text:
    State of Connecticut v. Harry Torres
    (13076)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued December 2, 1987
    decision released February 23, 1988

      Kent Drager, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, was James Thomas, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The dispositive issue on appeal is whether a child who was transferred, pursuant to General Statutes (Rev. to 1983) § 46b-127, from the docket of Juvenile Matters to the regular criminal docket of the Superior Court on a charge of murder must be returned to Juvenile Matters if the state fails to show probable cause to sustain, the murder charge. The defendant, Harry Torres, was originally charged with the crime of murder in violation of General Statutes § 53a-54a. When the trial court, Corrigan, J., ruled that the state had failed to establish probable cause to proceed with this charge, the state filed a substitute information charging the defendant with manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). After the defendant unsuccessfully moved that his case be dismissed or transferred back to juvenile court, he pleaded nolo contendere to the substitute information and was sentenced to a term of twenty years imprisonment to be followed by three years probation. The defendant has appealed the propriety of the proceedings leading to his conviction of manslaughter on the regular criminal docket of the Superior Court. We find error and remand for retransfer and further proceedings in Juvenile Matters.

The state recited the following factual basis for the defendant’s plea of nolo contendere at the time it was accepted by the trial court. On November 23, 1983, the defendant became involved in a fight with the victim on Beaver Street in New Britain. The defendant broke away from the fight and shortly thereafter returned with a shotgun. During the ensuing struggle over the shotgun, it discharged a shot, which struck the victim in the chest. Six days later, the victim died of the shotgun wound.

Although the defendant was only fifteen years old at the time he allegedly committed this offense, the state sought to have him tried for murder. Upon his arrest by warrant on December 29, 1983, the defendant was brought to Superior Court, geographical area number 15, where an information had been filed charging him with murder in violation of § 53a-54a. The trial court, L. Dorsey, J., ordered him transferred to Juvenile Matters in accordance with General Statutes § 46b-133. Thereafter, a petition of alleged delinquency was filed pursuant to General Statutes § 46b-128 and the prosecutor for Juvenile Matters moved to have the defendant transferred to the regular criminal docket in accordance with § 46b-127. The defendant objected to the transfer on the ground that the transfer provisions were unconstitutional. The court, Covello, J., overruled the objection and, on February 15, 1984, after holding the hearing mandated by § 46b-127, found probable cause to believe that the defendant had committed murder and ordered him transferred to the regular criminal docket.

In subsequent proceedings in the regular criminal docket, the trial court, Corrigan, J., held the probable cause hearing that is constitutionally required on a charge of murder and concluded that the state had failed to establish probable cause that the defendant had intended to commit murder. The state thereafter, over the defendant’s objection, filed a substitute information charging him with manslaughter with a firearm in violation of § 53a-55a (a). In response, the defendant moved for dismissal of the substitute information or for transfer of the case back to the docket of Juvenile Matters. The trial court, E. O’Connell, J., denied the defendant’s motion on the ground that the statutory transfer scheme did not specify failure to find probable cause as a ground for resumption of juvenile status. The defendant then entered a nolo contendere plea to the manslaughter charge.

In his appeal from his manslaughter conviction, the defendant has raised three issues. He claims that: (1) the trial court erred in not dismissing the criminal charge against him or retransferring him to Juvenile Matters; (2) the juvenile transfer judge erred in originally transferring him from Juvenile Matters; and (3) the juvenile transfer judge erred in finding the juvenile transfer statutes constitutional. Our conclusion that the trial court erred in failing to transfer the defendant back to Juvenile Matters after it determined that there was no probable cause to support the charge of murder renders moot the defendant’s additional claims, which we, accordingly, decline to reach.

I

Prior to turning to the merits of the defendant’s first claim, we must determine whether the defendant properly reserved it for review on appeal from the judgment ensuing from his plea of nolo contendere. The defendant proposes three independent bases for review: (1) the defendant’s appeal complies with the provision of General Statutes § 54-94a that permits a conditional plea of nolo contendere to reserve issues raised by a motion to dismiss; (2) his claimed right to dismissal or retransfer involves a challenge to the trial court’s subject matter jurisdiction and can therefore be raised at any time; or (3) this court should review his claim in the exercise of its inherent supervisory authority over the administration of justice. Because we agree with the first of these assertions of appellate jurisdiction, we need not consider the others.

Under § 54-94a, a defendant may enter a plea of nolo contendere conditional on the right to take an appeal either from a trial court’s denial of a motion to suppress evidence based on an unreasonable search and seizure or from the denial of a motion to dismiss. State v. Badgett, 200 Conn. 412, 415, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 473, 93 L. Ed. 2d 373 (1986); State v. Madera, 198 Conn. 92, 98, 503 A.2d 136 (1985). The state concedes that, in pleading nolo contendere, the defendant in this case relied upon § 54-94a.

The state argues nonetheless that the motion by which the defendant sought the return of his case to Juvenile Matters is not a motion to dismiss whose denial can be appealed under § 54-94a. According to the state’s reading of the motion, it is either a motion to transfer whose denial is not appealable under § 54-94a or a motion to dismiss on jurisdictional grounds whose merits are appealable without regard to § 54-94a. On the latter construction of the defendant’s motion, the state urges us to hold that a denial of retransfer does not implicate subject matter jurisdiction. According to the state, therefore, no matter how the defendant’s motion is construed, the defendant is precluded from appellate review of its denial by the trial court.

We decline to take as formalistic a view of the pleading in question as the state would have us espouse. Although not captioned a motion to dismiss, the defendant’s motion requested the trial court to “dismiss the instant case, or make whatever other Order the Court deems appropriate” and set forth as a basis for such relief that the defendant should be held to answer to the charge of manslaughter in the Juvenile Court pursuant to General Statutes § 46b-120 et seq. The trial court, moreover, treated the defendant’s motion as a motion to dismiss. We conclude that the defendant’s motion qualified as a motion to dismiss for the purposes of appellate review under § 54-94a.

II

Turning to the merits of the defendant’s motion to dismiss or transfer, we must examine the relevant provisions of the statutes governing juvenile transfers. The parties are in accord that the crucial language for us to interpret is contained in the last two sentences of § 46b-127, which provide: “Upon the effectuation of the transfer [from the juvenile docket], [a] child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”

In its memorandum of decision denying the defendant’s motion to dismiss, the trial court relied on a literal reading of the authorization in § 46b-127 for resumption of juvenile status. The court held that a finding of lack of probable cause that the defendant had committed murder was not a dismissal, a nolle, or an acquittal. Accordingly, it concluded that the defendant’s case should remain on the regular criminal docket and that the defendant’s motion to dismiss the substitute information filed by the state should be denied.

On appeal, the parties have stated the determinative issue somewhat differently than at trial. Does § 46b-127 contemplate a defendant’s return to juvenile status once a decision has been made that the defendant will not be further prosecuted on the particular charge underlying his transfer to the regular criminal docket or must resumption of juvenile status await final disposition in his or her favor of the case as a whole? The defendant urges us to conclude that a finding of no probable cause to support the charge of murder was the functional equivalent of a nolle or an acquittal on that charge, which entitled him to “resume his status as a juvenile.” The state maintains, to the contrary, that once a valid transfer to the regular criminal docket has occurred, § 46b-127 anticipates resumption of juvenile status only on future, unrelated occasions in which the defendant is alleged to have engaged in conduct potentially subjecting him to criminal liability.

In approaching these alternate readings of § 46b-127, we must take into account the well established rule of statutory construction that statutes are to be construed in a manner that gives effect to the apparent intention of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986). To discern this intent, we consider the language of the statute as well as its legislative history. Norwich v. Silverberg, supra, 371; State v. Kozlowski, supra, 673-74. “Mindful of inherent statutory interrelationships, futhermore, we endeavor ‘to read the statute as a whole and so as to reconcile all parts as far as possible.’ Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983).” Norwich v. Silverberg, supra. A penal statute must be construed strictly against the state and liberally in favor of the accused. State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983).

Although the last sentence of § 46b-127, when read in isolation, is not free from ambiguity, when read in conjunction with the juvenile transfer scheme as a whole, §§ 46b-145, 46b-126, and 46b-127, the statutory language supports the construction that the defendant urges upon us. Taken together, these statutes reflect the legislature’s intent to correlate the seriousness of an offense charged with the juvenile’s susceptibility to transfer to the regular criminal docket. In the circumstances of this case, the statutes require a construction of § 46b-127 that mandates the granting of the defendant’s motion for dismissal and the retransfer of his case to the juvenile docket for further consideration of the defendant’s case.

