.

       The city of Norwich was joined by the intervening plaintiffs, two couples who own residences on Vergason Avenue, Norwich. Hereinafter reference to the plaintiff, the city of Norwich, will be deemed to include the intervening plaintiffs.

         The court stated: “To compel a property owner to first seek local relief in the face of the demonstrated attitude of the local authority, would be a patently useless step which would increase costs, promote circuity of action and delay the administration of justice.” Lake v. MacNeal, 24 Ill. 2d 253, 260, 181 N.E.2d 85 (1962).

       Chapter 15, § 6, of the Norwich city charter provides: “Subject to the provisions of section 4 of this chapter the council shall have power to regulate by ordinance the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be built upon, the size of yards, courts and other open spaces; the density of population; and the location and use of buildings, structures and land for trade, industry, residence or other purposes; and in so doing may divide the city into zones of such number, shape and area as may be best suited to carry out the purposes of this section. Such regulations shall be uniform within each zone for each class of building and structure and shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health and general welfare; provide adequate light and air; prevent the overcrowding of land; avoid undue concentration of population and facilitate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the zone and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the city. The council shall also provide by ordinance for the manner in which such regulations and the boundaries of such zones shall be respectively enforced and the conditions under which exceptions or variations may be granted by the zoning board of appeals.”

       Chapter 5, § 8, of the Norwich city charter provides: “In addition to such acts of the council as are required by the general statutes or by other provisions of this charter to be by ordinance, every act creating, altering or abolishing any agency, office or employment, or assigning or reassigning the same to departments, fixing compensation, making an apropriation, authorizing the borrowing of money, levying a tax, establishing any rule or regulation for the violation of which a penalty is imposed, or placing any burden upon or limiting the use of private property, shall be by ordinance.”

       Chapter 15, § 13, of the Norwich city charter provides: “Zoning regulations as provided in this chapter shall be enforced as shall be provided by ordinance. Violations of such regulations shall be punished and such other remedies shall be available as provided by the general statutes of the state of Connecticut.”

       Chapter 17, § 17.4, of the Norwich zoning ordinances provides: “In the site plans for a particular use the commission shall give specific consideration to the design of the following:
      “17.4.1 traffic ACCESS. That all proposed traffic access ways are: adequate but not excessive in number; adequate in width, grade, alignment and visibility; not located too near street corners or other places of public assembly; and other similar safety considerations.
      “17.4.2 CIRCULATION and parking. That adequate off-street parking and loading spaces are provided to prevent parking in public streets of vehicles of any persons connected with or visiting the use and that the interior circulation system is adequate to provide safe accessibility to all required off-street parking.
      “17.4.3 LANDSCAPING and SCREENING. That all playground, parking and service areas are reasonably screened at all seasons of the year from the view of adjacent residential lots and streets and that the general landscaping of the site is in character with that generally prevailing in the neighborhood. Preservation of existing trees over 10" in diameter to the maximum extent possible shall be encouraged.
      “17.4.4 illumination. That lighting from the installation of outdoor flood or spot lighting and illuminated signs will be properly shielded so that such lighting will not adversely affect any abutting property or public street.
      “17.4.5 character AND appearance. That the character and appearance of the proposed use, buildings, and/or outdoor signs will be in general harmony with the character and appearance of the surrounding neighborhood and that of the City of Norwich and will not adversely affect the general welfare of the inhabitants of the city.
      “17.4.6 COASTAL SITE plan BEVIEW. In addition to any other applicable site plan review criteria prescribed by Chapter 17 hereof, a coastal site plan required under this Section shall be reviewed and may be approved, modified and approved, or denied in accordance with the following procedures and criteria:
      “(a) The commission may, at its discretion, hold a public hearing on any coastal site plan submitted to it for review.
      “(b) In determining the acceptability of potential adverse impacts of the proposed activity described in the coastal site plan on both the coastal resources and the future water-dependent development opportunities, the commission shall: (1) consider the characteristics of the site, including the location and condition of any coastal resources defined in Section 22a-93 of the General Statutes; (2) consider the potential effects, both beneficial and adverse of the proposed activity on coastal resources and future water-dependent development opportunities; and (3) follow all applicable goals and policies stated in Section 22a-92 of the General Statutes and identify any conflicts between the proposed activity and any goal or policy. When approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria herein prescribed, the commission shall state in writing the findings and reasons for its action and shall send a copy of any decision by certified mail to the person who submitted such plan within fifteen (15) days after such decision is rendered.
      “(c) In approving any activity proposed in a coastal site plan, the commission shall make a written finding that the proposed activity with any conditions or required modification (1) is consistent with all applicable goals and policies in Section 22a-92 of the General Statutes; and (2) incorporate as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities.
      “(d) As a condition to a coastal site plan approval, the commission may require a bond or other surety or financial security arrangement to secure compliance with any modifications, conditions, or other terms stated in its approval of the plan. The bonding procedure shall follow section 17.3.2 hereof.
      “(e) Any activity within the defined coastal area not exempt from coastal site plan review pursuant to section 3.21 hereof, which occurs without having received a lawful approval from the commission under all of the applicable procedures and criteria prescribed by this zoning ordinance or which violates the terms and conditions of such approval, shall be deemed a public nuisance and appropriate legal remedies will be taken by the commission for the abatement of such nuisance according to section 18.4 hereof.
      “17.4.7 SOIL EROSION and sediment control. A soil erosion and sediment control plan shall be submitted pursuant to section 3.22 with all site development plan applications when the disturbed area of such development is cumulatively more than one-half acre.
      “17.4.8 certification. The commission shall certify that the soil erosion and sediment control plan as filed, complies with the requirements and objectives of this regulation or deny certification when the proposal does not comply with these regulations.
      “17.4.9 MINIMUM ACCEPTABLE standards. Plans for soil erosion and sediment control shall be developed in accordance with these regulations using the principles as outlined in Chapters 3 and 4 of the Connecticut Guidelines for Soil Erosion and Sediment Control, as amended. Soil erosion and sediment control plans shall result in a development that: minimizes erosion and sedimentation during construction; is stabilized and protected from erosion when completed; and does not cause off-site erosion and/or sedimentation.
      “The minimum standards for individual measures are those in the Connecticut Guidelines for Soil Erosion and Sediment Control, as amended. The commission may grant exceptions when requested by the applicant if technically sound reasons are presented.
      “The appropriate method from Chapter 9 of the Connecticut Guidelines for Soil Erosion and Sediment Control, as amended, shall be used in determining peak flow rates and volumes of runoff unless an alternative method is approved by the commission.”

       The defendant claims that the city council cannot enlarge upon the powers of the commission on the city plan by imposing upon it the additional function of reviewing site plans. In support of this argument, the defendant relies on the fact that General Statutes § 8-3 specifically provides for site plan approval and review, while the Norwich city charter is silent as to site plans. We are not persuaded that the defendant’s argument sets forth any statutory or constitutional authority restricting the city council from delegating site plan approval to the commission on the city plan. The broad powers granted to the city council to govern land use encompasses the powers of enforcement and delegation.