source: Caselaw Access Project

author: Katz, J.

license: Public Domain

text:
    E. Don Smith et al. v. Zoning Board of Appeals of the Town of Greenwich et al.
    (14632)
    (14633)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.

      Argued April 28—
    decision released August 10, 1993

      Joyce H. Young, assistant town attorney, for the appellant (named defendant).

      Everett E. Newton, with whom, on the brief, were William E. Hegarty, Russell L. Brenneman and John C. Yavis, Jr., for the appellants (defendant Historical Society of the Town of Greenwich, Inc., et al.).

      E. Don Smith, pro se, with whom was Eileen Smith, pro se, the appellees (plaintiffs).

      Robin Messier Pearson, Michael J. Cacace and Mark K. Branse filed a brief for the Planning and Zoning Law Section of the Connecticut Bar Association as amicus curiae.
   Katz, J.

The dispositive issue in this appeal is whether the planning and zoning board of appeals for the town of Greenwich (board) is authorized, under the Greenwich town charter (charter) and the applicable subdivision regulations, to consider historical factors in determining whether to grant or deny an application to subdivide property located in a historic district. The defendants, the board, the Historical Society of the Town of Greenwich, Inc. (historical society), and Anita De Lesseps Keefe, a landowner within 100 feet of the property, appeal, upon our grant of certification, from the judgment of the Appellate Court. The Appellate Court concluded that the board had not been authorized to consider historical factors in reviewing a subdivision application and reversed the judgment of the trial court. Smith v. Zoning Board of Appeals, 29 Conn. App. 28, 35, 614 A.2d 464 (1992). We disagree with the Appellate Court and, accordingly, reverse the judgment.

The following relevant facts are undisputed. The plaintiffs, E. Don Smith and Eileen Smith, own property located at 35 Strickland Road in Greenwich (property). The property is situated in the Mill Pond Historic District (district), which was established under article 5 of the charter and General Statutes § 7-147b. The property is also in an R-7 zone classification, which encompasses single homes.

In January, 1987, the plaintiffs submitted a preliminary subdivision application to the planning and zoning commission of the town of Greenwich (commission), seeking to subdivide the property into three lots. After a hearing, the commission preliminarily approved the plaintiffs’ application, subject to the resolution of fourteen issues prior to the submission of the final application. In particular, the commission required the plaintiffs to meet with the historic district commission “in order to determine an appropriate house location for Lot 1.” The commission further instructed that “[t]he preservation of significant trees shall be taken into consideration in determining house location, as well as conformity as nearby as possible to the existing setback/streetscape of house locations to the south.”

Pursuant to the commission’s requirement, the plaintiffs met with members of the historic district commission. Although, in the absence of a final, approved subdivision plan the historic district commission could not take any formal action concerning the appropriateness of the building on lot 1, the historic district commission did, nonetheless, express its opposition to the proposal.

The plaintiffs subsequently submitted a final subdivision application. On November 22,1988, the commission denied the plaintiffs’ final subdivision application because granting it would “permit construction of a house in the . . . significant open space, thereby disrupting an essential characteristic of the historic district.”

The plaintiffs appealed from the decision of the commission to the board pursuant to § 103 (a) of the charter. Pursuant to § 103 (a), the board conducted a de novo review of the application and held a public hearing. The board found that the plaintiffs were seeking to subdivide the property into three lots. Lot 1 would contain the plaintiffs’ residence; lot 2 would contain an existing barn; and lot 3, a presently unimproved area in front of the plaintiffs’ residence, would contain a single family house. The proposed building on lot 3 is the focus of this dispute.

Following the public hearing, the board denied the plaintiffs’ appeal. The board concluded that the proposed building on lot 3 would disrupt the “sweeping front lawn” and, therefore, would not be consistent with the district’s historic streetscape. The board stated that “[t]he proposed subdivision did not meet the purposes of the Subdivision Regulations as provided in Section 6-260, thereof. It does not conform to the Town of Greenwich Plan of Development in that it does not meet the basic objectives of preservation of historic and architectural resources. Furthermore, it does not preserve the natural features of the landscape; namely, the historic streetscape.” The board also concluded that the plaintiffs’ application was subject to review under the Coastal Area Management Act (act), General Statutes § 22a-90 et seq. Applying the standards in the act, the board found that the subdivision proposal “would have an adverse impact on coastal resources because of the alteration of natural features of vistas.”

