author: Shea, J.

text:
    Town of Beacon Falls et al. v. Stephen M. Posick
    (13561)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Santaniello, Js.
    Argued June 6—decision
    released August 8, 1989

      Robert F. Carter, with whom, on the brief, was Donna Civitello, for the appellants (plaintiffs).

      Milo J. Altschuler, for the appellee (defendant).

      Timothy J. Hollister and Jean E. Perry, filed a brief for Waste Management of Connecticut, Inc., as ami-cus curiae.

      Francis J. Brady, Mark R. Sussman and Bradford C. Mank, filed a brief for Connecticut Resources Recovery Authority as amicus curiae.
   Shea, J.

In this case, the plaintiffs appeal from the decision of the Appellate Court; Beacon Falls v. Posick, 17 Conn. App. 17, 549 A.2d 656 (1988); that invalidated certain ordinances and regulations of the plaintiff town prohibiting the operation of a bulky waste disposal area (dump) in Beacon Falls. We conclude that the Appellate Court erred in invalidating these municipal enactments and reverse its decision.

The facts are set out in detail in the Appellate Court’s opinion but must be substantially repeated for a proper understanding of the appeal. On March 16, 1954, the town of Beacon Falls enacted two ordinances restricting dumping, one of which prohibits the operation of a dump within the town by anyone but the town, except for existing dumps. Consistent with these ordinances, the town enacted the zoning regulations at issue in this action. Those regulations prohibit any use not specified as permitted, and the operation of a dump is not specifically permitted.

On July 19, 1978, the department of environmental protection (DEP) issued a permit to the defendant authorizing him to operate a dump on approximately two acres of land located off Lopus Road in Beacon Falls. On May 21, 1982, the DEP issued a permit for a six acre expansion of the defendant’s dump. This expansion permit was expressly “subject to any and all public and private rights and to any federal, state, or local laws or regulations pertinent to the property or activity affected hereby.” According to the state trial referee, Hon. Joseph J. Chernauskas, who rendered judgment for the plaintiffs in the trial court, “[t]he DEP permit process did not include any investigation of whether the dumping operation complied with Town Ordinances or Zoning Regulations.”

The zoning enforcement officer of Beacon Falls served upon the defendant on June 9, 1982, an order to discontinue use of his property as a dump because such use violated local ordinances and zoning regulations. The defendant did not appeal to the zoning board of appeals from the order of discontinuance. The defendant, nevertheless, “thereafter dumped or permitted to be dumped 100,000 cubic yards of waste material on [the] six-acre site.” The trial referee determined that the defendant’s actions in this regard were wilful.

The plaintiffs instituted this action for injunctive relief, civil penalties and attorney’s fees and costs on December 8, 1983. The defendant denied all of the material allegations and asserted seven special defenses. The defendant’s third special defense, alleging that state laws and regulations preempt the plaintiff town’s zoning regulations prohibiting dumps, and his fourth special defense, alleging that these zoning regulations are unconstitutional because there is no rational basis for them, are pertinent to this appeal.

The defendant moved for summary judgment on the preemption special defense. The plaintiffs also moved for summary judgment. The court, Kulawiz, J., found genuine issues of material fact, however, and therefore denied the motions for summary judgment. The court stated: “Local zoning regulations have not been preempted by the DEP regulations. Even though the defendant has received a permit from the DEP, he still must comply with the zoning regulations of the town of Beacon Falls and the ordinance that pertains to odors, fumes, smoke and noise.” Presumably, the authority for the trial court’s assertion that the defendant must comply with local regulations despite his permit from the DEP was General Statutes (Rev. to 1985) § 22a-208 (c). That statute provided that “nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal.”

The action was tried before a state trial referee, Hon. Joseph J. Chernauskas, who, acting as the court, on July 18,1986, issued a temporary injunction that prohibited the defendant from dumping solid waste in the dump off Lopus Road. On August 17, 1987, the court rendered judgment for the plaintiffs. On the issues relevant to this appeal, the court adopted the decision that had been rendered, Kulawiz, J., on the motions for summary judgment that the DEP regulations did not preempt the local zoning regulations. The court found further that the facts developed at trial substantiated the earlier decision. On the defendant’s special defense that the zoning regulations were unconstitutional because they had no rational basis, the court stated that the defendant’s claim was “patently without merit.”

The defendant appealed to the Appellate Court raising four claims of error. The Appellate Court summarized the first three claims as follows: “(1) the trial court erred in denying the defendant’s motion to dismiss because it had no jurisdiction on any issue concerning the DEP permits; (2) the DEP regulations and permits preempt local zoning regulations that conflict with them relative to solid and bulky waste disposal; and (3) the absolute prohibition by the plaintiff town of the use of land as a solid or bulky waste disposal area is not a valid exercise of its police power and is not supported by any rational reason.” Beacon Falls v. Posick, supra, 25. In its resolution of the appeal, the Appellate Court determined that these three issues “encompass[ed] the single issue of whether the provisions of the State Solid Waste Management Act, General Statutes (Rev. to 1981) §§ 19-524a through 19-524o, under which the defendant obtained a permit for the operation of a bulky waste disposal area, preempt the town’s antidumping ordinance and zoning regulations prohibiting the establishment of a private dump for waste material and refuse within its limits.” Id. In finding that the trial court had erred, the Appellate Court concluded that the zoning regulations were preempted and that there was no rational basis for the prohibition of solid or bulky waste disposal areas in Beacon Falls. Id., 35.

The plaintiffs subsequently appealed to this court. Upon the plaintiffs’ application, we granted certification limited to the following issues: “1. Did the Appellate Court err in concluding that the enactment of § 2 of Public Acts 1984, No. 84-331, exempting from local zoning any real property of the Connecticut resources recovery authority that had been operated as a solid waste disposal area prior to the effective date of such public act, preempted the Beacon Falls zoning ordinance that prohibited the defendant from operating a landfill on his property? 2. Did the Appellate Court err in concluding that the Beacon Falls zoning ordinance prohibiting privately operated waste disposal landfills was unconstitutional?”

I

We first address the issue of whether § 2 of Public Acts 1984, No. 84-331 operated to preempt the Beacon Falls zoning regulations that prohibit the operation of a dump within the town. Public Acts 1984, No. 84-331, § 2, provided in part that “[notwithstanding the provisions of subsection (c) of section 22a-208 . . . concerning the right of any local body to regulate, through zoning, land usage for solid waste disposal and section 22a-276 . . . the Connecticut resources recovery authority may use and operate as a solid waste disposal area, pursuant to a permit . . . any real property owned by said authority . . . . ” Public Acts 1984, No. 84-331. The basic question is whether this public act modified the scope of General Statutes § 22a-208 (c) by preempting local zoning control over solid waste disposal only with regard to facilities operated by the Connecticut resources recovery authority (CRRA) or whether it preempted local control with regard to dump siting generally.

Our inquiry into this first issue must begin with an examination of Shelton v. Commissioner, 193 Conn. 506, 479 A.2d 208 (1984). In that case, the plaintiff city of Shelton, brought three separate actions in an attempt to prevent the CRRA from operating a landfill on property that the CRRA owned in Shelton. One of the plaintiffs claims on appeal was “that the local zoning regulations overrode the statewide planning decisions of the CRRA and the DEP.” Id., 511.