The juvenile transfer statutes establish a detailed plan for transferring a case to the regular criminal docket. Two statutes, §§ 46b-127 and 46b-126, are central to this plan. For present purposes, the more directly relevant statute is § 46b-127, which provides for mandatory transfer to the regular criminal docket of any juvenile, who was at least fourteen years old at the time of the offense charged, in two sets of circumstances. For a juvenile “referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive,” transfer follows upon a judicial finding, after a hearing, that “there is probable cause to believe that the child has committed the act for which he is charged.” For a juvenile “referred for the violation of any provision of title 53a which is designated as a class A felony” such a finding of probable cause mandates transfer only if “such child has previously been adjudicated a delinquent at any age for a violation of any provision of title 53a, which at the time of such violation was designated a class A felony; or . . . for the violation of any provision of title 53a which is designated as a class B felony . . . provided such child has previously been adjudicated delinquent for two violations of any provision of title 53a, which at the time of such violations were designated a class A or B felony.”

By contrast, § 46b-126 allows the court to transfer children “referred for the commission of a class A felony, or for any serious juvenile offense designated as a class B or C felony if such child has previously been adjudicated a delinquent for a serious juvenile offense, as defined in section 46b-120, provided such child has attained the age of fourteen at the time the alleged delinquent act was committed.” For this enlarged class of crimes, however, § 46b-126 permits a discretionary transfer only when a court, after a hearing, makes findings more extensive than those required by § 46b-127. Under § 46b-126, a court must find probable cause not only that the child has committed the crime charged but also that the child is unamenable to treatment in available juvenile care and treatment facilities and that the child has demonstrated his dangerousness to society.

In transferring the defendant’s case to the regular criminal docket, the trial court, Covello, J., acting pursuant to § 46b-127, found only that there was probable cause to believe that the defendant had committed “the act for which he [was] charged,” the crime of murder. In light of this limited finding, we hold that § 46b-127 required a transfer of the defendant back to Juvenile Matters after it had been found that there was no probable cause to believe he had committed murder.

To conclude otherwise would eviscerate the statutory transfer plan established by the legislature. Permitting the state to substitute a charge of manslaughter under § 53a-55a (b), a class B felony, would allow it to bypass the statutory safeguards that the legislature has attached to regular prosecutions of juveniles for such a crime. Had the defendant originally been referred to the Superior Court for manslaughter, he could not have been transferred to the regular criminal docket without additional judicial findings under § 46b-127 with regard to his prior involvement in the juvenile justice system or under § 46b-126 with regard to his prior history, amenability to treatment, and dangerousness to society. We perceive no basis, and the state has provided none, for treating this defendant differently.

The inferences to be drawn from the duality of §§ 46b-127 and 46b-126 serve also to refute the state’s alternate contention that because manslaughter is a lesser included offense of murder, a valid transfer of a juvenile on a charge of murder automatically subsumes continued regular criminal proceedings on a charge of manslaughter. The state’s argument overstates our law of lesser included offenses. In State v. Rodriguez, 180 Conn. 382, 398-408, 429 A.2d 919 (1980), we reviewed the relationship between a charge of murder and a conviction of manslaughter. That relationship finds its basis in the statutory mandate of § 53a-45 (c). Even when that statute is fully applicable, we noted that an instruction on a lesser degree of homicide than that charged would not always be appropriate. State v. Rodriguez, supra, 407-408. For present purposes, it suffices to recognize that the legislative mandate of § 53a-45 (c) must be read in conjunction with the mandate of §§ 46b-127 and 46b-126. In these latter sections, the legislature established, for juveniles, specific distinctions between lesser and more serious offenses and prescribed transfer criteria reflecting these distinctions. As a matter of statutory construction, specific statutory provisions are presumed to prevail over more general statutory provisions dealing with the same overall subject matter. McKinley v. Musshorn, 185 Conn. 616, 623-24, 441 A.2d 600 (1981); Edmundson v. Rivera, 169 Conn. 630, 635, 363 A.2d 1031 (1975). We conclude, therefore, that the legislature did not intend the transfer of a juvenile on a charge of murder to encompass his subsequent prosecution on a charge of manslaughter when probable cause for the murder charge is found to have been lacking.

Contrary to the state’s assertion, our decision in State v. Anonymous, 173 Conn. 414, 419, 378 A.2d 528 (1977), does not compel a different result. In State v. Anonymous, supra, we held with regard to General Statutes § 17-60a, the precursor of § 46b-126, that once a defendant was transferred from the jurisdiction of the Juvenile Court, he lost his juvenile status and the benefits that attended it. The defendant in that case, however, did not contest the Superior Court’s authority over him; State v. Anonymous, supra, 416 n.1; consequently, it was unnecessary for us to consider the circumstances under which a defendant could regain his juvenile status.

Our holding comports with the policies underlying the juvenile justice system as a whole. Section 46b-145 provides that “[n]o child shall be prosecuted for an offense before the superior court, nor shall the adjudication of such court that a child is delinquent in any case be deemed a conviction of a crime except as provided in sections 46b-126 and 46b-127.” The General Assembly thus has expressed a preference for shielding children from criminal liability except in clearly circumscribed situations. The additional protections afforded juveniles, which include separation of juvenile matters from other business of the Superior Court; General Statutes § 46b-122; confidential proceedings; General Statutes § 46b-122; anonymity; General Statutes § 46b-124; and erasure of police and court records; General Statutes § 46b-146; demonstrate the legislature’s intent that children accused of wrongdoing be accorded different treatment from adults. Our construction of § 46b-127 is consistent with this manifest concern.The trial court was thus in error when it denied the defendant’s request to return his case to the docket for Juvenile Matters.

Ill

We are mindful that the defendant has raised claims of error beyond those encompassed by his motion to dismiss or transfer. In our view, however, our disposition of his transfer motion renders further consideration of these claims unnecessary.

In light of our order that the defendant be transferred back to the docket for Juvenile Matters, we need not consider his second claim that the transfer from the docket for Juvenile Matters to the regular criminal docket was not valid. Even were we to agree that the transfer was invalid, we could grant the defendant no further relief. “ ‘It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisidiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ ” Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 158, 479 A.2d 801 (1984); State v. Macri, 189 Conn. 568, 569, 456 A.2d 1203 (1983).

It is likewise unnecessary for us to consider the merits of the defendant’s constitutional challenge to § 46b-127. As a result of the relief granted, the defendant is no longer subject to criminal liability pursuant to § 46b-127. It is not clear, at this juncture, whether the state will seek to have the defendant transferred again to the regular criminal docket on a manslaughter charge under either § 46b-127 or § 46b-126; it is thus possible that further proceedings will not depend on either statute. In concluding that resolution of the constitutionality of § 46b-127 through the vehicle of this appeal is not appropriate, we “follow the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions.” Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980).

There is error, the judgment is set aside and the case is remanded to the trial court with direction to vacate the plea, transfer the defendant back to the docket for Juvenile Matters and dismiss the substitute information.

In this opinion the other justices concurred.

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

       General Statutes (Rev. to 1983) § 46b-127, as amended by Public Acts 1983, No. 83-402, § 2, provides: “(Formerly Sec. 51-308). child charged WITH MURDER OR FELONY TRANSFERRED TO REGULAR CRIMINAL DOCKET, when. The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years; (2) any child referred for the violation of any provision of title 53a which is designated as a class A felony, if such violation was committed after such child attained the age of fourteen, provided such child has previously been adjudicated a delinquent at any age for a violation of any provision of title 53a, which at the time of such violation was designated a class A felony; or (3) any child referred for the violation of any provision of title 53a which is designated as a class B felony, provided such violation was committed after such child attained the age of fourteen years, and further provided such child has previously been adjudicated delinquent for two violations of any provision of title 53a, which at the time of such violations were designated a class A or B felony. No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”

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

       “[General Statutes] Sec. 53a-55a. manslaughter in the first degree with a firearm: class b felony: one year not suspendable. (a) A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes § 46b-133 (b) provides: “(Formerly Sec. 51-314). arrest OF CHILD. RELEASE OR DETENTION OF ARRESTED CHILD. . . .
      “(b) Whenever a child is brought before a judge of the superior court, such judge shall immediately have the case proceeded upon as a juvenile matter. Such judge may admit such child to bail or release him in the custody of his parent or parents, his guardian or some other suitable person to appear before the superior court when ordered. If detention becomes necessary or desirable, the same shall be in the manner prescribed by this chapter.”

