source: Caselaw Access Project

author: Peters, C. J: Callahan, J.,

license: Public Domain

text:
    State of Connecticut v. Ruben Gonzalez
    (12884)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued November 3
    decision released December 29, 1987

      Francis T. Mandanici, special public defender, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, was Kevin P. McMahon, assistant state’s attorney, for the appellee (state).
   Peters, C. J:

The principal issue on this appeal is whether the trial court adequately explored the defendant’s competency to stand trial after it was informed, in the middle of trial, that the defendant had attempted suicide and had been prescribed the antipsychotic drug Haldol. A jury of six found the defendant, Ruben Gonzalez, guilty of one count of attempted robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), three counts of kidnapping in the first degree with a firearm in violation of General Statutes §§ 53a-92a and 53a-92 (a) (2) (B), and three counts of attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (l). The defendant appeals from the ensuing judgment sentencing him to thirty years of imprisonment. We find no error.

The jury could reasonably have found the following facts: At 7:15 in the morning of March 3, 1984, Paul Serrantino, an employee of the First National Supermarket in Hartford, opened the back door of the store to allow a vendor to enter. Close on the vendor’s heels was a man, subsequently identified as the defendant, wearing a ski mask and brandishing a revolver. The defendant informed Serrantino that “[t]his is a robbery” and ordered Serrantino to shut and lock the door and to call the manager to the backroom. Upon the arrival of the assistant manager, Wendell Labbe, and the manager, Joseph Scully, the defendant ordered them to open the safe, which was located in the office at the front of the store. In the meantime, the defendant forced all the other employees to gather in the backroom and then had them walk toward the front of the store and kneel in the aisle. While Scully opened the safe, the defendant intermittently pointed his gun at the employees and at the occupants of the office. When the safe was open, the defendant, while holding the revolver to Scully’s head, examined its contents and discovered a locked drop-box in which most of the store’s money had been deposited. After being informed that the only key to the box was in the possession of an armored car service, the defendant, noticing the screws in the hinge of the box, requested a screwdriver and ordered Scully to use it to open the box. When Scully’s attempts failed, the defendant grabbed the screwdriver from him and, leaning into the safe, attempted to pry open the box with it. At this moment, Labbe pressed the silent alarm button and, with a club that had been hanging on the wall of the office, struck the defendant on the side of the head. The defendant began to fall but then rose up and pointed his gun directly at Labbe. A scuffle between the three men ensued during which the defendant pointed his revolver at Scully’s face and screamed that he was going to kill Scully. Although the defendant squeezed the trigger of the gun several times, the gun did not fire because Labbe’s thumb interfered with the functioning of the hammer. Hearing the noise from the struggle, the other employees came to the assistance of Scully and Labbe. They struck the defendant until they succeeded in wresting the revolver from his hand. The police subsequently arrived, arrested the defendant, and took him to a hospital for treatment of the injuries he had suffered as a result of the struggle. On the basis of this evidence, the jury convicted the defendant of all of the crimes with which he had been charged.

On appeal the defendant raises four claims of error. He argues that the trial court erred in: (1) failing to allow the defendant to discharge his attorney; (2) adjudging the defendant competent; (3) expelling the defendant from the courtroom; and (4) charging the jury on circumstantial evidence. We find no error.

I

In order to consider the defendant’s first three claims, it is necessary, at the outset, to review the events that took place at trial.

The defendant was arraigned on March 27,1984. On September 6, 1984, the trial court, pursuant to General Statutes § 54-56d (c), ordered the court’s Diagnostic Clinic to examine the defendant to determine his competency to stand trial. At the competency hearing held a few days thereafter, Dr. John F. Fitzgerald, chief psychiatric social worker of the hospital section of the Hartford Correctional Center, testified that the defendant had been examined by a three member team, who had concluded unanimously that the defendant was not competent to stand trial. According to Dr. Fitzgerald, the diagnostic team had considered the possibility that the defendant was malingering, but had concluded that he was suffering from a depressive disorder that resulted in his inability to understand the legal proceedings against him and to cooperate with counsel in his own defense. The report filed by the diagnostic team emphasized the defendant’s confusion and disorientation and noted that the defendant was on “major psychotropic medication indicating that other persons who have an opportunity to see him and spend considerably more time with him view him as suffering from a mental condition.” Dr. Fitzgerald further testified that there was a “substantial probability” that the defendant could be restored to competency in the structured setting of a state hospital. On the basis of this testimony and the report, the court found the defendant incompetent to stand trial and, pursuant to General Statutes § 54-56d (h) and (i), committed him temporarily to Norwich State Hospital.

Four months later, the trial court held a second competency hearing. At that hearing, Dr. Hans Langhammer, a psychiatrist on the staff of Norwich State Hospital, testified that he had examined the defendant on three separate occasions, consulted the defendant’s hospital records, discussed his case with the diagnostic team, and concluded that the defendant was not mentally ill and was competent to stand trial. According to Dr. Langhammer, the defendant seemed to have “all the possible psychotic diagnoses which exist” and consequently had none of them. The defendant did not receive antipsychotic medication while at Norwich State Hospital. In a letter that Dr. Langhammer had earlier submitted to the trial court, he stated that the results of the psychological evaluation that he had performed on the defendant could not rule out either malingering or psychosis. With regard to the inconclusive test results, the letter noted that “[w]hile [the defendant] did not exhibit acutely psychotic thinking or behavior, the presenting complaint of ‘confusion’ is not yet clarified. Whether it is a manifestation of his drug abuse or some other factor, is not known at this time.” On the basis of this evidence, the trial court found the defendant competent to stand trial. The defendant did not object to this ruling.

From the beginning of the trial, the defendant persisted in engaging in bizarre and disruptive behavior. Before the first jury panel was brought into court, the defendant stood up and announced that his attorney was responsible for his being in jail, that he did not understand why he was there, that he did not want his attorney and that no one could do anything to him because he was God. The court, after warning him that if he did not sit down the trial would proceed without him, ordered the jury panel to be brought in. As the jury panel was exiting the courtroom after opening statements by counsel, the defendant exclaimed that he was innocent and that this attorney had gotten him locked up. When the court suggested that he confer with counsel before making other statements before the jury, the defendant responded, “why should I discuss anything with him when he got me in this place? I don’t belong here, and I want to go home today.” As the court attempted to explain to the defendant that if his disruptive conduct continued, the court would have to take measures to control him, the defendant repeatedly protested his innocence, demanded that he be left alone and insisted on his right to speak out.

The defendant’s most extended outburst occurred the next day. Before having the jury panel brought in, the court again cautioned the defendant regarding his conduct. The defendant responded, “What are you going to do, kill me? . . . Are you going to kill me? Shoot me right here. Shoot me right here.” When the court attempted to explain to the defendant that he would either be bound and gagged, held in contempt, or removed from the courtroom if he persisted, the defendant became more and more angry, insisting that he did not want to see his lawyer or anyone else, asking whether the court was going to kill him, and exclaiming that he was God. Eventually the defendant became so out of control that he threw his coat at the judge. The coat was intercepted by the clerk. After a recess, the court gave defense counsel an opportunity to confer with the defendant and had the defendant brought back into the courtroom. When the court attempted to resume the proceedings, the defendant continued to engage in disruptive behavior including repeatedly threatening to throw his shoes at the court. The court finally ordered the defendant handcuffed and had him removed from the courtroom.

In deciding what measures to take in response to the defendant’s conduct, the court considered holding the defendant in contempt, having him bound and gagged, or excluding him from the courtroom. The court rejected contempt proceedings as inappropriate under the circumstances and concluded that binding and gagging the defendant would be prejudicial to his interests. Acknowledging the absence of out-of-court facilities that would allow the defendant to listen to or observe the proceedings, the court, nevertheless, determined that excluding the defendant from the courtroom would best ensure a fair and impartial trial. The court sought to protect the defendant’s interests by ensuring ample opportunity for conferences with defense counsel and by instructions to the jury not to draw any inferences from his absence. Defense counsel did not object to the trial court’s ruling.

During the course of the trial, the defendant was brought into the courtroom and then removed at least another eleven times, usually in order to allow a witness called by the state to identify him. On each occasion, the defendant disrupted the proceedings by threatening his attorney, the sheriffs, and others in the courtroom, asking that the court kill him, exclaiming that he was God or, most frequently, repeating incessantly that he wanted to die. In addition, the defendant struggled with the sheriffs to such an extent that he had to be put in leg irons. At one point when the court asked the defendant whether he would be able to cooperate, he explained that he was hearing voices that were telling him that the people in court wanted to kill him and that he could not help himself. In another instance the court attempted to have the defendant held in an anteroom next to the courtroom so that he could hear the proceedings; the defendant’s screaming and shouting, however, could be heard in the courtroom. Prior to having the defendant removed from the courtroom, the court regularly reminded the defendant that he would be able to return once he promised to behave. On several occasions, the court, in addition, directed defense counsel to consult with the defendant and keep him apprised of the progress of the trial.

