text:
    Randy W. Williams v. Warden, State Prison
    (14024)
    Shea, Glass, Hull, Borden and F. X. Hennessy, Js.

      Argued December 14, 1990
    decision released February 12, 1991

      William M. Bloss, special public defender, for the appellant (petitioner).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Bar an, assistant state’s attorney, for the appellee (respondent).
   Hull, J.

The principal issue in this appeal is whether the petitioner has established that his conviction of the crimes of first degree robbery and first degree burglary should be overturned because of ineffective assistance of counsel. Following a jury trial, the petitioner, Randy W. Williams, was convicted of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (3), and burglary in the first degree, in violation of General Statutes § 53a-101 (a) (l). The trial court, Hadden, J., imposed an effective sentence of twenty years imprisonment with execution suspended after ten years. The petitioner appealed and this court affirmed. State v. Williams, 203 Conn. 159, 523 A.2d 1284 (1987).

Thereafter, the petitioner filed a petition for a writ of habeas corpus in the Superior Court. A hearing was held, but on the consent of the parties, the habeas court, Axelrod, J., declared a mistrial. Following a second hearing, the habeas court, Kaplan, J., dismissed the petition and the petitioner, upon the granting of certification, appealed to the Appellate Court. We subsequently transferred the appeal to this court pursuant to Practice Book § 4023 and we now affirm.

The facts underlying the petitioner’s conviction are as follows. Just before 4 p.m. on January 24,1985, the victim returned from grocery shopping to an apartment in New Haven where she was staying as a guest. While she was bringing her groceries into the apartment, she noticed a man knocking on the door of the apartment across the hall. The victim informed the man that the occupant of the apartment would not return from work until 4 p.m., and then went back outside to get her child whom she had left in a stroller. As she was returning to her apartment, the victim heard a sound from within the apartment across the hall, so she told the man that it appeared that the occupant might be home after all. The victim then proceeded to enter her apartment, and as she did, the man followed her inside and closed the door behind him. The man displayed a knife and grabbed the victim’s purse from a couch. He then ran out of the apartment.

The victim immediately called the New Haven police. Shortly after the police had arrived, the victim described the perpetrator as a fairly dark black man, twenty-five to thirty years old, approximately six feet tall, with a thin moustache, a somewhat muscular build and bearing a shiny mark or scar on the left side of his face. She further stated that the perpetrator had worn an olive green knit hat. After the victim gave this description, she went to the New Haven police station where she viewed an array of more than two hundred photographs in an attempt to identify the perpetrator. The victim positively identified the petitioner as the perpetrator, after she had selected two photographs of him from the array. Later, she also positively identified the petitioner in court.

In his habeas petition, the petitioner claims that he was deprived of effective assistance of counsel in violation of his federal constitutional rights because his trial attorney: (1) failed to investigate a third party lookalike defense in a timely manner; (2) failed to inform the petitioner adequately of the significance of forgoing use of the lookalike defense; and (3) presented to the petitioner a choice between use or forbearance of the defense. U.S. Const., amends. VI and XIV. The habeas court dismissed the petition, finding that the petitioner had failed to meet his burden of establishing that the representation by his attorney at trial was ineffective and had prejudiced the petitioner.

“ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.’ Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267,104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). ...

“Establishing that counsel’s performance was deficient ‘requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ Strickland v. Washington, supra, 687. To demonstrate this ‘the defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ Id., 687-88. ‘In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.’ Id., 688. ‘Judicial scrutiny of counsel’s performance must be highly deferential,’ and courts ‘must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ Id., 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955), reh. denied, 350 U.S. 955, 76 S. Ct. 340, 100 L. Ed. 831 (1956); see also Burger v. Kemp, 483 U.S. 776, 788-96, 107 S. Ct. 3114, 97 L. Ed. 2d 639 [reh. denied, 483 U.S. 1056, 108 S. Ct. 32, 97 L. Ed. 2d 820] (1987); Darden v. Wainwright, 477 U.S. 168, 185-86, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); Aillon v. Meachum, supra, 357; Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985).” Fair v. Warden, 211 Conn. 398, 402-404, 559 A.2d 1094, cert. denied, 493 U.S. 981,110 S. Ct. 512,108 L. Ed. 2d 514 (1989).

I

The petitioner first claims that his trial counsel’s failure to investigate a third party lookalike defense in a timely manner constituted ineffective assistance of counsel. The petitioner does not challenge the adequacy of the investigation; see Levine v. Manson, supra, 638; Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981); Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989); but only its timing. According to the petitioner, a reasonably competent defense attorney would have initiated an investigation into a third party lookalike defense earlier than did his trial counsel in this case. We do not agree.

During their initial consultation in late March or April, 1985, the petitioner and his attorney, Kenneth Rosenthal, a public defender in the New Haven office, decided to file a motion for a lineup before the victim. Rosenthal asked the petitioner if he knew of anyone who would be willing to participate in a lineup if the motion were granted. In response to this inquiry, the petitioner offered the names of two men presently in the lockup, who had agreed to participate in a lineup for the petitioner. The petitioner also mentioned that one of the men (the third party) had a mark on the left side of his face. Thereafter, Rosenthal filed a motion for a lineup which was later denied. Approximately six months later, during jury selection, after several avenues of defense had gone awry, Rosenthal became aware that the third party who had agreed to stand in a lineup not only had a mark on the left side of his face, but had some other physical similarities to the petitioner as well as robbery charges pending against him. Rosenthal thereupon instructed an investigator to obtain a mugshot of the third party which Rosenthal received the following day. After viewing the mugshot, Rosenthal subpoenaed copies of arrest warrant applications pertaining to the third party from the New Haven police department in order to prepare a lookalike theory of defense. Rosenthal intended to use the third party lookalike evidence to cross-examine the detective who had investigated the robbery in an attempt to show that the investigation was incomplete. In addition, he intended to present the evidence as an affirmative defense of third party culpability.

Shortly thereafter, Rosenthal discovered that another attorney in the New Haven public defender’s office, Robert Sweeney, was representing the third party on an unrelated robbery charge. Rosenthal and Sweeney discussed the matter and decided that because the petitioner was about to proceed to trial, Sweeney would file a motion to withdraw as counsel for the third party. Rosenthal then informed the petitioner that he was preparing a lookalike defense and that despite a conflict of interest problem, he intended to present the defense unless prohibited from doing so.

As the trial commenced, it appeared to Rosenthal that there would not be a ruling on Sweeney’s motion before Rosenthal had to cross-examine the detective. After research and reflection, Rosenthal informed the petitioner that due to the unresolved conflict of interest, he could not present the third party lookalike defense as previously indicated and, further, that the petitioner could either proceed to trial with Rosenthal’s representation but without the defense, or Rosenthal could move to withdraw as defense counsel and the petitioner would receive a new attorney and probably a new trial.