       General Statutes § 46b-128 provides in relevant part: “(Formerly Sec. 51-309). INVESTIGATION OF DELINQUENCY COMPLAINT. NONJUDICIAL DISPOSITION. PETITION OF delinquency. Whenever the superior court is in receipt of any written complaint filed by any person, any public or private agency or any federal, state, city or town department maintaining that a child’s conduct constitutes delinquency within the meaning of section 46b-120, it shall make a preliminary investigation to determine whether the facts, if true, would be sufficient to be a juvenile matter and whether the interests of the public or the child require that further action be taken. If so, the court may authorize the filing of a verified petition of alleged delinquency . . . .”

       Shortly thereafter, the defendant filed an appeal challenging the propriety of his transfer but withdrew the appeal in light of our decision in In re Juvenile Appeal (85-AB), 195 Conn. 303, 488 A.2d 778 (1985), holding that a juvenile transfer was not a final judgment for the purposes of appeal. Under Public Acts 1986, No. 86-185, such orders are now appealable. General Statutes §§ 46b-126, 46b-127.

       The state argued to the trial court that a subsequent hearing for probable cause was unnecessary since the defendant had already had a probable cause hearing prior to his transfer. On appeal, however, the state does not challenge the necessity or results of the second probable cause hearing. See State v. Mitchell, 200 Conn. 323, 329-30, 512 A.2d 140 (1986).

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictíonal defects in the criminal prosecution.”

       In State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985), we confined the scope of General Statutes § 54-94a to its express language, holding that it did not encompass a motion to suppress a confession on the ground that it had been illegally obtained.

       The defendant filed the following pleading:
      “motion re: jurisdiction
      “The defendant, Harry Torres, respectfully represents that:
      “1. On November 23, 1983, he was 15 years old, having been born on December 9, 1967.
      “2. He is currently charged in this case with Manslaughter in the First Degree with a Firearm, Conn. Gen. Stat., Sec. 53a-55a (a), alleged to have occurred on or about November 23, 1983.
      “3. The defendant, owing to his age, ought to be held to answer to such charge in the Juvenile Court for the Hartford/New Britain Judicial District, pursuant to the jurisdictional provisions of Conn. Gen. Stats., Secs. 46b-120 (Juvenile Matters), et. seq.

      “Wherefore, the defendant moves this Court to dismiss the instant case, or make whatever other Order the Court deems appropriate.
      “The Defendant
      “By Is I Richard F. Kelly
      His Attorney
      “Dated: May 10, 1984"

       “[General Statutes] Sec. 46b-145. (Formerly Sec. 51-326). child not to be prosecuted. No child shall be prosecuted for an offense before the superior court, nor shall the adjudication of such court that a child is delinquent in any case be deemed a conviction of crime except as provided in sections 46b-126 and 46b-127.”

       General Statutes (Rev. to 1983) § 46b-126, as amended by Public Acts 1983, No. 83-402, § 1, provides: “(Formerly Sec. 51-307). child charged WITH A CLASS a FELONY OR SERIOUS JUVENILE OFFENSE TRANSFERRED to regular criminal docket, when, (a) The court shall hold a transfer hearing to determine whether it is appropriate to transfer and may transfer from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the commission of a class A felony, or for any serious juvenile offense designated as a class B or C felony if such child has previously been adjudicated a delinquent for a serious juvenile offense, as defined in section 46b-120, provided such,child has attained the age of fourteen at the time the alleged delinquent act was committed. If the child is or has been under the custody of the commissioner of children and youth services, the commissioner shall provide any relevant information concerning the amenability of the child to treatment for use at the transfer hearing. No such transfer shall be valid unless, prior thereto, the court has made written findings after a hearing, that there is probable cause to believe that (1) the child has committed the act for which he is charged; (2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his care or treatment; and (3) the prior adjudications of the child, together with the serious and dangerous nature of the acts and the physical, mental and emotional history and condition of the child, are such that the child is a danger to society and requires more secure and longer term handling than the juvenile justice system is able to provide and the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.
      “(b) There shall be established or designated by the department of children and youth services a secure facility or facilities within the state devoted to the care and treatment of children, which children are under the jurisdiction of the superior court. A consideration for admission to such a facility shall be adjudication for a serious juvenile offense.”

       General Statutes § 46b-120 defines a “serious juvenile offense” as “the violation by a child, including attempt or conspiracy to violate sections 53-80a, 53-390 to 53-392, inclusive, 53a-54a to 53a-57, inclusive, 53a-59 to 53a-60c, inclusive, 53a-70 to 53a-71, inclusive, 53a-72b, 53a-86, 53a-92 to 53a-94, inclusive, 53a-95, 53a-101, 53a-111 to 53a-113, inclusive, subdivision (1) of subsection (a) of section 53a-122, subdivision (3) of subsection (a) of section 53a-123, 53a-134, 53a-135, 53a-166, 53a-167c, subsection (a) of section 53a-174, 53a-196a, 53a-211, or for having without just cause run away from any secure placement other than home while committed as a delinquent child to the commissioner of children and youth services for a serious juvenile offense.”

       In support of its argument, the state invokes cases from a number of other jurisdictions, e.g., People v. Davenport, 43 Colo. App. 41, 602 P.2d 871 (1979); Lucas v. United States, 522 A.2d 876 (D.C. App. 1987); Montgomery v. United States, 521 A.2d 1150 (D.C. App. 1987); Johnson v. State, 379 So. 2d 704 (Fla. App.), cert. denied, 388 So. 2d 1114 (Fla. 1980); Worthy v. State, 253 Ga. 661, 324 S.E.2d 431 (1985); Gray v. State, 6 Md. App. 677, 253 A.2d 395 (1969); Dicus v. Second Judicial District, 97 Nev. 273, 625 P.2d 1175 (1981); Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983), cert. denied sub nom. Romeri v. Pennsylvania, 466 U.S. 942, 104 S. Ct. 1922, 80 L. Ed. 2d 469 (1984). Other courts, however, have adopted a position akin to the defendant’s. See, e.g., State ex rel. Davis v. Criminal District Court, 368 So. 2d 1092 (La. 1979); Metcalf v. Commonwealth, 338 Mass. 648, 156 N.E.2d 649 (1959); People v. Murch, 263 N.Y. 285, 189 N.E. 220 (1934). All the cases cited by the state, moreover, involved statutes that differ significantly from the statute at issue in the instant case and framed the issue that they addressed in terms of whether the trial court had jurisdiction over a juvenile defendant. In contrast, we have held that, under our statutory scheme, transfer from the docket of Juvenile Matters to the regular criminal docket does not implicate the Superior Court’s subject matter jurisdiction. State v. Kelley, 206 Conn. 323, 331-32, 537 A.2d 483 (1989).

       “[General Statutes] Sec. 53a-45. murder: penalty; waiver of jury TRIAL; FINDING OF LESSER DEGREE. . . .
      “(c) The court or jury before which any person indicted for murder or held to answer for murder after a hearing conducted in accordance with the provisions of section 54-46a is tried may find him guilty of homicide in a lesser degree than that charged.”

       We need not address today the defendant’s further claims about other scenarios that may develop after a juvenile defendant is transferred to the regular criminal docket on a murder charge. We will leave for consideration at another time questions about the validity of a subsequent conviction of manslaughter as a result of a full trial or a plea of guilty.

       General Statutes § 17-60a dealt with the transfer of juveniles charged with murder. In 1979, the legislature reclassified the transfer statutes and moved the authority to transfer juveniles charged with murder from General Statutes § 46b-126 to § 46b-127. Public Acts 1979, No. 79-581.


source: Caselaw Access Project

author: Shea, J. Peters, C. J.,

license: Public Domain

text:
    Abele E. Grillo v. Zoning Board of Appeals of the City of West Haven et al.
    (13132)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued December 3, 1987
    decision released February 23, 1988

      Leon O. Gross, for the appellant (plaintiff).

      Mark J. DeGennaro, deputy corporation counsel, for the appellee (named defendant).

      Mark A. Healey, with whom, on the brief, was Vincent R. Falcone, for the appellee (defendant Jessica F. DeFrank).
   Shea, J.

