author: Peters, C. J.

text:
    Elizabeth Sadlowski et al. v. Town of Manchester et al.
    (13227)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued February 3
    decision released March 15, 1988

      Edward F. Hennessey, with whom were S. Frank D'Ercole, Kevin M. O’Brien and John W. Cooney, town attorney, for the appellants (named defendant et al.).

      Bourke G. Spellacy, with whom, on the brief, were R. Dial Parrott, Amy S. McCabe and Karen P. Blado, for the appellants (Homart Development Company et al.).

      Kathleen Eldergill, for the appellees (plaintiffs).
   Peters, C. J.

General Statutes § 8-192 (a) authorizes a municipality to issue tax increment bonds with the approval of its local “legislative body.” The sole issue in this case is how to reconcile this reference to “legislative body” with the provisions of a local charter that stipulate that municipal bonds generally must be authorized by a two step process including not only the approval of the local board of directors but also the favorable action of the voters of the town. The plaintiffs, residents, taxpayers and electors of the town of Manchester, brought this action against the defendants, the town of Manchester and its economic development commission, to enjoin the issuance of tax increment bonds until their approval by a referendum. Homart Development Corporation and the Mall at Buckland Hills Partnership were permitted to join the action as party defendants. In their answers to the complaint, the defendants responded that, as a matter of law, such bonds could validly be issued without a referendum. Faced with opposing motions for summary judgment, the trial court ruled in favor of the plaintiffs. The defendants have appealed. We find error.

The facts are undisputed. The defendants have proposed the construction of a regional shopping center in the northern part of Manchester. Planning for the project contemplates some form of assistance from the town to finance needed traffic, water and sewer improvements. Accordingly, the town, represented by appropriate agencies including its economic development commission and its board of directors, proposed the issuance of “tax increment bonds” pursuant to the authority of § 8-192 in a principal amount not to exceed $13,000,000. After a public hearing held on August 27, 1987, a bond authorization resolution was approved by the economic development commission on August 31, 1987, and by the board of directors on September 1, 1987.

The plaintiffs’ lawsuit challenged the authority of the town to issue “tax increment bonds” without the approval of the voters at a town referendum. Although the board of directors is the local legislative body for most purposes, the plaintiffs maintained that the board lacks plenary authority over the issuance of municipal bonds. Such bonds, according to the plaintiffs, fall within the terms of § 5-25 of the Manchester town charter, which permits the town to “incur indebtedness by issuing its negotiable bonds” only if such bonds are “authorized by a majority vote of all the members of the Board of Directors” and approved “by the voters of the Town.”

The trial court agreed with the plaintiffs. The court recognized that § 8-192 authorizes tax increment bonds that, in their provenance and in their impact on local tax resources, differ from general municipal obligation bonds. The court held nonetheless that Manchester’s town charter requires tax increment bonds to be approved by a town referendum in addition to the affirmative vote of the town’s board of directors. For this reason, the court rendered judgment in favor of the plaintiffs, enjoining the issuance of the tax increment bonds “until the development project has been favorably acted upon by the voters of the town in accordance with section 5-25 of the charter.” The defendants took a timely appeal to this court.

In their appeal, the defendants urge us to overturn this judgment and to direct summary judgment in their behalf. They contend that the trial court’s conclusion that a referendum was required was in error because: (1) § 5-25 of the Manchester charter was not intended to apply to the issuance of tax increment bonds under § 8-192; (2) the term “legislative body” used in § 8-192 of the General Statutes refers only to Manchester’s board of directors and not to its voters; and (3) § 8-192, by its own terms, supersedes local charter provisions relating to the issuance or sale of bonds. We agree with the defendants in principle.

I

Before we reach the merits of the defendants’ claims of error, we must consider whether events have so overtaken this litigation that the appeal has become moot. Mootness implicates the subject matter jurisdiction of this court. We have consistently held that we do not render advisory opinions. If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal. Board of Edu cation v. Board of Labor Relations, 205 Conn. 116, 124-25, 530 A.2d 588 (1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).

The plaintiffs urge us to dismiss this appeal on the ground of mootness. Although we lack a formal record of the events that transpired subsequent to the judgment of the trial court, it appears to be undisputed that, as a result of that judgment, the board of directors voted to hold a referendum to obtain voter approval of the proposed tax increment bonds. On November 3, 1987, the Manchester voters rejected the proposed bond issue. Since that time, the Manchester board of directors and the developers have been engaged in negotiations for an alternate method of financing that would substitute a partial tax abatement for tax increment bonding. These negotiations have not yet been finalized, and their validity is coming under renewed challenge.

Given this uncertain state of the record, we agree with the defendants that they are entitled to an appellate resolution of their claims of error. Lacking assurance that there is no longer any practical relief that we can afford the parties, we are obligated to consider their appeal on its merits. Our decision will not only clarify the authority of the town of Manchester to issue tax increment bonds in the future, but will, in all likelihood, enable the present defendants to pursue their claims concerning the tax increment bonds to which they have previously agreed.

II

In order to address the defendants’ specific claims of error, we can usefully begin with a description of tax increment bonds. Tax increment bonds are sui generis. They are authorized by a special chapter of the General Statutes, chapter 132, §§ 8-186 through 8-200b, enacted in 1967 to facilitate municipal development projects. For this purpose, § 8-192 (a) permits municipalities to issue bonds “which are payable solely from and secured by: (1) A pledge of and lien upon any or all of the income, proceeds, revenues and property of development projects, including the proceeds of grants, loans, advances or contributions from the federal government, the state or other source, including financial assistance furnished by the municipality or any other public body pursuant to this chapter; (2) taxes, in whole or in part, allocated to and paid into a special fund of the municipality pursuant to the provisions of section 8-192a; or (3) any combination of the methods in subsections (1) and (2) of this section.” Tax increment bonds differ from the municipal bonds that chapter 109 of the General Statutes authorizes municipalities to issue for capital improvement projects. In contradistinction to tax increment bonds, general municipal obligation bonds engage the borrowing power of a municipality and are repayable from its tax base; for that reason, the legislature has imposed ceilings on the aggregate amount of such indebtedness that a municipality may undertake. General Statutes §§ 7-369, 7-374. Tax increment bonds are excluded from such ceilings by § 8-192 (a) unless portions of the bond repayment have been advanced from town funds. Because no such advance has been made in this case, the trial court recognized that “[these] bonds will not be a general obligation of the town, other tax revenues of the town will not be used to repay them, and they will not affect the plaintiffs’ taxes.”

A

From this perspective, we turn to the defendants’ claim that the trial court erred in concluding that § 5-25 of the Manchester charter applies to tax increment bonds issued pursuant to § 8-192 (a). The defendants maintain that the referendum that the charter prescribes for the financing of “any capital project which the Town may lawfully construct or acquire” pertains only to those capital improvements that are funded by general municipal obligation bonds and not to municipal development projects funded by tax increment bonds. We agree.

In order to determine the proper scope of § 5-25, we must examine the language of the section itself and of related provisions of the charter that may shed light on the charter’s intent and purpose. See Galvin v. Freedom of Information Commission, 201 Conn. 448, 456, 518 A.2d 64 (1986); Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637, 513 A.2d 52 (1986); Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985). Looking at the charter as a whole, we are persuaded that the only bonding governed by § 5-25 is general municipal obligation bonding that constitutes a charge on the town’s taxpayers. Indeed, in 1947, when the Manchester charter was first adopted, other forms of municipal bonding, such as tax increment bonds, had not yet been authorized by the General Assembly. Furthermore, the bonding provisions in the charter reflect the understanding that they are designed to implement general municipal obligation bonds for which the taxpayers will be indebted. Notably, the prefatory language in § 5-25 describes the borrowing that is subject to referendum as financing by which “the Town may incur indebtedness . . . .” That theme is echoed in other parts of the charter. Section 19-1, dealing with bond issues, refers to § 7-371 of the General Statutes, which regulates general municipal obligation bonds that have such tax implications. In the same part of the charter, § 19-6 provides rules to implement the tax consequences of bonding. The charter provisions dealing with capital programs contain similar fiscal regulations. For example, § 5-2 (a) requires capital improvement funding to be reflected in the annual budget. All of these charter provisions support an interpretation of § 5-25 that limits its application to financing in the form of general municipal obligation bonds.

The plaintiffs’ arguments to the contrary do not address the particulars of the language of the Manchester charter or the interrelationship between the charter and the General Statutes. They rely instead on general principles that may well be sound but are not directly relevant. Whatever may be the general scope of municipal bonds defined in City of Stamford v. Town of Stamford, 107 Conn. 596, 610, 141 A. 891 (1928), we are concerned in this case with a special form of bonding that forms an exception from municipal obligations that “are evidences of indebtedness, issued by . . . towns.” Whatever may be the constitutional jeopardy of tax increment bonds in other jurisdictions with special state constitutional provisions that regulate bonding; Tucson v. Corbin, 128 Ariz. 83, 623 P.2d 1239 (1980); we are not faced with a constitutional challenge in this case. Whatever may be the authority of a state treasurer to issue other forms of limited obligation bonds; State ex rel. Finance Committee v. Martin, 62 Wash. 2d 645, 384 P.2d 833 (1963); we are confronted with the special position of tax increment bonds in the Connecticut scheme of municipal development financing. We therefore agree with the defendants that tax increment bonds were not intended to be included within the class of capital improvement bonds for which § 5-25 of the Manchester charter prescribes approval by referendum.