In the middle of the trial, the court was made aware that the defendant had made a suicide attempt and had broken one of the chains binding him. As the result of a conversation with Dr. Serafini of the Hartford Correctional Center, the court was informed that the previous evening the defendant had been prescribed 20 milligrams of Haldol. Because of the uncertainty with regard to the defendant’s mental condition, the court decided to have the defendant examined anew to determine his competency to stand trial pursuant to General Statutes § 54-56d (c).

At this competency hearing, the only witness was Dr. Langhammer, who testified that he had examined the defendant again and had concluded that the defendant was able to understand the proceedings and cooperate with counsel. According to Dr. Langhammer, the extreme confusion manifested by the defendant, as well as his violent outbursts, were typical of malingering. In his testimony, Dr. Langhammer did not indicate that he knew that Haldol or other medication had been prescribed for the defendant nor did he state that he had consulted with the physician or physicians who had been treating the defendant. Defense counsel neither cross-examined Dr. Langhammer nor sought an opportunity to present any further evidence relevant to the defendant’s competency. On this record, the court found that the defendant was still competent to stand trial. The defendant did not object to this finding.

II

The defendant's first claim is that the trial court erred in not permitting the defendant to discharge his attorney. In support of this claim, the defendant points to the numerous instances during the course of the trial when he indicated displeasure with his attorney and attributed to him responsibility for the defendant’s predicament. Because of the defendant’s expressed dissatisfaction with his attorney and the breakdown of communication between them, the trial court, according to the defendant, was required to allow the defendant to discharge his attorney. At a minimum, the defendant contends, the trial court erred by not inquiring into the basis of the defendant’s complaints. We are not persuaded.

While a criminal defendant’s right to be represented by counsel “ ‘implies a degree of freedom to be represented by counsel of defendant’s choice. . State v. Reed, 174 Conn. 287, 292, 386 A.2d 243 (1978); this guarantee does not grant a defendant an “ ‘unlimited opportunity to obtain alternate counsel’ ” on the eve of trial. State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987). “A request for substitution of counsel requires support by a substantial reason, and may not be used to achieve delay.” Id.; see State v. Gethers, 193 Conn. 526, 543, 480 A.2d 435 (1984). Whether the circumstances warrant the appointment of new counsel is within the discretion of the trial court. State v. Drakeford, supra; State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986).

Applying this standard to the record before us, we conclude that the trial court did not abuse its discretion in not permitting the defendant to discharge his attorney. The record does not disclose that the defendant made a sustained effort to discharge his attorney. Rather, his outbursts directed toward counsel were merely instances of his generally disruptive conduct throughout the proceedings. Even if the defendant’s repeated complaints regarding counsel are considered an attempt to discharge counsel, the defendant never offered a substantial reason for the appointment of new counsel. The defendant’s claim that his attorney was responsible for his incarceration certainly does not qualify as such a reason.

The defendant argues that his counsel’s alleged failure to represent the defendant zealously required the trial court to allow him to discharge his attorney. According to the defendant, trial counsel’s failure to file any pretrial or midtrial motions, to cross-examine Dr. Langhammer, to file any requests to charge, or to object to the charge constituted nonfeasance warranting his discharge by the defendant. Since this argument is, in essence, a disguised allegation of ineffective assistance of counsel, it is governed by our decisions requiring such claims to be pursued on a petition for a new trial or on a petition for a writ of habeas corpus, rather than on direct appeal, so that a complete factual record can be developed. State v. Tirado, 194 Conn. 89, 92-93, 478 A.2d 606 (1984); State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982).

Finally, the defendant argues that the complete breakdown in communication between himself and trial counsel warranted the appointment of new counsel. While we have recognized that in some circumstances a complete breakdown in communication may require a new appointment; State v. Gethers, supra, 543; we agree with the state that this case does not present circumstances of this sort. “A defendant is not ‘entitled to demand a reassignment of counsel simply on the basis of a “breakdown in communication” which he himself induced.’ McKee v. Harris, [649 F.2d 927, 932 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982)].” State v. Gethers, supra, 545. The record before us indicates that the defendant was entirely responsible for whatever breakdown in communication occurred between himself and his attorney. Cf. State v. Drakeford, supra, 84. We therefore conclude that thé trial court did not abuse its discretion in not permitting the defendant to discharge his lawyer.

The defendant contends that even if the trial court was not required to appoint new counsel, it was at the very least required to inquire into the defendant’s request. We are unpersuaded. “Where a defendant voices a ‘seemingly substantial complaint about counsel,’ the court should inquire into the reasons for dissatisfaction.” McKee v. Harris, supra, 933, quoting United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S. Ct. 1358, 35 L. Ed. 2d 587, reh. denied, 411 U.S. 941, 93 S. Ct. 1891, 36 L. Ed. 2d 404 (1973). The defendant’s eruptions at trial, however, fell short of a “seemingly substantial complaint.” We conclude that, on the record before us, the trial court did not err in failing to inquire into the reasons underlying the defendant’s dissatisfaction with his attorney.

Ill

Before turning to the merits of the defendant’s claims involving his competency, his expulsion from the courtroom, and the jury instructions on circumstantial evidence, we must address the state’s argument that we should not reach them because the defendant failed to raise the claims at trial. While we ordinarily need not review claims raised for the first time on appeal, we have long recognized an exception for claims that implicate fundamental constitutional rights and a fair trial and are adequately supported by the record. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); see also State v. Barrett, 205 Conn. 437, 444, 534 A.2d 219 (1987). The defendant’s claims fall within this exception as they facially implicate rights guaranteed by article first, § 8, of the Connecticut constitution and by the sixth and fourteenth amendments to the United States constitution. We therefore review the claims to determine whether the defendant’s constitutional rights have been violated. See, e.g., State v. McDonough, 205 Conn. 352, 354, 533 A.2d 857 (1987); State v. Simino, 200 Conn. 113, 124-25, 509 A.2d 1039 (1986).

IV

The defendant’s next two claims arise from the disclosure, at midtrial, that the defendant had been administered 20 milligrams of Haldol the previous night. First, the defendant argues that the trial court erred in finding him competent without expressly ascertain^ ing the nature and effects of Haldol at the competency hearing that the court ordered subsequent to the disclosure. Second, the defendant contends that the trial court violated his right to be present at trial by continuing to expel him without inquiring into the reason that Haldol had been prescribed and the effects that it might have had on his conduct. We disagree with both contentions.

A

The conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1; see Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). This rule “imposes a constitutional obligation, [on the trial court], to undertake an independent judicial inquiry, in appropriate circumstances, into a defendant’s competency to stand trial . . . State v. Watson, supra, 605; see Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); State v. DeAngelis, 200 Conn. 224, 242, 511 A.2d 310 (1986). “Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.” Drope v. Missouri, supra, 181. This constitutional mandate is codified in General Statutes § 54-56d (a), which provides that “[a] defendant shall not be tried, convicted or sentenced while he is not competent.” The record before us demonstrates that the trial court fulfilled this requirement when it ordered a new competency examination pursuant to § 54-56d (c), after the court was informed that the defendant had been given Haldol and had attempted suicide.

The defendant, nevertheless, would have had the trial court do more. He notes that Haldol is an antipsychotic drug used to treat schizophrenic and manic-depressive disorders and that it carries the risk of significant side effects, including exacerbating the symptoms for which it is given. These characteristics of the drug, according to the defendant, imposed an obligation on the trial court to call Dr. Serafini of the Hartford Correctional Center to testify why Haldol had been administered to the defendant and to explain its potential side effects. Although calling Dr. Serafim might have been the more prudent course, we decline to impose so specific an obligation on the trial court.