The plaintiff, Abele E. Grillo, has appealed from a judgment upholding the action of the defendant West Haven zoning board of appeals (board) in granting variances of minimum area and street frontage requirements of the West Haven zoning regulations for a lot owned by the defendant Jessica F. DeFrank so that it may be used for the construction of a one-family or two-family dwelling. Grillo claims that the trial court erred in concluding (1) that DeFrank’s application for a variance could be considered by the board on its merits when no change in conditions or new considerations had intervened since the board had granted an earlier application concerning the same lot subject to the condition that the property “shall not be treated as an approved building lot,” and (2) that there was sufficient evidence of hardship to support the grant of a variance. We find error on the second ground and remand the case with direction to sustain the appeal.

There is no substantial dispute about the facts. In 1946, DeFrank acquired two contiguous rectangular lots, each having a frontage of forty feet on the north side of Blohm Street in West Haven, a depth of approximately 134 feet, and an area of approximately 5360 square feet. A house was situated wholly within the easterly lot and the remaining lot was used as a side yard for the house. A survey dated May 9,1957, about ten years before the zoning regulations became effective, shows the entire property as two separate adjoining lots. The assessment records for West Haven indicate that the vacant lot has always been assessed separately from the lot on which the house is situated.

Zoning regulations became effective in West Haven on February 2, 1967. Section 23-3.1 of these regulations established 6000 square feet as the minimum area and § 23-3.3 established fifty feet as the minimum frontage for a building lot in a R3-2 zone, in which the DeFrank property was situated. Each of the lots owned by DeFrank lacked 640 square feet of the area and ten feet of the frontage required for a building lot by these regulations. Section 23-5.1 of the regulations, however, contains “special provisions for existing small lots” that permit a residence to be built upon a lot with less than the prescribed minimum area and frontage if that lot “was owned separately and individually from all other adjoining tracts of land on the effective date” of the zoning ordinance, provided the lot area and frontage equal the average for all lots in the same block.

On August 12,1982, DeFrank applied for a “special exception” for the vacant lot in order “to sell lot which is less than now required 50 feet frontage and 6000 square feet area.” The application referred to § 23-5.1, “special provisions for existing small lots,” as the section of the zoning regulations involved and specified, as the hardship claimed, “all lots on street [are] same dimensions or less.” The board, however, as its minutes indicate, treated the application as seeking a variance of § 23-5.1 “to sell a lot which is less than the required 50 feet frontage and 6000 square feet.” In granting a variance on September 15,1982, the board imposed the condition that “the property shall not be treated as an approved building lot.” As its reason for granting the variance, the board expressed its view “that the applicant suffered from unnecessary hardship and practical difficulties and that the variance requested would have no adverse effect upon neighboring property owners.”

This 1982 application was made in relation to discussions between DeFrank and the plaintiff, who owned property adjoining the west side of the vacant lot, about his proposed purchase of the lot for approximately $8000. No such sale, however, was ever consummated. Instead DeFrank applied to the board expressly seeking a variance of § 23-3.1, the minimum lot area requirement, and of § 23-3.3, the minimum frontage requirement. The only hardship claimed in this application was that all other lots on the street were undersized. The board granted this application on May 18, 1983. The plaintiff appealed this action of the board and his appeal was ultimately sustained by the Appellate Court. Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 493 A.2d 275 (1985). The Appellate Court concluded that the minutes of the hearing before the board contained no evidence to support the claim that the lot was valueless if it could not be used as a building lot. Id., 208-209.

On August 20, 1985, DeFrank filed another application with the board in which she sought a variance of §§ 23-3.1 and 23-3.3. This application made no reference to § 23-5.1, the small lot provision, nor did it mention the “variance” that had been granted in 1982 regarding that provision. As the purpose of the requested variance, the application stated the need for relief from the lot area and frontage requirements because of the status of the lot as an individual building lot prior to zoning “so that the property may become an accepted building lot.” DeFrank claimed hardship because the lot had existed as a “single piece” prior to zoning, had been taxed as such, and would be greatly decreased in value unless it could be used as a building lot. At the public hearing DeFrank presented evidence of financial hardship in that the value of the lot, if available for construction of a two-family house, a permitted use within the zone, would be approximately $26,000 as compared with its market value of $5000 on the assessment records. There was also evidence that the plaintiff had offered about $8000 for the lot in 1982 and was still interested in purchasing the lot. The board granted the application, stating only that “hardship was shown.”

In his appeal from the granting of the 1985 application, the plaintiff raised both issues pursued before us, the absence of any circumstances justifying removal of the restriction against building imposed when the board granted the 1982 variance and the lack of sufficient evidence of hardship. The trial court held that the action of the board in imposing a building prohibition when the 1982 application was granted did not bar the 1985 application, even without proof of changed circumstances, because each application sought different relief and in the 1982 application, DeFrank “was in effect asking the board to grant a right which she already had.” The court also concluded that hardship had been shown because the zoning regulations deprived DeFrank of the ability to build on the vacant lot, as she could have done before their enactment, and that “the board could have found that because DeFrank could make no reasonable use of the lot, its market value was minimal,” being of use only “to enhance the enjoyment of adjacent lots.”

I

We agree with the trial court that the restriction against building imposed by the board in granting a variance in 1982, after DeFrank had applied for a “special exception” in respect to § 23-5.1 for the purpose of selling her undersized vacant lot, did not bar consideration of her most recent application for a variance on its merits, as the plaintiff claims. “Ordinarily, an administrative agency cannot reverse a prior decision unless there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.” Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 390-91, 207 A.2d 375 (1965); Hoffman v. Kelly, 138 Conn. 614, 616-17, 88 A.2d 382 (1952). “The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former.” Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957).

The record of the 1982 application of DeFrank for a “special exception” with respect to § 23-5.1 does not disclose the reason why the application was treated by the board as an application for a variance. The zoning regulations do not provide that a special exception must be granted for an owner to avail himself of the benefit of that section, which provides simply that a house may be built on any lot satisfying its requirements. The board does have authority to decide appeals from decisions of building department officials involving interpretations of the regulations, but the record does not reveal any such circumstances relating to the 1982 application. In any event, it is clear that the later applications sought variances in respect to §§ 23-3.1 and 23-3.3, without mention of § 23-5.1. It is also undisputed that the occasion for the 1982 application was the discussion with the plaintiff concerning his purchase of the lot for use as a side yard in conjunction with his adjoining property and not as a building lot. Thus, the plaintiff, who bears the burden of showing that the 1982 action of the board forecloses consideration of the application filed by DeFrank in 1985, has failed to establish that the same relief was sought in both applications.

Furthermore, as the trial court concluded, the grant of the variance to DeFrank in 1982, with the restriction against using the lot for building, was in effect a nullity, since it merely reaffirmed “a right she already had.” No variance or other permission was needed to enable her to use or to sell the vacant lot for continued use as a side yard. The zoning regulations do not purport to restrict transfers of land, but only the uses to be conducted thereon.

So far as disclosed by the record, the circumstances of the 1982 application did not bar consideration of DeFrank’s present application on its merits.

II

We have held that the authority of a zoning board of appeals to grant a variance under General Statutes § 8-6 (3) requires the fulfillment of two conditions: “(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).

The plaintiff does not claim that the variance granted to DeFrank will have an adverse effect upon the comprehensive plan of zoning for West Haven. It is the “unusual hardship” requirement that the plaintiff maintains has not been met. He argues that the evidence presented at the hearing that the value of the lot would be greatly increased if it could be used for the construction of a house is proof of mere financial advantage, which this court has often declared to be insufficient to support a variance of the zoning regulations. “Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of practical difficulty or unnecessary hardship.” Thayer v. Board of Appeals, 114 Conn. 15, 22, 157 A. 273 (1932); see Libby v. Board of Zoning Appeals, 143 Conn. 46, 51 n.1, 118 A.2d 894 (1955). “Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect.” Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89-90, 255 A.2d 841 (1969).

Because the board, which was required by § 23-3.2 of the regulations to “state upon the records the reason for its decision” in granting or denying a variance, tersely declared only that “hardship was shown,” the trial court properly searched the record “to attempt to find some basis for the action taken.” Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965); Zieky v. Town Plan & Zoning Commission, 151 Conn. 265, 268, 196 A.2d 758 (1963). We disagree, however, with the trial court’s conclusion drawn from the record of the public hearing that the inability to erect a one-family or two-family residence on the lot meant that “DeFrank could make no reasonable use of the lot” and thus “its market value was minimal.” It was undisputed that DeFrank was using the vacant lot as a side yard for the house she owned on the adjoining lot. Such a use was certainly reasonable and undoubtedly would enhance the price she would receive for the property as a whole if she were to sell it. The evidence indicated also that the plaintiff had offered her $8000 for the lot in 1982 so that he might use it, not as a building lot, but as a side yard for his adjoining property. According to the assessor’s records the lot had a market value of $5000. This valuation of the lot for the purpose of its current use as a side yard cannot fairly be characterized as “minimal.”