The petitioner asserts that had Rosenthal commenced an investigation into the third party lookalike defense earlier, he would not have been placed in the untenable position of making a quick decision as to how to proceed and, therefore, Rosenthal would not have offered the petitioner a choice which he now contends was erroneous. “The petitioner’s ruminations on what might have happened if his attorney had conducted [an earlier] investigation are largely speculative.” Chace v. Bronson, supra, 679. Moreover, “[t]he reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.” State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985); see also Levine v. Manson, supra, 649; Chace v. Bronson, supra, 678.

The reasonableness of an attorney’s investigative decisions often depends critically on the information supplied by his client. Strickland v. Washington, supra, 691; United States v. Decoster, 624 F.2d 196, 209-10 (D.C. Cir. 1976), cert. denied, 444 U.S. 944,100 S. Ct. 302, 62 L. Ed. 2d 311 (1979). Although the petitioner asserts that during their first meeting, he told Rosenthal that the third party bore a closer resemblance to the victim’s description of the perpetrator than did the petitioner, Rosenthal testified twice that the petitioner merely mentioned the third party in the limited context of the need for persons to participate in a lineup. Despite Rosenthal’s inability to recall exactly how he later became apprised of the similarities between the petitioner and the third party that prompted his investigation, the habeas court could reasonably have concluded that Rosenthal did not become aware of the potential for a viable third party lookalike defense until virtually the eve of trial.

At the habeas hearing, the petitioner presented expert testimony from Jonathan Silbert, a criminal defense attorney, and Professor Geoffrey Hazard, Jr. Silbert testified that a criminal defense attorney’s failure to conduct a prompt investigation into a third party lookalike falls below the standard of reasonable competence. Hazard testified that, in his opinion, Rosenthal committed severe neglect in failing to investigate the third party lookalike prior to trial. The opinions of both experts were expressly predicated, however, on the assumption that Rosenthal had been told, approximately six months before the onset of trial, that the third party bore a closer resemblance to the alleged perpetrator than did the petitioner. As noted above, this assumption is not supported by the record. We conclude, therefore, that the petitioner has failed to sustain his burden of establishing that under the circumstances, Rosenthal’s timing with respect to the investigation into the third party lookalike defense fell below an objective standard of reasonableness.

II

The petitioner’s second claim is that his trial counsel’s failure to inform him adequately of the significance of forgoing use of the third party lookalike defense constituted ineffective assistance of counsel. This claim is without merit.

When the petitioner’s trial began, Rosenthal asked Donald Dakers, the chief public defender in the New Haven office, to request immediate action on the motion to withdraw filed by Sweeney, because he was planning to use the lookalike evidence to cross-examine the detective who had investigated the incident. Thereafter, Dakers informed Rosenthal that the court had indicated its reluctance to rule on the motion in the absence of the prosecutor appearing in the case and, further, that even if Sweeney’s motion to withdraw were granted, there was some feeling on the part of court personnel that there might be an ethical problem in Rosenthal using the third party lookalike evidence. Concerned by this information, Rosenthal consulted several criminal defense attorneys. One of the attorneys, Jacob Zeldes, advised Rosenthal to refrain from using the third party lookalike evidence and implied that Rosenthal should withdraw from representation of the petitioner. Zeldes also pointed out that there was a case then pending in Fairfield County in which a former potential client was suing an attorney for implicating him in an offense in the course of defending an actual client. Next, Rosenthal met with the trial judge and the prosecutor in chambers and informed them that he had what he perceived as an ethical problem in using certain evidence. It was at this point that Rosenthal told the petitioner that in light of new information, he felt ethically precluded from using the third party lookalike defense that he had earlier stated he would vigorously pursue. Rosenthal thereupon offered the petitioner the alternatives previously mentioned: (1) to proceed with Rosenthal as counsel and refrain from using the third party lookalike defense; or (2) to obtain new counsel and present the defense.

Shortly thereafter, Rosenthal informed the court that because of a potential conflict of interest, the rules of ethics prevented him from presenting certain evidence on the petitioner’s behalf, and that, after advising the petitioner of two options, the petitioner had “preliminarily” chosen to proceed with trial and forgo use of the pertinent evidence. Moreover, although absence of the evidence would leave a “hole” in the petitioner’s case, Rosenthal and the petitioner believed that the case was going well and the petitioner was concerned about concluding the matter. Rosenthal then requested a moment to confer with the petitioner because he was “torn” as to how to proceed. The court granted this request.

Upon return, Rosenthal informed the court that the petitioner wished to proceed with the trial. The trial court thereupon canvassed the petitioner in order to determine whether Rosenthal had fully explained his inability to present the lookalike defense and whether the petitioner understood the consequences of his decision. In the colloquy between the court and the petitioner that followed, the petitioner indicated that he understood fully the consequences of refraining from pursuit of the lookalike defense by continuing to have Rosenthal represent him.* I**

During the colloquy, the petitioner inquired about the amount of time that would elapse if he were to obtain a new attorney and a new trial. In response to this inquiry, Rosenthal requested additional time to speak with his client because “[he] is still pondering this decision and may need some legal advice . . . .’’Following a brief conference, Rosenthal once again informed the court that the petitioner wanted to proceed with the trial. The trial proceeded without reference to the lookalike evidence.

In State v. Williams, supra, we rejected the petitioner’s assertion that he “ ‘was apprised of neither the factual context of what he was relinquishing, the legal options available, the tactical implications of his action, nor the substantial risks and pitfalls he was facing’ id., 166; concluding that the petitioner had “evinced a knowing and intelligent waiver of the right to conflict-free representation.” Id., 172. The petitioner now renews his assertion that he was uninformed as the basis for an ineffective assistance of counsel claim. Although the right now asserted is different from that raised in his appeal from his burglary and robbery convictions, it does not alter our earlier rejection of his factual contention. As previously stated, absent any showing to the contrary by the petitioner, the trial court was entitled to rely upon Rosenthal’s representation that he had adequately explained the nature of the conflict to the petitioner, and upon the statements of the petitioner that he understood the consequences of forgoing use of the lookalike evidence. Id., 170. We therefore reject this claim.

Ill

The petitioner’s final claim is that because the choice between use or forbearance of the lookalike defense that his trial counsel presented to him was based on a misunderstanding of the law, trial counsel rendered ineffective assistance of counsel. According to the petitioner, despite the fact that the third party was currently being represented by the public defender’s office, it was entirely permissible under the ethical rules governing attorney conduct for Rosenthal to use the third party lookalike evidence in the petitioner’s defense. We do not agree.