B

Our conclusion that § 5-25 of the Manchester charter does not include tax increment bonds does not, however, dispose of all of the issues. Although the validity of tax increment bonds does not turn directly on the terms of § 5-25, we must still decide how to reconcile the provisions of the Manchester charter with the requirement of § 8-192 (a) that tax increment bonds must be approved by the local “legislative body.” The trial court agreed with the plaintiffs that, in the town of Manchester, at least for bonding purposes, the local “legislative body” is comprised of the town’s board of directors together with its voters exercising legislative powers through a referendum. The defendants maintain that the applicable provisions of the General Statutes compel a different result.

The term “legislative body” is defined by General Statutes § 7-193 (a) (1) as follows: “(A) A town meeting; (B) a representative town meeting; (C) a board of selectmen, council, board of directors, board of aider-men or board of burgesses; or (D) a combination of a town meeting or representative town meeting and one of the bodies listed in subparagraph (C).” The trial court concluded that the voters of Manchester, acting on a referendum, constituted a town meeting, and that the town’s “legislative body” therefore fell within the combination of “town meeting” and “board of directors” authorized by § 7-193 (a) (1) (D). This ruling can only be sustained if voters exercising legislative power by voting on a referendum can be said to be a town meeting. We hold that they cannot.

We note at the outset that the Manchester charter nowhere designates its provision for a referendum as the equivalent of a town meeting. For us to imply such an equivalence would fly in the face of reality. In ordinary usage, the term “meeting” means an assembly or a gathering for political, social, religious or economic purposes. N. Webster, Third New International Dictionary. We have taken judicial notice of the fact that “[i]n a Connecticut town which has a town-hall, the words 'town meeting’ connotes a meeting in the town-hall.” Portland Water Co. v. Portland, 97 Conn. 628, 635, 118 A. 84 (1922). In Pollard v. Norwalk, 108 Conn. 145, 146, 142 A. 807 (1928), upon which the plaintiffs attempt to rely, this court cited Brooklyn Trust Co. v. Hebron, 51 Conn. 22, 29 (1883), for a description of a town meeting as an occasion on which “[t]he assembled voters” are, upon proper “warning,” empowered to act. Thus a referendum in which individual voters cast individual ballots in individual voting booths does not constitute a town meeting.

The distinction between legislative power exercised in a town meeting and legislative power exercised in a referendum is underscored by other provisions, both in the General Statutes and in the Manchester charter. Section 7-193 (a) (1) of the General Statutes specifies that when a local legislative body consists of a combination of town meeting and board of directors, “the body having the greater number of members shall have the power to adopt the annual budget . . . .” If voter approval by way of referendum were to constitute a town meeting, then, under § 7-193, such voter approval would be required to enact the Manchester town budget. The Manchester charter, however, in the relevant provisions of §§ 3-1, 3-9, 5-3 through 5-8 and 5-10, vests exclusive budgetary authority in the board of directors. In order to make both the statutes and the charter workable, Manchester’s board of directors must be deemed to be its sole legislative body for the purposes of §§ 8-192 (a) and 7-193.

Our conclusion that a referendum is not a “legislative body” is reenforced when we compare § 7-193 with other related statutes governing the same subject matter. See Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987), and cases there cited. We have found no statutes that suggest an equivalence between legislative body and referendum, or between town meeting and referendum. On the contrary, statutes such as §§ 7-427 and 9-164c contain legislative mandates to municipalities that expressly require the approval of both the local “legislative body” and a “referendum” of its electorate.

As we have interpreted the operative provisions of §§ 8-192 (a) and 7-193, Manchester’s board of directors is the local legislative body whose approval is required for the issuance of tax increment bonds. The Manchester charter does not incorporate the type of combination legislative body that § 7-193 recognizes. There is therefore no conflict between the statutes and the charter. Were there to be such a conflict, however, it is worth noting that § 8-192 (a) expressly provides that the rules that it prescribes for the issuance of tax increment bonds “shall not be subject to the provisions of any other law or charter relating to the issuance or sale of bonds.” The plaintiffs have not challenged the power of the General Assembly to override local charter provisions that conflict with legislative policy. See Shelton v. Commissioner, 193 Conn. 506, 521-23, 479 A.2d 208 (1984).

The trial court was therefore in error when it ruled that the town of Manchester’s board of directors could not approve the issuance of tax increment bonds without seeking the further approval of a town referendum. This conclusion of law is unaffected by the fact that such a referendum was subsequently held, and went down to defeat. We have no record upon which to determine whether other events following the trial court’s judgment have affected the board’s approval of the bond issue. We therefore remand the case for a further hearing to determine the present status of that approval.

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

In this opinion the other justices concurred.

       General Statutes § 8-192 (a) provides: “bond issues, federal and state aid. taxes, temporary notes, (a) For the purpose of carrying out or administering a development plan or other functions authorized under this chapter, a municipality, acting by and through its development agency, is authorized, without limiting its authority under other provisions of law, to issue from time to time bonds of the municipality which are payable solely from and secured by: (1) A pledge of and lien upon any or all of the income, proceeds, revenues and property of development projects, including the proceeds of grants, loans, advances or contributions from the federal government, the state or other source, including financial assistance furnished by the municipality or any other public body pursuant to this chapter; (2) taxes, in whole or in part, allocated to and paid into a special fund of the municipality pursuant to the provisions of section 8-192a; or (3) any combination of the methods in subsections (1) and (2) of this section. Any bonds payable and secured as provided in subsection (2) or (3) of this section shall not be issued without the approval of the local legislative body and such bonds may provide for the deferral of principal payments for a period not in excess of five years from the date of issuance of such bonds. Bonds issued under this section shall be in such form, mature at such time or times, bear interest at such rate or rates, be issued and sold in such manner, and contain such other terms, covenants and conditions as the development agency, by resolution, determines. Such bonds shall be fully negotiable, shall not be included in computing the aggregate indebtedness of the municipality and shall not be subject to the provisions of any other law or charter relating to the issuance or sale of bonds, provided, if such bonds are made payable, in whole or in part, from funds contracted to be advanced by the municipality, the aggregate amount of such funds not yet appropriated to such purchase shall be included in computing the aggregate indebtedness of the municipality. As used in this section, ‘bonds’ means any bonds, including refunding bonds, notes, interim certificates, debentures or other obligations.”

       The plaintiffs originally filed a two count complaint challenging the issuance of the tax increment bonds. The first count alleged a violation of the charter requirement for approval of bonds by a majority of the voters of the town of Manchester. That is the count presently before us. The plaintiffs have withdrawn the second count, which alleged that the use of the moneys proposed to be raised by the bonds would not be an expenditure for a “public use and purpose” within the meaning of General Statutes § 8-186. On their side, the defendants have not pursued their motion to dismiss the complaint, which was grounded on a challenge to the plaintiffs’ standing to pursue their cause of action.

       Section 5-25 of the Manchester town charter provides in relevant part: “borrowing for capital improvements. To finance all or any part of the expense of any capital project which the Town may lawfully construct or acquire, the Town may incur indebtedness by issuing its negotiable bonds . . . subject to the limitations of the General Statutes. Such bonds shall be authorized by a majority vote of all the members of the Board of Directors. No bonds . . . shall be issued, however, until the project for which the bonds . . . are to be issued has been favorably acted upon by the voters of the Town at any regular or special election duly warned for that purpose.”

       The defendant developers also question whether the plaintiffs have met their burden of showing irreparable harm and lack of an adequate remedy at law, both of which are necessary prerequisites for injunctive relief. Because of our resolution of the defendants’ other claims of error in their favor, we need not reach these issues.

       Section 19-1 of the Manchester town charter provides: “general power OF TOWN OF [TO] ISSUE BONDS, NOTES AND CERTIFICATES OF INDEBTEDNESS. The Town of Manchester is authorized to issue negotiable bonds under its corporate name and seal and notes or other certificates of debt upon the credit of the Town, for the purposes hereinafter specified, which bonds, notes or other certificates of indebtedness shall be obligatory upon the Town and the inhabitants thereof according to the purport and tenor of same; provided each issue of bonds made under the authority hereof, for the purpose of obtaining funds for a period longer than one year, shall be in serial form, payable in accordance with the provisions of section 7-371 of the General Statutes, as the same may from time to time be amended.”