The plaintiffs appealed from the decision of the board to the trial court pursuant to § 104 of the charter and General Statutes § 8-8 (2) (b). Although the trial court disagreed with the applicability of one of the statutes, the act, on which the board had relied, the court concluded that other statutes, as well as the town’s own land use regulations, supported the board’s action. The trial court therefore dismissed the plaintiffs’ appeal.

The trial court concluded that the board had the authority to consider the historic streetscape for three reasons: the provisions of the town’s subdivision regulations, the statutory and town policy in favor of historic preservation and a restriction contained in the plaintiffs’ deed. Section 6-260 provides that the purpose of the subdivision regulations is to “ [fjurther the orderly development of the Town in accordance with the Town Plan of Development.” Because the town plan has “as one of its ‘Basic Objectives’ the preservation of historic resources,” the trial court concluded that the board acted within its authority in considering the historic streetscape. Additionally, § 6-266 (a) (20) of the Greenwich Land Use Regulations specifically permits an evaluation of historical factors, noted in § 6-266 (a) (19), in subdivisions located “within the coastal zone.” Furthermore, the town’s subdivision regulations are consistent with public policy favoring historic preservation that is contained in General Statutes § 7-147a et seq. and § 6-307 of the Greenwich Land Use Regulations. Finally, a restriction in the plaintiffs’ deed states that “‘[s]aid premises are conveyed subject to . . . [regulations imposed by reason of the fact that the premises are part of a historic district as established by the Town of Greenwich. . . .’ ”

The trial court affirmed the board’s conclusion that the plaintiffs’ subdivision proposal would impair the historic streetscape. The trial court reasoned that “[t]he Smiths’ side of Strickland Road is characterized by homes on lots with sweeping front lawns. The plaintiffs plan to convert their front lawn into a building lot and construct thereon a house with the thirty feet by forty feet footprint, and setbacks of twenty-five feet from the front property line, twenty feet from the south property line, and fifteen feet from a line of trees. These exhibits show that construction of a house on the front lawn would drastically alter the streetscape, and support the Board’s conclusion in that regard.”

Finally, the trial court considered the plaintiffs’ argument that “the denial of their plan constitutes a taking of property without due process of law.” The court noted, however, that “[t]he Board rejected this claim, concluding that because other alternatives for development of the property exist, the plaintiffs were not deprived of their development rights. The defendant Board argues that [the] plaintiffs have failed to establish a diminution in the value of their property as a result of the decision, and further, only one proposal has been rejected, not all proposals.”

Upon a grant of certification, the plaintiffs appealed to the Appellate Court from the trial court’s dismissal of their appeal. The Appellate Court reversed the judgment of the trial court, concluding that the board did not have the authority to consider historical factors in deciding whether to grant or deny a subdivision application because: “(1) the enabling statutes on subdivisions did not give the board the authority to include historical factors in its regulations;. (2) the terms ‘town plan of development/ ‘historic factors’ and ‘historic streetscape’ are not known and fixed standards required for subdivision regulations; (3) the Greenwich town charter forbids the board from denying a subdivision application based on the plan of development; and (4) it is the duty of the historic district commission, not the planning and zoning commission or the board of appeals, to decide whether a building should be erected in a historic district.” Smith v. Zoning Board of Appeals, supra, 35. Having ourselves granted certification for the defendants to appeal, we now reverse the judgment of the Appellate Court.

I

In reviewing an appeal from an administrative agency, the trial court must determine whether “ ‘the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.’ ” Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 541, 556 A.2d 572 (1989); Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988). “ ‘The trial court may not retry the case or substitute its judgment for that of the agency . . . ” Board of Education v. State Employees Retirement Commission, supra, 540; Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983). The principal issue in this case, however, presents “questions of law turning upon the interpretation of statutes.” Board of Education v. State Employees Retirement Commission, supra. The defendants dispute the Appellate Court’s conclusion that no statutory or regulatory authority existed allowing the commission to consider historical factors. “[T]he construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.” (Internal quotation marks omitted.) Id.