At the habeas hearing, both Silbert and Professor Hazard testified that Rosenthal was plainly mistaken as to his legal responsibilities with respect to the third party and, therefore, offered an improper choice of alternatives to the petitioner. The proper course of action, in their opinion, would have been for Sweeney to withdraw from representation of the third party and for Rosenthal to continue representing the petitioner and pursue the lookalike defense. The experts emphasized that because Rosenthal had obtained the evidence involving the third party, the mugshot and the arrest warrant applications, from the New Haven police department rather than from the public defender’s office, it was not a confidence or secret and thus Rosenthal would not breach the duty of confidentiality owed to the third party by revealing it. See Code of Professional Responsibility DR 4-101; Rules of Professional Conduct 1.9 (b).

Rosenthal was concerned, however, about his duty of loyalty to the third party, specifically about implicating a client in a crime. Although Professor Hazard mentioned the duty of loyalty and its derivative prohibition against representing adverse interests, both experts were under the assumption that the withdrawal of Sweeney could have been secured and, therefore, did not address its implications in this case.

“A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except . . . ; Code of Professional Responsibility DR 5-105 (B); if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.” Code of Professional Responsibility DR 5-105 (C); Rules of Professional Conduct 1.7 (a) and (b); see also Acheson v. White, 195 Conn. 211, 214-15 n.5, 487 A.2d 197 (1985); Tomczuk v. American Mutual Ins. Co., 9 Conn. App. 194, 197, 517 A.2d 1053 (1986). If Rosenthal had proceeded to cross-examine the detective with the third party lookalike evidence, the simultaneous representation of the petitioner and the third party by the public defender’s office would, undoubtedly, have involved the representation of “differing interests” and may well have adversely affected the independence of the attorneys’ professional judgment. Initially, Rosenthal sought to avoid such problems by terminating the simultaneous representation through the immediate withdrawal of Sweeney from representation of the third party. This effort, however, proved unavailing, so Rosenthal sought out the advice of other criminal defense attorneys. On the basis of this advice, Rosenthal recognized that he could ameliorate the potential conflict by either (1) terminating the simultaneous representation by withdrawing from representation of the petitioner, or (2) ensuring “that he [could] adequately represent the interest of each” which in Rosenthal’s judgment required an informed decision by the petitioner to forgo use of the lookalike defense. Code of Professional Responsibility DR 5-105 (C).

“[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland v. Washington, supra, 690. In this case, Rosenthal was presented with what he reasonably perceived as a duty of loyalty problem. The situation arose in the midst of trial after the petitioner had made numerous requests to move the proceedings along. After attempts to secure Sweeney’s immediate withdrawal had been unsuccessful, Rosenthal, relying on the advice of other competent attorneys, informed the petitioner of the problem, alternative solutions to the problem and the relevant considerations necessary for the petitioner to make an informed decision as to which route to take. See generally Bent v. Green, 39 Conn. Sup. 416, 422, 466 A.2d 322 (1983) (attorney has duty to keep client informed); see also Code of Professional Responsibility EC 9-2; Rules of Professional Conduct 1.4. “Under these circumstances, we conclude that counsel’s conduct fell ‘within the wide range of reasonable professional assistance.’ Levine v. Manson, supra [640].” Chace v. Bronson, supra, 680.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) (3) provides: “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 ... (3) uses or threatens the use of a dangerous instrument.”

       General Statutes § 53a-101 (a) (1) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (1) [h]e is armed with explosives or a deadly weapon or dangerous instrument.”

       “The Court: Mr. Rosenthal, you indicated you wanted to put something on the record?
      “Mr. Rosenthal: Yes, Your Honor. At the conclusion of yesterday’s proceedings, I had subpoenaed some records from the New Haven Police Department pertaining to an individual, some records that I wished to use to cross-examine, potentially, Detective [Mary] Fish. I should indicate to the Court these records relate in a general way to a potential look-alike in this case. It would have been our claim that that was so; that there was information that came to my attention in a way that was focused last Thursday afternoon, late in the afternoon after court, that our office has a conflict in that the subject of the look-alike is someone that another member of my office represents in this courthouse presently, not on the—Well, I’ll leave it at that—And that we would move to withdraw from that other case thinking that that would solve the problem.
      “In discussions today, Your Honor, and some research as well, I have come to the conclusion that the rules of ethics prohibit me—even if the motion to withdraw in the other case is granted—prohibit me from pursuing this line of defense. And I should indicate to the Court, as I have indicated to my client—I don’t mean to waive any other aspects of my communications with my client in this regard—that I feel as a defense attorney in this case, that this piece of evidence is very powerful evidence, would be very powerful evidence either in cross-examination, but perhaps more importantly as a part of the defense. And I cannot—I don’t think the rules of ethics would permit me to go into the details as to why that is so. I think there’s information on the public record that would bear out what I’m saying. And I have explained that to my client in discussions with him concerning where we stand in the case and particularly where we stand in the case as it bears on what I perceive to be my inability as his lawyer to pursue this item of a powerful defense.
      “I indicated to him there are really two alternatives I could see at this point. One is that I withdraw from the case. I suppose in that case there would have to be a mistrial declared and a delay in the proceedings. That is something that does not sit well with my client. And the records will reflect there’s been motions for a speedy trial in the case almost from the day it came into the courthouse. I never had a client that’s been persistent about getting his trial and getting the case resolved immediately, persistent as he.
      “Or number two, my staying in the ease, the trial going forward; and in a sense I would have to tie one hand behind my back. I could not address this issue in any manner, shape or form because I am prohibited from doing so from the rules of ethics that would prohibit me of casting aspersions, not really just aspersions, but really implicating in criminal activity a present client of the firm.
      “We filed a motion to withdraw immediately last Friday when this information became focused on. Mr. Williams has indicated to me, but I am urging him—I have urged him, and I continue to urge Mm to think about it as long as he needs to. This is something that I really discussed with Mm just in the last couple of hours. He may have a decision—He indicated preliminarily he made a decision he would like to continue with the trial, understanding that in doing so he is giving up—Well, I can’t bring this information before the jury.
      “The Court: Well, Mr. Rosenthal, are you representing that that’s the position your client is taking?

        “Mr. Rosenthal: I was just talking with him again, Your Honor, in the room after we came out of chambers, to reiterate to him—I should say, Your Honor, that this is something that is turning around in my mind. It’s something that I had a discussion with an attorney in Bridgeport about less than an hour—approximately an hour ago; and it was that, in particular, that made me realize something that I hadn’t realized before; that whatever the other case may mean, I have a problem in this case. It’s something, the more I think about it, the more I am concerned about it. Both because I think about losing—how much of a hole it leaves in the case. At the same time I realize—I feel the case has been going well and that Mr. Williams, I know, is concerned about concluding the case. So I am tom, and I don’t know that he is at this point. But I’m urging him in a way, and I have urged him in private as well, to think long and hard about giving up this information.
      “The Court: Well, and what is the—
      “Mr. Rosenthal: Can I confer with him briefly, Your Honor?
      “The Court: Go ahead.
      “Mr. Rosenthal: Can I just have a minute to talk with him in the other room?
      “The Court: Go ahead.”