Unquestionably the lot would have a much higher value, estimated at $26,000 by an appraiser testifying for DeFrank at the hearing, if it could be used as a building lot. A zoning regulation that prevents land from being used for its greatest economic potential, however, does not create the exceptional kind of financial hardship that we have deemed to have a “confiscatory or arbitrary” effect. In Culinary Institute of America, Inc. v. Board, of Zoning Appeals, 143 Conn. 257, 121 A.2d 637 (1956), a case relied on by DeFrank, where a variance to erect a multiple-family apartment house was granted for land situated in a single-family residence zone, the zoning board had found that the large one-family house on the property could no longer be used as a residence because of the prohibitive cost of maintenance. The zoning board had also found that many similar properties in the area had been converted into multiple apartments, medical offices and one into a convalescent home. There was evidence that the property had been on the market for two years, and could not be sold for its existing use. In the case before us there is no evidence that the vacant lot is unmarketable for its present use as a side yard enhancing the value of the adjoining DeFrank property or of other adjoining properties, such as that of the plaintiff. Proof of financial hardship having a “confiscatory or arbitrary” effect requires more than testimony that property can be sold only for a price substantially lower than can be obtained if a variance is granted to permit a use otherwise prohibited by the zoning regulations.

DeFrank also claims that because the vacant lot was shown separately from her adjoining house lot on a survey made ten years before the advent of zoning in West Haven, and has been assessed separately for real estate tax purposes, she has shown a hardship pertaining uniquely to her vacant lot that justifies the grant of the variance. Section 23-5.1 of the regulations, however, expressly addresses the situation where a lot “has less than the prescribed minimum lot area or lot width and . . . was owned separately and individually from all other adjoining tracts of land on the effective date of this resolution and on the date of the application for a building permit.” The construction of a house on such a lot is permitted, provided that its area is “equal to the average areas of all lots on the same block” and its “frontage is equal to the average lot frontage of all parcels on the same block.” West Haven Zoning Regs. § 23-5.1.

DeFrank has maintained that the vacant lot was considered to be an individual building lot prior to zoning and that it has the same frontage and area as most of the other lots on the street. Those contentions relate to whether the lot, when zoning became effective, qualifies as property “owned separately and individually” from adjoining land and whether it satisfies the average lot area and frontage requirements of § 23-5.1. If the lot meets these requirements this section expressly permits a house to be built upon it.

The record does not disclose whether the “special exception” DeFrank applied for in 1982 was an attempt to obtain a determination of whether the lot satisfies the requirements of § 23-5.1 or why the board decided instead to grant a variance with a restriction against building. In any event, if the lot qualifies as a building lot under § 23-5.1, no variance for that purpose should have been granted, because no hardship has been imposed by the regulations. “It is elemental that a variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations.” Carlson v. Zoning Board of Appeals, supra, 90. It follows that, if the use for which a variance is sought is permitted by the regulations, the variance cannot be granted.

If the lot does not qualify under § 23-5.1, it is difficult to perceive any distinction between DeFrank’s hardship and that imposed on other owners of lots that do not qualify under the provisions of § 23-5.1. “It is well settled that the hardship must be different in kind from that generally affecting properties in the same zoning district . . . .” Smith v. Zoning Board of Appeals, supra, 327. The record does not indicate how many other property owners in the zone also had an additional lot in existence before zoning that was being used as a side yard. There is no basis, therefore, for assuming that DeFrank’s situation was essentially different from that of many others in the area.

We conclude that the trial court erred in finding sufficient evidence of financial hardship to support the granting of the variance. With respect to the claims of hardship based upon DeFrank’s ownership of the vacant lot as separate from her adjoining property, our view is that, until it has been ascertained that the lot does not satisfy the requirements of § 23-5.1 for a building lot in existence prior to zoning and that any hardship imposed on her is different from that suffered by other property owners in the zone, these circumstances provide no basis for a claim of hardship imposed by the zoning regulations.

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

In this opinion, Callahan, Glass and Covello, Js., concurred.

Peters, C. J.,

concurring. I concur that the trial court should have sustained the plaintiff’s appeal in this case. The majority opinion concludes that Jessica F. DeFrank cannot prevail on her claim of “unusual hardship” when § 23-5.1 of the West Haven zoning regulations affords her the opportunity, without a variance, to obtain the relief that she seeks. I agree with that conclusion. Since DeFrank is foreclosed from obtaining a variance on hardship grounds as a matter of law, I think it is unnecessary to inquire whether, in other circumstances, she would have demonstrated sufficient financial hardship as a matter of fact.

The factual issue of “unusual hardship” strikes me, with due deference, as troublesome. As far as I can tell, the “market” for the lot in question is limited to two potential buyers: the adjoining owner, who is the plaintiff in the present litigation, and an unknown person to whom DeFrank might, in the future, sell the two lots she now owns. On this record, the zoning board of appeals might reasonably have been skeptical about the accuracy of the assessor’s appraisal value of $5000. Looking at the entire factual situation, the board of appeals arguably could have determined that DeFrank’s side lot, absent a variance, has only minimal market value. I would think it prudential to leave this issue to be resolved on another occasion.

Accordingly, I concur in the judgment.

       Section 23-5.1 of the West Haven zoning regulations provides: “special PROVISIONS FOR EXISTING SMALL LOTS
      “In all Districts, either one single-family detached residence or, where permitted, one two-family detached or single-family semi-detached residence may be built upon a zoning lot consisting entirely of a tract of land: (a) Which has less than the prescribed minimum lot area or lot width and (b) Which was owned separately and individually from all other adjoining tracts of land on the effective date of this resolution and on the date of application for a building permit, provided that such lot area is equal to the average areas of all lots on the same block and such lot frontage is equal to the average lot frontage of all parcels on the same block.”

       The evidence at the public hearing does not indicate that DeFrank has paid a greater amount of real estate taxes to the city of West Haven because the vacant lot has been assessed separately from her adjoining property. The record of the hearing contains the following statements by the chairman of the zoning board of appeals, Borden Steeves, Jr.: “No, no that makes no difference. The amount of tax makes no difference on whether it’s one piece. . . . The size doesn’t make any difference as far as the taxes go. . . . You pay the same amount per square foot whether it’s three or a hundred.”

       The concurring opinion suggests that we should resolve this appeal solely upon the ground that DeFrank has not demonstrated that the zoning regulations have imposed any hardship upon her because it has not yet been determined whether her lot may qualify as a building lot under .§ 23-5.1 of the West Haven zoning regulations. In Carlson v. Zoning Board of Appeals, 158 Conn. 86, 90-91, 255 A.2d 841 (1969), however, this court held that there was insufficient evidence of hardship, financial or otherwise, to justify the granting of a variance, while also declaring that “[i]t is questionable whether [the applicant] even needed a variance,” because he might have had the right to conduct the same activity for which the variance had been granted as a nonconforming use. One of the factors inducing us to follow the Carlson precedent in this case is the protracted history of DeFrank’s efforts to obtain approval of her lot for the purpose of building a residence upon it. We believe our determination of the financial hardship issue may expedite the ultimate resolution of this controversy.


author: Callahan, J. Shea, J., with whom Covello, J.,

text:
    Jeannette S. Simko et al. v. Zoning Board of Appeals of the Town of Fairfield et al.
    (13193)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 5
    decision released March 1, 1988

      Vincent M. Simko, with whom was Bruce L. Elstein, for the appellants (plaintiffs).

      James F. Stapleton, with whom were Roy H. Ervin, Jr., and, on the brief, Donal C. Collimore, for the appellees (defendants).
   Callahan, J.

The present action comes before this court sitting en banc on a grant of the plaintiffs’ motion for reconsideration filed pursuant to Practice Book § 4122. Initially, the plaintiffs appealed to the Appellate Court, pursuant to the grant of a petition for certification, wherein they sought review of a judgment dismissing their administrative appeal from a decision of the zoning board of appeals of the town of Fairfield (board). The appeal was then transferred to this court, pursuant to Practice Book § 4023, and argued on October 6, 1987. Our decision in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), was released on December 1, 1987.