“Competence to stand trial is a legal question which must ultimately be determined by the trial court.” State v. DeAngelis, supra, 229. At the midtrial competency hearing, Dr. Langhammer gave expert testimony based both on his examination of the defendant that day and on his previous interaction with the defendant. In Dr. Langhammer’s opinion, the defendant was competent to stand trial: he was malingering and was able to understand the proceedings and to cooperate with counsel in his own defense. General Statutes § 54-56d (a). Defense counsel did not cross-examine Dr. Langhammer regarding the Haldol, and did not call witnesses to rebut Dr. Langhammer’s conclusions; nor did he object to the trial court’s finding of competence. The trial court was entitled to credit and rely on. the testimony adduced at the hearing. “[T]he fact that the defendant was receiving medication ... [of itself] does not render him incompetent.” State v. DeAngelis, supra, 230. The trial court did not err in holding the defendant competent to stand trial subsequent to the midtrial hearing.

B

We turn next to the defendant’s claim involving his right to be present at trial. Under the confrontation and due process clauses of both the state and federal constitutions a criminal defendant has a right to be present at all critical stages of his trial. See State v. Jarzbek, 204 Conn. 683, 691-92, 529 A.2d 1245 (1987); State v. Drakeford, supra, 79. A defendant may forfeit this right by his “conduct, misconduct or his voluntary and deliberate absence from the trial without good cause.” State v. Drakeford, supra; see Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970); Practice Book § 968. When faced with an obstreperous defendant a trial court may choose among three constitutionally permissible approaches: holding the defendant in contempt, binding and gagging the defendant, or banishing him from the courtroom. Illinois v. Allen, supra, 343-44; see also Practice Book § 892.

The defendant does not challenge the method chosen by the trial court to deal with the defendant’s disruptive behavior; he argues, rather, that the record does not disclose that he had competently and knowingly waived his right to be present. See State v. Simino, supra, 129. Specifically, he contends that the fact that he had been administered Haldol suggests that his disruptive conduct was either a result of mental illness or a side effect of the Haldol and not, in either case, knowing and competent. According to the defendant, when the trial court discovered that he had been given Haldol, it should have inquired regarding the purpose and effects of the drug at the subsequent competency hearing to determine that the defendant’s waiver of his right to be present was valid.

In State v. Drakeford supra, 81, we recently held that a trial court need not engage in a colloquy with a defendant expressly focused on the defendant’s understanding of his right to be present to determine that a waiver of the right of presence was valid. Rather, the court may infer the defendant’s waiver from the totality of his acts and conduct, so long as the defendant has been adequately informed that the trial would continue in his absence. Id., 79, 81; see also Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976). Drakeford’s logic extends to the circumstances presented by the case at hand. Once the trial court determined at midtrial that the defendant was competent to stand trial, it did not have a further obligation to inquire whether the defendant’s forfeiture of his right to be present was the result of incompetence induced by a mental disorder or by his taking Haldol. Cf. Drope v. Missouri, supra, 182.

A review of the record discloses that throughout the trial, the court repeatedly indicated to the defendant that the trial would continue in his absence and that, if the defendant assured the court that he would conduct himself properly, he would be permitted to return to the courtroom. See Practice Book § 893. At no time did defense counsel object to the defendant’s removal from the courtroom. We conclude that the trial court did not err in excluding the defendant from the courtroom because of his disruptive behavior.

V

In his final claim of error the defendant challenges the propriety of the instructions delivered by the trial court regarding the inferences the jury could draw from circumstantial evidence. With regard to such evidence the court stated in its jury charge that “an inference may be made provided two elements of the application of this rule are satisfied: One, that the fact you are asked to draw the inference from has itself been proven beyond a reasonable doubt; and that the inference that has to be drawn is not only logical and reasonable but is strong enough so that you can find it is more probable than not that the fact inferred is true.” The trial court thereafter summarized its instructions concerning circumstantial evidence: “[I]t’s all right to draw inferences if you conclude that the facts proven reasonably establish other facts by reason of logic and are not the result of speculation, surmise, or guesswork. If from the facts you find proven you reasonably could infer other facts, you may then use the facts inferred for a basis of further inferences that other facts exist.” The defendant did not object to the instructions at trial. On appeal he contends that the use of the more probable than not standard and the reference to reasonable inference unconstitutionally diluted the state’s burden of proof.

In resolving challenges to jury instructions regarding circumstantial evidence we have established a bifurcated standard of review. “ ‘Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, “we will closely scrutinize the court’s instructions” on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.’ State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987). Unlike intent, such issues as identity and whether the crime charged has occurred, are ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role. ‘Accordingly, we review the court’s instruction not in isolation, but in the context of the charge as a whole, to determine whether it is “ ‘reasonably possible that the jury was misled’ ” by an erroneous explanation regarding the use of circumstantial evidence.’ Id.” State v. McDonough, supra, 358.

The defendant seeks to invoke the close scrutiny standard by claiming that his intent was a principal issue at trial. With regard to the attempted assault charges, he points out that they related to conduct after he had received a severe blow to his head and argues that the disputed issue was whether the defendant intended, after being hit, to cause serious physical injury or merely to frighten the employees so that they would cease beating him. According to the defendant, it was questionable whether he could have formed the requisite intent for attempted assault after he had been hit on the head; the fact of the blow put the defendant’s intent into issue when it might otherwise not have been. With regard to the kidnapping and attempted robbery charges, the defendant contends that because such crimes require specific intent, the defendant’s intent was necessarily in issue. Despite the defendant’s argument to the contrary, from our review of the record, however, we agree with the state that, at trial, the principal factual issue was identification and not intent, even with regard to those charges requiring the state to establish specific intent. Furthermore, most of the evidence at trial was not circumstantial but consisted of direct testimony of the victims at the scene of the crimes. See State v. McDonough, supra, 359. Accordingly, we review the court’s instructions in the context of the charge as a whole to determine whether it is “ ' “reasonably possible that the jury was misled.” ’ ” Id., 358; State v. Robinson, supra.

Although we have previously held instructions allowing jurors to draw reasonable or logical inferences not to be erroneous; State v. Silano, 204 Conn. 769, 774, 529 A.2d 1283 (1987); we agree with the defendant that the trial court’s use of the “more probable than not” language in this case was erroneous. State v. McDonough, supra, 355. Nevertheless, we conclude that, considered in the context of the charge as a whole, it is not reasonably possible that the jury was misled as to the state’s burden of proof. Upon giving the erroneous instruction, the court stressed that the state had the burden of proving each element of every crime charged beyond a reasonable doubt. The court reiterated this instruction on two subsequent occasions. The court also stated at least a dozen times that to convict the defendant the jury had to find him guilty beyond a reasonable doubt. As to the offenses requiring specific intent, the court’s instructions were accurate statements of the law. In the context of these instructions, the error in the instruction regarding circumstantial evidence was harmless beyond a reasonable doubt.

There is no error.

In this opinion Healey, Glass and Hull, Js., concurred.

Callahan, J.,

concurring. I concur in the result. I disagree with the opinion, however, to the extent that it finds the “more probable than not” standard for drawing inferences erroneous. I believe that that standard embodies a technically correct statement of the law. Reliance Ins. Co. v. Commission on Human Rights & Opportunities, 172 Conn. 485, 489-90, 374 A.2d 1104 (1977); State v. Gonski, 155 Conn. 463, 467-68, 232 A.2d 483 (1967); State v. Foord, 142 Conn. 285, 293-95, 113 A.2d 591 (1955). The instruction may possibly result in error if it is given in proximity to, or is juxtaposed with, an instruction on the requirement that the state prove all the elements of a crime beyond a reasonable doubt, because it may confuse or mislead the jury as to the state’s burden. See State v. Reddick, 197 Conn. 115,130-33,496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). I do not believe, however, that to be the claim here. The claim, as I understand it, is that the instruction is erroneous per se.

Further, I see no need to apply a strict scrutiny standard and to review this jury instruction in isolation from the rest of the charge where intent is concerned. Even if we continue to regard the charge as erroneous, I do not see that it constitutes a greater hazard than other possible errors in jury instructions which we view in the context of the charge as a whole. I think that the last thing we need is another standard of review for jury instructions.

I also disagree with the trial court’s instruction that facts from which inferences are drawn must be proved beyond a reasonable doubt. That portion of the trial court’s instruction, which I believe is erroneous, was not an issue here and consequently was not addressed by the majority opinion. I think it should be mentioned, however, lest approval be indicated by default. The state’s burden of proof beyond a reasonable doubt applies only to the essential element or elements of a crime, not to any evidentiary fact. “ ‘Burdens of proof never operate on evidence; they operate on the ultimate facts or elements that the evidence is offered to prove.’ (Emphasis added.) United States v. ViafaraRodriguez, [729 F.2d 912, 913 (2d Cir. 1984)].” State v. McDonough, 205 Conn. 352, 363, 533 A.2d 857 (1987). (Callahan, J., concurring). The evidentiary facts from which inferences may be drawn do not have to be proven beyond a reasonable doubt any more than do other evidentiary facts. Id.