       “The Court: Mr. Rosenthal, you were conferring in the other room with your client for ten minutes or so.
      “Mr. Rosenthal: He has indicated, Your Honor, that he wishes to proceed with the trial. . . .
      “The Court: I want to make sure the record is clear that Mr. Williams wishes to proceed as you’ve indicated.
      “I gather, Mr. Rosenthal, you have spent some time before we opened court here, explaining the situation and the problems you were confronted with, with your client. And you’ve just done it again for ten minutes or so in the side room while we waited here.
      “Is that correct, Mr. Williams? Has Mr. Rosenthal explained what his— what the problem he has with presenting what we call, for the sake of a better word, a look-alike defense? Has he explained it to you?
      “[The Petitioner]: Yes, he explained it, Your Honor.
      “The Court: And you understand that if he—that he feels that if he continued to represent you in this case, that he ethically can’t bring up that claim in any respect, can’t offer evidence on it, or he can’t make it in any way? It’s something that the jury will never hear about.
      “Do you understand that?
      “[The Petitioner]: Yes, I understand.
      “The Court: And despite that, your position is you wish him to continue with this trial and not make that claim, is that what you want done?
      “[The Petitioner]: Yes.
      “The Court: Are you sure you understand this now?
      “[The Petitioner]: Yes.
      “The Court: Mr. Rosenthal, you are satisfied, based on talking with your client, that he does understand the nature of the problem and exactly what he’s doing here?
      “Mr. Rosenthal: Yes, Your Honor, I am.
      “The Court: Well, then we should go ahead.”

       The petitioner does not challenge that because Rosenthal and Sweeney were attorneys in the same public defender’s office, each of them was bound by the duties that the other owed to his clients. See Code of Professional Responsibility DR 5-105 (D); Rules of Professional Conduct 1.10. The Rules of Professional Conduct superseded the Code of Professional Responsibility, effective October 1, 1986.

       Because the experts were presented with a factual scenario in which Rosenthal was told that a third party bore a closer resemblance to the victim’s description of the perpetrator than did the petitioner, they assumed for purposes of this third claim that if Rosenthal had investigated the third party earlier, Sweeney could have moved to withdraw earlier and the motion would have been granted prior to Rosenthal’s cross-examination of the detective. Thus, the only obstacle to Rosenthal’s presentation of the third party lookalike evidence would have been the duty of confidentiality owed to a former client. In light of our conclusion that Rosenthal was unaware of this potential defense until the eve of trial, we will not assume that Sweeney’s motion to withdraw could have been filed any earlier than it was in this case.

       In light of our disposition of this claim, it is unnecessary for us to address to what extent, if any, the duty of confidentiality was implicated.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    Richard Spero v. Zoning Board of Appeals of the Town of Guilford
    (14040)
    Peters, C. J., Shea, Callahan, Glass and Co vello, Js.

      Argued December 5, 1990
    decision released February 12, 1991

      Roger Sullivan, for the appellant (plaintiff).

      Thomas P. Byrne, for the appellee (defendant).
   Glass, J.

The principal issue in this appeal is whether the defendant, the zoning board of appeals of the town of Guilford (board), unreasonably interpreted the meaning of a Guilford zoning regulation permitting the use of a “food and beverage take-out service from within [a restaurant] building” and excluding “takeout service windows” to prohibit the use of an outside ordering station for the placing of orders for take-out food and beverages. The trial court determined that the board’s interpretation of the regulation was reasonable and upheld the board’s decision denying the application of the plaintiff, Richard Spero, for a permit to construct such an ordering station outside of his restaurant. We affirm the judgment of the trial court.

The facts giving rise to this appeal are not in dispute. The plaintiff owns and operates a McDonald’s restaurant located in a commercial zone in Guilford. In April, 1989, the plaintiff applied to the Guilford zoning enforcement officer for a permit to erect an ordering station outside the restaurant. The proposed ordering station consisted of an outside menu board and intercom system that would enable the plaintiff’s patrons to drive up and place take-out orders while remaining in their vehicles. The patrons would then park their vehicles and retrieve the food and beverages ordered by entering and exiting the building through a “takeout” door that the plaintiff proposed to add to his existing facility.

On May 3, 1989, the zoning enforcement officer denied the plaintiff’s application for failure to comply with Article II, § 23, Table No. 2b, item 28 (a) of the Guilford zoning regulations, which provides in pertinent part: “Restaurants and other Food and Beverage Service Establishments, as follows: a. where customers are served food and/or beverage only when they are seated at tables or counters and at least 75% of the customer seats are located within an enclosed building, which use may include a food and beverage takeout service from within the building (excluding take-out windows) when only incidental to the primary permitted use.” (Emphasis added.) The zoning enforcement officer stated as his grounds for denial: “The taking of orders is a part of the service and the Regulation does not provide for any service outside the building.”

The plaintiff appealed to the board from the denial of his application. The board conducted a public hearing regarding the appeal on May 24, 1989, and it was agreed that the appeal would be tabled pending receipt of advice from the town’s legal counsel. Thereafter, the board submitted this question to counsel: “Whether the Guilford Zoning Regulations permit as part of a restaurant use the establishment of an outside drive-up ordering station where orders are placed from the customer’s vehicle. The customer then parks and enters the restaurant to receive his or her order. . . .’’In response, counsel advised the board in a letter: “After reviewing the Zoning Regulations I am of the opinion that the proposed use described herein is not permitted. I agree with the opinion rendered by the Zoning Enforcement Officer . . . .’’On June 19, 1989, the board reconvened to consider the plaintiff’s appeal. The minutes of the meeting reveal that counsel’s opinion letter was read and considered. At the conclusion of the meeting, the board issued a written denial of the plaintiff’s appeal stating in pertinent part: “It is the opinion of this Board that the decision of the Zoning Enforcement Officer ... is correct and the Board concurs with this decision.”

The plaintiff then appealed to the Superior Court, alleging in part: (1) that the board’s determination that the regulation did not permit the use of his proposed ordering station was unreasonable; (2) that the board illegally delegated its decision-making authority to town counsel by allowing counsel to decide his appeal; and (3) that the regulation was impermissibly vague in violation of his federal and state constitutional rights to due process of law. The trial court decided each of these issues against the plaintiff and rendered judgment dismissing his appeal.

Thereafter, the plaintiff petitioned for and was granted certification to appeal from the judgment of dismissal to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. The plaintiff now claims that the court improperly determined: (1) that the board reasonably interpreted the regulation to prohibit the use of his proposed ordering station; (2) that the board did not illegaily delegate its decision-making authority to town counsel; and (3) that the regulation was not unconstitutionally vague.