In Simko I we held that, under General Statutes § 8-8 (b), as amended by Public Acts 1985, No. 85-284, § 3, the clerk of the municipality, in addition to the chairman or clerk of the zoning board, is a statutorily mandated, necessary party who must be properly served in a zoning appeal brought pursuant to § 8-8. Simko I, supra, 418-19. We went on to hold that the failure to name the clerk of the municipality in the citation was a jurisdictional defect that rendered the administrative appeal subject to dismissal because a proper citation is essential to the validity of the appeal. Id., 420-21.

At reargument, the plaintiffs have requested that this court reconsider the following issues: (1) whether the 1985 amendment to § 8-8 (b) mandates that the clerk of the municipality be named as a necessary party; and (2) whether the plaintiff was required to direct service upon the clerk of the municipality. The plaintiffs argue that, if the clerk of the municipality is held to be a necessary party to a zoning appeal, all of the pending zoning appeals that they have reviewed will be subject to immediate dismissal. The plaintiffs urge this court to interpret § 8-8 (b) to mean that the clerk of the municipality is merely an agent for service for the board and not required to be named in the citation. In support of this proposition they argue that no conceivable purpose is served by making the clerk of the municipality a party to the appeal. We disagree.

We begin by noting that the relevant facts remain undisputed. In initiating their appeal to the Superior Court from the decision of the board, the plaintiffs’ citation directed the sheriff to summon the board and Roy H. Ervin, the applicant for the variance, to appear by leaving true and attested copies of the complaint and citation with or at the usual place of abode of the chairman or clerk of the board and with Ervin. The citation failed to make reference in any way to the clerk of the municipality.

We reiterate the established law that a statutory right of appeal from a decision of an administrative agency “ ‘ “may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” ’ . . . [Such] provisions are mandatory and jurisdictional in nature, and, if not complied with, the appeal is subject to dismissal.” (Citations omitted.) Simko I, supra, 419. In 1985, the Connecticut legislature specifically changed § 8-8 (b) from the disjunctive to the conjunctive and statutorily provided that, as a condition to the initiation of a zoning appeal, the chairman or clerk of the board and the clerk of the municipality must be served with true and attested copies of the appeal. When the legislature amends the language of a statute, it is presumed that the legislature intended to change the meaning of the statute; Shelton v. Commissioner, 193 Conn. 506, 513, 479 A.2d 208 (1984); and to accomplish some purpose. Farricielli v. Person nel Appeal Board, 186 Conn. 198, 204, 440 A.2d 286 (1982); City Council v. Hall, 180 Conn. 243, 251-52, 429 A.2d 481 (1980). It can only be presumed that, by changing “or” to “and,” the legislature intended that both the chairman or cleric of the zoning board and the clerk of the municipality be served. Otherwise the change is of no effect. Further, § 8-8 (b) does not say that the notice of such appeal shall be given to the zoning board by serving or leaving true and attested copies of the appeal with the chairman or clerk of the board and the clerk of the municipality. Language to that effect would undoubtedly have made the clerk of the municipality the mere agent for service for the board. To construe § 8-8 (b) in such a manner, however, would be to impose on the statute a meaning that is not even remotely intimated by its literal reading. We note that the legislature has had no difficulty in the past in being able clearly to designate agents for service of process when an agent for service of process is what it intended to create. See, e.g., General Statutes §§ 52-57 (b) through (e), 52-61, 52-62 (c), 52-63 (a), 52-64.

The plaintiffs argue, however, that it is obvious that the clerk of the municipality is only an agent for service because no purpose is served by making the clerk a party to the appeal since the clerk is “foreign to a zoning matter” and the judgment in such a matter would not affect him or her. This argument is premised on the assumption that the statute requires the clerk of the municipality to be served as an individual merely to deliver the appeal to the board as an alternative method of notice to the board. This premise is not supported by the language in § 8-8 (b). More importantly, the clerk of the municipality is the statutorily designated agent for service of process for the municipality itself under General Statutes § 52-57 (b). In requiring service on the clerk of the municipality, the legislature is presumed to have known that and to have acted in view of existing relevant statutes and with an intent to create one consistent body of laws. State v. Harris, 198 Conn. 158, 168, 502 A.2d 880 (1985); State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984). We are, therefore, unable to construe the 1985 amendment to § 8-8 (b) as simply designating the clerk of the municipality an alternative agent for service on the board when the clerk has a role of his or her own in the statutory scheme created by the legislature.

The arguments raised by the plaintiffs on reconsideration of Simko I stress the absence of any interest of a municipality itself in a zoning appeal that would justify a legislative mandate making the municipality, in addition to the board, a necessary party to the institution of a zoning appeal. The plaintiffs claim, therefore, that it defies common sense to construe the statute as it was construed in Simko I. The interests, however, of a municipality in the validity and enforcement of its zoning regulations and in the protection of the public’s interest in zoning matters have been recognized in past decisions of this court. See Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 239-40, 215 A.2d 409 (1965); Guilford v. Landon, 146 Conn. 178, 179-80, 148 A.2d 551 (1959); Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832 (1958); Rommell v. Walsh, 127 Conn. 16, 20-24, 15 A.2d 6 (1940); see also T. Tondro, Connecticut Land Use Regulation (1979) § VII (A) (1) and (B), pp. 210, 214.

In Tyler v. Board of Zoning Appeals, supra, 656, the members of the planning and zoning commission appealed a decision of the town zoning board of appeals that granted a variance that allowed the continued location of the applicant’s house closer to the street than otherwise permitted by ordinance. In deciding whether the members of the zoning commission were aggrieved for purposes of maintaining an appeal, the court recognized that ordinarily the zoning board of appeals prosecuted an appeal on behalf of the public’s interests. Nevertheless, this court also held that “[t]he municipality concerned is always entitled to represent such interests by participating as a party to an appeal. Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681, 96 A.2d 806 [1953]; Keating v. Patterson, 132 Conn. 210, 212n., 43 A.2d 659 [1945]; Maltbie, Conn. App. Proc., § 266.” Id., 658.

In Guilford v. Landon, supra, the municipality’s interest in the enforcement of its zoning regulations was clearly acknowledged. In Guilford, the municipality, acting through its town planning and zoning commission, brought an action to enjoin the use of a parcel of property by its owner in violation of the regulations. Id., 179. In response to the defendant’s motion to dismiss on the grounds that the town had no right to maintain the action, this court held: “The real party in interest is the town. There is a definite public interest to be protected in the enforcement of the zoning regulations, and the town as a party could properly represent that interest.” Id., 179-80; see also T. Tondro, supra, § VII (A) (1), p. 210.

This court has also recognized the interest of the municipality in maintaining the validity of its zoning regulations. In Avonside, Inc. v. Zoning & Planning Commission, supra, 234-35, two developers brought a declaratory judgment action against the town planning and zoning commission to test the validity of a zoning regulation adopted by the commission. This court noted that in an action that involved the validity of the town’s zoning regulations, the town itself would be a necessary party. Id., 239.

Additionally, we recognize that the interests of the municipality in a zoning appeal may not always coincide with those of the zoning board. See Rommell v. Walsh, supra, 20-24. It is not difficult to foresee a situation where the board might grant a variance to an applicant/developer that is not in accordance with the comprehensive plan of development or master plan. While the board may have an interest in having its decision sustained where an appeal is brought by a contiguous property owner, the municipality, nevertheless, would and should be interested in protecting the public and ensuring orderly development of the municipality by also challenging the board’s decision.

Accordingly, we affirm Simko I and hold that the clerk of the municipality is a statutorily mandated, necessary party to the proper institution of an appeal and must properly be served with true and attested copies of the appeal. Absent strict compliance with its statutory previsions, § 8-8 (b) renders the appeal subject to dismissal. Simko I, supra.

We note that our holdings today, as well as our holdings in Simko I, should not be construed to render zoning appeals filed in compliance with the provisions of § 8-8 (b), as amended, subject to dismissal where the complaint fails to contain allegations directed against the clerk of the municipality or where the municipality chooses not to appear formally in the action and file responsive pleadings. In those cases where the interests of the municipality coincide with those of the zoning board, and the municipality has determined that the board will adequately protect those interests, the municipality is not an indispensable party to the maintenance of the appeal once properly initiated. By the legislature’s amending of § 8-8 (b) to mandate service on the statutorily designated agent for service on the municipality, we can only conclude that it has attempted to ensure that the municipality will receive adequate notice and have sufficient opportunity to be heard and protect the interests of the public where necessary.