       General Statutes § 53a-49 (a) (2) provides: “criminal attempt, sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he ... (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-134 (a) (2) provides: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (2) is armed with a deadly weapon.”

       “[General Statutes] Sec. 53a-92a. kidnapping in the first degree WITH A FIREARM; CLASS A FELONY; ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a-92, and in the commission of said crime 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, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the first degree and kidnapping 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 § 53a-92 (a) (2) (B) provides: “kidnapping in the first degree, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to . . . (B) accomplish or advance the commission of a felony.”

       General Statutes § 53a-59 (a) (1) provides: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

       “[General Statutes] Sec. 54-56d. (Formerly Sec. 54-40). competency to stand trial, (a) Competency required. Definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense. . . .
      “(c) Request for examination. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.”

       General Statutes § 54-56d (h) and (i) provides: “competency to stand TRIAL. . . .
      “(h) Court procedure if finding that defendant will regain competency. If, at the hearing, the court finds that there is a substantial probability that the defendant, if provided with a course of treatment, will regain competency within the period of any placement order under this section, the court shall order placement of the defendant for treatment for the purpose of rendering him competent.
      “(i) Placement for treatment. Conditions. The placement for treatment for the purpose of rendering the defendant competent shall comply with the following conditions: (1) The period of placement under the order or combination of orders shall not exceed the period of the maximum sentence which the defendant could receive on conviction of the charges against him or eighteen months, whichever is less; (2) the placement shall be either in the custody of the commissioner of mental health, the commissioner of children and youth services or the commissioner of mental retardation or, if the defendant or the appropriate commissioner agrees to provide payment, in the custody of any appropriate mental health facility or treatment program which agrees to provide treatment to the defendant and to adhere to the requirements of this section and (3) the court shall order the placement, on either an inpatient or an outpatient basis, which it finds is the least restrictive placement appropriate and available to restore competency. If outpatient treatment is the least restrictive placement for a defendant who has not yet been released from a correctional facility, the court shall consider whether the availability of that treatment is a sufficient basis on which to release the defendant on a promise to appear, conditions of release, cash bail or bond. If the court determines that the defendant may not be so released, the court shall order treatment of the defendant on an inpatient basis at a mental health facility or mental retardation facility.”

       At various times, the defendant stated, “I don’t want this guy anymore,” “I don’t want to see that guy anymore,” “I don’t want that lawyer either,” “This guy got me locked up,” and, on one occasion, he threatened to grab his attorney by the neck.

       Indeed, the defendant’s brief indicates that he has filed a petition for writ of habeas corpus in the Superior Court.

       In his reply brief, the defendant cites McMahon v. Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987), for the proposition that, even if the defendant did not provide a reason for his dissatisfaction, the trial court was required to inquire. In that case, however, unlike the case before us, the trial court had allowed the defendant to discharge his attorney but had not permitted him to seek new counsel. As a result, the defendant was forced to represent himself pro se and claimed a denial of right to counsel on that ground.

       The Physician’s Desk Reference (1986) (P.D.R.) states that Haldol “is indicated for the management of manifestations of psychotic disorders.” Id., p. 1089. Among the drug’s potential side effects, the P.D.R. lists anxiety, agitation, confusion and exacerbation of psychotic symptoms. Id., p. 1090.

      I do not advocate the use of such an instruction, particularly in view of the existing confusion as to its import. It would be preferable simply to inform the jury when discussing circumstantial evidence that they may draw reasonable and logical inferences from the facts proved. State v. Brown, 169 Conn. 692, 695, 364 A.2d 186 (1975).

       The authority for this proposition is recent, commencing with the Appellate Court’s interpretation of State v. Rodgers, 198 Conn. 53, 58, 502 A.2d 360 (1985), in State v. Farrar, 7 Conn. App. 149, 155, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).


author: Shea, J.

text:
    Socrates Kyrtatas et al. v. Stop & Shop, Inc., et al.
    (13164)
    Peters, C. J., Healey, Shea, Covello and Hull, Js.
    Argued November 6, 1987
    decision released January 5, 1988

      James R. Hawkins, with whom was Edward V. OHanlan, for the appellant (defendant Shield Packaging Company, Inc.).

      Kevin M. Tepas, with whom was Ann Marie W. Vetrosky, for the appellee (named defendant).
   Shea, J.

The dispositive issue in this appeal is whether common law indemnity principles based on the concept of active versus passive liability apply in the context of a statutory product liability action. We conclude that these principles do not apply in this area and find error. We set aside the judgment for the named defendant, Stop & Shop, Inc. (Stop & Shop), on its cross complaint for indemnification from the defendant Shield Packaging Company, Inc. (Shield Packaging), and remand the case to the trial court with direction to modify the judgment in accordance with the jury’s findings concerning the comparative responsibility among the named plaintiff and the defendants.

The plaintiffs, Socrates Kyrtatas and his wife, Fillia Kyrtatas, brought this action as a result of injuries that Socrates suffered when an aerosol can of Stop & Shop window cleaner exploded and struck him in the face. Stop & Shop was the seller and distributor of this aerosol can. Shield Packaging designed the formula, and filled the can for Stop & Shop. The defendant Crown, Cork & Seal Company, Inc. (Crown Cork), manufactured the can, which bore Stop & Shop’s label. The plaintiffs brought suit under our product liability act; General Statutes §§ 52-572m through 52-572r; and alleged two basic theories of liability against each of the three defendants: (1) that the Stop & Shop aerosol window cleaner was defective and unreasonably dangerous because a chemical reaction between the can and its contents had caused the explosion, and because it had been sold without adequate warnings, instructions or safety precaution information; and (2) that the defendants had breached an implied warranty that the aerosol window cleaner was “adequately contained, packaged and labelled; fit for its ordinary purpose; and safe for use in a normal manner.”

Each defendant denied the plaintiffs’ allegations, and alleged in special defenses that Socrates Kyrtatas’ own negligence in handling the aerosol can of Stop & Shop window cleaner had caused the explosion. Cross complaints were filed by the defendants Crown Cork and Stop & Shop against each other and against Shield Packaging, seeking indemnity for whatever damages the plaintiffs might recover. Shield Packaging filed a cross complaint seeking indemnity from Crown Cork. Counsel for the defendants agreed prior to trial to limit the grounds of their cross complaints to common law indemnity only; accordingly, no contractual indemnity claims were presented.

At the close of its instructions, the trial court provided the jury with a special verdict form, prepared by counsel and the court, on which to answer special interrogatories relating to the allegations of the complaint and cross complaints: The jury returned its verdict on the special verdict form. The jury found the defendants Stop & Shop and Shield Packaging, but not Crown Cork, legally responsible for the plaintiffs’ injuries, and assigned comparative responsibility as follows:

The last three interrogatories of the special verdict form dealt with the defendants’ cross complaints for indemnity. The jury found that Crown Cork was entitled to indemnity as against both Stop & Shop and Shield Packaging, that Stop & Shop was entitled to indemnity as against Shield Packaging, and that Shield Packaging was not entitled to indemnity from Crown Cork. The trial court rendered judgment in accordance with the verdict.

Shield Packaging has reached a settlement with the plaintiffs, and also with Crown Cork. The sole issue remaining is whether Shield Packaging must indemnify Stop & Shop for its liability under the judgment in the case.

Shield Packaging argues that common law indemnification is inapplicable in the context of a suit brought under our product liability act. General Statutes §§ 52-572m through 52-572r. We conclude that the legislature in enacting the act intended to abrogate common law indemnification in this area and replace it with a system of comparative responsibility.

“Ordinarily there is no right of indemnity or contribution between joint tort-feasors. Caviote v. Shea, 116 Conn. 569, 575, 165 A. 788 [1933].” Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). “Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury.” Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 543, 52 A.2d 862 (1947). Under the circumstances described, we have distinguished between “active or primary negligence,” and “passive or secondary negligence.” Kaplan v. Merberg Wrecking Corporation, supra, 415. Indemnity shifts the impact of liability from passive joint tortfeasors to active ones. Id., 412-16.

Stop & Shop 49 percent
Shield Packaging 49 percent
Crown Cork 0 percent
Socrates Kyrtatas 2 percent

A plaintiff in an action for indemnification not based on statute or express contract, who had been a code-fendant in a prior action with a joint tortfeasor, can recover indemnity from that codefendant only by establishing four separate elements: (1) that the other tort-feasor was negligent; (2) that his negligence, rather than the plaintiff’s, was the direct, immediate cause of the accident and injuries; (3) that he was in control of the situation to the exclusion of the plaintiff; and (4) that the plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent. Id., 416.