I

The plaintiffs principal claim is that the board unreasonably interpreted the regulation’s requirement that take-out service occur within a restaurant building to prohibit the use of his proposed ordering station. In support of his claim, the plaintiff notes that the regulations do not define the word “service,” and that one dictionary definition of the word focuses upon the delivery aspect of restaurant service: “[T]he bringing of food and drink to diners seated at a table; the work or activity of waiting at table . . . .” Webster’s Third New International Dictionary. He therefore contends that accepting take-out orders, as distinguished from delivering the items ordered, is not part of the “takeout service” that is required by the regulation to occur within his restaurant building. Since the use of the proposed ordering station would not involve delivery of take-out orders outside the building, and the acceptanee of such orders would not be accomplished by an impermissible “take-out window,” the plaintiff concludes that the board’s interpretation and application of the regulation was unreasonable. We are unpersuaded.

“Generally, it is the function of a zoning board or commission to decide ‘within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 117, 186 A.2d 377 [1962]; Stern v. Board of Zoning Appeals, 140 Conn. 241, 244, 99 A.2d 130 [1953]. . . .’ Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967).” Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. Id. “ ‘[U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . .We, in turn, review the action of the trial court.’ Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964).” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). The burden of proof is on the plaintiff to demonstrate that the board acted improperly. Id. Because the record discloses that the board correctly interpreted and applied the regulation, we conclude that the trial court properly determined that the board’s decision denying the plaintiff’s appeal was not unreasonable, arbitrary or illegal.

The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation. Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988). Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms. Id.; Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480,490-91, 547 A.2d 528 (1988). The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning; Silitschanu v. Groesbeck, 208 Conn. 312, 315, 543 A.2d 737 (1988); Harlow v. Planning & Zoning Commission, 194 Conn. 187,193, 479 A.2d 808 (1984); and any interpretation that would torture the ordinary meaning of the words to create ambiguity will be rejected. DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594, 501 A.2d 768 (1985). Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body. See Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 370-71, 585 A.2d 1210 (1991).

We first note that the dictionary definition relied upon by the plaintiff does not conclusively establish that the word “service” in the regulation means only the delivery of take-out food and beverages. That definition clearly concerns service rendered to restaurant patrons who consume food and beverages while seated at tables. The regulation, on the other hand, applies to “take-out” restaurant service. As demonstrated by the dictionary definition of the word “take-out,” restaurant service of the take-out type is rendered in connection with “food not to be consumed on the premises.” Webster’s Ninth New Collegiate Dictionary. More instructive in this case, therefore, is the dictionary definition of the word “service” that is not primarily directed toward traditional table dining: “[T]he work performed by one that serves.” Id. The word “serve,” in turn, is variously defined as “to wait on customers,” and “to furnish or supply with something needed or desired.” Id.

In light of these definitions, and taking a common sense approach to the construction of the regulation, we cannot say that the board unreasonably interpreted the regulation to mean that the accepting of orders for take-out food and beverages is a part of the take-out service that must occur within the plaintiffs restaurant building. The proposed ordering station is designed by the plaintiff to attract additional take-out business, and to simplify the purchasing process for those of his patrons who prefer to be accommodated, at least in part, while in their vehicles. Thus, the plaintiff’s provision of the ordering station is in the broad sense a “service” that he would render to his patrons. More fundamentally, the ordering station is a mechanism by which his employees, whose voices would be electronically transmitted over an intercom located outside of the building, could accept orders for take-out food and beverages. Without the acceptance of such orders, their ultimate delivery, and in fact the entire transaction, could not occur. The acceptance of orders is therefore an integral and indeed indispensable component of the take-out service that the plaintiff would provide. Consequently, we conclude that the construction of the regulation adopted by the board and upheld by the trial court was not unreasonable, arbitrary or illegal.

Our conclusion is reinforced by the express exclusion in the regulation of “take-out service windows,” with which the provision permitting “take-out service from within the building” must be reconciled. Planning & Zoning Commission v. Gilbert, supra, 706; see Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 601, 539 A.2d 101 (1988). Although the meaning of the phrase “take-out service window” is not defined in the regulation, a take-out window at a restaurant is commonly operated in conjunction with an ordering station such as that proposed by the plaintiff. The fair import of the phrase “take-out service window” thus encompasses its typical adjunct, the ordering station. It is therefore reasonable to presume that in aiming to eliminate the use of take-out windows, the local legislative body did not intend to prevent restaurant owners from using only such windows, but also intended to eliminate other commonly associated adjuncts to “drive-through” service such as the ordering station. To allow the plaintiff to construct and operate his combination of ordering station and take-out door would thus thwart the evident purpose of the local legislative body. See Planning & Zoning Commission v. Gilbert, supra, 704; see also Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 667, 560 A.2d 975 (1989).

II

The plaintiff next claims that the board illegally delegated its decision-making authority to town counsel by allowing counsel to decide his appeal. In support of this claim, the plaintiff principally relies on the fact that at the June 19,1989 meeting, the chairman of the board stated that he “felt that since the Board sought the advice of town counsel they should accept his opinion,” and on the further fact that the board ultimately denied his appeal. The plaintiff therefore asserts that the board delegated its duty to interpret the regulation to counsel. We disagree.

The board, composed of laymen, is entitled to technical and professional assistance regarding matters beyond its expertise. Blaker v. Planning & Zoning Commission, 212 Conn. 471, 478, 562 A.2d 1093 (1989); Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 571, 538 A.2d 1039 (1988). This entitlement is necessarily implied in the legislation creating the board and setting forth its duties. See Yurdin v. Plan & Zoning Commission, 145 Conn. 416, 421, 143 A.2d 639, cert. denied, 358 U.S. 894, 79 S. Ct. 155, 3 L. Ed. 2d 121 (1958).

In this case, the assistance rendered to the board by town counsel concerned the statutory construction of a zoning regulation. The board was no less entitled to such advice on a primarily legal question, a matter certainly within the technical expertise of an attorney, than it is entitled to factual and statistical information supplied by its personnel trained in such matters. See Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182,185, 286 A.2d 299 (1971); McCrann v. Plan & Zoning Commission, 161 Conn. 65, 77, 282 A.2d 900 (1971); Hawkes v. Plan & Zoning Commission, 156 Conn. 207, 212, 240 A.2d 914 (1968); see also Yurdin v. Plan & Zoning Commission, supra. Moreover, although counsel’s construction of the regulation was adverse to the plaintiff, he was a neutral employee of the board rather than a party to the controversy. See McCrann v. Plan & Zoning Commission, supra, 78; Kyser v. Zoning Board of Appeals, 155 Conn. 236, 251, 230 A.2d 595 (1967); compare Blaker v. Planning & Zoning Commission, supra, 474 (information supplied by attorney for party to controversy); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 208, 355 A.2d 21 (1974) (information supplied by party to controversy). There is no evidence that he was biased against the plaintiff.