A

The defendants claim initially that the Appellate Court incorrectly concluded that the commission lacked the authority to promulgate subdivision regulations that provide for the consideration of historical or architectural factors. We agree with the defendants.

“It has been said that the whole field of subdivision regulation is peculiarly a creature of legislation. It is therefore imperative that before subdivision regulations may be made operative, the necessary statutory authorization of such regulation must exist. ... In other words, in order to determine whether the regulation in question was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment.” (Internal quotation marks omitted.) Finn v. Planning & Zoning Commission, 156 Conn. 540, 545, 244 A.2d 391 (1968). In determining whether the board had the authority to deny subdivision applications for historical reasons, we must first determine whether the commission has the authority to enact subdivision regulations that provide for such consideration. The town of Greenwich exercises its zoning power by virtue of a special act. 26 Spec. Acts 325, No. 469 (1951). “This act established the [Greenwich Town Charter], which is the source of authority” to enact and enforce subdivision regulations. Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 8, 544 A.2d 152 (1988); O’Meara v. Norwich, 167 Conn. 579, 581, 356 A.2d 906 (1975). “The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised. ...” (Internal quotation marks omitted.) West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983). “Agents of a city, including commissions, have no source of authority beyond the charter. Perretta v. New Britain, 185 Conn. 88, 92, 440 A.2d 823 (1981).” (Internal quotation marks omitted.) Norwich v. Norwalk Wilbert Vault Co., supra, 8-9.

The charter is the source of authority governing subdivisions, except if there is a clear legislative intent that the General Statutes control. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 206, 355 A.2d 21 (1974). The power of the planning and zoning commission to adopt subdivision regulations is limited by the terms of the statute or special act. Caldrello v. Planning Board, 193 Conn. 387, 391, 476 A.2d 1063 (1984); Bishop v. Board of Zoning Appeals, 133 Conn. 614, 619, 53 A.2d 659 (1947); see, e.g., Reed v. Planning & Zoning Commission, 208 Conn. 431, 544 A.2d 1213 (1988). “The ordinance must rest primarily upon the enabling act and must not go beyond the power delegated by it.” Bishop v. Board of Zoning Appeals, supra.

Section 83 of the charter established the planning and zoning commission. In addition to other powers granted to the commission by the charter, § 83 also conferred upon the commission “the powers and duties conferred upon zoning commissions under the General Statutes.” Section 101 of the charter sets forth those areas that the commission’s subdivision regulations are meant to control or regulate. Section 101 (d) provides that “[t]he regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, drainage and sewerage, and, in areas contiguous to brooks, rivers or other bodies of water subject to flooding, including tidal flooding, that provision shall be made for protective flood control measures and that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the Plan of Development as described in Section 94, especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs.” General Statutes § 8-25, the applicable section of the General Statutes, is substantially the same.

The plaintiffs argue that neither § 101 of the charter nor any other section of the charter addressing subdivisions specifically refers to historical factors. By contrast, there is specific language authorizing the commission to regulate and make provisions for such matters as water, drainage, sewage, flood control, street layout and grading, public utilities and the provision of parks and playgrounds. Greenwich Town Charter § 101 (d), (e) and (g). Thus, the plaintiffs maintain that because the charter specially refers to several items that must be provided for in the regulations, and does not expressly include the consideration of historical factors, the commission lacks the authority to enact subdivision regulations that allow consideration of historical factors.

The defendants claim, on the contrary, that the commission’s authority to promulgate regulations that consider historical factors arises from § 101 (d) of the charter, which provides that subdivision “regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety . . . (Emphasis added.) The defendants argue that public health and safety includes protecting the environment, which, in turn, includes historic preservation. We agree with the defendants.

Although neither the charter nor the General Statutes provides a specific definition of “public health and safety” in the context of zoning regulations, other related statutes establish that environmental conservation is a legitimate concern within this broad regulatory rubric. The Environmental Protection Act (EPA); General Statutes § 22a-1 et seq.; includes the environment as a facet of public health and safety. Section 22a-1 provides in part that “the policy of the state of Connecticut is to conserve, improve and protect its . . . environment . . . in order to enhance the health, safety and welfare of the people of the state.” (Emphasis added.) In addition, the Inland Wetlands and Watercourses Act; General Statutes § 22a-36 et seq.; provides that “[t]he preservation and protection of the wetlands and watercourses ... is essential to the health, welfare and safety of the citizens of the state. . . .” General Statutes § 22a-36; see Mario v. Fairfield, 217 Conn. 164, 168, 585 A.2d 87 (1991). These statutes illuminate the statutory phrase before us in this case because they address generally related subjects that the legislature may be presumed to have considered in like manner. Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). In light of these principles, we find a relationship between protecting the public health and safety and protecting the environment. Accordingly, we conclude that public health and safety includes consideration of the “environment.”