At the time that the Shelton appeal was initiated, municipalities derived their power to regulate solid waste disposal areas within their jurisdiction from General Statutes (Rev. to 1983) § 22a-208 (c), which provided, as does the current statute, that “nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal.” Before the Shelton appeal was decided, however, § 2 of Public Acts 1984, No. 84-331 was enacted to modify the effect of § 22a-208 (c). Because Public Acts 1984, No. 84-331 was enacted in the period between the filing and our resolution of the appeal, in the decision we examined the effect of § 2 of Public Acts 1984, No. 84-331. We stated: “The effect of § 2 of the 1984 act is to eliminate the express zoning authority conferred by § 22a-208 (c) and to restore the law to its state at the time of the Colchester [v. Reduction Associates, Inc., 34 Conn. Sup. 177, 382 A.2d 1333 (1977)] decision. We agree with the court in Colchester that the general zoning authority conferred by § 8-2 does not extend to the enactment of zoning regulations that conflict with a DEP permit.” Shelton v. Commissioner, supra, 517. It is from this language in Shelton that the preemption dispute in the present case emanates.

The defendant maintains that the Appellate Court was correct in finding that the Shelton decision was “decisive of the issue” before it; Beacon Falls v. Posick, supra, 30; and he argues that the decision of the Appellate Court in the present case finding preemption of the zoning regulations is “totally consistent” with the above-mentioned quote in Shelton. On the other hand, the plaintiffs argue that, despite the possible interpretation of the language in Shelton as affecting all local zoning with regard to dump siting, such an interpretation must be rejected because the intent of the legislature was clear that local zoning is preempted only to the extent that it is inconsistent with the operation of a duly permitted CRRA waste disposal facility on property owned by the CRRA. We agree with the plaintiffs.

Analysis of No. 84-331, § 2, of the 1984 Public Acts reveals that the act's plain and unambiguous language limits its application to property owned by the CRRA. At the time the public act was enacted, General Statutes § 22a-208 (c) provided for local regulation of land usage for solid waste disposal. The public act carved out an exception to that general rule, providing: “Notwithstanding the provisions of subsection (c) of section 22a-208 of the general statutes . . . concerning the right of any local body to regulate, through zoning, land usage for solid waste disposal ... the Connecticut resources recovery authority may use and operate as a solid waste disposal area, pursuant to a permit issued under section 22a-208 . . . any real property owned by said authority on or before the effective date of this act .. . .” (Emphasis added.) Public Acts 1984, No. 84-331, § 2. Because the statutory terms are clear, we must assume that the legislature intended only to preempt local zoning authority to the extent that it conflicted with the operation of a CRRA facility on property owned by the CRRA prior to May 11, 1984, and we cannot construe the act otherwise. See B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 8, 490 A.2d 991 (1985). Furthermore, because the general rule under General Statutes (Rev. to 1985) § 22a-208 (c) provided for local zoning regulation of dumps, the exception created by No. 84-331 of the 1984 Public Acts must be construed narrowly. See Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); Kulis v. Moll, 172 Conn. 104, 110, 374 A.2d 133 (1976). Accordingly, by its terms, No. 84-331 of the 1984 Public Acts cannot be construed to have preempted all local zoning with regard to the location of solid waste disposal areas.

Although, as the plaintiffs concede, the statement in Shelton to the effect that No. 84-331 of the 1984 Public Acts returned the state of the law to that which existed after Colchester can be construed to mean that all local zoning is preempted, we must reject such a construction based on the preceding discussion. The constitutional doctrine of separation of powers prohibits this court from construing a statute to encompass a greater change in the law than intended by the legislature based on the explicit language of the statute. See Conn. Const., art. II. The power to enact statutes is vested exclusively in the General Assembly and it is not within our constitutional authority to expand those statutes beyond what we discern to be the legislature’s intent. See Conn. Const., art. Ill, § 1. Although after Colchester municipalities were without authority to enforce zoning regulations that conflicted with a DEP permit, in light of the general rule created by § 22a-208 (c) after Colchester and the exception to that rule created by Public Acts 1984, No. 84-331, the language in Shelton with regard to Colchester must be construed to mean that local zoning regulations are preempted only when they conflict with a DEP permit granted to the CRRA.

In this connection, the defendant’s reliance on Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 519 A.2d 49 (1986), is unavailing. The defendant notes that in Helicopter Associates, Inc., we cited Shelton as a leading case in the law of preemption. He also contends that when we stated that “the Solid Waste Management Services Act; General Statutes §§ 22a-257 through 22a-281; preempted local zoning regulations governing solid waste disposal”; Helicopter Associates, Inc. v. Stamford, supra, 708; we reaffirmed that all local zoning regulations of solid waste disposal siting were preempted. Although we recognize that our statement in Helicopter Associates, Inc., is broad, as discussed earlier, Shelton cannot be construed in the manner suggested by the defendant and adopted by the Appellate Court in the present case and, a fortiori, neither can Helicopter Associates, Inc. Local zoning regulations governing solid waste disposal are preempted only to the extent that they conflict with a DEP permit issued to the CRRA.

Having determined that Beacon Falls’ zoning ordinances are not preempted under our holdings in Shel ton and Helicopter Associates, Inc., we next turn to the defendant’s alternative argument for his proposition that the zoning regulations are preempted. The defendant contends that Beacon Falls’ regulations conflict with state policy and General Statutes (Rev. to 1985) § 22a-208 (c) and thus, under well settled law, the statute must prevail.

We have no quarrel with the defendant’s contention that when a local zoning regulation irreconcilably conflicts with a state statute, the local regulation is preempted. Dwyer v. Farrell, 193 Conn. 7, 14, 475 A.2d 257 (1984); Bencivenga v. Milford, 183 Conn. 168, 172-73, 438 A.2d 1174 (1981); Shelton v. Shelton, 111 Conn. 433, 438, 150 A. 811 (1930). In this case, however, the regulation and the statute are not in conflict.

The defendant suggests that a conflict exists because § 22a-208 (c) permitted municipalities “to regulate, through zoning land usage for solid waste disposal,” but not to prohibit solid waste disposal. The core of the defendant’s argument is that the power to regulate does not include the power to prohibit.

Although we have said that “the power to regulate . . . does not necessarily imply the power to prohibit absolutely any business or trade” (emphasis added); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 20, 523 A.2d 467 (1987); this does not preclude the power of prohibition. Cf. Yaworski v. Canterbury, 21 Conn. Sup. 347, 350, 154 A.2d 758 (1959) (“The power to regulate does not include the power to prohibit or suppress.”). In Blue Sky Bar, Inc., we stated that “ ‘[t]he power to regulate . . . entails a certain degree of prohibition. . . .’ ” Blue Sky Bar, Inc. v. Stratford, supra, quoting Hartland v. Jensen’s, Inc., 146 Conn. 697, 702, 155 A. 754 (1959); see Mayor & Council v. Rollins Outdoor Advertising, 475 A.2d 355, 358 (Del. 1984), quoting Goldblatt v. Hempstead, 369 U.S. 590, 592, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962) (“ Tt is an oft-repeated truism that every regulation necessarily speaks as a prohibition/ ”); John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206, 214, 339 N.E.2d 709 (1975). We also declared that “it ‘requires no citation of authority to say that regulation may in many instances result in prohibition. The question is whether the result is reached in a reasonable manner and is necessary for the public welfare.’ ” Blue Sky Bar, Inc. v. Stratford, supra, quoting Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 625, 153 A.2d 444 (1959). Additionally, because the authority to zone, at least in part, stems from the police power; see Faubel v. Zoning Commission, 154 Conn. 202, 210, 224 A.2d 538 (1966); 5 P. Rohan, Zoning and Land Use Controls § 35.02 [3]; zoning regulations must foster the public health, safety and general welfare of the community. Therefore, when a statute authorizes a municipality to regulate a certain activity, a prohibition of that activity will be valid if it is rationally related to the protection of the community’s public health, safety and general welfare.