In addition, there is no indication in the administrative record that the board treated the opinion of counsel as anything more than advice. While the chairman suggested that counsel’s advice should be accepted, the record reveals that at least two members of the five member board were unprepared to accept that advice because counsel had not cited any legal authority in his letter. These members supported the plaintiff’s position in the vigorous debate that ensued regarding the meaning of the regulation, and two other members of the board expressed reasons for supporting the zoning enforcement officer’s interpretation that were not set forth by counsel in his letter. There is no evidence that either counsel’s opinion or the chairman’s statement influenced the alignment of these members in opposition to the plaintiff’s appeal. Furthermore, despite the chairman’s initial statement, there is no indication that the chairman ultimately cast his vote against the plaintiff in reliance solely or decisively on the opinion of counsel rather than on the reasons advanced by his fellow board members. We therefore conclude that the trial court properly determined that the board did not illegally delegate its decision-making authority to town, counsel or otherwise act arbitrarily in requesting and considering counsel’s opinion.

Ill

The plaintiff’s final claim is that the terms of the regulation are vague and imprecise, thus rendering the regulation susceptible to arbitrary application in violation of his federal and state constitutional rights to due process of law. Although he concedes that “an attack on zoning regulations as unconstitutional per se requires an independent proceeding,” the plaintiff contends that “[t]he constitutional injunction against vagueness is determined by the application of a regulation to the particular facts at issue and requires examination of the claim within that factual context . . . .” He relies on State v. Jones, 215 Conn. 173, 575 A.2d 216 (1990), in support of this proposition.

In State v. Jones, supra, 179-80, we considered a criminal defendant’s vagueness challenge to a criminal statute, and we stated that “it is well established that, as a general rule, ‘the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. . . .’ ” (Citations omitted.) As the board points out, however, “[t]he rule extant under our zoning cases is that a party who has sought to avail himself of a zoning ordinance by making an application thereunder is precluded in the same proceeding from raising the question of its constitutionality. . . . A party, however, could of course attack the constitutionality of the zoning regulations in an independent proceeding.” Bierman v. Planning & Zoning Commission, 185 Conn. 135,139-40, 440 A.2d 882 (1981). This rule requiring the validity of a zoning regulation to be independently challenged in a declaratory judgment action serves the important policy of “ensuring] that all affected landowners would be provided with an opportunity to become involved in the proceedings.” Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 7, 544 A.2d 152 (1988). Since this policy concern is not implicated in the criminal context, Jones did not overrule or otherwise modify the rule applicable in zoning cases. We therefore conclude that the plaintiff, having availed himself of the regulation by filing an application thereunder, is not entitled to attack the regulation as unconstitutionally vague.

The judgment is affirmed.

In this opinion the other justices concurred.

       The zoning enforcement officer granted the plaintiff permission to add the take-out door.

       The plaintiff also claims that the board’s consideration of town counsel’s opinion letter after the close of the public hearing amounted to an illegal consideration of “ex parte evidence” that he had no opportunity to examine or refute, and that the trial court improperly placed the burden of proving prejudice arising from this action upon him. Although the plaintiff included the former allegation in his complaint, he failed to brief the issue in his trial brief, and presumably for this reason, the court did not address the issue in its memorandum of decision. See Practice Book § 285A. If the plaintiff orally argued the issue before the court, which we are unable to determine without the benefit of the trial transcript, it was incumbent upon him to move for an articulation with respect to the issue pursuant to Practice Book § 4051. Having failed to do so, the plaintiff has not fulfilled his duty to provide an adequate record for our review; see Practice Book § 4061; and we therefore decline to review his claims. See Practice Book § 4185; Connecticut Ins. Guaranty Assn. v. Union Carbide Corporation, 217 Conn. 371, 393, 585 A.2d 1216 (1991); Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 747, 557 A.2d 525 (1989).

       We are unpersuaded by the plaintiffs argument that the use of an ordering station for the acceptance of take-out orders should be viewed as equivalent to the acceptance of such orders over a telephone, a use which is not prohibited. The acceptance of orders over a telephone is not accomplished by telephones provided by the plaintiff outside his restaurant building, but by telephones purchased by patrons and installed in their homes.

       The plaintiff also points to the board’s written denial of his appeal, the substance of which in his view “substantially mirrored” the content of counsel’s letter. Since both documents contain only a general statement of agreement with the decision of the zoning enforcement officer, we find this facial similarity inadequate to demonstrate that the board delegated its decision-making authority to counsel.


author: Peters, C. J.

text:
    D & J Quarry Products, Inc. v. Planning and Zoning Commission of the Town of Beacon Falls et al. O & G Industries, Inc. v. Planning and Zoning Commission of the Town of Beacon Falls Hamden Sand and Gravel Company v. Planning and Zoning Commission of the Town of Beacon Falls et al.
    (14059)
    Peters, C. J., Callahan, Covello, Hull and Borden, Js.

      Argued December 6, 1990
    decision released February 12, 1991

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

      Richard J. Buturla, for the appellee (plaintiff D & J Quarry Products, Inc.).

      Thomas P. Byrne, for the appellee (plaintiff O & G Industries, Inc.).
   Peters, C. J.

The issue in these consolidated appeals is the extent of local authority to amend zoning regulations so as to prohibit the accessory processing of earth products excavated beyond town limits. Following the adoption of such amendments by the planning and zoning commission of the town of Beacon Falls (commission), the plaintiffs, D & J Quarry Products, Inc., O & G Industries, Inc., and Hamden Sand and Gravel Company, appealed to the Superior Court. Each plaintiff raised similar, albeit not identical, claims that adoption of the amendments illegally restricted their right to continue valid nonconforming uses of their respective properties. The court, Fuller, J., sustained their appeals, holding that the amendments: (1) violated the protection that General Statutes § 8-2 affords to nonconforming uses; and (2) illegally discriminated against processing operations based on the source of materials processed. Upon the Appellate Court’s granting of its petition for certification, the commission appealed from the trial court’s judgment. We transferred the appeal to ourselves pursuant to Practice Book § 4023 and now reverse.

As the trial court found in its memorandum of decision, the plaintiffs are operators of mining, excavation and gravel processing facilities located in industrial and industrial park zones within the town of Beacon Falls. In their processing operations, they have increasingly utilized sand, gravel and stone (hereinafter earth products) that have been excavated outside of the town. Between late 1987 and 1988, D & J Quarry Products processed only earth products imported from other towns. Similarly, the trial court found that in recent years, O & G Industries has increasingly relied upon imported earth products. The trial court noted that “[tjhere is a dispute between the three plaintiffs and the Commission over the status of the uses of the plaintiffs’ properties and whether they are illegal uses, nonconforming uses or permitted uses under the Zoning Regulations.” In the present proceedings, the plaintiffs did not present a factual record, either before the commission or before the trial court, that would have enabled this dispute to be resolved.