Although this court has not defined the contours of the term “environment,” we may look again to the meaning given to this term in other statutory provisions. Link v. Shelton, supra. Once it is established that “public health and safety” includes consideration of environmental concerns, the environmental statutes make it clear that historical factors are a recognized element of environmental law. The EPA in General Statutes § 22a-1c includes a broad definition of actions that significantly affect the environment: “activities . . . proposed to be undertaken by state departments, institutions or agencies . . . which could have a major impact on the state’s . . . historic structures . . . .” (Emphasis added.) Additionally, General Statutes § 22a-19a states in part that the EPA “shall be applicable to the unreasonable destruction of historic structures and landmarks of the state, which shall be those properties (1) listed or under consideration for listing as individual units on the National Register of Historic Places (16 USC 470a, as amended) or (2) which are a part of a district listed or under consideration for listing on said national register and which have been determined by the state historic preservation board to contribute to the historic significance of such district. ” (Emphasis added.) The EPA recognizes that the protection of many environmental concerns, such as air and water, is essentially the preservation of the resource that is being used. These regulations “ ‘guarantee that important land functions continue to operate while the land is being used, no matter what the use.’ ” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 263. Similarly, the protection of historical factors is a preservation of the function of the resource being used. Id.; see Penn Central Transportation Co. v. New York City, 438 U.S. 104, 108, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978) (“[h]istoric conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing . . . the quality of life for people” [emphasis added; internal quotation marks omitted]). We note, as well, that we have interpreted the power to protect the “general welfare” to include the authority to consider historical factors. Figarsky v. Historic District Commission, 171 Conn. 198, 207-209, 368 A.2d 163 (1976).

Accordingly, we conclude that because the phrase “public health and safety” includes environmental factors, it includes historical factors. The commission, therefore, had the authority to promulgate subdivision regulations that take into account historical factors.

B

We next must address whether the Appellate Court correctly determined that the town’s charter prohibits the board from denying a subdivision application on the basis of nonconformance with the town plan. We agree with the Appellate Court’s conclusion that the board may not deny a subdivision application solely on the basis of nonconformance with the town plan.

In its decision, the board made clear that it denied the plaintiffs’ subdivision application because it was not in conformance with the plan. As the Appellate Court noted, § 98 (b) of the charter states that “[t]he Commission shall not refuse approval of any subdivision on the ground that such subdivision creates or will tend to create a use of land contrary to that shown upon the Plan of Development, except insofar as the Commission may, under Section 101, require the streets and drains in such subdivision to conform to the street and drainage system shown on the Plan of Development.”

“When a charter is construed the rules of statutory construction generally apply.” Arminio v. Butler, 183 Conn. 211, 217, 440 A.2d 757 (1981). “In arriving at the intention of the framers of the charter the whole and every part of the instrument or enactment must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws. The real intention when once accurately and indubitably ascertained, will prevail over the literal sense of the terms. When the words used are explicit, they are to govern, of course. If not, then recourse is had to the context, the occasion and necessity of the provision, the mischief felt, and the remedy in view.” (Internal quotation marks omitted.) Id., 217-18.