Whether the doctrine of common law indemnification should apply in the context of suits brought under our product liability act is an issue of first impression in this court. The plaintiffs brought their action under this act, which was enacted in 1979. The legislative history of the act is silent concerning the effect of its passage upon the common law doctrine of indemnification. This court, however, does not have to look further than the act for the legislative intent. “If the words of a statute are clear, the duty of a reviewing court is to apply the legislature’s directive, since, where the wording is plain, courts will not speculate as to any supposed intention. The question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used. P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983); Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980).” Duguay v. Hopkins, 191 Conn. 222, 228, 464 A.2d 45 (1983). In determining the meaning of statutory language, this court must read a statute as a whole. State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985).

We conclude that the common law doctrine of indemnification is inconsistent with provisions of the product liability act concerning comparative responsibility, award of damages, and contribution under General Statutes § 52-572o. Subsection (b) of § 52-572o provides: “In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may makes its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibilty were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party.” (Emphasis added.) Subsection (c) of § 52-572o provides: “In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party.” (Emphasis added.) Subsection (d) of § 52-572o requires that the trial court render a judgment based on the jury’s findings of comparative responsibility: “The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party.”

These three subsections cannot be reconciled with the common law doctrine of indemnification. Comparative responsibility is inconsistent with indemnification because the former allows a jury to assign liability in specific proportion among several defendants on the basis of the evidence presented while the latter doctrine arose in response to the common law prohibition against contribution, and applies only in situations in which a passive joint tortfeasor has no actual responsibility for a tort. Indemnification is also irreconcilable with the product liability act because the legislature in subsection (e) of § 52-572o has abolished the common law prohibition against contribution in the context of these suits: “If a judgment has been rendered, any action for contribution must be brought within one year after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the right of action of the claimant against him and commenced the action for contribution within one year after payment, or (2) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and brought an action for contribution.”

Contribution and indemnification are based on fundamentally different principles. “Parenthetically it perhaps should be pointed out that both an implied obligation to indemnify and contribution are based on equitable principles. Lockwood v. Nagy Bros., Inc., 150 Conn. 691, 692, 186 A.2d 82 [1962]. But indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others.” Kaplan v. Merberg Wrecking Corporation, supra, 412. The product liability act by permitting actions for contribution has eliminated any reason for retaining the doctrine of indemnification in regard to this variety of suit.

The legislature, by mandating the employment of comparative responsibility principles and by allowing contribution in the context of product liability suits, has demonstrated its intent to abrogate the doctrine of common law indemnification in that area. Many jurisdictions have abolished common law indemnification rights when they have adopted a system of comparative negligence or responsibility, although none of their statutes is exactly the same as our product liability act. See Loose v. Offshore Navigation, Inc., 670 F.2d 493, 499-502 (5th Cir. 1982); Allison v. Shell Oil Co., 113 Ill. 2d 26, 495 N.E.2d 496 (1986); Kennedy v. Sawyer, 228 Kan. 439, 455-62, 618 P.2d 788 (1980); Cox v. Cooper, 510 S.W.2d 530, 536 (Ky. App. 1974); Dole v. Dow Chemical Co., 30 N.Y.2d 143,147-53, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972); New Terminal Warehouse Corporation v. Wilson, 589 S.W.2d 465,468 (Tex. Civ. App. 1979); Pachowitz v. Milwaukee & Suburban Transport Corporation, 56 Wis. 2d 383, 386-90, 202 N.W.2d 268 (1972).

Stop & Shop contends that the legislature intended to retain common law indemnification rights even where juries are obligated to find damages based on comparative responsibility. Stop & Shop relies on General Statutes § 52-572h (k), a provision that is not a part of our product liability act, which provides: “This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and the indemnitor is not entitled to contribution from the indemnitee for any portion of his indemnity obligation.” The “section” referred to is § 52-572h, our comparative negligence statute, which applies only to negligence actions under § 52-572h but not to suits under our product liability act.

It is significant that the legislature in the product liability act provides for contribution, but does not mention the possibility of indemnification. General Statutes § 52-572o (e). If the General Assembly had intended to retain common law indemnification principles in the context of product liability suits, it could have explicitly so stated, as it did in our comparative negligence statute. Courts may not “ ‘ “read into clearly expressed legislation provisions which do not find expression in its words.” ’ ’’Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75, 81, 440 A.2d 792 (1981), quoting International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974).

We hold that the product liability act has abrogated common law indemnification principles in this area. These principles, however, may still be viable in other contexts. In view of our holding, we need not address Shield Packaging’s claim that the jury’s finding that it must indemnify Stop & Shop was contrary to law because Stop & Shop did not meet the four requirements under Kaplan v. Merberg Wrecking Corporation, supra, 412-16, for indemnification, and because that finding was inconsistent with the rest of the verdict. We note in addition that this decision does not address the question of under what circumstances a party may seek indemnification for liability imposed upon him in a product liability suit through either a statutory or express contractual claim.

There is error, the judgment for Stop & Shop on its cross complaint for indemnification from Shield Packaging is set aside, and the case is remanded to the trial court with direction to render judgment in accordance with the jury’s findings concerning the comparative responsibility of the named plaintiff and the defendants.

In this opinion the other justices concurred.

      A general discussion of the legislative history and provisions of our product liability act; General Statutes § 52-572m et seq.; appears in R. Yules, “An Analysis of Connecticut’s New Product Liability Law,” 56 Conn. B.J. 269 (1982). There is no indication in this article, or in the legislative history of the General Assembly, that the legislature considered the impact of this statute on the common law right of indemnification. The legislative history of No. 79-483 of the 1979 Public Acts may be found in: (1) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., pp. 552-61, 564-74, 578-79, 599-600, 602-608, 610; (2) 22 S. Proc., Pt. 14,1979 Sess., pp. 4625-50; and (3) 22 H.R. Proc., Pt. 21, 1979 Sess., pp. 7280-7306.

       Our holding applies to situations in which all potential defendants are parties to the suit. In such a situation, a jury’s findings concerning the relative responsibility of the parties are conclusive, and are entitled to res judicata status. On some occasions, a plaintiff may not sue all potential defendants. A defendant may implead a third party who may be liable for all or part of the plaintiff’s claim against him. Practice Book § 117. In this case we need not consider the effect of a jury’s findings concerning comparative responsibility in a subsequent indemnification suit against a joint tortfeasor who had not been made a party in the suit in which the verdict and findings of the jury were rendered.


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

text:
    Kenneth B. Adolphson v. Zoning Board of Appeals of the Town of Fairfield et al.
    (13131)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      (Two justices dissenting)

    Argued October 6, 1987
    decision released January 5, 1988

      Linda M. Guliuzza, for the appellant (plaintiff). Lorraine W. Osborne, with whom, on the brief, was Charles J. Willinger, Jr., for the appellees (defendants Michael A. Brunetto et al.).

      Roy H. Ervin, with whom, on the brief, was Roy H. Ervin, Jr., for the appellee (named defendant).
   Glass, J.

The plaintiff, Kenneth B. Adolphson, appealed to the Superior Court pursuant to General Statutes § 8-8 as an aggrieved owner of property located within one hundred feet of a parcel of land owned by the defendants, Michael A. and Lori A. Brunetto (Brunettos). The plaintiff claims that the zoning board of appeals of the town of Fairfield (board) erred in granting the application of the Brunettos for three variances and a special exception to the Fairfield zoning regulations (regulations). The state trial referee, exercising the powers of the Superior Court, dismissed the appeal from the board and the plaintiff appealed to the Appellate Court. Thereafter, this court transferred the appeal to itself, pursuant to Practice Book § 4023.

The following unchallenged facts presented below are relevant to our consideration of the plaintiffs claims: The plaintiff is the owner of a parcel of land on which an industrial building is located at 1455 Kings Highway in Fairfield. The Brunettos’ property is located at 1475 Kings Highway in Fairfield. Both properties are located in an industrial district 1 zone. The prior owners of the Brunettos’ property used it for the operation of an aluminum casting foundry, a nonconforming use in an industrial district 1 zone. The foundry had been operated from 1953 until it had become economically unfeasible. The Brunettos purchased the property in early April, 1985, with the intention of using it as an automobile repair shop. On April 8,1985, the Brunettos filed an application with the board for three variances and a special exception. In granting the application, the board found that when the Brunettos purchased the property they did so with the knowledge that the operation of an automobile repair shop is prohibited by the regulations in an industrial district 1 zone. Relying on the board’s findings, the trial court concluded that “the proposed use for the subject property operating under current regulations as to air pollution and the like would be far less offensive to the surrounding residents than a foundry.”