       Section 19-6 of the Manchester town charter provides: “board of directors; duty to lay special tax. When the Board of Directors shall approve a budget and authorize expenditures, it may provide for the issuance of bonds to pay for any part thereof which is to be spent for permanent improvements which are properly a charge upon capital, and the Board of Directors shall lay a tax at least sufficient with other income of said Town to be received during such budget year, as is estimated, to defray the balance of such budget of authorized expenditures including principal of and interest upon and any amortization charge in respect of all bonds and notes payable in such budget year, except bonds and notes for waterworks or sewerage systems or other purposes which are payable as to principal and interest solely from revenues or assessments and including all ascertained deficiencies in the revenues of the preceding year and including also an adequate charge for the proper maintenance in good repair and working order or for depreciation of all permanent improvements then made or hereafter to be paid for out of the proceeds of bonds not so excepted.”

         Section 5-2 (a) of the Manchester town charter provides in part: “preparation. The General Manager shall prepare and, not less than ninety-five days prior to the beginning of each fiscal year, shall submit to the Board of Directors a tentative budget for the ensuing fiscal year and an explanatory budget message. Such tentative budget shall, where possible, include a statement of receipts during the last-completed fiscal year, the receipts for the first six months of the current fiscal year, an estimation of receipts for the entire fiscal year and an estimation of receipts during the ensuing fiscal year, all itemized in accordance with a classification approved by the Board of Directors. Such budget shall also, where possible, include a statement of the expenditures during the last-completed fiscal year, the expenditures during the first six months of the current fiscal year, an estimation of the expenditures for the entire current fiscal year, the appropriations requested and the recommendations of the General Manager, all itemized by departments and in accordance with a classification by object of expenditure approved by the Board of Directors. Said budget message shall state the reason for any material increase or decrease in the estimate for the coming year of any item of receipts or expenditures from that for the current fiscal year.”

       The persuasiveness of cases from two other jurisdictions, upon which the plaintiff relies for the proposition that tax increment bonds create indebtedness; Neff v. Jacksonville, 139 Fla. 179, 190 So. 468 (1939); Miller v. Covington Development Authority, 539 S.W.2d 1 (Ky. 1976); has been diminished by subsequent holdings in those jurisdictions. State v. Miami Beach Development Agency, 392 So. 2d 875 (Fla. 1980); Hayes v. State Property & Building Commission of Kentucky, 731 S.W.2d 797 (Ky. 1987).

       Section 3-1 of the Manchester town charter provides: “board of directors; general powers. The Board of Directors shall, except in matters under the jurisdiction of the Board of Education and except as otherwise specifically provided in this Charter, exercise all the legislative powers of the Town. Further, all legislative rights, powers and duties of the Town and the powers of appointment to all boards, agencies and commissions not otherwise vested by this Charter, are exclusively vested in the Board of Director[s], It shall have, in addition to all powers and duties conferred and imposed upon it by this Charter, all the powers and duties now or hereafter conferred or imposed by the General Statutes on town boards of selectmen, relating to the abatement of taxes. The final authority concerning a budget and tax rate is vested exclusively in the Board of Directors subject to the provisions of Section 10 of this Chapter. . . . Except to the extent to which such powers are conferred upon the Town Planning Commission, the Board of Directors shall exercise the powers hitherto possessed by the Town meeting and the Board of Selectmen relative to the collection of benefits due the Town from the establishment of any building, street, sidewalk or curb or tree line or benefits accruing from the opening or improvement of any street or highway, including the assessment of a portion of the cost thereof on the owners of abutting property, and such powers are extended to include the construction and assessment of the cost of highways, sidewalks, curbs, gutters, sewers and drains. The Board of Directors shall have the power to make, alter and repeal ordinances and by-laws, not inconsistent with this Charter or the general laws of the State, for the execution of the powers vested in the Town as provided in Chapter I of this Charter, for the government of the Town and the management of its business and for the preservation of the good order, peace, health and safety of the Town and its inhabitants. Such ordinances and by-laws shall be binding upon all the inhabitants of the Town and upon persons coming within its limits. . . .
      “The Board of Directors shall authorize all purchases of real estate by the Town and all sales of real estate owned by the Town by ordinance, which ordinance shall be enacted in compliance with Section 3-8 and shall be subject to the provisions of Sections 3-9 and 3-10, except that all sales and purchases connected with redevelopment and urban renewal as provided in Chapter 130 of the Connecticut General Statutes, Revision of 1958, as amended, and all condemnation proceedings are excluded from the operation of this section.”
      Section 3-9 of the Manchester town charter provides: “petition foe overrule. No ordinance or by-law adopted by the Board of Directors, except those making appropriations, or fixing the tax rate, as provided in Chapter V of this Charter, shall become effective until it shall have been advertised in full at least three times in a newspaper having a general circulation in the Town and a period of ten days from the date of the third such advertisement shall have elapsed, during which ten days no petition for a referendum on the ordinance shall have been filed in accordance with the provisions of this Section. If, within ten days after the third publication of any such ordinance, a petition signed by not less than five per cent of the electors of the Town, as determined from the latest official lists of the Registrars of Voters, is filed with the Town Clerk requesting its reference to a special Town election, the Town Clerk shall, within ten days thereafter, fix the day and the place of such election and certify the same to the General Manager, and such election shall be called and held in accordance with the provisions of the General Statutes and this Charter for calling and holding a Town election. Any ordinance so referred shall become effective upon the conclusion of such election unless a majority of those voting thereat shall have voted in the negative on a ‘yes’ and ‘no’ vote on the question as to whether the ordinance or by-laws should be adopted. Said petition for overrule may be submitted to the electors at a Town election if said Town election occurs within sixty days of the filing of said petition.”
      Sections 5-3 though 5-8 of the Manchester town charter provide: “Sec. 5-3. publication. The budget and budget message and all supporting data shall be a public record in the office of the General Manager and shall be open to inspection at any reasonable time by any elector or taxpayer. The General Manager shall cause the tentative budget and budget message to be advertised in the same manner as provided for giving notice of a public hearing in Section 3-8 of this Charter. The third such advertisement of the tentative budget and budget message shall appear not less than ninety days prior to the beginning of the ensuing fiscal year.
      “Sec. 5-4. public HEARINGS. The Board of Directors shall hold a public hearing not less than eighty-five days prior to the beginning of the fiscal year at which any elector or taxpayer may have an opportunity to be heard. The Board of Directors shall determine the date of the hearing and shall cause a notice of the hearing to be published in a newspaper having a general circulation in the Town not less than three times and not less than five days prior to the date of the hearing. The hearing may be adjourned from time to time by the Board of Directors as it shall deem necessary.
      “Sec. 5-5. consideration by the board. After the conclusion of the public hearing the Board of Directors shall continue its consideration of the tentative budget. The Board of Directors may revise any of the estimates of receipts or of expenditures for the ensuing fiscal year except that before inserting any new item of expenditure or increasing any item of expenditure either over the amount requested by any department or recommended by the General Manager, whichever amount shall be greater, it must call another public hearing, giving notice of such hearing in the same manner as provided for giving notice of a public hearing in Section 3-8 of this Charter. The notice of such hearing shall state the nature of the proposed additions or increases.
      “Sec. 5-6. adoption. The final budget shall'be adopted by the Board of Directors not less than fifty-five days prior to the beginning of the fiscal year. Should the Board of Directors take no final action to adopt the budget on or before the fifty-fifth day prior to the beginning of the ensuing fiscal year, the tentative budget submitted by the General Manager shall be deemed to have been finally adopted by the Board of Directors and it shall be the legal budget of the Town for the fiscal year ensuing.
      “Sec. 5-7. certification. A copy of the budget as finally adopted shall be certified by the General Manager and recorded in a book kept for that purpose in the office of the Town Clerk. From the date of the beginning of the fiscal year the several amounts stated in the budget as proposed expenditures shall be and become appropriated to the several objects and purposes therein named.
      “Sec. 5-8. additions. Whenever the Board of Directors shall deem it necessary because of conditions unforseen at the time of the preparation of the annual budget, and in the best interests of the Town to do so, it may, by majority vote of all its members, make additional appropriations to the Board of Education or to any office, department or agency of the Town government and may make appropriations for purposes not included in the final budget but only after a public hearing to be advertised in the same manner as provided for giving notice of a public hearing in Section 3-8 of this Charter. At such hearing any elector or taxpayer of the Town may have an opportunity to be heard. Whenever any such additional or new appropriation increases the total of the expenditure side of the budget, additional means of financing in a like amount shall be provided in such manner as may be determined by the Board of Directors.”
      Section 5-10 of the Manchester town charter provides: “tax rate. The Board of Directors, at the meeting wherein the final budget is adopted in accordance with Section 6 of this Chapter, shall also fix a tax rate which shall be sufficient, together with estimated receipts from other sources, to equal the sum of all appropriations which have been made, including any deficit from the prior year. This Section shall not be construed to prevent the issuing of bonds to finance public improvements.”


source: Caselaw Access Project

license: Public Domain

text:
    Essex Leasing, Inc. v. Zoning Board of Appeals of the Town of Essex et al.
    (13128)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued February 2
    decision released March 22, 1988

      Timothy S. Hollister, with whom were Ann D. Dexter and, on the brief, Eric Luckingbeal, for the appellant (plaintiff).