The charter explicitly provides that a subdivision application cannot be denied solely on the basis of the town plan. “[W]here the language is plain, we must give effect to the intention expressed in the regulation.” Schwab v. Zoning Board of Appeals, 154 Conn. 479, 483, 226 A.2d 506 (1967). The charter limitation is consistent with this court’s prior recognition that a town plan is merely advisory. Lathrop v. Planning & Zoning Commission, 164 Conn. 215, 223, 319 A.2d 376 (1973); Spada v. Planning & Zoning Commission, 159 Conn. 192, 200, 268 A.2d 376 (1970); Dooley v. Town Plan & Zoning Commission, 154 Conn. 470, 473, 226 A.2d 509 (1967). The purpose of the plan is to set forth the most desirable use of land and an overall plan for the town. Greenwich Town Charter §§ 94, 97; see Mott’s Realty Corporation v. Town Plan & Zoning Commission, 152 Conn. 535, 538, 209 A.2d 179 (1965). Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 572, 153 A.2d 441 (1959). Because the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an interpretive tool. See, e.g., Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 475, 442 A.2d 65 (1982). We agree, therefore, with the Appellate Court that the board incorrectly denied the plaintiffs’ subdivision on the ground that it was inconsistent with the town plan.

C

Our conclusion that the board incorrectly denied the plaintiffs’ application on the basis of noncompliance with the town plan would ordinarily require that we affirm the Appellate Court’s judgment. On appeal to the Appellate Court, as well as on appeal to this court, however, the defendants raised alternative grounds in their briefs upon which the trial court’s decision may be affirmed. After review of the defendants’ arguments, we conclude that the Appellate Court incorrectly dismissed one of these alternate grounds. “[Tjhis court is authorized to rely upon alternative grounds supported by the record to sustain a judgment. . . . ‘The . . . judgment will be affirmed, though based on erroneous grounds, if the same result is required by law.’ ” Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987); Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 532, 461 A.2d 1369 (1983); A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980); C. Tait, Connecticut Appellate Practice and Procedure (1991) § 7.14. We conclude that the trial court correctly concluded that the board was authorized, under the subdivision regulations, to consider historical factors when it acted on the application.

In construing regulations, the general rules of statutory construction apply. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988) (applying rules of statutory construction to interpretation of zoning regulations); see Ghent v. Planning Commission, 219 Conn. 511, 518-19, 594 A.2d 5 (1991); Sonn v. Planning Commission, 172 Conn. 156, 159-60, 374 A.2d 159 (1976). The commission is limited by the power conferred upon it by the subdivision regulations. See Reed v. Planning & Zoning Commission, 208 Conn. 431, 544 A.2d 1213 (1988) (planning commission cannot exercise a power that has been admittedly delegated to it, unless its own regulations give it the right to exercise that power). Section 6-266 (a) of the Greenwich Land Use Regulations sets forth the information that should be included in a preliminary subdivision application. “The preliminary layout shall be considered as a helpful guide in the preparation of a subdivision plan and should include the information set out in Section 6-266.” Greenwich Land Use Regs. § 6-265. Subsection (a) of § 6-266 states that “[t]he preliminary layout shall include as many of the following items of information as is practicable.” This general statement, set forth at the beginning of the regulation, indicates the commission’s intent to require only the information that is pertinent to a particular subdivision application.

Section 6-266 (a) (19) permits the commission in its discretion to require an environmental assessment in the preliminary layout of subdivisions of fewer than ten lots or ten acres. Subsection (a) (19) lists twelve relevant considerations, including “[historical and archaeological factors.” Greenwich Land Use Regs. § 6-266 (a) (19) (h). In this case, the commission requested an evaluation by the historic district commission of the historic implications of the subdivision application. It also requested an evaluation by the required experts of some of the other considerations listed in § 6-266 (a) (19). It did not request that each and every one of these items be evaluated, presumably because it did not see such a need.

The plaintiffs argue that § 6-266 does not apply because the commission did not formally request an “environmental assessment.” The consequence of the plaintiffs’ argument is that, unless the commission formally requests each item of information by calling it an “environmental assessment,” the commission cannot consider potentially relevant information. We decline to accept such a narrow construction of the regulation.

Regulations are to be construed as a whole. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 679, 236 A.2d 917 (1967). There is nothing in § 6-266 (a) that specifically requires that the commission label its request for information an “environmental assessment.” Rather, “environmental assessment” is a general label for the types of information that the commission is authorized to consider in its determination of subdivision applications. Further, the intent of the preliminary layout is to convey relevant information to the commission in order to facilitate the process. This intent is indicated by the overall description of what should be included in a layout in § 6-266 (a), which states that the “preliminary layout shall include as many of the following items of information as is practicable.”