Connecticut courts have upheld prohibitions of certain activities within municipalities through zoning after determining that the prohibitions were rationally related to the protection of the municipalities’ public safety, health and general welfare. See, e.g., Cadoux v. Planning & Zoning Commission, 162 Conn. 425, 428-29, 294 A.2d 582, cert. denied, 408 U.S. 924, 92 S. Ct. 2496, 33 L. Ed. 2d 335 (1972) (prohibition on all uses except residential use valid); Hartland v. Jensen’s, Inc., supra, 702-703 (prohibition on residential trailer parks valid); Zelvin v. Zoning Board of Appeals, 30 Conn. Sup. 157, 163-64, 306 A.2d 151 (1973) (prohibition on garden apartments valid); see Beckish v. Planning & Zoning Commission, 162 Conn. 11, 14-15, 291 A.2d 208 (1971) (municipality may prohibit advertising signs). Courts in other jurisdictions also have upheld prohibitions of certain activities in a municipality through zoning when the prohibitions are supported by a rational basis. See, e.g., Bass River Associates v. Mayor of Bass River Township, 573 F. Sup. 205, 213-17 (D.N.J. 1983), aff'd, 743 F.2d 159 (3d Cir. 1984) (prohibition of floating homes); Furr v. Mayor & City Council of Baker, 408 So. 2d 248, 249 (La. 1981) (prohibition of recording studio); LaGrange v. Giovenetti Enterprises, 123 App. Div. 2d 688, 689, 507 N.Y.S.2d 54 (1986) (prohibition of solid waste transfer station); see McNeill v. Plumstead Township, 215 N. J. Super. 532, 537, 522 A.2d 469 (1987) (municipality may prohibit soil removal); Mindell v. Gross, 132 App. Div. 2d 535, 535, 517 N.Y.S.2d 541 (1987) (municipality may prohibit building and maintenance of hotels); see also R. Anderson, American Law of Zoning (1986) § 9.16; 5 P. Rohan, supra, § 40.01 [4] and [6]. Thus, contrary to the defendant’s assertion that the complete prohibition of a certain activity within a municipality is not permitted, we conclude that such a prohibition is permissible if supported by a rational basis.

II

Because the issue of whether a prohibition is warranted requires our inquiry into whether it is supported by a rational basis, this issue merges with the plaintiffs’ second claim of error. The plaintiffs claim that the Appellate Court erred in concluding that the zoning prohibition was unconstitutional in that it was “not supported by any rational reason and is not a valid exercise of its police power.” Beacon Falls v. Posick, supra, 35. We agree with the plaintiffs that the Appellate Court erred in finding the zoning regulations unconstitutional.

Zoning regulations enjoy a presumption of constitutionality and the party challenging such regulations has the heavy burden of proving their unconstitutionality beyond a reasonable doubt. Builders Services Corporation v. Planning & Zoning Commission, 208 Conn. 267, 289-90, 545 A.2d 530 (1988); Helbig v. Zoning Commission, 185 Conn. 294, 304-305, 440 A.2d 940 (1981); see Blue Sky Bar, Inc. v. Stratford, supra, 23. In this case, the trial court found the defendant’s contention that there was no rational relation for the regulations to be “patently without merit.” According to the parties at oral argument, the trial court took evidence on the issue of whether the regulations were supported by a rational basis. The first selectman of Beacon Falls testified at trial about the reasons for the prohibition. In its memorandum of decision, the trial court concluded that “the town properly could have determined that its geographical situation and its resources were such that the presence of a dump or dumps would overtax the abilities of the town to cope with the problems which would arise with respect to a reasonable need to serve some phase of the public health, safety or general welfare constituted in the administration, constant land checks, daily traffic census, supervisory control and the constant legal consultations pertaining thereto.”

In finding error in the trial court’s conclusion, the Appellate Court declared that “[n]o reasonable explanation for the arbitrary prohibition of landfill areas in the town has been given or suggested.” Beacon Falls v. Posick, supra. In finding error on this basis, the Appellate Court misapplied the burden of proof. As stated above, zoning regulations are presumed valid and, because the trial court upheld the regulations, when this case was before the Appellate Court it was the defendant’s burden to establish that the trial court had clearly erred in failing to find that the defendant had proven beyond a reasonable doubt that the regulations were unconstitutional.

The Appellate Court, however, was not presented with evidence from which it could determine, as a matter of law, that the trial court had erred in concluding that the defendant did not prove the regulations unconstitutional. There was no transcript of the trial proceedings and the exhibits do not shed light on the question of whether the prohibition is rational. Accordingly, without providing evidence to establish the regulations’ unconstitutionality, the defendant could not overcome the presumption in favor of the constitutionality of the zoning regulations and the Appellate Court could not find the trial court’s decision to be clearly erroneous. Therefore, the trial referee’s finding that the regulation did have a rational basis should not have been disturbed.

In summary, Beacon Falls’ zoning regulations prohibiting private dumps were not preempted by the enactment of § 2 of Public Acts 1984, No. 84-331 and the Appellate Court erred in concluding that they were. Additionally, under the circumstances of this appeal, the Appellate Court could not properly reverse the trial referee’s decision upholding the validity of those regulations.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reinstate the judgment of the trial court.

In this opinion the other justices concurred.

       The two ordinances provide:
      “an ordinance pertaining to garbage, offal and dumping “be it ordained by the town of beacon falls:
      “Section 1. No garbage, rubbish, waste material, refuse or tin cans shall be dumped within the limits of the Town.
      “Section 2. No dumps or commercial piggeries shall be permitted within said Town limits, with the exception that the Town of Beacon Falls shall be permitted to maintain one dump at all times within the Town Limits for its purpose.
      “Section 3. This ordinance shall not affect any existing dumps or piggeries at the present time.
      “Section 4. This Ordinance shall become effective thirty days from the date hereof. Any person who shall wilfully violate any provision of this Ordinance shall pay a penalty not to exceed $25.00 for each and every offense. All sums paid as penalties shall be retained by the Town for its use.
      “passed in town meeting held March 16, 1954
      “an ordinance pertaining to odors, fumes, dust, smoke and noise
      “be it ordained by the town of beacon falls:
      “Section 1. No person shall wilfully cause any odor, fumes, dust, smoke, noise or other objectionable use that is dangerous or detrimental to the neighborhood. This Ordinance does not restrict normal farming operations and/or normal industrial operations.
      “Section 2. This Ordinance shall become effective thirty days from the date hereof. Any person who violates this Ordinance shall pay a penalty not to exceed $25.00 for each and every offense. All sums paid as penalties shall be retained by the Town.
      “passed in town meeting held March 16, 1954”

       Sections 2.1 and 6.4 of the Beacon Falls zoning regulations provide: “Section 2.1: ‘Jurisdiction: Within the Town of Beacon Falls, no land, building or other structure shall be used and no building or other structure shall be constructed, reconstructed, enlarged, extended, moved or structurally altered except in conformity with these Regulations. . . “Section 6.4: ‘Prohibited Use: Any use not specified as permitted in the district is prohibited.
      In this appeal, only the validity of the zoning regulations is at issue.

       General Statutes (Rev. to 1985) § 22a-208 (c) formerly was codified as General Statutes (Rev. to 1981) § 19-254b (c) and now is codified as § 22a-208a (b).

       The defendant’s final claim of error was that the trial court erred “in ruling that the defendant could not contest the validity of the cease and desist order since he did not appeal it to the Zoning Board of Appeals when such an appeal would have been futile and would not provide the defendant with an adequate remedy at law.” Although the Appellate Court agreed with the defendant’s claim, this issue is not encompasssed within the order on the petition for certification to appeal to this court. Furthermore, it is unnecessary to address this claim for a complete disposition of this appeal because, although the trial court stated that the defendant could not contest the validity of the cease and desist order, it immediately thereafter examined the validity of the regulations upon which the order was based, thus effectively addressing the merits of the defendant’s claim. On the certified issues, we also address the validity of the regulations, as did the Appellate Court, and therefore the claim has been fully resolved on its merits despite the trial court’s dictum. See Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 4-5, 544 A.2d 152 (1988).