The gravamen of the plaintiff’s challenge is that the trial court erred in upholding the board’s granting of the Brunettos’ application for a variance to § 19.4.6 of the regulations. Specifically, the plaintiff claims that the trial court erred in: (1) upholding the board’s decision granting a variance of § 19.4.6 of the regulations when the board clearly usurped the function of the planning and zoning commission; (2) upholding the board’s decision in granting the three variances when the Brunettos failed to show unusual hardship; (3) upholding the board’s decision in granting the variances when such variances will substantially affect the comprehensive zoning plan; (4) holding that a denial of the Brunettos’ application for three variances would be confiscatory and legally impermissible; and (5) holding that adherence to the strict letter of the regulation would cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. We find no error.

I

The plaintiffs first claim is that the trial court erred in upholding the board’s decision granting a variance of § 19.4.6 of the regulations. The plaintiff argues that the board usurped the function of the planning and zoning commission by allowing the Brunettos to change the use of their property to a use specifically prohibited in an industrial district 1 zone. We disagree.

At the outset, we note that “[u]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . . We, in turn, review the action of the trial court.” Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964). “The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418 (1972); Thorne v. Zoning Board of Appeals, 156 Conn. 619, 621, 238 A.2d 400 (1968); Talmadge v. Zoning Board of Appeals, 141 Conn. 639, 642, 109 A.2d 253 (1954).” Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980).

The plaintiff asserts that variances “should not be used to accomplish what is, in effect, a substantial change in the uses permitted in the specified zone.” Dooley v. Town Planning & Zoning Commission, 151 Conn. 304, 313, 197 A.2d 770 (1964). He claims further that “the establishment of and changes in general zoning regulations are a legislative function . . . and when the board uses its variance power to change these general rules, it encroaches on this legislative area and thereby acts in abuse of its discretion.” Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104 (1965). In support of this argument the plaintiff relies on Heady v. Zoning Board of Appeals, 139 Conn. 463, 94 A.2d 789 (1953), and Bradley v. Zoning Board of Appeals, 165 Conn. 389, 334 A.2d 914 (197S). Heady is clearly distinguishable from this case. In Heady, the applicant had a permissible accessory use that he attempted to change and expand by variance to a nonconforming use. The Brunettos, by contrast, have a nonconforming use that they seek to change to a “less offensive” nonconforming use. Neither Heady nor Bradley supports the argument of the plaintiff because in both of those cases the applicant sought to increase his land use by way of the variance power of the board, as contrasted to the Brunettos who have a nonconforming use of their property and, by way of a variance, applied for a change in the nonconforming use to a “less offensive” nonconforming use.

Under General Statutes § 8-6 (3), the board may grant a variance provided (1) the variance is shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. Whittaker v. Zoning Board of Appeals, supra, 655; Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978). The trial court concluded that the decision of the board satisfied these statutory variance requirements. As Professor Tondro states, “[t]he [zoning board of appeals] is best known for its power to alter the application of the zoning regulations to a particular property upon a proper showing by the applicant. No municipal agency other than the board of appeals may be given the power to vary the application of the zoning regulations in individual cases.” T. Tondro, Connecticut Land Use Regulation (1979) § III-D (1), pp. 46-47. Here, the board granted a variance to the Brunettos for a single parcel of land which is a lot consisting of fifty by one hundred feet, occupied by a building of forty by eighty feet. In granting a variance to the Brunettos for this particular lot, the board has not, in our view, used its variance power to establish or change the general zoning regulations of Fair-field.

We recognize that “nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit — ‘[i]n no case should they be allowed to increase.’ Salerni v. Scheuy, 140 Conn. 566, 570,102 A.2d 528 [1954]; Stern v. Zoning Board of Appeals, 140 Conn. 241, 244, 99 A.2d 130 [1953].” Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 734, 137 A.2d 756 (1958). “The accepted method of accomplishing the ultimate object is that, while the alien use is permitted to continue until some change is made or contemplated, thereupon, so far as is expedient, advantage is taken of this fact to compel a lessening or suppression of the nonconformity.” Darien v. Webb, 115 Conn. 581, 585, 162 A.2d 690 (1932); Lathrop v. Norwich, 111 Conn. 616, 623, 151 A.2d 183 (1930). We reiterate the unchallenged finding of the trial court that “the proposed use for the subject property operating under current regulations as to air pollution and the like would be far less offensive to the surrounding residents than a Foundry.”

“A property owner may legally engage in a prohibited use under either of two dispensations. He may obtain a variance, or his use may qualify as a nonconformity.” T. Tondro, supra, § III-E (4), p. 70. A nonconformity is a use or structure prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations are adopted. Id. On the other hand, a variance is a prohibited use or structure that is permitted by the board, pursuant to its authority under the regulations. Id. The variance power exists to permit what is prohibited in a particular zone. Thus, the board’s action in this case, granting the Brunettos permission to operate an automobile repair shop, a prohibited activity in an industrial district 1 zone, is consistent with the board’s variance power; see General Statutes § 8-6 (3); and does not constitute a usurpation of the function of the planning and zoning commission.

II

The unusual hardship requirement for a variance is challenged by the plaintiff in his second and fifth claims. Under General Statutes § 8-6 (3) one of the requirements for a variance is evidence that adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. Smith v. Zoning Board of Appeals, supra, 326. The plaintiff argues that the Brunettes’ hardship is self-inflicted. He asserts that in Connecticut it is “well established that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance.” Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972). In support of his claim the plaintiff relies principally on Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 229 A.2d 356 (1967), and Devaney v. Board of Zoning Appeals, 132 Conn. 537, 45 A.2d 828 (1946). Although the trial court found that the Brunettos purchased the subject property with the knowledge that the operation of an automobile repair shop was prohibited in an industrial district 1 zone, we conclude that these cases are inap-posite.

The Brunettos purchased the subject property with an existing nonconformity. They did not create the nonconformity, which arises solely out of the regulations and not out of their purchase of the property. While the applicants in Highland Park, Inc., and Devaney sought to obtain a nonconforming use by way of a variance, the Brunettos, however, seek to change an established nonconforming use to a less offensive nonconforming use. The purchase of the foundry, a nonconforming use, with knowledge that an automobile repair shop is prohibited in an industrial district 1 zone does not militate against the Brunettos’ use variance application.

We have stated that “[tjhere has always existed a distinction between circumstances such as those in [Abel v. Zoning Board of Appeals, 172 Conn. 286, 374 A.2d 227 (1977)], where the applicant or his predecessor in interest creates a hardship such as an undersized lot, and a situation where the hardship which would justify the grant of a variance originates in the zoning ordinance itself. ‘Where a nonconformity exists, it is a vested right which adheres to the land itself. “And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use.” 1 Anderson, American Law of Zoning (2d Ed.) § 6.37, p. 445.’ Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483, 408 A.2d 243 (1979). Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance. Abel v. Zoning Board of Appeals, supra; Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972); Highland Park, Inc. v. Zoning Board of Appeals, [supra, 43]. But if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, then the purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance. Petruzzi v. Zoning Board of Appeals, supra. Otherwise the zoning ordinance could be unjust and confiscatory.” Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300-301, 429 A.2d 883 (1980).

Ill

Next, the plaintiff claims that the trial court erred in upholding the board’s decision in granting the variances when such variances will substantially affect the comprehensive zoning plan. Initially we observe that the Brunettos already have a nonconforming use of their property, namely, the right to operate an aluminum foundry that would otherwise be prohibited in an industrial district 1 zone. Under General Statutes § 8-2, a continuation of the use of the property as a foundry cannot be prohibited. Also, in considering the first statutory requirement of a variance, we have stated: “The comprehensive plan is to be found in the scheme of the zoning regulations themselves.” Whittaker v. Zoning Board of Appeals, supra, 656. Accordingly, along with the foundry that cannot be prohibited there are many other permitted activities that are specified in § 19.2 of the regulations. It is significant that the trial court found that the automobile repair shop is “less offensive” than the existing casting foundry, and did not find that it will adversely affect the property values in the industrial district 1 zone. Considering the wide variety of activities permitted in an industrial district 1 zone, we are not persuaded that in granting the Brunettos a variance to use their property as an automobile repair shop, the board has permitted a use that is not in harmony with the permitted property uses in an industrial district 1 zone, and, consequently, not in accordance with the zoning regulations’ comprehensive plan. The burden is on the plaintiff to show that the board acted improperly. Like the trial court, we conclude that the plaintiff has not carried this burden.