The plaintiffs further argue that the commission did not consider a full environmental assessment as required by the language of § 6-266 (a) (19), which states that “[t]he assessment shall include an evaluation of the following . . . .” (Emphasis added.) The plaintiffs contend that this regulation makes it mandatory that each of the twelve factors listed be included in an assessment of the property to be subdivided. We disagree.

Although subdivision (19) of § 6-266 (a) employs the word “shall,” it does not make sense to require the commission to evaluate factors that are not relevant to a particular subdivision. Whether the word “shall” is mandatory or precatory depends upon its context. See, e.g., Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 273, 610 A.2d 584 (1992). In construction of the words of a regulation, like those of a statute, common sense must be used. Police Department v. State Board of Labor Relations, 225 Conn. 297, 303, 622 A.2d 1005 (1993). The items listed to be considered include some specific items that will not be implicated in every subdivision application. For example, in addition to historical and archaeological factors, the list includes animal habitats, significant geological formations and aquifer protection. Greenwich Land Use Regs. § 6-266 (a) (19) (g), (i) and (k). Not every subdivision application will require the consideration of each of these factors. It would be a waste of time, money and energy for the participants involved to be required to gather information that is not relevant to the subdivision application.

In addition, § 6-296 (d) of the Greenwich Land Use Regulations explicitly permits the commission to require a redesign of a subdivision plan “in order to protect environmental or historic resources” if the environmental assessment indicates the need for a redesign. Thus, the regulations specifically anticipate a situation, like the one at hand, where historical preservation requires the redesign of subdivision plans.

We also must look to the overall intent of the applicable regulations in considering subdivision applications. Forest Construction Co. v. Planning & Zoning Commission, supra. “Regulations, like statutes, do not exist in a vacuum.” Bombero v. Planning & Zoning Commission, 218 Conn. 737, 743, 591 A.2d 390 (1991). As noted above, § 6-266 (a) requires the consideration of only that information that is necessary. Additionally, the purpose of the subdivision regulation is to “[further the orderly development of the Town in accordance with the Town Plan of Development.” Greenwich Land Use Regs. § 6-260 (a) (1). Although, as noted above, the town plan cannot itself support the denial of a subdivision application, its provisions can serve as an interpretative guide to the meaning of properly enacted regulations. The plan has as one of its basic objectives the preservation of historic resources. The plan also provides that “Greenwich has a rich . . . historical heritage that should be protected for the benefit and enlightenment of future generations,” and that “[cjonserving the Town’s . . . historical resources is a notably effective land use tool for preserving the essential character and spirit of the community.”

Accordingly, we conclude that § 6-266 (a) (19) (h) expressly permits the commission to consider historical factors.

II

The defendants next claim that the Appellate Court incorrectly concluded that the terms “historical factors” and “historic streetscapes” do not comply with the established rules requiring regulations to be reasonably precise, adequate and sufficient. We agree with the defendants.

The standard for determining the adequacy of subdivision regulations is whether they “ ‘are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations.’ ” Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 93, 368 A.2d 24 (1976); Forest Construction Co. v. Planning & Zoning Commission, supra, 680. Although some standards may be general, the regulation must be “ ‘reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases.’ ” Nicoli v. Planning & Zoning Commission, supra, 93.

In this case, the commission’s subdivision regulations sufficiently apprised the plaintiffs that historical factors would be considered in evaluating their subdivision application. In evaluating the regulations, we must construe them “as a whole since particular words or sections of the regulations, considered separately, may be ‘lacking in precision of meaning to afford a standard sufficient to sustain’ them.” Forest Construction Co. v. Planning & Zoning Commission, supra, 679; Ghent v. Planning Commission, supra, 517; Sonn v. Planning Commission, supra, 162. Although § 6-266 (a) (19) does not specifically define the term historical factors, the general purpose of the regulations specifically references the town plan. Section 6-260 (a) (1) states that “[t]he purposes of this Article shall be to (1) [further the orderly development of the Town in accordance with the Town Plan of Development.” This reference puts prospective subdivision applicants on notice that the town plan will help define the specific terms in the subdivision regulations.