       Public Acts 1984, No. 84-381, § 2, provided in full: “Sec. 2. (new) Notwithstanding the provisions of subsection (c) of section 22a-208 of the general statutes, as amended by public act 83-189, concerning the right of any local body to regulate, through zoning, land usage for solid waste disposal and section 22a-276 of the general statutes, the Connecticut resources recovery authority may use and operate as a solid waste disposal area, pursuant to a permit issued under section 22a-208 of the general statutes, as amended by public act 83-189, and section 22a-430 of the general statutes, any real property owned by said authority on or before the effective date of this act, any portion of which has been operated as a solid waste disposal area, provided the authority pays the municipality in which such property is located one dollar per ton of unprocessed solid waste received from outside of such municipality and disposed of at the solid waste disposal area by the authority. Any payment shall be in addition to any other agreement between the municipality and the authority. The provisions of section 12-19a of the general statutes shall not be construed to apply to any such real property.” (Emphasis added.)

       The effective date of the act was May 11, 1984, two days after Shelton v. Commissioner, 193 Conn. 506, 479 A.2d 208 (1984), was argued.

       In Colchester v. Reduction Associates, Inc., 34 Conn. Sup. 177, 179, 184, 382 A.2d 1333 (1977), the Court of Common Pleas for New London county-held that the town of Colchester could not prohibit the disposal of unbaled waste by a private party after that party had received a permit for such disposal activity from the DEP. The Court of Common Pleas determined that the zoning regulation prohibiting the disposal of unbaled waste was in “direct conflict” with the DEP permit and, therefore, the local regulation was preempted. See id., 184. We concluded in Shelton v. Commissioner, 193 Conn. 506, 516-17, 479 A.2d 208 (1984), that the enactment of General Statutes § 22a-208 (c), then § 19-524b (c), providing that a DEP solid waste permit did not override local zoning regulations, was a “response to the court’s holding in Colchester.”

       Although we conclude that the language of No. 84-331, § 2, of the 1984 Public Acts was clear and, therefore, that resort to legislative history to determine legislative intent is not required, that history supports our determination that No. 84-331 of the 1984 Public Acts preempted local zoning only with regard to the CRRA’s property. The sponsor of No. 84-331, § 2, of the 1984 Public Acts stated: “This amendment, although it does not mention the Shelton landfill by name, it can apply only to that property, because of the narrow language.” Remarks of Rep. Teresalee Bertinuson. 27 H.R. Proc., Pt. 15, 1984 Sess., pp. 5581-82; see 27 H.R. Proc., Pt. 16, 1984 Sess., pp. 5856, 5861; 27 S. Proc., Pt. 8, 1984 Sess., pp. 3086, 3090, 3098, 3105.
      The enactment of No. 85-143, § 1, of the 1985 Public Acts, further illuminated the legislature’s intent to preempt local zoning authority only with respect to the CRRA’s property. Number 85-143, § 1, of the 1985 Public Acts, codified as General Statutes § 22a-282, provided:
      “Section 1. Section 22a-282 of the general statutes is repealed and the following is substituted in lieu thereof:
      “[Notwithstanding] the Connecticut resources recovery authority, notwithstanding the provisions of subsection (c) of section 22a-208 concerning the right of any local body to regulate, through zoning, land usage for solid waste disposal and section 22a-276, [the Connecticut resources recovery authority] may use and operate as a solid waste disposal area, pursuant to a permit issued under section 22a-208 and section 22a-430, any real property owned by said authority on or before May 11, 1984, any portion of which has been operated as a solid waste disposal area, [provided the authority pays] and the authority shall not be subject TO REGULATION BY ANY SUCH BODY, EXCEPT THAT THE AUTHORITY SHALL PAY to the municipality in which such property is located one dollar per ton of unprocessed solid waste received from outside of such municipality and disposed of at the solid waste disposal area by the authority. Any payment shall be in addition to any other agreement between the municipality and the authority. The provisions of section 12-19a shall not be construed to apply to any such real property.”
      In urging passage of the bill, Representative Alice Meyer stated: “Thank you, Mr. Speaker. You will find that this bill is in a number of sections. The first section merely is clarifying the language to preserve local land use control over the location of private solid waste disposal areas that are not operated by CCR (sic). In essence, it does exactly what legislation passed last year accomplished, which was to allow CRRA to continue using one of its solid waste disposal areas but reiterates in perhaps clearer language the fact that the local planning and zoning board does have the control.” 28 H.R. Proc., Pt. 10, 1985 Sess., pp. 3529-30; see id., pp. 3535, 3538-39. Because it is clear from this history that No. 85-143 of the 1985 Public Acts was intended to clarify rather than modify existing law, it is indicative of the legislature’s intent in passing the act, i.e., No. 84-331, § 2, of the 1984 Public Acts. See State v. Magnano, 204 Conn. 259, 278, 528 A.2d 760 (1987); Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 640, 513 A.2d 52 (1986).

       Because we have determined from the statutory language and legislative history that the legislative policy being fostered by the enactment of General Statutes (Rev. to 1985) § 22a-208 (c) was to override local zoning only as to property owned by the CRRA, Beacon Falls’ prohibition of private solid waste facilities is not in conflict with this policy and thus not preempted on that ground.

       The majority opinion of the Appellate Court similarly declared: “The zoning power ‘to regulate’ under General Statutes § 8-2 does not include the power ‘to prohibit’ unless such prohibition is supported by a rational relation to the purposes of zoning.” (Emphasis added.) Beacon Falls v. Posick, 17 Conn. App. 17, 47, 549 A.2d 656 (1988).

       The defendant’s assertion at oral argument that the town had the burden of proving the regulations to be constitutional, and, moreover, that the regulations, because they are a prohibition, must set forth the rational basis of the prohibition in their terms, is meritless.

       There also is no evidence before us that would enable us to disturb the trial court’s ruling that the regulations were constitutional.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Emcon Corporation v. Joseph P. Pegnataro
    (13649)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued June 15
    decision released August 15, 1989

      David J. Elliott, for the appellant (plaintiff).

      Tanina Rostain, with whom was David S. Golub, for the appellee (defendant).
   Covello, J.

This is an appeal from the denial of the plaintiffs application to compel arbitration to determine the value of certain stock interests held by the defendant. We find error in the trial court’s decision and remand the case with direction to order the defendant to proceed with the arbitration.

The following facts are relevant to this appeal. The defendant, Joseph P. Pegnataro, and his family owned and operated a chain of supermarkets known as “Peg-nataro’s.” The Pegnataro stores were operated through a corporate entity, Pegnataro Super Foods, Inc., and the defendant and other members of his family owned all of the stock in the corporation.

The plaintiff, Emcon Corporation (Emcon), was also engaged in the supermarket business'. During the summer of 1984, Emcon purchased 68 percent of the shares of Pegnataro, Inc., and changed the corporation’s name from Pegnataro Super Foods, Inc., to Everybody’s Market, Inc.

In conjunction with the stock purchase, Emcon and the defendant entered into a stockholders agreement dated July 21,1984. The parties agreed that the defendant would continue to serve as president of the company. Under the agreement, the defendant had the right to require Emcon to purchase his stock in the event that his employment was terminated. This, in commercial parlance, is called a “put.” See J. Rosenberg, Dictionary of Business and Management. The agreement also contained a general arbitration clause that provided for arbitration of disputes in accordance with the commercial rules of the American Arbitration Association.