      Peter M. Sipples, with whom was Jack E. Rutigliano, for the appellees (named defendant et al.).

      Thomas P. Byrne, for the appellees (defendant Edwin L. Russell et al.).
   Peters, C. J.

The principal issue in this case is whether a municipality is authorized to enact a zoning regulation that terminates a nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of a property owner to relinquish that use. The plaintiff, Essex Leasing, Inc., appealed from the decision of the named defendant, the Essex zoning board of appeals, terminating its nonconforming use irrespective of intent. In sustaining the appeal, the trial court interpreted the Essex zoning regulations to require a showing of intent to relinquish a nonconforming use. The Appellate Court reversed, concluding that the regulations make it possible to abate a nonconforming use for nonuse alone. Essex Leasing, Inc. v. Zoning Board of Appeals, 9 Conn. App. 391, 518 A.2d 970 (1986). We affirm the judgment of the Appellate Court.

The relevant facts are undisputed. In early 1983, the plaintiff began to explore the feasibility of purchasing a building in Essex. A portion of the building, which is situated in a residential zone, is a legal nonconforming commercial use. The building had been leased to a commercial tenant by the plaintiffs immediate predecessors in title for a period of three years commencing November 1, 1980. In 1981, the tenant ceased actual operation of its business on the premises. Unable to find a suitable subtenant, the tenant continued to pay rent and to maintain the premises with heat, utilities and office furnishings until March, 1983. The plaintiff, on March 28, 1983, in conjunction with its impending purchase of the property, filed an application for a permit to continue its nonconforming use of the building in its leasing business. The plaintiff acquired title to the property on May 2, 1983.

The Essex zoning enforcement officer denied the plaintiffs application for a zoning permit for two related reasons. He determined that the proposed use would constitute a change from one nonconforming use to another, in violation of § 50C.1 of the Essex zoning regulations. Further, he found that the property had not been in use for the period of one year and that therefore, in accordance with § 50E of the Essex zoning regulations, its nonconforming use had been terminated and could not be resumed. The latter regulation provides, in relevant part, that no nonconforming use may be resumed “[i]f such use or characteristic has not existed for a period of one year from the date of cessation . . . .” Essex Zoning Regulations § 50E.1. Upon the plaintiffs appeal to the zoning board of appeals (board), that board upheld the decision of the officer on the sole ground that the “subject property was not in use as intended in the Essex Zoning Regulations [§] 50E.1.”

The plaintiff appealed to the Superior Court, claiming that the zoning decision was in error because: (1) the board had no authority under the zoning enabling act; General Statutes § 8-2; to terminate a nonconforming use solely on the basis of nonuse; (2) the board had misconstrued § 50E.1, as requiring no showing of intent to discontinue a nonconforming use; and (3) the record was factually insufficient to support the board’s finding that a one year period of nonuse had occurred. The trial court ruled only on the plaintiffs second ground for appeal. It held that the term “cessation” in § 50E.1, in its ordinary meaning, was synonymous with “discontinuance,” a term that has been interpreted to require a showing of intent. See Dubitzky v. Liquor Control Commission, 160 Conn. 120, 123, 273 A.2d 876 (1970). Since the board concededly had not considered intent in its deliberations, the trial court sustained the plaintiffs appeal.

The defendants then sought further review by the Appellate Court, which, after granting certification, concluded that the trial court’s construction of § 50E.1 was erroneous. Holding that the general statutes permit local zoning regulations to premise the termination of a nonconforming use solely upon a period of nonuse, the court determined that the town of Essex had adopted such a regulation. The court based its conclusion upon a close reading of the text of the applicable regulations; Essex Leasing, Inc. v. Zoning Board of Appeals, supra, 393-95; and upon the long-standing policy of this state to abolish or to reduce nonconforming uses as quickly as justice will permit. Id., 395. Because the trial court had not reached the factual issue of whether a one year period of nonuse had occurred, the Appellate Court remanded the case for further trial court proceedings to resolve that question.

This court thereafter granted the plaintiff’s petition for certification on the following limited issue: “May a town validly enact zoning regulations which provide for the abatement of a nonconforming use as a result of nonuse for a specified period of time, without regard to the property owner’s intent to maintain that use?” In order to resolve that issue properly, we must, however, first decide whether § 50E.1 of the Essex zoning regulations, as drafted, terminates a nonconforming use without a showing of intent. Without a threshold determination that intent is superfluous under the regulation, we might well not reach the ultimate question of law because its resolution would not dictate the outcome of the case. Cf. Ozyck v. D’Atri, 206 Conn. 473, 479, 538 A.2d 697 (1988); State v. Shashaty, 205 Conn. 39, 50, 529 A.2d 1308 (1987), cert. denied, U.S. , 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); Wu v. Fairfield, 204 Conn. 435, 441, 528 A.2d 364 (1987).

I

Our determination of the proper construction of the Essex zoning regulations must start with a review of the reasons advanced by the Appellate Court for deciding that “cessation” of a nonconforming use under § 50E.1 extinguishes such a use regardless of intent. In an appeal following certification, “the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo.” State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985); Fidelity Trust Co. v. Irick, 206 Conn. 484, 487, 538 A.2d 1027 (1988); Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 634, 513 A.2d 52 (1986).

The Appellate Court undertook a careful analysis of § 50E in all its relevant parts. In its entirety, that regulation states: “50E. TERMINATION. Except as provided in §50F., no use of any land or improvement having a non-conforming characteristic and no non-conforming use or characteristic of land or improvement shall be resumed or restored:

“50E.1. cessation. If such use or characteristic has not existed for a period of one year from the date of cessation or from the effective date of the applicable regulation, whichever is later; or
“50E.2. ABANDONMENT. If it is abandoned.
“[U]nless such use conforms to these Regulations or such use or characteristic has previously been authorized by the grant by the Zoning Board of Appeals of a variance varying the application of the pertinent regulations.” Principally, the Appellate Court concluded that § 50E.1 could not be construed to include an intent requirement without rendering § 50E.2 superfluous. In zoning law, “abandonment” has normally been understood to require an intent permanently to cease the nonconforming use. See Magnano v. Zoning Board of Appeals, 188 Conn. 225, 228, 449 A.2d 148 (1982); Dubitzky v. Liquor Control Commission, supra, 123. Because § 50E.2 authorizes termination, once there has been an intent to discontinue the nonconforming use, without regard to any particular period of nonuse, it is illogical to interpolate an intent requirement into § 50E.1. Essex Leasing, Inc. v. Zoning Board of Appeals, supra, 394.

In addition, the Appellate Court discussed the inference to be drawn from the fact that § 50E.1 makes nonuse for “a period of one year . . . from the effective date of the applicable regulation” a separate ground for abating a nonconforming use. That clause in § 50E.1 addresses the possibility of an amendment to the town zoning regulations that would make a parcel of then nonused property nonconforming, and directs that the nonconforming use will be extinguished by dint of the passage of the specified period of time, without regard to intent. The Appellate Court could find no justification for requiring intent when there was a period of nonuse of one year because of a prior nonconformity and not requiring intent when the same period of nonuse followed a new nonconformity. Id., 394-95.

The plaintiff urges us, for two reasons, to reverse the ruling of the Appellate Court and to hold that intent continues to be a viable component of the termination of a nonconforming use under § 50E.1. It maintains that: (1) in its ordinary definition, the term “cessation” is synonymous with “discontinuance,” and therefore requires proof of intent; and (2) nonuse for a one year period creates only a presumption of relinquishment, which an owner should be permitted to overcome with appropriate proof of intent to maintain the use. We find neither contention persuasive.

Like the Appellate Court, we conclude that the term “cessation” does not, in and of itself, interpose an intent standard into the regulation. In construing a zoning regulation, it is our primary goal to ascertain and give effect to the intent of the local legislative body as expressed in the regulation as a whole. Talarico v. Conkling, 168 Conn. 194, 198, 362 A.2d 862 (1975); McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 73, 282 A.2d 900 (1971); Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511, 264 A.2d 552 (1969). “It is a standard rule of construction that, ‘whenever feasible, the language of an ordinance will be construed so that no clause is held superfluous, void or insignificant.'” Melody v. Zoning Board of Appeals, 158 Conn. 516, 521, 264 A.2d 572 (1969). Taken as a whole, § 50E evinces a clear design for the termination of nonconforming uses by two distinct and independent means. Since § 50E.2 extinguishes nonconforming uses that have been abandoned intentionally, § 50E.1, in order to avoid superfluity, must be interpreted as having adopted a different standard, the passage of time. In the service of flexibility in attaining the goal of diminishing nonconforming uses “‘“as quickly as the fair interest of the parties will permit”’ Weyls v. Zoning Board of Appeals, 161 Conn. 516, 520, 290 A.2d 350 (1971); the town of Essex has adopted a bifurcated system that provides for the co-existence of a traditional standard of abandonment and an alternate standard of nonuse for a stated period of time. In context, the term “cessation” in the Essex zoning regulations does not include a requirement of intent. For a similar interpretation of a bifurcated system, see Bartlett v. Board of Appeals, 23 Mass. App. 664, 670, 505 N.E.2d 193 (1987).