The sole issue before the trial court was the facial validity of amendments to the town’s zoning regulations enacted by the commission, following a public hearing on September 7,1988, in order to address local concerns about perceived changes in the nature of earth products processing operations in Beacon Falls. As the trial court acknowledged, the commission, acting in a legislative capacity, had broad authority to adopt the amendments. See Primerica v. Planning & Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989); Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983). The trial court properly refused to substitute its judgment for that of the commission and limited its review to a determination of whether the record reasonably supported the commission’s decision to adopt the amendments. See Primerica v. Planning & Zoning Commission, supra; Burnham v. Planning & Zoning Commission, supra; Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979).

The record before the trial court manifested itself in the form of a preamble to the amendments. The preamble articulated the commission’s findings that: (1) dust, smoke, noise and vibrations from the processing operations were having an adverse impact upon the health of the community; (2) heavy truck traffic associated with the operations had created hazardous road conditions for children, pedestrians and motorists, and had accelerated deterioration of local roadways; and (3) the town was “in danger of permanently becoming an earth products processing center for the region because other municipalities prohibit earth products processing in many instances . . . .” The commission perceived a risk, already realized in part, that the focus of local mining enterprises would shift, as the mines were gradually depleted, from mining operations to full-fledged free-standing processing operations utilizing earth products imported from sources outside of the town. The trial court concluded, despite the plaintiffs’ pleas to the contrary, that the record supported the commission’s decision to amend the zoning regulations. That conclusion has not been challenged in this appeal.

The zoning regulations, as amended, prohibit all earth products processing in all districts. The amendments also make accessory processing operations established prior to the effective date of the amendments nonconforming uses, subject to the requirements of § 64.11 of the regulations. The amendments do not expressly address the status of formerly principal processing operations, a deficiency that the plaintiffs contend is fatal to their validity.

The authority for local enactment of zoning regulations is found in General Statutes § 8-2. Relying on the provision of § 8-2 that “[zoning] regulations shall not prohibit the continuance of any nonconforming use . . . existing at the time of the adoption of such regulations,” the plaintiffs argued that the amended regulations precluding the further processing of imported materials exceeded the commission’s statutory authority. The trial court agreed and held that the aforementioned amendments were invalid to the extent that they applied to “existing nonconforming uses engaged in processing of materials as of the effective date of the zoning amendments.” The court further held that the amendments violated § 8-2 because they were based on the source of materials rather than on the “use of land.”

The commission’s appeal challenges both of the trial court’s grounds for invalidating the zoning amendments. On the issue of the preservation of nonconforming uses, the commission maintains that the amendments are valid under § 8-2 because, without infringing upon any preexisting principal or accessory processing use that the plaintiffs may be able to establish, they purport only to ensure that accessory uses do not become principal uses through the importation of earth products after local mines have been depleted. With respect to the validity of distinctions based upon the geographical source of the processed earth materials, the commission maintains that its actions were authorized by the general police power conferred upon municipalities by General Statutes § 7-148 (c) (8) (C).

I

Before proceeding to the merits of the commission’s appeal, we first consider the scope of our review. Each of the briefs contains considerable argument about the status of the various plaintiffs’ processing operations under the town’s zoning regulations prior to their amendment in 1988. Furthermore, the commission argues here, as it did at trial, that, even prior to the amendments, earth products processing had enjoyed only accessory use status. The plaintiffs maintain, to the contrary, that processing had always been a permitted principal use of land under the regulations. Consequently, they argue that, under General Statutes § 8-2, their processing operations must be allowed to continue as valid nonconforming uses.

Because this challenge to the facial validity of the amended zoning regulations does not involve their specific application to the processing operations of the plaintiffs, these questions are beyond the scope of our review in this case. The trial court correctly did not decide whether processing had been a principal or accessory use under the town’s zoning regulations prior to their amendment, or whether the plaintiffs’ processing operations constitute valid nonconforming uses. None of the parties has contested, on this appeal, the trial court’s determination that it lacked the requisite factual record to resolve these matters. A fortiori, such issues must await another day.

II

Our function on appeal is to determine whether the trial court correctly concluded that the town’s amended zoning regulations are facially invalid because they illegally infringe upon nonconforming uses, or discriminate based on the source of materials, in contravention of § 8-2. See Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980) (judicial review limited to determination of whether zoning authority’s action was arbitrary, illegal or an abuse of discretion); Bogue v. Zoning Board of Appeals, 165 Conn. 749, 752, 345 A.2d 9 (1974). On the present record, we cannot agree with the trial court’s conclusion.

In evaluating this challenge to the 1988 amendments, we must first determine what is really at issue. The plaintiffs contend that, since they have alleged that their processing operations constituted either permitted or valid nonconforming principal uses, the amendments, especially §§ 64.11.5 (f), 41.1.3 and 42.1.1, are invalid. These sections prohibit the processing of materials excavated outside of the town. Section 64.11.5 (f) in particular imposes further limitations on obtaining the necessary permit required to continue a nonconforming accessory processing use. Specifically, § 64.11.5 (f) states: “After September 1,1990, no earth products excavated outside the Town of Beacon Falls shall be screened, sifted, washed, crushed or otherwise processed at any earth products processing facility or site in the Town of Beacon Falls; provided, that stockpiles of earth products excavated outside of the Town of Beacon Falls which are in existence as of September 1,1990, must be entirely processed as of September 1, 1991.” Furthermore, §§ 41.1.3 and 42.1.1, applicable to industrial and industrial park districts respectively, provide that “after September 1, 1990, no rock, sand, gravel or other earth products which are excavated outside of the Town of Beacon Falls shall be screened, washed, crushed or otherwise processed . . . provided, that stockpiles of earth products excavated outside of the Town of Beacon Falls which are in existence as of September 1,1990, must be entirely processed as of September 1, 1991, subject to the requirements of Section 64.”

Consistently with its contention that under the zoning regulations earth products processing has always been permitted only as an accessory use, the commission concedes in its brief that “[t]o . . . the extent that any of the plaintiffs may be able to prove a preexisting and valid non-conforming principal use of land for earth products processing beyond the reach of the zoning regulations, then the plaintiff may continue to operate a processing facility.” (Emphasis added.) The commission acknowledges, therefore, that the amended regulations were not intended to interfere with preexisting principal earth products processing operations.