On July 14, 1985, the defendant was terminated as president of Everybody’s Market, Inc. On October 9, 1985, the defendant notified the plaintiff that he was exercising his option under paragraph 3 (c) of the agreement, thereby imposing upon Emcon the obligation to purchase all of his remaining shares. The parties, however, could not agree on a purchase price. On April 1, 1986, the plaintiff’s attorney sent a letter to the defendant’s attorney proposing to purchase the stock for $8333 per share. On April 11, 1986, the defendant rejected this proposal. Between April and December, 1986, attorneys for the plaintiff and the defendant engaged in numerous discussions and exchanged much correspondence concerning possible means of resolving the disagreement over the value of the stock. No agreement was ever reached.

On January 27,1988, the plaintiff filed in the Superior Court an amended application for an order to proceed with arbitration. In its application, the plaintiff alleged that “[d]espite repeated demand upon the defendant pursuant to [the] arbitration provisions [in the stockholders agreement,] the defendant has failed and refused to select an arbitrator and submit this claim to arbitration although the plaintiff is ready and willing to do so.”

On July 13, 1988, the trial court, Flynn, J., denied the application and decided “not [to] compel the defendant to arbitrate . . . [because the] application . . . was never preceded by any formal written demand to the American Arbitration Association . . . .” The court concluded that the issue of whether Emcon had complied with the procedural requirements for arbitration was a decision for the court and not an arbitration panel. The plaintiff appealed this decision to the Appellate Court and we thereafter transferred the case to ourselves pursuant to Practice Book § 4023.

On appeal the plaintiff claims that the trial court erred in deciding the issue of Emcon’s compliance with the procedural prerequisites to arbitration. The plaintiff argues that this issue should be decided by an arbitration panel and not the court. The defendant, however, argues as a threshold issue that this appeal should be dismissed as moot. If this court does not dismiss the appeal as moot, the defendant next argues that the trial court correctly concluded that the plaintiffs failure to comply with the requirements for arbitration precluded the court from compelling arbitration. We conclude that this case is not moot and that the trial court erred in resolving the question of whether Emcon had met the procedural prerequisites for arbitration.

I

The defendant first argues that under the stockholders agreement, the plaintiff has no right to compel the defendant to sell his stock because the defendant did not accept the plaintiffs offer of $8333 per share. Since no other agreement exists under which the defendant is required to sell his stock to the plaintiff, the defendant contends that any determination through arbitration of the value of the stock would be merely advisory in nature and would have no real effect. We disagree.

Paragraph 3 (c) of the stockholders agreement states with particularity that “in the event [the defendant’s] employment is terminated by the Corporation, he shall have the option within three (3) months thereafter of tendering his stock to Emcon in which such event Emcon shall purchase his stock for the price and upon the terms contained herein . . . . ” (Emphasis added.) Once the defendant exercised this option, Emcon was required by the terms of the agreement to purchase the stock and the price was to be determined by arbitration. The fact that the defendant did not accept Emcon’s valuation proposals is of no consequence. Emcon was bound to buy the stock because paragraph 3 (c) required it to do so “in the event Stockholder’s employment [was] terminated.” The defendant’s argument that the plaintiff failed to “accept” his offer to sell the stock, therefore, is of no avail. No acceptance was necessary.

Since the plaintiff was required to purchase the stock and since the parties are still unable to agree on the value of the stock, a justiciable question remains. This action, therefore, is not moot.

II

The plaintiff next claims that the trial court erred in deciding that the issue of Emcon’s compliance with the procedural prerequisites to arbitration was a question for the court to determine rather than for the arbitrators. We agree.

“In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators. A. Sangivanni & Sons v. F.M. Floryan & Co., 158 Conn. 467, 262 A.2d 159 [1969].” Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 122, 318 A.2d 84 (1972); see also East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656, 539 A.2d 125 (1988). Paragraph 13 of the stockholders agreement provides that “[i]n the event of any dispute between the parties hereto as to the interpretation or application of the Agreement, such dispute shall be determined or settled by arbitration .... Arbitration shall proceed according to the rules for commercial arbitration of the American Arbitration Association then in effect.” (Emphasis added.) This broad and all encompassing language evinces the parties’ intent to have their disputes resolved, not by the courts but by an arbitration panel. In Gary Excavating, Inc. v. North Haven, supra, 125, we construed similarly broad language and concluded that “the appropriate body to hear claims regarding procedural prerequisites to arbitration must be the arbitration panel.” In that case the arbitration clause at issue provided that “all claims and disputes arising under the contract or its interpretation shall be presented to the [defendant sewer commission] for decision ... if the contractor does not agree with any decision of the defendant sewer commission ... it may then demand arbitration.” (Emphasis in original.) Id., 123. We see no reason to distinguish this present case from our earlier holding.

There is error, the judgment is set aside and the case is remanded with direction to order the defendant to proceed with arbitration.

In this opinion the other justices concurred.

       Paragraph 3 (c) of the agreement provides: “Notwithstanding to the contrary, if at all, the foregoing subparagraphs 3 (a) and 3 (b) above, in the event Stockholder’s employment is terminated by the Corporation, he shall have the option within three (S) months thereafter of tendering his stock to Emcon in which such event Emcon shall purchase his stock for the price and upon the terms contained herein which would apply had Emcon chosen to purchase the stock if tendered to it under the subparagraph 3 (a) above,” (Emphasis added.)
      Paragraph 3 (a) provides: “Stockholder shall not dispose of any shares of stock in the Corporation during his lifetime, until he has first offered in writing such shates for sale first to the Corporation and should the Corporation not agree to buy same within thirty (30) days after such offer then in writing to Emcon. The offer shall be based on the price last determined in accordance with the provisions of Paragraph [6] hereof and shall be subject to the requirement that all such shares (and not less than all), shall be offered and purchased. Payment terms shall be in accordance with paragraph 7 below.”

       Paragraph 13 of the agreement provides: “ARBITRATION. In the event of any dispute between the parties hereto as to the interpretation or application of this Agreement, such dispute shall be determined or settled by arbitration at Waterbury, Connecticut, as follows: (a) within fifteen (15) days after the filing of notice by one party to the other parties involved in the dispute hereunder, each interested party shall appoint an arbitrator. Such arbitrators shall within a further period of fifteen (15) days meet and if there is an even number of arbitrators, they shall agree upon and appoint another arbitrator. Arbitration shall proceed according to the rules for commercial arbitration of the American Arbitration Association then in effect. The arbitrators shall by majority vote determine or settle such dispute and such dispute [sic] and such action by a majority of the arbitrators shall be binding on the parties in interest, and there shall be no appeal therefrom.”


author: Hull, J.

text:
    State of Connecticut v. William Smith
    (13441)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued June 7
    decision released August 15, 1989

      Karen Goodrow, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert Lacobelle, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant, William Smith, was charged with murder in violation of General Statutes § 53a-54a (a) and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a). His first trial ended in a mistrial when the jury was unable to reach a verdict. In a second trial, a jury found the defendant guilty of both murder and conspiracy to commit murder. From this judgment the defendant appeals, claiming that the trial court erred in: (1) charging the jury that the defendant could be found guilty of murder on an accessory theory of liability; (2) failing to charge the jury that it had to agree unanimously on the factual predicate for the defendant’s conviction on the murder count; (3) failing to instruct the jury on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide; and (4) refusing to give a curative instruction to the jury explaining the outcome of the defendant’s prior trial. We find no error.