Failing on its principal argument, the plaintiff’s secondary position is that § 50E.1 should be interpreted to create no more than a rebuttable presumption of relinquishment of a nonconforming use. The plaintiff concedes that nothing in the text of § 50E.1 expressly creates such a presumption. It relies instead upon the proposition, established in some other jurisdictions, that such a presumption must be implied to save the regulation from the constitutional jeopardy that attaches to arbitrary deprivations of property. See Minot v. Fisher, 212 N.W.2d 837, 841 (N.D. 1973); California Car Wash, Inc. v. Zoning Hearing Board, 98 Pa. Commw. 209, 510 A.2d 931, 933 n.1 (1986). These cases are not directly on point because they purport to interpret terminology that has traditionally been associated with the requirement of owner intent. One deals with regulations that employ a “discontinuance” standard; Minot v. Fisher, supra, 839; while the other construes a regulation that uses an “abandonment” standard. California Car Wash, Inc. v. Zoning Hearing Board, supra. By contrast, the use of “cessation” in the Essex zoning regulations manifests an intent to employ a different standard. In these circumstances, to interpose a presumption into § 50E.1 would be contrary to the established rule that “ ‘[w]here the language of the [regulation] is clear and unambiguous, the courts cannot, by construction, read into [regulations] provisions which are not clearly stated.’ ” Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193, 479 A.2d 808 (1984). Accordingly, we hold that the term “cessation” as used in § 50E.1 of the Essex zoning regulations allows the termination of a nonconforming use after a specified period of nonuse without regard to owner intent.

II

We turn now to the plaintiff’s claim that Essex exceeded its authority under the zoning enabling act by enacting § 50E.1 of its zoning regulations. This claim is purely one of statutory dimension. Although the plaintiff asserts in its brief that enforcement of § 50E.1 results in a taking of property without just compensation, this alleged constitutional infirmity was not “distinctly raised at trial” as required by Practice Book § 4185. Holbrook v. Casazza, 204 Conn. 336, 354, 528 A.2d 774 (1987), cert. denied, U.S. , 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988); Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 567-70, 525 A.2d 954 (1987); Jefferson Garden Associates v. Greene, 202 Conn. 128, 140, 520 A.2d 173 (1987). Furthermore, the plaintiff’s analysis of this claim, only one paragraph in length, is not sufficiently detailed so as to facilitate the “study and reflection” ordinarily required for constitutional adjudication. Scheyd v. Bezrucik, 205 Conn. 495, 505, 535 A.2d 793 (1987). Instead, its claim comes to us as a sidelight to its primary allegation of statutory error. Under these circumstances, we conclude that the plaintiff has not preserved a constitutional claim for our review at this juncture.

Our statutory analysis begins with the settled rule that the town of Essex and its agency, the zoning board of appeals, may “exercise only such powers as are expressly granted to [the town], or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation.” Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 (1965); Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 159, 479 A.2d 801 (1984); Board of Police Commissioners v. White, 171 Conn. 553, 559, 370 A.2d 1070 (1976); James J. F. Loughlin Agency, Inc. v. West Hartford, 166 Conn. 305, 307, 348 A.2d 675 (1974). The zoning enabling act “delegates broad authority to municipalities to enact local zoning regulations.” Arnold Bernhard & Co. v. Planning & Zoning Commission, supra

On its face, General Statutes § 8-2 expressly authorizes a municipality to regulate the “density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes.” See Kallay’s, Inc. v. Katona, 152 Conn. 546, 548-49, 209 A.2d 185 (1965). With respect to nonconforming uses, however, this broad grant of power is limited by the penultimate sentence in § 8-2: “Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.” The plaintiff argues that this limitation prohibits Essex from extinguishing nonconforming uses without regard to owner intent. We disagree.

The plaintiff’s principal argument for the proposition that § 8-2 does not permit a town to abate a nonconforming use without proof of intent to abandon is that this court has consistently so held. Relying on our precedents interpreting regulations concerning abandonment or discontinuance of a nonconforming use to require proof of intent; Point O’ Woods Assn., Inc. v. Zoning Boards of Appeals, 178 Conn. 364, 369, 423 A.2d 90 (1979); Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 181-82, 377 A.2d 280 (1977); State ex rel. Eramo v. Payne, 127 Conn. 239, 241, 16 A.2d 286 (1940); the plaintiff infers that intent is a mandated element under the scheme devised by Essex for the abatement of nonconforming uses. Such an inquiry into intent is further justified, according to the plaintiff, by a policy against the arbitrary termination of property rights.

We are not persuaded that our prior cases stand for the principle urged by the plaintiff. We have twice suggested, albeit in dicta, that municipalities are authorized to terminate nonconforming uses solely on the ground of nonuse for a specified period. Magnano v. Zoning Board of Appeals, 188 Conn. 225, 228, 449 A.2d 148 (1982); State ex rel. Eramo v. Payne, supra. More important, none of our cases squarely deal with a regulation, such as § 50E.1, that forthrightly extinguishes the property right for nonuse alone. We therefore approach the question presented in this case as one of first impression.

Turning to the governing statute, the plaintiff maintains that § 8-2, by providing that municipalities may not “prohibit the continuance” of nonconforming uses, explicitly withholds the power to abate such uses without regard to owner intent. We have held, on the basis of this language, that municipalities may not amortize nonconforming uses. James J. F. Loughlin Agency, Inc. v. West Hartford, supra, 310-11. In Loughlin, the town of West Hartford enacted a regulation that unconditionally required all nonconforming advertising signs to conform within five years to the more stringent sign regulations of its new ordinance. We held that, by virtue of the limiting language in § 8-2, such compulsory amortization fell outside the scope of municipal power.

Drawing upon the holding in Loughlin, the plaintiff argues that terminating its nonconforming use without regard to intent runs afoul of the prohibition set forth in § 8-2. We fail to see, however, in what manner the statute supports this claim. The town of Essex clearly has not attempted to “prohibit the continuance” of the plaintiffs property right. The zoning regulation merely enables the town to seize upon an owner’s lack of “continuance.” Although we affirm that § 8-2 “protects the ‘right’ of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations”; Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981); we see no basis for concluding that this right to continue the use of property cannot be forfeited by nonuse. Such nonuse differs markedly from the criteria that triggered abatement under the ordinance we struck down in Loughlin, which purported to authorize the town to abolish vested property rights without any regard to the conduct of the owner.

We therefore conclude that § 8-2 encompasses, within the range of broad powers that it delegates to muncipalities, the power to terminate nonconforming uses solely because of nonuse for a specified period. This result is not only consistent with the familiar goal of zoning to abolish nonconforming uses as quickly as justice will tolerate; Helbig v. Zoning Commission, supra, 306; Blum v. Lisbon Leasing Corporation, supra, 181; T. Tondro, Connecticut Land Use Regulation (1979) pp. 73-77; but also finds support in the decisions of numerous other courts. These decisions hold that local governments are authorized to fashion zoning regulations that terminate nonconforming uses after a specified period of nonuse without regard to intent. Wyatt v. Board of Adjustment, 622 P.2d 85, 86 (Colo. App. 1980); Chicago v. Cohen, 49 Ill. App. 3d 342, 344, 364 N.E.2d 335 (1977); Fuller v. New Orleans, 311 So. 2d 467, 468 (La. App. 1975); Canada’s Tavern, Inc. v. Glen Echo, 260 Md. 206, 210-11, 271 A.2d 664 (1970); Prudco Realty Corporation v. Palermo, 93 App. Div. 2d 837, 461 N.Y.S.2d 58, aff'd, 60 N.Y.2d 656, 455 N.E.2d 483, 467 N.Y.S.2d 830 (1983); State ex rel. Brizes v. DePledge, 162 N.E.2d 234, 237 (Ohio App. 1958); Maguire v. Charleston, 271 S.C. 451, 452-54, 247 S.E.2d 817 (1978); Longwell v. Hodge, 297 S.E.2d 820, 823-24 (W. Va. 1982); State ex rel. Peterson v. Burt, 42 Wis. 2d 284, 288-91, 166 N.W.2d 207 (1969); see also 4A N. Williams, American Land Planning Law (1986) § 115.14; contra M.B.T. Construction Corporation v. Edwards, 528 A.2d 336, 338-39 (R.I. 1987).

We therefore affirm the judgment of the Appellate Court, including its remand of this case for further trial court proceedings to determine whether the record factually supports the decision of the zoning board of the appeals that the plaintiff did not use the property for a period of one year within the meaning of § 50E.1 of the Essex zoning regulations.

In this opinion the other justices concurred.

       The trial court permitted Edwin L. Russell and Alicia Z. Russell, abutting landowners, to intervene as defendants. Because the defendants have filed a consolidated brief, they will be treated jointly.

       We note that Essex has tempered the potentially harsh dictate of § 50E.1 of the Essex zoning regulations by providing in a latter regulation that “[a] non-conforming use or characteristic of an improvement which is damaged or destroyed by fire or other casualty to any extent may be restored or resumed” subject to certain restrictions. See Essex Zoning Regulations § 50F. We have no occasion in this appeal to interpret the breadth or scope of this exemption.