The next issue for which the plaintiffs request reconsideration is whether it is necessary to direct service upon the clerk of the municipality by naming him in the citation. In light of the foregoing and in reliance on the reasoning and authorities cited in Simko I, supra, 419-20, we affirm Simko I and hold that the failure properly to cite and serve the clerk of the municipality as required by § 8-8 (b) is a jurisdictional defect that renders a zoning appeal subject to dismissal. The plaintiffs have failed to cite any persuasive authority to the contrary.

Accordingly, we affirm our decision in Simko I subject to the limited qualification stated above.

There is no error.

In this opinion Peters, C. J., Healey, Glass and Hull, Js., concurred.

Shea, J., with whom Covello, J.,

joins, dissenting. Unlike the previous majority opinion in Simko v. Zon ing Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), which purported to rely upon the legislative history of the 1985 amendment to General Statutes § 8-8 (b); Public Acts 1985, No. 85-284, § 3; but conveniently ignored the most significant portion of it, the majority en banc opinion makes no reference to this standard source for ascertaining the purpose of a legislative enactment. Prior to the 1985 amendment, § 8-8 (b) provided, with respect to an appeal taken from a zoning board of appeals, as follows: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, or by serving a true and attested copy upon the clerk of the municipality.” (Emphasis added.) The statute at that time required service upon the chairman or clerk of the board or upon the clerk of the municipality, creating in effect three alternative agents for service upon a board of appeals, no one of whom was ever regarded as a “necessary party” to the appeal, even when chosen as the instrument for service upon the board. The 1985 amendment simply changed the italicized “or” in the statute as quoted to “and,” thus requiring that notice of an appeal be served upon the chairman or clerk of the board, as formerly, and also upon the clerk of the municipality. It is this change from the disjunctive to the conjunctive that the majority maintains has transformed the municipal clerk from an agent for service to a necessary party.

The legislative history of the 1985 amendment, though sparse, is informative. Representative Vincent Chase, who sponsored the amendment, made the following remarks at the time it was approved by the House of Representatives: “[The amendment is] of a technical nature, which would require that when an appeal is filed on a planning and zoning board, that the appeal notice also be served on the town clerk of the municipality. I’m offering this amendment as a result of the discussions that I’ve had concerning an appeal being served on a zoning official who may be at vacation and no one realizing that the board had been served because it was just stuck in a mail box. This would insure that the town clerk and the administrator of the board were aware in sufficient time, that an appeal may have been served.” (Emphasis added.) 28 H.R. Proc., Pt. 13, 1985 Sess., pp. 4773-74. In explaining the purpose of the amendment in the Senate, Senator John Consoli declared: “This bill would make it mandatory rather than optional to serve notices of appeals from the zoning board of appeals and the planning commission to the town clerk.” 28 S. Proc., Pt. 9, 1985 Sess., p. 2928.

These remarks indicate that the purpose of the amendment was to ensure that notice of the appeal would always be received in hand by a town official who is ordinarily available at the town office building and thus to avoid the uncertainties of abode service upon a part-time chairman or clerk of a zoning board, who may be absent for a considerable period of time after notice of an appeal has been delivered to his residence. See General Statutes §§ 8-8, 52-57 (b).

These comments, made contemporaneously with the enactment of the amendment, also signify that service of notice of the appeal upon the town clerk, as well as upon the chairman or clerk of the board, was intended to be mandatory, as the amendment of the statute from “or” to “and” dictates. Absent from the legislative history, however, is any indication that this single word change was intended to transform the status of the town clerk from that of an agent for service upon the board to that of a “statutorily mandated, necessary party,” as the majority assumes. The record is similarly silent concerning any intention that the town clerk cease to remain an agent for service upon the zoning board but assume his role under General Statutes § 52-57 (a) as one of several agents for service upon the municipality itself, the en banc majority’s rationale for the change in the statute.

Shunning such light as the legislative history sheds upon the purpose of the 1985 amendment, the majority opinion gleans from the fact that service of notice of the appeal upon the town clerk has now been made mandatory that he was also intended to be made a necessary party to the appeal. The opinion does not address the implications of construing a requirement for service upon a statutorily designated person as implicitly making him a necessary party. If the town clerk has become a necessary party to a zoning appeal by virtue of the change from the disjunctive to the conjunctive, does either the chairman or the clerk of the board, because of the amendment, similarly become a necessary party, who must be so named in the citation because service is mandated upon one of them? Where service is made upon the commissioner of motor vehicles pursuant to General Statutes § 52-62 as the agent of a nonresident motorist in a suit arising from his operation of a motor vehicle in this state, must the commissioner be named in the writ as a party because service upon him is mandated as a prerequisite to obtaining jurisdiction over the defendant? See also General Statutes § 52-63 (service upon motor vehicle commissoner as agent for resident operator or owner not found at address on file), § 52-59b (c) (service upon secretary of state in actions against nonresident individuals or partnerships), § 52-57 (c) (service upon an agent of a corporation appointed pursuant to General Statutes § 33-400), and § 52-61 (service upon nonresident fiduciaries).

The gravamen of the majority opinion is that “strict compliance” with the statutory requirements is essential in order to exercise the right of appeal created thereby. In this case, however, it is undisputed that the town clerk was served with notice of the appeal, as the 1985 amendment requires. The ground relied upon by the majority in dismissing the appeal is not the lack of service upon the clerk but the failure to name the clerk in the citation. The opinion declares that “the failure to name the clerk of the municipality in the citation was a jurisdictional defect that rendered the administrative appeal subject to dismissal because a proper citation is essential to the validity of the appeal.”

A citation is “[a] writ commanding a person to appear for some purpose specified.” Ballentine’s Law Dictionary (3d Ed.); see Sheehan v. Zoning Commission, 173 Conn. 408, 412, 378 A.2d 519 (1977); Black’s Law Dictionary (5th Ed.). The citation in this case commanded the deputy sheriff “to summon the Zoning Board of Appeals of the Town of Fairfield . . . to appear before the Superior Court ... to answer unto the foregoing complaint of [the plaintiffs] . . . .” Although a citation must name all necessary parties, it does not require a person upon whom service must be made to be named as a party simply because he is a statutory agent for service upon a party commanded to appear by the citation. If the majority’s assumption that a citation must name an agent for service were sound, most of the forms appearing in the Practice Book prescribing the citations to be used in bringing administrative appeals would be defective, because they do not name the person upon whom service is to be made in behalf of the administrative agency involved, which is summoned to appear. See Practice Book Forms 204.3 (appeal from public utilities control authority), 204.4 (appeal from board of tax review), and 204.9 (appeal from liquor control commmisson). In the present case, even if the citation had directed service upon the town clerk, as it did upon the chairman or clerk of the zoning board, the town clerk would not have been made a party unless commanded to appear in response to the complaint, as the board and the successful applicant for the variance being appealed were directed.

In Simko I the opinion quotes (p. 420) a portion of our decision in Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961), to the effect that the citation “bestows upon the officer to whom it is given for service the power and authority to execute its command” and that “[without it the officer would be little more than a deliveryman.” The defect in the citation relied upon in Village Creek Homeowners Assn., however, was the failure to name the public utilities commission and the utility company involved as parties ordered to respond to the complaint, not the failure to mention in the citation the person authorized to be served in behalf of the commission. “[The complaint] did not, however, contain a citation directing the officer to make service upon either the commission or the power company and to summon them to appear in court.” Id., 338. In the case before us the citation not only named the zoning board and the successful applicant as parties to appear in court but also directed the sheriff to “make due service and return” of the writ. It is true that the citation unnecessarily specified the manner in which service was to be made upon the board and in doing so erroneously omitted to mention the town clerk in addition to the chairman or clerk of the board as the individuals to be served. The command to the sheriff to make due service upon the board, however, bestowed upon him all the authority needed to make service in his official capacity upon anyone required by the statute in order properly to cite the board to appear in court. The sheriff, therefore, was not acting as a mere “deliveryman” in serving the town clerk but in his official capacity charged with the duty of making valid service upon the town clerk, as well as the chairman or clerk of the board, in order to cite the zoning board to appear in court pursuant to the 1985 amendment to § 8-8 (b), a responsibility that the sheriff adequately fulfilled.