The jury could reasonably have found the following facts. At approximately 7:30 p.m. on February 21, 1986, the defendant met Wendy Kelleher at the corner of Main Street and Fairfield Avenue in Bridgeport. The purpose of their prearranged meeting was to drive in Kelleher’s car to the P.T. Barnum housing project in Bridgeport to make a drug purchase. After one failed attempt at finding someone from whom to purchase drugs, the defendant directed Kelleher to drive to a side street and park the car in the middle of the block. He left the car and returned with a man who was later identified as Frank Wright. Pursuant to Wright’s directions, the three drove to another Bridgeport location presumably to make a drug purchase, although none was made.

They then drove to Golden Hill Street where the defendant got out of the car and went into an apartment that was occupied by Ann Duguay and Harold Hill. The defendant had spent the previous night in the apartment and prior to that had occupied an apartment on Milne Street with Duguay and Hill. The defendant appeared upset and expressed to both Duguay and Hill that he was angry at a man named Joseph Fiore. He further told Hill of his intent to “get Fiore” for having “snitched” on the defendant for things he had done with credit cards and account numbers while he and Fiore were at Odyssey House, a drug rehabilitation institute in Bridgeport. As the defendant was leaving the apartment, he took with him a paring knife and a crowbar.

Once back in Kelleher’s car, the defendant directed her to drive to Milne Street and told her to park near a particular alley so that he could walk through the alley to get to the Hilltop Hotel where Fiore was living. Kelleher believed that the defendant wanted to see Fiore about some stolen money or stolen checks. Both Wright and the defendant went into the dark alley. The defendant walked through the alley and then walked alone toward the hotel. Fiore was not home, so the defendant spoke with Anthony Novicky, Fiore’s roommate, who told the defendant to come back later in the evening. The defendant, still alone, retraced his steps from the hotel to the alley entrance. He then emerged from the opposite end of the alley with Wright at his side. When the defendant got back in the car, he kept repeating the words “fucking Fiore” in an angry tone.

The three then went back to the P.T. Bamum housing project to buy drugs. After making the purchase, they ingested the drugs at an apartment that Wright was sharing with Deborah Hendricks. A short time thereafter, the defendant directed Kelleher to drive back to Milne Street and park in the same location in which she previously had parked. Wright and the defendant left the car and entered the dark alley. As the defendant had done previously, he walked through the alley and then toward the Hilltop Hotel. This time Fiore was home and had a conversation with the defendant, which was overheard by Novicky, about where he and the defendant might go to buy cocaine and heroin. They then left the hotel together.

The defendant and Fiore walked toward the dark alley. After they entered the alley, Kelleher, who was standing outside her car on Milne Street, heard Fiore say, “Hey, what’s going on?” Kelleher then heard what she thought was the sound of a cracking skull. A very short time later, Wright and the defendant walked out of the alley toward Kelleher’s car. The defendant, who had blood smears on the crotch and thigh area of his pants, was carrying a pipe. Prior to getting into Kelle-her’s car, he handed the pipe to Wright, who wiped it in the snow. Either Wright or the defendant said, “He’s dead.” The defendant then drove the car to a bridge, where Wright threw the pipe into the water.

Later that night, an area resident discovered the dead body of Fiore in the alley. The cause of death was trauma to the head caused by no fewer than four blows of extensive force with a blunt instrument.

The next day, February 22, 1986, the defendant appeared at the apartment of Duguay and Hill. He changed his clothes and put the clothes he had been wearing into a bag that he had taken with him when he left. The defendant told Hill he had “gotten” Fiore and had left his body behind the building where Hill, Duguay and the defendant previously had lived. The defendant returned the crowbar and paring knife, saying he had not used them to kill Fiore.

On March 26, 1986, a pipe was recovered from the Pequonnock River at the Stratford Avenue Bridge in Bridgeport. Kelleher testified that it looked like the pipe that Wright had thrown from the bridge. Hendricks identified it as a pipe that had been in her apartment prior to the night of February 21, 1986. Dr. Arkady Katsnelson, an associate medical examiner, testified at trial that a pipe is a blunt instrument and could have been the weapon used to kill Fiore.

I

The defendant first claims that the trial court erred in charging the jury under General Statutes § 53a-8, criminal liability for acts of another, because there was insufficient evidence to support the charge. The defendant argues insufficiency of the evidence in two respects: (1) the evidence presented at trial did not support the trial court’s instruction on accessory liability in general, because the evidence tended to prove only principal liability; and (2) the evidence presented at trial did not support the trial court’s instructions regarding the specific alternative ways in which the defendant could be held liable as an accessory. We do not find insufficient evidence in either respect.

Under § 53a-8, a person may be prosecuted and punished as if he were a principal offender when, “acting with the mental state required for commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense . . . .’’Therefore, as we have stated in the past, “[t]he terms [accessory and principal] refer to the alternate means by which one substantive crime may be committed. State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985).” State v. Kemp, 199 Conn. 473, 480 n.4, 507 A.2d 1387 (1986).

“ ‘Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983) .... This rule is based on the principle that jurors are presumed to follow the instructions given by the judge. State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977); State v. DellaCamera, 166 Conn. 557, 567, 353 A.2d 750 (1974).” State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987). A court’s instruction to the jury on a particular statutory alternative authorizes the jury to consider that theory of criminality, thus clearly implying that there is a factual question for them to resolve under the statute. Id., 364. The defendant argues that the evidence introduced by the state presented no factual question related to accessory liability, because the evidence tended to prove only principal liability. The state maintains that the evidence presented at the trial was sufficient to prove the defendant guilty as either a principal or an accessory because, while ample evidence was presented pertaining to the involvement of the defendant and Wright in the murder, no direct evidence was before the jury as to who struck the blows that killed the victim.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited.” State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987).

The jury was justified in finding that the defendant and Wright were both in the alley when the victim was killed. Both the defendant and Wright had left Kelle-her’s car and walked into the alley near which the defendant had specifically directed Kelleher to park. The defendant then went alone to Fiore’s apartment. When Fiore entered the alley, under the impression that he and the defendant were walking to a car in which they would travel to make a drug purchase, he was hit repeatedly with a blunt instrument. Wright and the defendant then emerged from the alley. The defendant’s pants were smeared with blood and he was carrying a pipe that had come from the apartment where Wright was staying. Before getting back into the car, the defendant handed the pipe to Wright, who wiped it in the snow. One of the men commented that the victim was dead.

From this evidence, taken in the light most favorable to sustaining the verdict, we cannot say as a matter of law that the jury as the trier of fact could not reasonably have concluded that Wright struck the blows that killed the victim while the defendant acted as an accessory. “ Tt is within the province of the trier of fact to draw reasonable and logical inferences from the facts proven, but it may not resort to speculation and conjecture. State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982); State v. Tucker, 181 Conn. 406, 418, 435 A.2d 986 (1980). Any inferences drawn must be rational and founded upon the evidence. State v. Clemons, 168 Conn. 395, 401, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975). The jury may base an inference on facts it finds as the result of other inferences. State v. Gabriel, [192 Conn. 405, 425, 473 A.2d 300 (1984)]; State v. McGinnis, 158 Conn. 124, 130, 256 A.2d 241 (1969) ....’” State v. Williams, supra, 355, quoting State v. Little, 194 Conn. 665, 673-74, 485 A.2d 913 (1984). The jury could fairly have inferred the following: Wright waited in the alley with the pipe while the defendant lured Fiore into the darkness. Wright struck Fiore with the pipe, and then handed it to the defendant while Wright checked to see if the victim was dead or alive. The defendant, attempting to clean the blood from the pipe, wiped it onto his clothing. As Wright and the defendant emerged from the alley, the defendant handed the pipe back to Wright. Wright wiped the remaining blood from it and informed the defendant that Fiore was dead.