       “[General Statutes] Sec. 8-2. regulations. The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; 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 the height, size and location of advertising signs and billboards. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate 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 district 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 such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity. Zoning regulations may be made with reasonable consideration for the protection of historic factors and shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies. On and after July 1, 1985, the regulations shall provide that proper provision be made for soil erosion and sediment control pursuant to section 22a-329. Such regulations may also encourage energy-efficient patterns of development, the use of solar and other renewable forms of energy, and energy conservation. The regulations may also provide for incentives for developers who use passive solar energy techniques, as defined in subsection (b) of section 8-25, in planning a residential subdivision development. The incentives may include, but not be limited to, cluster development, higher density development and performance standards for roads, sidewalks and underground facilities in the subdivision. Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Any city, town or borough which adopts the provisions of this chapter may, by vote of its legislative body, exempt municipal property from the regulations prescribed by the zoning commission of such city, town or borough; but unless it is so voted municipal property shall be subject to such regulations.”


text:
    Jon Bishop et al. v. James J. Kelly
    (13051)
    Peters, C. J., Healey, Shea, Callahan and Hull, Js.

      Argued January 6
    decision released March 22, 1988

      J. Kevin Golger, with whom was Joyce Riccio, for the appellant (defendant).

      Paul A. Sobel, with whom, on the brief, was Robert K. Lesser, for the appellee (plaintiff Elyse L. Dalton).
   Peters, C. J.

The dispositive issue in this appeal is whether General Statutes § 14-295, which allows a trial court to double or treble the damages awarded by a jury in tort actions involving violations of the rules of the road, infringes the right to trial by jury under the Connecticut constitution. After trial, a jury returned a verdict for the plaintiff, Elyse L. Dalton, in the amount of $60,000. In accordance with the plaintiff’s motion for double or treble damages, the trial court rendered a judgment doubling these damages, from which the defendant, James J. Kelly, appeals. We find error and remand to the trial court with direction to render a judgment in the amount of $60,000.

This action arose out of an automobile accident that occurred on January 21, 1979, in Newtown. The jury could reasonably have found that at the time of the accident the defendant, traveling on route 25, in the opposite direction from that of the plaintiff, drove his car so as to cross the median of the highway and to strike the car of the plaintiff. In addition, the plaintiff presented evidence that, at the time of the accident, the defendant had been driving above the speed limit and was intoxicated. The accident resulted in severe injuries to the plaintiff.

Before the commencement of trial, the plaintiff filed an amended complaint seeking double or treble damages pursuant to § 14-295. Accordingly, after the close of the evidence, she filed a timely motion asking the court to submit interrogatories to the jury “for specific findings of fact upon which the Court may decide [whether to award] increased damages.” In response to the special interrogatories, the jury found that the defendant had violated General Statutes § 14-230, captioned “Driving in Right Hand Lane,” and that the violation was the sole proximate cause of the accident. The jury returned a verdict for the plaintiff in the amount of $60,000, and was subsequently discharged. After a hearing, the trial court, over objection by the defendant, granted the plaintiffs motion, doubling the verdict to $120,000, and rendered judgment in that amount.

On appeal the defendant’s claims of error are directed only to the trial court’s doubling of the verdict pursuant to § 14-295. He argues that the trial court erred in determining that: (1) § 14-295 is not unconstitutionally vague under the state and federal constitutions; (2) § 14-295 does not violate the defendant’s right to a trial by jury under the state constitution; and (3) there was sufficient evidence to support an award of double damages. Because we agree with the defendant that § 14-295 violates his right to trial by jury, we conclude that the award of double damages must be set aside without regard to the sufficiency of the evidence supporting the trial court’s decision.

I

We consider first the defendant’s argument that the statute is void for vagueness, since our interpretation of § 14-295 is relevant to the resolution of the defendant’s claim that the issues he raises implicate his right to trial by jury. See Seals v. Hickey, 186 Conn. 337, 341-49, 441 A.2d 604 (1982). Due process of law under our state and federal constitutions requires that “a statute afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.” McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). To meet the mandate of due process, a statute must, in addition, “‘state its standard with adequate clarity and mark sufficiently distinct boundaries for the law to be fairly administered.’” Seals v. Hickey, supra, 344; State v. Anonymous, 179 Conn. 155, 164, 425 A.2d 939 (1979). “Lack of precision, however, is not, in or of itself, offensive to the requirement of due process.” Seals v. Hickey, supra.

Section 14-295 provides that “[e]ach person who, by neglecting to conform to any provision of sections 14-230 to 14-242, inclusive, or section 14-245, or 14-247, causes any injury to the person or property of another, shall be liable to the party injured in double or treble damages if, in the discretion of the court in which any action is pending, double or treble damages are just, with the costs of such action.” While the operation of § 14-295 is triggered only by a violation of §§ 14-230 to 14-242, inclusive, § 14-245 or § 14-247, such a violation does not automatically require the imposition of multiple damages; rather, the determination of whether double or treble damages are “just” is left to the discretion of the trial court.

The defendant claims that § 14-295 is unconstitutionally vague because it fails to provide fair warning of the standards of conduct that will determine whether double damages are “just.” He argues that, the statute, by virtue of permitting the imposition of punitive damages, is penal in nature; see Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537, 18 A.2d 357 (1941); and urges us to evaluate § 14-295 by the stricter standards that apply to penal statutes. See Seals v. Hickey, supra, 343. According to the defendant, under these standards of review, the statute is impermissibly vague in two ways: it provides no criteria for when multiple damages are “just” and it confers upon the court unfettered discretion to decide whether to impose any multiple damages at all.

Although it is undeniable that the statute, on its face, contains no standards for the imposition of multiple damages, the plaintiff contends that it meets constitutional muster because its interpretation in a number of Connecticut cases has added sufficient judicial gloss to provide the specificity that due process requires. See State v. Proto, 203 Conn. 682, 698, 526 A.2d 1297 (1987); Seals v. Hickey, supra, 344-49; State v. Pickering, 180 Conn. 54, 64, 428 A.2d 322 (1980). We agree.

In unbroken precedents dating back to 1913, judicial discretion to impose multiple damages under § 14-295 or its precursors has been held to be limited to cases where the record demonstrates more than ordinary negligence. Although its statutory designation has changed over time, § 14-295 has remained essentially unchanged since 1909. See Public Acts 1909, c. 268. In an early interpretation, Justice Beach, dissenting from this court’s refusal to apply a Massachussetts wrongful death statute as against public policy, observed with regard to a precursor and similar statutes imposing multiple damages that “[i]n all these cases the excess over actual damages is assessed because of the defendant’s criminal, malicious or reckless conduct.” Cristilly v. Warner, 87 Conn. 461, 469, 88 A. 71 (1913) (Beach, J., dissenting). Subsequently, in Eustace v. Adley Express Co., 1 Conn. Sup. 58, 59 (1935), the Superior Court denied the plaintiff’s motion seeking double or treble damages under a precursor of § 14-295, concluding that the defendant’s violation of the rules of the road was not deliberate or reckless but “was the result simply of inadvertence . . . .” The court observed:‘The imposition of the penalty of double or treble damages should be reserved for cases which involve offenses more serious than simple negligence. Such a penalty should be imposed only where the violation of the rules of the road has been deliberate or at least under conditions which indicate that the defendant was conducting himself with reckless disregard of the rights of others.” Id. In Goldfarb v. Bragg, 39 Conn. Sup. 228, 229, 475 A.2d 346 (1983), the Superior Court reaffirmed this interpretation, implying that the statute applied only to instances of “gross and culpable negligence.” Finally, the Appellate Court, in considering whether the trial court’s award of double damages had been proper, recently approved the construction given the statute in Eustace v. Adley Express Co., supra. Jack v. Scanlon, 4 Conn. App. 451, 455, 495 A.2d 1084, cert. dismissed, 197 Conn. 808, 499 A.2d 59 (1985). The court further concluded that the statute was not impermissibly vague. Id., 458.

Taken together, these decisions provide a judicial gloss for § 14-295 under which the statute is sufficiently specific to afford a person of ordinary intelligence a reasonable opportunity to know when double damages will be imposed. An award of double damages is appropriate when the defendant has deliberately or with reckless disregard violated one of the statutes to which § 14-295 refers. The statute thus incorporates standards that have long been recognized at common law. See, e.g., Kowal v. Hofher, 181 Conn. 355, 361-62, 436 A.2d 1 (1980). Recklessness “ ‘requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man,’ and the actor ‘must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent.’” Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 450-51, 254 A.2d 907 (1969), quoting 2 Restatement, Torts § 500, comment g. We conclude that § 14-295, as judicially construed, is not so vague as to violate the requirements of due process.

II

We consider next the defendant’s claim that the award of double damages pursuant to § 14-295 violates the right of trial by jury afforded to him by our state constitution. We must address two issues: (1) did the defendant properly preserve this claim at trial; and (2) can he prevail on the merits? We conclude that the constitutional claim is properly here and that the statute unconstitutionally deprives the defendant of a jury trial.