IV

Next, the plaintiff claims that the trial court erred in holding that a denial of the Brunettos’ application for the variances would be confiscatory and legally impermissible. The trial court stated that “a rigid application of the Zoning Regulations to the subject property . . . would very likely cause the subject property to be useless. The Court would further hold that to deny the application of the owners would be confiscatory, and obviously that is legally impermissible.” The plaintiff challenges this statement and in support of his argument he relies primarily on State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 239 A.2d 528 (1968). State National Bank is distinguishable, however, because the State National Bank’s application was to the planning and zoning commission of the town of Trumbull, while the Brunettos’ application was to the zoning board of appeals. We have stated that it is the function of the zoning commission to frame the zoning regulations so as to provide areas in which property may be devoted to such uses as the town needs. It is the responsibility of the zoning commission to protect the welfare of the town as a whole. It is the function of the zoning board of appeals on the other hand to protect the interests of the individual landowner by granting a variance when the regulations impose on him a hardship of the nature described in the statute. Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 635,109 A.2d 256 (1954); Plumb v. Board of Zoning Appeals, 141 Conn. 595, 600, 108 A.2d 899 (1954). Furthermore, in State National Bank the applicant was seeking to change a piece of property from its classification as residential to a commercial zone classification, while the Brunettos seek to change a lot from a nonconforming use in an industrial district 1 zone to another nonconforming use in an industrial district 1 zone. Finally, the size of the parcel of land in State National Bank was three and one-sixth acres while the size of the Brunettos’ property is a fifty by one hundred foot lot.

We recognize that § 19.2 of the regulations sets forth a list of uses that are permitted in an industrial district 1 zone. The permitted uses require off-street parking in accordance with the provisions of § 28 of the regulations, which requires that for all off-street parking spaces there must be available land space for the approach, turning and exit of automobiles. It is significant that under § 28.8 of the regulations there are three permitted uses exempt from the off-street parking requirement. These exceptions are gasoline filling stations, dwellings and automobile repair garages. In any of the use exemptions a variance would be required. The Brunettos elected to apply for a use variance to change the nonconforming use of their property from a casting foundry to an automobile repair shop. In the exercise of its wide discretion, the board approved the Brunettos’ application. In reviewing the action of the board, the trial court found that a rigid application of the regulations to the Brunettos’ property would very likely cause the property to be useless, and to deny their application would be confiscatory. Considering the size of the Brunettos’ lot, the off-street parking requirement and the limited number of exemptions from the regulations, we are unable to conclude that the record does not support the trial court’s finding.

V

Finally, the plaintiff invokes § 2.5.3 of the regulations to challenge the action of the board in granting the Brunettos’ property variance. This claim was first presented by the plaintiff in his reply brief on this appeal. In pursuing this claim the plaintiff seeks to have this court consider a matter that was not presented to the board or to the trial court. “Only in the most exceptional circumstances will this court consider a claim that was not raised in the trial court. Practice Book § [4185]; Mazur v. Blum, 184 Conn. 116,120,441 A.2d 65 (1981); State v. Burke, 182 Conn. 330, 331, 438 A.2d 93 (1980); State v. Evans, 165 Conn 61, 69, 327 A.2d 576 (1973). Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. State v. Williams, 182 Conn. 262, 267, 438 A.2d 80 (1980); State v. Evans, supra. An exception may also be made where consideration of the question is in the interest of the public welfare or of justice between the parties. Capozzi v. Luciano, 174 Conn. 170, 175, 384 A.2d 359 (1978) [Speziale, J., dissenting]; Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971).” Cahill v. Board of Education, 187 Conn. 94, 99-100, 444 A.2d 907 (1982). None of the circumstances stated appear in this case. Accordingly, we decline to review this claim.

There is no error.

In this opinion Peters, C. J., and Hull, J., concurred.

Shea, J., with whom Callahan, J.,

joins, dissenting. I disagree with the conclusions of the majority (1) that the variance granted to the Brunettos allowing their nonconforming use to be changed to a different nonconforming use does not substantially affect the comprehensive zoning plan of the town of Fairfield, and (2) that the showing of unusual hardship was sufficient not only to support the variance but to require it to have been granted in order to avoid confiscation of the Brunettos’ property. More significantly, I disagree with two novel propositions implicitly advanced by the majority in support of its conclusions: (1) that a change in a nonconforming use otherwise violative of the comprehensive plan may be permitted by way of a variance, so long as the new use is less offensive than the former use; and (2) that where a nonconforming use becomes no longer economically viable because of changed conditions, a refusal to allow the use to be changed to a different nonconforming use constitutes an unconstitutional taking of property.

I

Unlike many zoning ordinances that permit in an industrial zone virtually all uses of property that may be conducted in a business zone, the Fairfield ordinance prohibits automobile repair garages in an industrial zone, although they are permitted in a business zone. The design of the ordinance to achieve a more complete separation of industrial and business uses has not been challenged. The Fairfield ordinance also, unlike some others that may permit changes in nonconforming uses to other less objectionable nonconforming uses, contains a provision, § 2.5.3 of the Fairfield zoning regulations, expressly prohibiting any change in a nonconforming use “unless such new use is substantially the same in nature and purpose as the original nonconforming use or is a conforming use.” As more fully elaborated later, a change from an aluminum foundry to an automobile body repair shop violates this provision. The majority opinion, nevertheless, chooses to ignore this fundamental aspect of the comprehensive plan on the ground that this provision of the ordinance was never raised in the trial court.

This court has often exercised our authority under the “plain error” principle to consider a matter of substantial public interest that has been overlooked in the trial court. Practice Book § 4185; Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971). The interest of the public in adherence to the zoning regulations is undeniably at stake in this appeal. It is also well established that, where a pertinent statute has not been raised in the trial court, this court, nevertheless, will consider it on appeal. State v. Burke, 182 Conn. 330, 332, 438 A.2d 93 (1980); Campbell v. Rockefeller, 134 Conn. 585, 588, 59 A.2d 524 (1948). The failure to bring to the attention of the trial court the provisions of a special act has been treated similarly. Stevens v. Neligon, 116 Conn. 307, 311, 164 A. 661 (1933). Especially in view of the public interest involved, I see no good reason for refusing to apply to a zoning ordinance this exception to the general prohibition against consideration of new issues on appeal.

Section 2.5.3 articulates a general principle of zoning law that has been developed in regard to nonconforming uses apart from any such specific provision. “As a general rule, a nonconforming use that exists at the time a zoning ordinance is enacted cannot be changed into a significantly different kind of nonconforming use. Thus, unless the ordinance provides otherwise, a nonconforming use cannot be changed if it is substantially or entirely different from the original use.” 6 P. Rohan, Zoning and Land Use Controls § 41.03 [2] (a). The majority opinion recognizes this principle in the quotations taken from Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 734,137 A.2d 756 (1958), and Darien v. Webb, 115 Conn. 581,585,162 A. 690 (1932). The conclusion reached in the opinion that the variances granted do not substantially affect the comprehensive plan, however, does not take into account that it is “the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate.” Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 181, 377 A.2d 280 (1977). Since § 2.5.3 merely implements this principle, it necessarily should be considered in deciding whether the variances granted will adversely affect the comprehensive plan.

If consideration of § 2.5.3 is undertaken, it is clear that it prohibits the proposed change in the Brunettes’ nonconforming use. This provision makes no exception for changes that may be less offensive than an existing nonconforming use, but requires that any new use be “substantially the same in nature and purpose as the original nonconforming use or [be] a conforming use.” The change from an aluminum foundry to an automobile repair shop does not comply with this requirement. The authority of the zoning board of appeals to grant variances that do not conflict with the comprehensive zoning plan could not have been properly exercised in this instance, because its action undermines a significant objective of zoning, the ultimate termination of nonconforming uses. See 4 A. Rathkopf, Law of Zoning and Planning § 51.06 [1]. The constitutional right to continue an existing nonconforming use after a zoning regulation becomes effective does not include the right to make a substantial change in such use. 4 A. Rathkopf, supra.

II

The majority opinion has gone further than necessary in upholding in part IV the finding of the trial court that a denial of the Brunettes’ application would have been “confiscatory and legally impermissible.” Such a finding was not essential in order to satisfy the requirement of “unusual hardship” for a variance, because a zoning board of appeals is not restricted to providing relief only in situations where enforcement of the regulations would create a hardship sufficient to constitute an unconstitutional taking. The opinion thus fails to adhere to our standard policy of resolving constitutional claims only when essential to a determination of the appeal. State v. Zach, 198 Conn. 168,177, 502 A.2d 896 (1985); State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985). “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Parker v. County of Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949).