The defendant relies on the testimony of Hill to contradict these inferences arguing that the defendant’s statement to Hill is direct evidence tending to prove only principal liability. Hill testified that the day following the murder, the defendant told him that he had “gotten Fiore” and had left him behind the building where Hill, Duguay and the defendant had previously lived. We disagree with the defendant that this evidence prohibits the jury from inferring that the defendant acted as an accessory. In light of the evidence previously set forth, it was reasonable for the jury to infer that the defendant’s statement to Hill was an announcement of the crime in which he had been involved, but not an announcement of the precise role that he had played in that crime. Ample evidence was before the jury to support a finding that the defendant acted in the role of an accessory in the murder of Fiore. Accordingly, we do not find error in the trial court’s instruction to the jury that it could find the defendant guilty of murder on an accessory theory of liability.

The defendant argues further, however, that the trial court gave instructions upon statutory alternatives within General Statutes § 53a-8 that were not supported by the evidence. The trial court instructed the jury that it could find the defendant guilty as an accessory if he “solicited or requested or commanded or importuned or intentionally aided another person in the commission of a murder.” The defendant argues that no evidence was presented to establish that the defendant acted in any of the ways described by the trial court, nor was any evidence presented that the defendant “act[ed] with the mental state required for commission of an offense” as required by § 53a-8.

The defendant did not except to the court’s instruction based upon this specific argument. However, “[t]his court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial. See, e.g., State v. Hill, [201 Conn. 505, 512-13, 518 A.2d 388 (1986)]; State v. Zayas, 195 Conn. 611, 616, 490 A.2d 68 (1985); State v. Smith, [194 Conn. 213, 217, 479 A.2d 814 (1984)].” State v. Williams, supra, 363.

We incorporate our previous discussion regarding appellate review of sufficiency claims in rejecting the defendant’s argument. Reviewing the evidence in the light most favorable to sustaining the verdict, we note that the following evidence was presented to the jury. The defendant specifically directed Kelleher to the location where they picked up Wright. The defendant then obtained possible murder weapons before going to the victim’s apartment. Subsequently, the scenario discussed previously was set up when the defendant went to Fiore’s apartment. We conclude that this evidence sufficiently supports the inference that both the defendant and Wright were involved in the murder of Fiore. The precise characterization, under the language of § 53a-8, of the defendant’s particular actions was within the province of the jury as the trier of fact.

Likewise, “[w]here there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide. State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).” State v. Williams, supra, 357. “Intention is a mental process which, of necessity, must be proven either by the statements or the actions of the person whose conduct is being examined. State v. Mazzadra, [141 Conn. 731, 735, 109 A.2d 873 (1954)].” Id., 356-57. Beyond the mere actions of the defendant, evidence was presented before the jury that the defendant was angry at the victim and had expressed an intent to “get him.” Additionally, Kelleher testified that the defendant was speaking degradingly about Fiore in an angry tone. We conclude that the cumulative effect of the evidence was sufficient to establish guilt beyond a reasonable doubt under any of the statutory alternatives contained within § 53a-8. Accordingly, we find no error in the trial court’s instruction with respect to accessory liability.

II

The defendant next claims that the trial court erred in failing to instruct the jury specifically that it had to agree unanimously on the factual predicate for his conviction on the murder count. The trial court charged the jury that it could find the defendant guilty as either a principal or an accessory and continued by explaining the alternative ways in which the defendant could be held liable as an accessory. The trial court instructed the jury that its verdict must be unanimous; however, the defendant argues that because the trial court failed to instruct the jury that it must reach a unanimous agreement as to the factual theory of the crime, the jurors could have disagreed on what the defendant had actually done, yet collectively could have concluded that he was guilty of a crime. This omission, argues the defendant, violated his constitutional rights to due process and a fair trial.

The defendant did not request a specific unanimity-charge on the alternative theories of liability, nor did he except to the charge on this ground after it was given. Consequently, this claim has not been preserved for appellate review in accordance with Practice Book § 852. Traditionally, both this court and the Appellate Court have reviewed such unanimity claims even when a defendant has failed to request a specific unanimity charge or to take proper exceptions. See, e.g., State v. Spigarolo, 210 Conn. 359, 388, 556 A.2d 112 (1989); State v. Suggs, 209 Conn. 733, 760, 553 A.2d 1110 (1989); State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986). We will therefore review this claim under the fundamental right-fair trial rationale of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), recognizing the potential for violation of the defendant’s fundamental constitutional rights to due process and a fair trial if the jury were allowed to reach a verdict not based on substantial agreement as to the conduct engaged in by the defendant.

The defendant relies on United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), State v. Bailey, 209 Conn. 322, 551 A.2d 1206 (1988), and State v. Benite, supra, as support for his claim that a specific unanimity instruction was required. We are not persuaded that these cases support the defendant’s claim. “In essence, the unanimity requirement as enunciated in Gipson and its progeny requires the jury to agree on the factual basis of the offense.” State v. Bailey, supra, 334. “ ‘Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act. State v. Benite, supra, 674-75.’ (Emphasis in original.)” Id., 334, quoting State v. Flynn, 14 Conn. App. 10, 38, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). “Alternative bases of liability are not conceptually distinct if ‘ “the two ways [of committing the crime] are practically indistinguishable.” Manson v. State, 101 Wis. 2d 413, 430, 304 N.W.2d 729 (1981).’ State v. Bailey, supra.” State v. Suggs, supra, 761.

Applying these principles to the defendant’s claims, we conclude that principal and accessory liability are not conceptually distinct within the meaning of Gipson. We find support for this conclusion in the decision of United States v. Petersen, 768 F.2d 64 (2d Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985). Faced with the same issue under the language of 18 U.S.C. § 2 (a), the Petersen court determined that principal liability and accessory liability do not fall within “ ‘distinct conceptual groupings.’ ” Id., 67. The court read the “distinct conceptual grouping” qualification to the unanimity requirement in Gipson to refer “to situations where the same act is characterized in different ways, each of which constitutes a crime under the same count of an indictment.” Id. The court determined that in a case involving potential accessory liability, the jury should be regarded as unanimous even if some jurors believed that the defendant was an aider and abetter, while other jurors believed that he was the principal: “The jury would still have been unanimous in finding the acts proved to have been committed by [the defendant] were sufficient to make him guilty as a principal under 18 U.S.C. § 2 (a).” Id.

Under General Statutes § 53a-8, “ ‘there is no practical significance in being labeled an “accessory” or a “principal” for the purpose of determining criminal responsibility.’ State v. Harris, 198 Conn. 158, 164, 502 A.2d 880 (1985). The terms refer to the alternate means by which one substantive crime may be committed. State v. Baker, [supra, 608].” State v. Kemp, supra, 480 n.4. Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct. State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). In the present case a set of facts was presented to the jury that was subject to a variety of reasonable inferences. Those inferences, derived from only one set of facts, could have led to either a conclusion that the defendant acted as an accessory or a conclusion that he acted as a principal. As in Petersen, either way the jurors characterized the defendant’s particular actions, the jury would have been unanimous in finding the defendant guilty as a principal of the substantive crime charged. Therefore, we conclude that accessory and principal liability are not conceptually distinct. Accordingly, the trial court did not err by failing to give a specific unanimity charge.

Likewise, the defendant’s claim that the statutory alternatives under § 53a-8 each require specific unanimity instructions fails under Gipson. The trial court defined the terms of § 53a-8 as follows: “to ask earnestly”; “to ask for or express a desire for”; “to order or direct”; “to command, urge or incite”; and “to assist, help or support.” It is clear from these definitions that the alternative bases of liability under § 53a-8 are practically indistinguishable. They represent slightly different characterizations that can be given the defendant’s particular conduct, all of which make a defendant an accessory to a crime. Therefore, the terms of § 53a-8 are not conceptually distinct. Accordingly, the trial court did not err by failing to give a specific unanimity charge on each theory of liability under the statute.