The plaintiffs do not dispute the premise upon which the amendments were adopted. Nonetheless, they argue that the amendments are facially suspect because they fail expressly to excuse principal nonconforming uses from the prohibition on processing of imported materials. We are unpersuaded.

In construing the amended regulations in accordance with the commission’s stated intent, we give effect to the purpose for which the amendments were enacted. We must presume that the commission intended to undertake a valid exercise of the authority conferred upon it by § 8-2. Faced with one interpretation of a legislative act that renders its enactments valid, and an alternative that renders them invalid, we adopt the former. Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 706, 546 A.2d 823 (1988); Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984); Verrastro v. Sivertsen, 188 Conn. 213, 220-21, 448 A.2d 1344 (1982); Muller v. Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958).

We conclude, therefore, that §§ 64.11.5 (f), 41.1.3 and 42.1.1, although lacking an express exemption for nonconforming principal processing uses, implicitly exempt such uses. Thus, to the extent that the plaintiffs, or any other processing facility operator, can prove that their processing uses are nonconforming principal uses, they are free to use imported materials in their operations. The amendments, however, are not invalid on their face.

The regulations similarly are not facially invalid even though, in specifically affording nonconforming use status to preexisting accessory processing uses, they limit such uses to the processing of locally mined earth products. By definition, accessory uses must be located on the same lot, and must be subordinate and customarily incidental to, the principal use. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 512, 264 A.2d 552 (1969). It follows that an accessory processing facility would lose its accessory use status if it attempted, through the importation of materials from another town, to continue operating after its principal excavation or mining use had ended. Such substituted operations would no longer be subordinate or incidental to the principal use. Thus, the amendments prohibiting the importation of earth products do not infringe upon nonconforming accessory processing uses; rather, their purpose is to prevent such uses from metamorphosing into principal uses through the utilization of imported earth products to replace depleted local mining products.

On the present record, it would be speculative and premature to conclude that the 1988 zoning amendments violate the strictures § 8-2 against impairment of nonconforming uses. Because the amendments are facially valid, the trial court’s holding to the contrary cannot stand.

Ill

The commission maintains that the trial court was equally incorrect in concluding that the 1988 zoning amendments violated § 8-2 by illegally discriminating between processing operations on the basis of the source of the earth materials used by the processing facilities. We agree with the commission for the same reasons that we concluded in Part II that the amendments do not infringe upon nonconforming accessory uses. As we previously stated, the purpose of the challenged amendments is to prevent accessory processing uses from metamorphosing into principal uses. This entirely legitimate purpose appropriately regulates the use of land and is therefore consistent with the authority conferred by § 8-2.

The judgment is reversed and the cases are remanded with direction to render judgment dismissing the plaintiffs’ appeals.

In this opinion the other justices concurred.

       The plaintiffs also raised other statutory and constitutional claims in their initial appeal to the Superior Court. The plaintiffs failed to brief, or argue, a number of these claims at trial, and the court therefore deemed them abandoned. Because the appeal challenged the facial validity, and not an application, of the zoning amendments, the court declined to consider D & J Quarry Products’ claims that the amendments constituted an unconstitutional taking of property without just compensation. The court also rejected D & J Quarry Products’ claim that the amendments were void for vagueness.

       General Statutes § 8-2 provides in pertinent part: “[Zoning] regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.”

       By motion to the Appellate Court, Hamden Sand and Gravel Company represented that it no longer had an interest in, and would not defend against, the appeal.

       The plaintiffs challenge the propriety of the commission’s invocation of General Statutes § 7-148 (c) (8) (C) on the ground that that section was not appropriately raised either at trial or in the commission’s preliminary statement of issues on appeal. See Practice Book § 4185. We need not resolve this procedural objection in light of our determination that the commission’s appeal can be sustained under General Statutes § 8-2.

       See text at Part I of this opinion, supra.


author: Per Curiam.

text:
    Timothy F. Bannon, Commissioner of Revenue Services v. Stephen A. Wise, Executor (Estate of Dorothy A. Hewlett), et al.
    (14147)
    Peters, C. J., Callahan, Glass, Hull and Borden, Js.
    Argued January 15
    decision released February 12, 1991

      Albert E. Sheary, with whom were Robert L. Eddy and, on the brief, William J. Friedeberg, for the appellant (plaintiff).

      William R. Moller, with whom, on the brief, was Susan M. Cormier, for the appellees (defendants).
   Per Curiam.

The sole issue in this tax appeal is whether the trial court correctly held that a housing facility for elderly people qualified as a charitable corporation eligible for the exemption from the Connecticut succession tax contained in General Statutes § 12-347 (a). The defendants, the executors under the will of Dorothy A. Hewlett, filed a succession tax return in 1988, which the plaintiff, the commissioner of revenue services, accepted except insofar as a charitable exemption was sought for a contribution to the New Canaan Inn, Inc., a congregate living facility for the elderly. The Probate Court determined that the bequest qualified for the statutory exemption. Upon a de novo review of that determination by the trial court, that court likewise concluded that the New Canaan Inn, Inc., was being operated exclusively for charitable purposes, as § 12-347 (a) requires. The court therefore denied the plaintiffs appeal and ordered him to recompute the estate’s succession tax so as to reflect an amended assessment exempting the bequest to the New Canaan Inn, Inc. The plaintiff then took a further appeal to the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023. We affirm.

The status of the New Canaan Inn, Inc., as a charitable corporation turns upon the applicability of the tests developed in United Church of Christ v. West Hartford, 206 Conn. 711, 720-24, 539 A.2d 523 (1988), Waterbury First Church Housing, Inc. v. Brown, 170 Conn. 556, 562-64, 367 A.2d 1386 (1976), and Camp Isabella Freedman of Connecticut, Inc. v. Canaan, 147 Conn. 510, 514, 162 A.2d 700 (1960), in light of the factual circumstances of the operation of this particular home for the elderly. Our examination of the record on this appeal, and the briefs and arguments of the parties, persuades us that the trial court’s judgment for the defendants on this issue should be affirmed. The memorandum of decision of the trial court thoughtfully and comprehensively addresses both the factual questions and the legal issue involved in the defendants’ claim that the bequest to the New Canaan Inn, Inc., qualifies for a succession tax exemption. Bannon v. Wise, 41 Conn. Sup. 469, 586 A.2d 639 (1991). Because that memorandum of decision fully states and meets the arguments raised in the present appeal, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law. It would serve no useful purpose for us to repeat the discussion therein contained.

The judgment is affirmed.

       General Statutes § 12-347 (a) provides in relevant part: “There shall be exempt from the tax imposed by this chapter all transfers to or for the use of . . . any corporation, institution, society, association or trust, incorporated or organized under the laws of this state . . . formed for charitable, educational, literary, scientific, historical or religious purposes, provided the property transferred is to be used exclusively for one or more of such purposes . . . .”