A

The plaintiff urges us to hold that the defendant waived any right to a jury trial because he did not object to the plaintiff’s motion for multiple damages under § 14-295 on constitutional grounds until after the jury had returned a verdict for the plaintiff and had been discharged. The plaintiff claims that by waiting to raise this issue on a motion to set aside the judgment, the defendant foreclosed any possibility for the trial court, had it agreed with the defendant, to put the issue of multiple damages to the jury. A necessary predicate to the plaintiff’s argument of waiver is a construction of § 14-295 that would have permitted the trial court, upon a timely request by the defendant, to seek jury findings pertaining to the defendant’s deliberate or reckless disregard of the rule-of-the-road statutes that are incorporated by reference into § 14-295. In support of this position, the plaintiff maintains that, when § 14-295 confers authority to impose multiple damages upon “the court,” the term “court” signifies the whole tribunal including the jury. We are not convinced by the plaintiffs proffered construction.

Neither in its ordinary meaning nor in its historical origins does the term “court” in § 14-295 encompass the jury. In legal usage, authority conferred upon a “court” normally contemplates action by a judge and not by a jury. For example, General Statutes § 42a-2-302 (1) leaves consideration of the possible unconscionability of a sales contract to the “court,” for the express purpose, according to the accompanying official commentary, of foreclosing action by a jury. General Statutes Annotated § 42a-2-302, comment 3. Similarly, when, in the criminal context, General Statutes § 53a-28 (b) confers the authority to sentence upon the “court,” that statute does not envisage action by a jury. The fact that we have, in rare circumstances, construed the term “court” in other statutes to include the jury; see, e.g., Banks v. Watrous, 134 Conn. 592, 599, 59 A.2d 723 (1948); Miles v. Strong, 68 Conn. 273, 286-87, 36 A. 55 (1896); does not persuade us that the legislature intended to depart from ordinary usage in mandating action by “the court” in § 14-295.

Our construction of § 14-295 is supported by what we can glean from its history. In 1915, the statute expressly assigned to the “judge of the court” the function of awarding multiple damages. Public Acts 1915, c. 297, § 7. When the words “judge of” were deleted from the provision in its 1917 version; Public Acts 1917, c. 305, § 7; that amendment occurred without recorded legislative history. We therefore do not know whether the change resulted from a decision of the General Assembly to expand the body assigned the function of imposing multiple damages or from a judgment of a reviser that the excised language was superfluous. Neither we nor the parties have, however, been able to find any case that, after 1917, construed the statute to allow the jury to decide the question of multiple damages. We may take judicial notice of the fact that it has become the accepted judicial practice for the trial court, and not the jury, to determine whether multiple damages are appropriate.

Under these circumstances, we conclude that the term “court” in § 14-295 does not purport to authorize jury determination of multiple damages. We recognize that, confronted with a literal reading of a statute that places it in constitutional jeopardy, we have an obligation to search for a construction that will achieve the legislature’s purpose in a manner that is both effective and constitutional. French v. Amalgamated Local Union 376, 203 Conn. 624, 636-37, 526 A.2d 861 (1987); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). We are nonetheless unpersuaded that the legislature intended, in § 14-295, to entrust multiple damages to the province of the jury when it left that issue to the “court.” Therefore, despite our acknowledged duty to avoid constitutional confrontation, we refuse to rewrite § 14-295 to equate “court” with “jury.” See Seals v. Hickey, supra, 346. We hold, accordingly, that the defendant did not waive his jury trial claim by failing to raise it until after the jury had been discharged.

B

We turn then to the merits of the defendant’s claim. Under article first, § 19, of the Connecticut constitution, as amended, “[t]he right of trial by jury shall remain inviolate.” We have consistently held that the scope of article first, § 19, is defined by applying a historical test. The right to a jury trial may not be abrogated for causes of action that were triable to the jury prior to the constitution of 1818, and extant at the time of its adoption. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 76, 523 A.2d 486 (1987); Seals v. Hickey, supra, 349-50; Gentile v. Altermatt, 169 Conn. 267, 298, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); Swanson v. Boschen, 143 Conn. 159, 165, 120 A.2d 546 (1956). Consequently, statutory actions established since the adoption of the constitution of 1818 ordinarily fall outside the scope of the provision, “unless, perhaps, the new remedy constitutes ‘a modification of existing remedies, so vital as to unduly limit and violate the right of trial by jury.’ ” United States Fidelity & Guaranty Co. v. Spring Brook Dairy, Inc., 135 Conn. 294, 297, 64 A.2d 39 (1949), quoting Meigs v. Theis, 102 Conn. 579, 592, 129 A. 551 (1925). The question before us then is whether § 14-295, in entrusting the award of multiple damages to the court, unconstitutionally modifies a right of action that in 1818 was committed to the jury.

The historical origins of § 14-295 antedate 1818. The present statute has its roots in a 1797 act that established the rules of the road for horse-drawn carriages. Section 1 required two carriage drivers approaching each other from opposite directions “to turn or bear [their] carriage each driver to his right.hand, or to slacken . . . their pace or gait, or otherwise endeavour to give each other a fair and equal chance or advantage to pass.” Section 2 stated that “if any driver or drivers . . . shall by negligence or carelessness, contrary to the true intent and meaning of this act, run against or strike any other such like carriage, horse or horses drawing the same, and thereby cause or occasion any hurt ... to any person or persons therein . . . [he] shall forfeit and pay to the person or persons so hurt and injured, or suffering such damage or injury, threefold damages and costs of prosecution . . . .” Public Laws of the State of Connecticut, Book I, Title 152 (1797). The 1797 statute remained essentially the same for over a century. See Stevens v. Kelley, 66 Conn. 570, 572-73 (1895); Levick v. Norton, 51 Conn. 461, 471 (1883). In 1905, for instance, it provided: “Every such person who shall, by neglecting to conform to [the rules of the road], cause any injury to the person or property of another, or shall negligently collide with another, thereby causing such injury, shall pay to the party injured treble damages and costs.” Public Acts 1905, c. 216, p. 412. Not until 1909 was the statute recast into its present form. It was then amended to allow a plaintiff to recover double or treble damages against a defendant who had violated the rules of the road “as, in the discretion of the judge of the court in which the action is pending, shall seem just, together with the costs of such action.” Public Acts 1909, c. 268, p. 1256.

In light of this history, the defendant argues that, under the precursor of § 14-295 in force in 1818, the award of multiple damages was within the province of the jury, and that he therefore has a like constitutional entitlement to jury consideration today. The plaintiff would have us read the statutory history differently. She maintains that the 1797 statute, like § 14-295, assigned to the jury only the role of awarding compensatory damages but left to the court, upon motion by the plaintiff, the imposition of multiple damages. See Broschart v. Tuttle, 59 Conn. 1, 8, 21 A. 925 (1890); cf. Hart v. Brown, 2 Root 301 (1795) (multiple damages awarded by the court in a trespass case). We agree with the defendant.

The plaintiff’s position cannot be reconciled with the provisions of the early statutes that make it clear that, prior to 1909, the court had no discretion vis-a-vis the award of multiple damages in cases involving violations of the rules of the road. When injury or damage resulted from a driver’s failure to observe the rules of the road, the 1797 act provided that the driver “shall forfeit . . . threefold damages.” (Emphasis added.) Similarly, the act in force in 1905 stated that under such circumstances the driver “shall pay” the injured party treble damages. During that whole period then, the statute required the court to impose treble damages once the jury had made the factual findings upon which such an award was predicated. See Broschart v. Tuttle, supra; Levick v. Norton, supra.

In sum, at the time of the adoption of the constitution of 1818, a defendant had a right to have all the facts underlying an award of multiple damages tried to a jury. That right was substantially diminished by the 1909 statute removing from the province of the jury the determination of one of the factual issues triggering the imposition of multiple damages. While it remains the prerogative of the jury to decide whether a defendant has violated the rules of the road, since 1909 it has been the court that has been authorized to determine whether a defendant’s conduct manifests so deliberate or reckless a disregard of these statutes that an award of multiple damages seems “just.” Thus, § 14-295 arrogates to the court the responsibility for making a factual finding that is crucial to the question of the defendant’s liability for multiple damages. Under the circumstances, “this statute allows the court to interfere with and invade the factfinding function of the jury by permitting it to substitute its judgment for that of the jury.” Seals v. Hickey, supra, 352. We therefore conclude that § 14-295 violates the defendant’s right to a trial by jury under the state constitution.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment against the defendant in the amount of $60,000.

In this opinion the other justices concurred.

       General Statutes § 14-295 provides in relevant part: “double or treble damages. Each person who, by neglecting to conform to any provision of sections 14-230 to 14-242, inclusive, or section 14-245, or 14-247, causes any injury to the person or property of another, shall be liable to the party injured in double or treble damages if, in the discretion of the court in which any action is pending, double or treble damages are just, with the costs of such action.”