Ill

The defendant next claims that the trial court erred in refusing to charge the jury on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide. The trial court instructed the jury that it might find the defendant guilty of the crime of murder or of a number of lesser included offenses, including manslaughter in the first degree. The defendant had requested the court to charge, in addition, that the jury consider the lesser included offenses of manslaughter in the second degree; General Statutes § 53a-56; and criminally negligent homicide. General Statutes § 53a-58. The trial court denied the defendant’s request. The defendant argues that this denial constitutes reversible error. We disagree.

General Statutes § 53a-45 (c) provides that the jury trying a person for murder “may find him guilty of homicide in a lesser degree than that charged.” “Whether the defendant was entitled to a jury instruction on a lesser degree of homicide pursuant to this statute depends on whether the third and fourth requirements set out in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), were met. ‘[T]he evidence . . . [must] support a conviction of the lesser included offense and . . . the elements differentiating the lesser offense . . . [must be] sufficiently in dispute to justify finding the defendant innocent of the greater offense but guilty of the lesser.’ State v. Maselli, 182 Conn 66, 72, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981); see State v. Falby, 187 Conn. 6, 28-29, 444 A.2d 213 (1982); State v. Rodriguez, 180 Conn. 382, 407-408, 429 A.2d 919 (1980).” State v. Burge, 195 Conn. 232, 243-44, 487 A.2d 532 (1985).

The element that distinguishes manslaughter in the second degree and criminally negligent homicide from murder is the required mental state. State v. Rodriguez, supra, 403. To commit manslaughter in the second degree, a person must “recklessly” cause the death of another; General Statutes § 53a-56 (a) (1); i.e., he must be “aware of and consciously [disregard] a substantial and unjustifiable risk that such result will occur . . . . ” General Statutes § 53a-3 (13). To commit criminally negligent homicide, a person must, with criminal negligence, cause the death of another person; General Statutes § 53a-58; i.e., he must fail “to perceive a substantial and unjustifiable risk that such result will occur . . . . ” General Statutes § 53a-3 (14). Viewing the evidence presented at trial in the light most favorable to the defendant, as we must; see State v. Smith, 185 Conn. 63, 77, 441 A.2d 84 (1981); we conclude that the evidence does not support a conviction of either manslaughter in the second degree or criminally negligent homicide.

The defendant argues that the jury could reasonably have believed that he and Wright went to the alley with the intention of purchasing drugs from Fiore. The defendant further hypothesizes that the jury could have believed that during the drug transaction, the defendant acted with the intent to threaten or assault Fiore, which instead resulted in the recklessly or negligently caused death of Fiore. The defendant’s claim is flawed, however, in that no evidence was presented that a drug transaction took place or was supposed to have taken place in the alley. To the contrary, Kelleher testified that the defendant wanted to see Fiore that evening about some stolen money or stolen checks. Hill testified that the defendant was angry and upset at Fiore and that he wanted to “get him” for “snitching” on him. The only testimony concerning a drug transaction with respect to Fiore came from Anthony Novicky, who was present when the defendant came to lure Fiore into the alley. Even if that evidence is construed in the light most favorable to the defendant, however, the drug purchase was not to be among Wright, the defendant and the victim. Novicky testified that the defendant and Fiore discussed driving to Clinton Avenue and State Street to buy drugs. Therefore, there was no evidence before the jury to support the defendant’s contention that the jury could have inferred that the defendant acted with a less culpable mental state. Accordingly, under the third prong of State v. Whistnant, supra, the trial court did not err in refusing to instruct the jury on manslaughter in the second degree and criminally negligent homicide.

IV

The defendant’s final claim is that the trial court erred in refusing to give a curative instruction to the jury explaining the outcome of his prior trial. The defendant claims that an answer to a question on cross-examination so prejudiced his right to a fair trial and an impartial jury that reversal is required. We disagree.

During direct examination, Wendy Kelleher testified that she saw the defendant holding a pipe as he and Wright emerged from the alley where the victim had been killed. On cross-examination she admitted testifying previously that Wright had been holding the pipe when the two men emerged from the alley. Following this admission, the following exchange occurred:

“Q. And back in September of last year at another hearing under oath did you not indicate that it was Frank Wright that came out of the alley holding the pipe? If you recall?

“A. I believe I did.

“Q. And today you say it is different; is that correct?

“A. That is correct. . . .

“Q. When were you last shown the pipe that you can recall, before —

“A. Last trial.

“Q. Before today?

“A. The last time I was here for trial.”

Defense counsel then continued questioning the witness. Only after the jury was excused for the day and sent home did he request that a curative instruction be given to the jury explaining that the defendant’s prior trial had not resulted in either a conviction or an acquittal. Counsel argued that the jurors would otherwise naturally assume that there had been an earlier conviction, prejudicing the defendant’s right to a fair trial and an impartial jury. The next morning, after having given defense counsel an opportunity to brief the issue, the court refused to give the curative instruction.

We conclude that any error here claimed by the defendant was invited by him during his cross-examination of Kelleher. During cross-examination, defense counsel made repeated attempts to impeach Kelleher with inconsistent statements she had made at the defendant’s prior trial. In so doing, defense counsel made eleven references to Kelleher’s previous testimony under oath, though he was careful to refer to the prior trial as “another hearing” or “prior hearing.” The answer here in question was in response to defense counsel’s question of when Kelleher was last shown the pipe. Not aware of the subtle nuances of using the word “hearing” rather than “trial,” Kelleher responded that she last saw the pipe at the defendant’s prior trial. Defense counsel then asked for a clarification, presumably to ascertain if she was referring to the present trial. Kelleher answered that she was in fact referring to the defendant’s prior trial. Although not phrased in language the defendant would have preferred, Kelle-her’s answers were responsive to the questions asked. “So long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.” State v. Brokaw, 183 Conn. 29, 33, 438 A.2d 815 (1981), and cases therein cited.

We further note that the defendant did not make use of certain procedures available to him with respect to this claim of error. First, given his concern over the jury’s awareness of his prior trial, the defendant should have followed the common practice of filing a motion in limine to prevent any witness from referring to his prior trial. Second, the defendant should have renewed his request for a curative instruction in his written request to charge pursuant to Practice Book § 852. “While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved, we have rejected the broad claim that a trial court has an independent obligation ‘ “to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence.” State v. Preyer, 198 Conn 190, 198 n.9, 502 A.2d 858 (1985) . . . .” State v. McIntosh, 199 Conn. 155, 160, 506 A.2d 104 (1986). “The ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions, and this cooperation is mandated, at least to the extent of substantial compliance with Practice Book § 852.” Id., 160-61.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       “[General Statutes] Sec. 53a-48. CONSPIRACY, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

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

       “[Practice Book] Sec. 852. necessity for requests to charge and EXCEPTIONS
      “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       Title 18 of the United States Code, § 2 (a) provides that “(wjhoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”

       General Statutes § 53a-56 provides in pertinent part: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 53a-58 provides in pertinent part: “(a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person

       The defendant’s argument is presumably that an instruction on criminally negligent homicide would have been warranted under these circumstances due to the defendant’s prior ingestion of drugs.

       Defense counsel explained his failure to object to the answer earlier: “I didn’t draw attention to it at the time because I didn’t want the jury to—maybe I thought it might—I was hoping it would slip by them.”

       “A motion in limine ‘in a broad sense [refers] to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered. ’ Luce v. United States, 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984).” (Emphasis added.) State v. Harrell, 199 Conn. 255, 259 n.4, 506 A.2d 1041 (1986).