In addressing this obiter dictum upon constitutional law, I disagree with the majority opinion that failure to have granted the Brunettes’ application would have been confiscatory. The implication of that holding is that whenever a nonconforming use of property becomes economically unfeasible the owner must be permitted to change its use to any other nonconforming use that is no more offensive than the original use. How this position can be reconciled with the well accepted view that the eventual elimination of nonconforming uses is a proper zoning objective the majority opinion does not explain. Moreover, this holding appears to invalidate, without addressing its provisions, § 2.5.3, which precludes any change in a nonconforming use “unless such new use is substantially the same in nature and purpose as the original nonconforming use or is a conforming use.”

With respect to the evidence of hardship relied upon by the majority, it is undisputed that there are many conforming uses permitted in an industrial zone for which the Brunettos’ property, despite the limited parking space, might well have been adapted. Some of these uses are: the manufacture, processing or assembling of goods; office buildings and research laboratories; warehousing; wholesale businesses; selling goods or services at retail; laundering or cleaning plants; and restaurants and other food service establishments. The majority opinion eschews the possibility of using the property for any of these conforming purposes, because this property does rot have sufficient area to satisfy the off-street parking requirements of § 28 of the Fair-field zoning regulations. These parking regulations, however, could not restrict the conduct of the nonconforming aluminum foundry business in respect to parking cars on the property in the manner followed prior to their advent, because they apply only to “any permitted use of premises hereafter established.” Fairfield Zoning Regs. § 28.1 (1977). When a nonconforming use is changed, the regulations provide only that any “additional off-street parking and loading spaces” must comply with the off-street parking regulations. (Emphasis added.) Fairfield Zoning Regs. § 28.1 (1977). There is nothing in the record to indicate that no business permitted by the regulations could have been conducted on the property without providing more parking or loading space than had been available when the aluminum foundry business was operating. It appears that the variance of the off-street parking requirement obtained by the Brunettos in conjunction with the variance to permit the new nonconforming auto body shop use, allowing them to park six cars inside the building, could have been granted as readily if one of the conforming uses had been proposed for the property.

Accordingly, I dissent.

       General Statutes § 8-8 provides in pertinent part: “appeal FROM BOARD TO COURT, review by appellate COURT, (a) Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       The pertinent regulation prohibiting an automobile repair shop in an industrial district 1 zone is as follows:
      “[Fairfield Zoning Regs.] 19.4. prohibited uses. The permitted uses specified in paragraph 19.2 shall not be construed to include the following uses, and no land, building or other structure shall be used for any of the following purposes . . . 19.4.6. Gasoline filling stations; automobile repair garages including automobile, trailer and farm equipment repairing, painting and upholstering except when clearly accessory and subsidiary to a permitted use on the same premises; establishments for motor vehicle washing; establishments for the sale of new or used automobiles, trucks, trailers or farm equipment.”

       In Heady v. Zoning Board of Appeals, 139 Conn. 463, 94 A.2d 789 (1953), the defendant and the plaintiff were individual owners of properties in a residential zone, restricted to single-family dwellings. The defendant, a physician, maintained his office on his property. Such use was permitted as an accessory use under the regulations. The defendant sought and was granted a variance to permit an additional medical and dental office on his property. The defendant had not resided on the property for approximately two years prior to applying for a variance. On appeal to the trial court the action of the board was determined to be illegal, arbitrary and an abuse of its discretion. We upheld the trial court, and in doing so, stated: “The defendant seeks, by means of a variance, to change the use of his property completely. It is to be no longer the home of a doctor in which he maintains his office and from which he conducts his practice. It is to become a small professional office building.” Id., 467.

       In Bradley v. Zoning Board of Appeals, 165 Conn. 389, 334 A.2d 914 (1973), the zoning board of appeals granted a variance for the construction of a multiple family apartment building in an area zoned for single-family dwellings. The trial court upheld the action of the board, and this court reversed. “Variances ‘should not be used to accomplish what is, in effect, a substantial change in the uses permitted in a specific zone. The power to accomplish such a result is in the zoning commission.’ ” Id., 395.

       General Statutes § 8-6 (3) provides: “powers and duties of board of appeals. The zoning board of appeals shall have the following powers and duties ... (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.”

       In Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 229 A.2d 356 (1967), the corporation constructed a house in violation of the North Haven zoning regulations and thereafter sought a variance. It was disclosed that the position of the house on the lot resulting in the violation was due to an error of either the surveyor or of the foundation contractor employed by the corporation. The variance was denied by the board, and we upheld that decision, holding that the hardship suffered by the corporation was due to its own building error or the error of those employed by the corporation, and was self-inflicted. Id., 43.

       In Devaney v. Board of Zoning Appeals, 132 Conn. 537, 45 A.2d 828 (1946), the applicant purchased a one family dwelling intending to use the first floor as a restaurant and to live with his family on the second floor. The property was in a residential zone, where a restaurant business was prohibited. The applicant was aware of the zoning regulations when he purchased the property and later sought a building permit to alter the first floor and adopt it for a restaurant. The permit was denied, but on appeal to the zoning board of appeals the application was granted. The trial court revoked the permit and this court found no error.

       Examples of permitted activities under § 19.2 of the Fairfield zoning regulations are as follows: “The manufacture, processing or assembling of goods . . . warehousing, wholesale businesses, common carrier, contract carrier or other freight and materials trucking businesses and terminals; motor vehicle rental or leasing businesses; and building contractors’ businesses and storage yards . . . Storage and other buildings and structures where goods are sold or service is rendered primarily at retail . . . Laundering or cleaning plants . . . Undertakers’ establishments, veterinary hospitals, printing and publishing establishments, bowling alleys and billiard and pool halls . . . .” Other permitted activities are restaurant establishments, including establishments where customers are served in motor vehicles or served primarily at food take-out counters. Additionally, at the time of the public hearing before the board, in the building on the plaintiff’s property were three tenants, a metal treating shop, a small manufacturing operation and an engineer.

       Section 2.5.3 of the Fairfield zoning regulations provides: “No nonconforming use of land, buildings and other structures shall be changed to another use unless such new use is substantially the same in nature and purpose as the original nonconforming use or is a conforming use.”

       Section 2.5.3 of the Fairfield zoning regulations provides: “No nonconforming use of land, buildings and other structures shall be changed to another use unless such new use is substantially the same in nature and purpose as the original nonconforming use or is a conforming use.”

       Section 19.2 of the Fairfield zoning regulations provides in part: “PERMITTED USES. Subject to the performance standards specified in paragraph 19.3, land, buildings and other structures shall be used for one or more of the following purposes:
      “19.2.1. The manufacture, processing or assembling of goods.
      “19.2.2. Office buildings and research laboratories.
      “19.2.3. Warehousing; wholesale businesses; common carrier, contract carrier or other freight and materials trucking businesses and terminals; motor vehicle rental or leasing businesses; and building contractors’ businesses and storage yards.
      “19.2.4. Storage and other buildings and structures where goods are sold or service is rendered primarily at retail.
      “19.2.5. Business and professional offices, financial institutions and medical and dental climes.
      “19.2.6. Laundering or cleaning plants.
      “19.2.7. Undertakers’ establishments, veterinary hospitals, printing and publishing establishments, bowling alleys and billiard and pool halls.
      “19.2.8. Restaurants and other food service establishments where customers are served only when seated at tables or counters and at least three-quarters of the customer seats are located within an enclosed building.”

       Section 28.1 of the Fairfield zoning regulations provides: “general. For any permitted use of premises hereafter established, parking spaces and loading spaces shall be provided off the street for any use of land, buildings, and other structures in accordance with the standards hereinafter specified. Any use already existing shall conform to these standards to the extent that it conforms at the time of adoption of these regulations. Off-street parking and loading spaces required by this section shall be permanently maintained and made available for occupancy in connection with and for the full duration of the use of land, buildings and other structures for which such spaces are herein required. If any existing use of land, buildings or other structures is changed to a use requiring additional off-street parking and loading spaces to comply with this section, the additional spaces shall be provided for the new use in accordance with the standards hereinafter specified. Any existing use which does not conform to the standards of this section shall not be changed to a use which would need additional off-street parking and loading spaces to comply with the standards herein unless off-street parking and loading spaces are provided for such new use as required by this section.”