       After the named plaintiff withdrew his action, the case was tried on the complaint of Elyse L. Dalton.

       The defendant conceded at oral argument that he lacked standing to complain of any putative vagueness of the statute with regard to the imposition of treble damages, since no such damages were assessed against him. See State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980).

       Public Acts 1909, c. 268, provides in relevant part: “Every person who shall, by neglecting to conform to the provisions of section two of this act, cause any injury to the person or property of another, or shall negligently collide with another, thereby causing such injury, shall pay to the party injured double or treble damages as, in the discretion of the judge of the court in which the action is pending, shall seem just, together with the costs of such action.”

       In Miles v. Strong, 68 Conn. 273, 286-87, 36 A. 55 (1896), the defendants claimed that Public Acts 1893, c. 66, which empowered the “court” to hear actions to quiet title, violated their right of trial by jury. We held that since the act encompassed both legal and equitable claims, the use of the word “court” contemplated actions tried before a jury as well as before a judge. Whether in any given case a court or jury trial was indicated depended on other provisions of existing law. The statute in point has since been characterized as a “peculiar statute”; Standard Co. v. Young, 90 Conn. 133, 137, 96 A. 932 (1916); that establishes “a novel mode of judicial procedure.” Dawson v. Orange, 78 Conn. 96, 100, 61 A. 101 (1905).

        Banks v. Watrous, 134 Conn. 592, 599, 59 A.2d 723 (1948), relied on Miles v. Strong, supra, to interpret a statute providing treble damages for wrongful timber cutting to permit jury consideration of the underlying factual issues, even though the statute referred their resolution to “the court.” Banks v. Watrous has not again been cited on this point of construction.


author: Per Curiam.

text:
    State of Connecticut v. John D. Townsend
    (13175)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.
    Argued February 4
    decision released March 22, 1988

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were Kevin McMahon and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The defendant, John D. Townsend, appeals from his conviction, after a trial by jury, of the crime of robbery in the first degree in violation of General Statutes §§ 53a-133 and 53a-134 (a) (4). As a consequence of this conviction, the defendant pled guilty to the charge of being a persistent dangerous felony offender under General Statutes § 53a-40 (a). We find no reversible error in the defendant’s robbery conviction.

The jury could reasonably have found the following facts. On the evening of August 14, 1985, the defendant entered a Windsor convenience store. Brandishing a gun, he forced a clerk to open the store’s cash drawer, whose contents he appropriated, and to hand over bags of money kept under the store counter. Some days later, the defendant returned to the store at a time when the clerk was there with another employee. The clerk told her fellow worker that the defendant was the person who had robbed her.

At the defendant’s trial, the state offered only two witnesses. The clerk testified about the circumstances of the crime and made an in-court identification of the defendant as the person who had committed the robbery. Over objection by the defendant, Windsor police detective John Parlapiano, Jr., testified that he had shown the clerk eight color photographs from which she had selected that of the defendant as depicting the man who had robbed her. The defendant neither testified nor put on any other testimony in his own behalf.

The trial court denied motions of acquittal filed by the defendant both at the end of the state’s case and after the jury’s verdict finding him guilty of robbery as charged. On appeal, the defendant alleges that the trial court erred: (1) in permitting Parlapiano’s testimony concerning the clerk’s out-of-court photographic identification of the defendant; (2) in instructing the jury about the defendant’s failure to testify; and (3) in instructing the jury about the charge of larceny.

The defendant’s challenge to Parlapiano’s testimony concerning the clerk’s out-of-court photographic identification of the defendant cannot be sustained in light of our recent decision in State v. Weidenhof, 205 Conn. 262, 533 A.2d 545 (1987). There, as here, the victim of a crime made an in-court identification that was corroborated by a police officer’s testimony of an out-of-court identification consisting of the victim’s selection of the defendant’s picture from a photo array. Relying on State v. McClendon, 199 Conn. 5, 11, 505 A.2d 685 (1986), and State v. Frost, 105 Conn. 326, 341, 135 A. 446 (1926), we held that such testimony comes within an exception to the hearsay rule for testimony thatis reliable and can be tested by cross-examination of the relevant witnesses. State v. Weidenhof, supra, 274. There, as here, “[t]he defendant has not challenged the underlying reliability of the victim’s out-of-court identifications and had ample opportunity to cross-examine both the victim and [the police officer].” Id.

The defendant next contests the propriety of the trial court’s instruction to the jury concerning the defendant’s failure to testify. In such circumstances, General Statutes § 54-84 (b) requires a court, in the absence of a contrary request by the accused, to instruct the jury “that they may draw no unfavorable inferences from the accused’s failure to testify.” Instead of using the statutory language verbatim, the trial court charged the jury: “I would warn you at this time that you can draw no inference, which means you cannot discuss or otherwise consider his reasons for not testifying.” The defendant maintains that this instruction is fatally defective because the jury might have understood it as prohibiting only group discussion without forbidding any juror’s private consideration of the defendant’s decision not to testify. The state, while conceding that the court’s departure from the literal mandate of § 54-84 (b) was erroneous, urges us to hold the court’s phraseology to be a minor and harmless deviation that does not constitute reversible error.

At the outset, we note that we have repeatedly held that a claim of trial court noncompliance with § 54-84 (b) is reviewable on appeal even though a defendant, as in this case, did not at trial except to the charge as given. The statute “serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial”; State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); and it is “plain error for a trial judge not to comply with [its] mandate.” State v. Tatem, 194 Conn. 594, 595-96, 483 A.2d 1087 (1984).

Judicial noncompliance with § 54-84 (b) does not, however, automatically warrant a reversal and a new trial. We must decide, on a case by case basis, whether a trial court’s failure fully to comply with the statute was harmless. State v. Cobb, 199 Conn. 322, 324-25, 507 A.2d 457 (1986). Because such an error is of constitutional dimension, “[t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled.” State v. Sinclair, supra, 584; State v. Cobb, supra, 325; State v. Tatem, supra, 599. In the present context, the state must show that the charge as given conveyed to the jury the substantive meaning of the statutory requirement. State v. Cobb, supra; State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985).

Examining the charge in this case from this perspective, we conclude that the trial court’s minor deviation from the literal wording of § 54-84 (b) was harmless error. We are persuaded that it was not reasonably possible that the jury would have understood the court to be permitting any inferences whatsoever to be drawn from the defendant’s failure to testify. If there was any latent ambiguity in the instruction forbidding either group discussion or individual consideration of the reasons for the defendant’s not testifying, that ambiguity was dispelled by the very next sentence in the court’s instructions, which reminded the jury: “Your determination must be made solely on the basis of whether or not the State has sustained its burden of proof, as previously discussed.”

The defendant’s final claim of error relates to the trial court’s charge on larceny. Because robbery is the commission of larceny by force, the trial court was required to define the meaning of larceny for the jury. In so doing, the court read the statutory definition of larceny in General Statutes § 53a-119, without excising those parts that had no factual relevance to the present trial. The court thus instructed the jury that “[a] person commits larceny, when with intent to deprive another of property, or to appropriate the same to himself or a third person, he wrongfully takes, obtains, or withholds such property from an owner,” even though there was no evidence of the involvement of a third person and only circumstantial evidence, if any, of the withholding of property. The defendant did not take an exception to this charge at trial.

We have repeatedly disapproved of a trial court’s reading of an entire statute when the defendant has been formally charged under less than the statute as a whole. State v. Franko, 199 Conn. 481, 493, 508 A.2d 22 (1986); State v. Carter, 189 Conn. 631, 645, 458 A.2d 379 (1983). In this case, however, the information did not specify those aspects of the underlying charge of larceny on which the state was relying. The defendant has pointed to no prejudice attributable to the court’s over-inclusive instruction, which did not adversely implicate a specific element of the crime with which he was charged. It is, therefore, doubtful that the alleged error in this case is reviewable when it was not raised at trial. Compare State v. Williams, 202 Conn. 349, 362-64, 521 A.2d 150 (1987), with State v. Franko, supra.

Even if this claim of error is properly here, it cannot be sustained on its merits. After its reading of the larceny statute, the trial court limited its applicability to the facts before the jury. The jury was told: “So what the state has to prove [is] basically . . . three elements: that there was a larceny by force, and there was testimony by the complaining witness . . . that there was a taking of money from the register by the robber, the person who committed the crime, and the taking of money would fit within the description of a larceny, if you find that she had a superior right to it over the person who took it.” Viewing this charge as a whole, we conclude there was no reasonable possibility that the jury was misled into mistaking the issues that it was to resolve. State v. Simms, 201 Conn. 395, 416, 518 A.2d 35 (1986).

There is no error.

       General Statutes § 53a-133 provides: “robbery defined. A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-134 (a) provides in relevant part: “robbery in the first degree: class B felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged.”

       General Statutes § 53a-40 (a) provides: “persistent offenders: definitions; defense; authorized sentences, (a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1,1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       General Statutes § 54-84 provides: “testimony ok silence of accused, (a) Any person on trial for crime shall be a competent witness, . and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”