The majority opinion appears to recognize that the town clerk in his individual capacity has no personal interest in a zoning appeal that would permit him to become a party, let alone a necessary one. Only a person with a judicially cognizable interest in an action may be a party. That interest must be one that the outcome of the litigation will affect. The en banc majority opinion, nevertheless, continues to affirm the holding in Simko I that the clerk is a “statutorily mandated, necessary party to the proper institution of an appeal.” Apparently, however, the town clerk is not to be summoned to appear in response to the complaint, as the citation must command in respect to other parties, because he could not very well appear if he had no interest justifying his presence as a party.

It is the municipality, the en banc majority maintains, that has an interest in its zoning regulations sufficient to support its presence as a party to the appeal. The function of the town clerk, the opinion implies, is merely to serve as an agent for service on the municipality. The opinion does not indicate, however, that the municipality rather than the town clerk should be named in the citation as the party commanded to appear in response to the complaint. Presumably, therefore, the municipality itself is not a necessary party for a complete adjudication of the appeal but is merely one entitled to receive notice thereof so that it may choose whether to intervene. If the town clerk cannot in his own right become a party and if the municipality is simply entitled to receive notice of the appeal through service on the clerk so that it may intervene, it is difficult to understand the basis for the majority’s view that this action should be dismissed for lack of subject matter jurisdiction because of the absence of a necessary party.

The defect relied upon for this result by the majority is not a failure to comply with the statute, whose terms have been fulfilled to the letter by actual service on the clerk, but a supposed deficiency of the citation in failing to specify that service was to be made on the town clerk. The 1985 amendment, however, does not provide reasonable notice of the changed role of the clerk in accepting service of the appeal as the agent of the municipality rather than as agent of the zoning board as formerly. This transformation in the role of the clerk, somehow perceived in the amendment by the majority, seems to be the thread upon which the opinion depends for its conclusion that the failure of the citation to name the town clerk as a “statutorily designated party” is fatal to the appeal. Such a novel construction of the single word change effectuated by the amendment, however, was not even envisioned by the majority in Simko I, nor can those who have taken appeals since the enactment of the amendment fairly be charged with being aware of the majority’s presently announced view of its purpose.

“It is the courts, the legal profession and the public generally, not just the plaintiffs, who are the losers when serious cases . . . fail to be resolved on their merits because of some procedural deficiency.” Hughes v. Bemer, 200 Conn. 400, 405, 510 A.2d 992 (1986) (Shea, J., dissenting). Where the procedural deficiency claimed to make such a result unavoidable follows from a construction of a statute not required by its language, wholly inconsistent with its legislative history, and unheralded by applicable precedent, the frustration of the principal objective of our judicial system, to resolve controversies on their merits, arises from a mere exaltation of form over substance.

Accordingly, I dissent.

       General Statutes § 8-8 (g) provides: “There shall be no right to further review except to the appellate court by certification for review, upon the vote of two judges of the appellate court so to certify and under such other rules as the judges of the appellate court establish. The procedure on such appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court.”

       General Statutes § 8-8 (b), as amended by Public Acts 1985, No. 85-284, § 3, provides: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.”

       For the nature of the variance granted to Roy H. Ervin, see Simko v. Zoning Board of Appeals, 205 Conn. 413, 414 n.1, 533 A.2d 879 (1987).

       The change in General Statutes § 8-8 (b) effected by Public Acts 1985, No. 85-284, § 3, was enacted with presumptive knowledge by the legislature of the judicial gloss placed on the statutory requirements for administrative appeals by this court over many years. See Murach, v. Planning & Zoning Commission, 196 Conn. 192, 200 n.14, 491 A.2d 1058 (1985); Peck v. Jacquemin, 196 Conn. 53, 72, 491 A.2d 1043 (1985); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 332, 471 A.2d 646 (1984); Hurlbutt v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161 (1952).

       Contrary to the dissenting opinion’s opening statement, the majority opinion in this case does not ignore the legislative history. The legislative history was fully discussed in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), and, in fact, the majority specifically explained why it did not find the one statement of Representative Vincent Chase, upon which the minority opinion relies, as controlling. Id., 418 n.6. Given the fact that this opinion does not overrule Simko I and relies upon the rationale of Simko I, the majority saw no reason to repeat Simko I verbatim.

       In part, the minority relies upon General Statutes § 8-8 (b) as it existed prior to 1985 to conclude that the clerk of the municipality was an alternative agent for service, and now has become a necessary agent for service for the zoning board. We disagree. It is equally plausible that the chairman or clerk of the board under the pre-1985 version of § 8-8 (b) was merely an alternative agent for service upon the municipality itself given the following: (1) the legislature placed the clerk and the chairman in the same position as the clerk of the municipality with the knowledge that the clerk of the municipality was the statutorily designated agent for service for the municipality under General Statutes § 52-57 (b); (2) ordinarily, the board represented the interests of the public and the municipality; (3) the significant interests that the municipality has in the validity and enforcement of its zoning regulations; (4) the statute was silent concerning in what capacity the three alternative persons named were served; (5) the legislature’s past ability to designate mere agents for service; and (6) the fact that, as the minority recognizes, the “purpose of the amendment was to insure that notice of the appeal would always be received in hand by a town official who is ordinarily available at the town office building . . . .”

       General Statutes § 52-57 (b) provides: “manner of service upon individuals, MUNICIPALITIES, CORPORATIONS, PARTNERSHIPS AND VOLUNTARY ASSOCIATIONS. . . .
      “(b) Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen; (2) against a city, upon its clerk or assistant clerk or upon its mayor or manager; (3) against a borough, upon its manager, clerk or assistant clerk or upon the warden or one of its burgesses; (4) against a school district, upon its clerk or one of its committee; and (5) against other municipal or quasi-municipal corporations, upon its clerk or upon its chief presiding officer or managing agent.”

       Despite the fact that there is no statutory basis, the minority concludes from the legislature’s silence regarding General Statutes § 52-57 (a) that the legislature must have intended the clerk of the municipality to remain an agent for service for the board. The minority ignores the well established principles of statutory construction that the legislature is presumed to have acted with knowledge of existing statutes and in an attempt to create a consistent body of laws.

       The minority questions whether the statutorily designated agents for service under General Statutes §§ 52-63, 52-59b (c), 52-57 (c) and 52-61 are also necessary parties to those actions. We do not find these applicable by way of analogy. First, these provisions regarding service all involve civil actions and not administrative appeals. Second, and more significantly, the statutes cited clearly designate the real party in interest and unequivocably delineate that the person named to receive process is merely doing so on behalf of the real party in interest.

       Should the municipality decide, after having been properly cited and served with notice of the appeal, that its interests will be affected by the judgment rendered and will not be adequately represented by the board then the municipality may move, pursuant to General Statutes § 52-107 and Practice Book § 99, to be made a party for all purposes to the maintenance of the appeal.

       The minority opinion indicates that “[i]f the majority’s assumption that a citation must name an agent for service were sound, most of the forms appearing in the Practice Book prescribing the citations to be used in bringing administrative appeals would be defective, because they do not name the person upon whom service is to be made in behalf of the administrafive agency involved, which is summoned to appear.” It is clear that, unlike the other citation forms referred to by the minority, the citation governing zoning appeals set forth in Practice Book Form 204.7 is defective because it has not yet been amended to reflect the change made in General Statutes § 8-8 (b) by Public Acts 1985, No. 85-284, § 3. The form fails to make reference to the clerk of the municipality in any capacity. In addition, the respective statutes upon which forms 204.3, 204.4, and 204.9 are based; see General Statutes §§ 16-35, 12-118, 30-60 and 4-183; clearly designate the respective parties to an appeal and provide that service shall be made upon such parties in accordance with the prescribed methods of service in ordinary civil actions. General Statutes § 8-8 (b), as amended in 1985, differs significantly from these statutes in that it mandates the parties upon whom the appeal must properly be served for the valid initiation of a zoning appeal. Accordingly, our holdings in Simko I and in this opinion cannot be read to render all other administrative appeal citations defective.

       It should be noted that the citation which the majority finds defective in this case follows precisely the form of citation prescribed by the Practice Book for an appeal from a zoning board of appeals. Practice Book Form 204.7. This form of citation, unlike others used for administrative appeals, superfluously designates the chairman or clerk of the board as alternative agents for service upon the zoning board. The town clerk is not so designated, presumably because the form was drafted before the 1985 amendment and was not revised after its enactment.

       See Simko v. Zoning Board of Appeals, 205 Conn. 413, 415 n.3, 533 A.2d 879 (1987), for the text of citation issued by the plaintiffs.