The plan has as one of its basic objectives “[t]o preserve historic and architectural resources.” In its further discussion of the preservation of historical resources, the plan specifically mentions historical “streetscapes and districts” as important aspects of Greenwich that the town wishes to preserve. In a subsequent section, the plan states that “[t]he following considerations should be the starting point for decision-making . . . [t]he goal is to sustain a climate where . . . historic streetscapes can be preserved.” These specific references to streetscapes, the historical factor at issue in this case, define one aspect of “historical factors” and certainly apprised the plaintiffs that this would be a consideration in their subdivision application.

The consideration of historical factors does not occur in a vacuum. See Bombero v. Planning & Zoning Commission, supra. “It is unrealistic to demand detailed standards which are impracticable or impossible.” Forest Construction Co. v. Planning & Zoning Commission, supra, 679. The term historic factors derives meaning from the physical environment of the historic district. See A-S-P Associates v. Raleigh, 298 N.C. 207, 223, 258 S.E.2d 444 (1979). In the context of a historic district, there are identifiable and sufficiently distinct historical standards by which the commission may be guided. These same characteristics also put property owners on notice of the types of historical factors that will be considered. “Although . . . discretion cannot be entirely eliminated because of the subjective nature of this process”; Bellevue Shopping Center Associates v. Chase, 574 A.2d 760, 764 (R.I. 1990); the board is confined to the relevant historic period in its consideration of historical factors.

Accordingly, we conclude that the standards set forth in the regulations and the plan are reasonably precise and sufficient to guide the commission. Accord Maher v. New Orleans, 516 F.2d 1051, 1067 (5th Cir. 1975), cert. denied, 426 U.S. 905, 96 S. Ct. 2225, 48 L. Ed. 2d 830 (1976); Bellevue Shopping Center Associates v. Chase, supra, 764-65; see generally Burnham v. Planning & Zoning Commission, 189 Conn. 261, 263-64, 455 A.2d 339 (1983); Figarsky v. Historic District Commission, supra, 207-209 (implicitly endorsing the adequacy of “historical factors” to guide municipal agencies and applicants); see also Carlson v. Fisher, 18 Conn. App. 488, 506-507, 558 A.2d 1029 (1989) (referencing streetscape). The Appellate Court was, therefore, incorrect in concluding that the regulations did not support the action taken by the commission.

III

The defendants also challenge the Appellate Court’s conclusion that “it is the duty of the historic district commission, not the planning and zoning commission or the board of appeals, to decide whether a building should be erected in a historic district.” Smith v. Zoning Board of Appeals, 29 Conn. App. 28, 35, 614 A.2d 464 (1992). We disagree with the Appellate Court because we conclude that the historic district commission does not exercise exclusive statutory jurisdiction to rule on changes affecting the historic character of a historic district.

The historic district commission and the planning and zoning commission perform different yet sometimes overlapping functions. The historic district commission is authorized to make its own independent determination of whether a proposed budding or alteration is consistent with the historic district. General Statutes § 7-147f. “Absent a statutory provision designating which commission is to have overriding responsibility, [however,] the fact that the legislature has given responsibility to more than one agency suggests that each must exercise its own authority, using its standards and procedures, regardless of what the other agencies do under their delegation of power from the state.” T. Tondro, supra, p. 50. The General Statutes do not confer exclusive powers on the historic district commission. To the contrary, General Statutes § 7-147c (j) authorizes the historic district commission to cooperate with other regulatory agencies interested in preservation and to initiate planning and zoning proposals on their behalf. Moreover, we have recognized concurrent agency jurisdiction in other areas. See, e.g., Wright v. Woodridge Lake Sewer District, 218 Conn. 144, 147-48, 588 A.2d 176 (1991) (sewer and zoning agencies); Mario v. Fairfield, 217 Conn. 164, 169-70, 585 A.2d 87 (1991) (department of environmental protection and inland wetlands commission).

Accordingly, we conclude that the historic district commission’s authorization to consider historical factors does not foreclose the commission from considering historical factors. The Appellate Court was mistaken in ruling to the contrary.

IV

The defendants next argue that the Appellate Court incorrectly concluded that the board’s consideration of the subdivision regulations improperly encroached upon the applicable zoning regulations. The plaintiffs claim, to the contrary, that because it is undisputed that the application conformed with the zoning requirements of an R-7 zone, it could not be denied on the basis of nonconformance with subdivision regulations. Smith v. Zoning Board of Appeals, supra, 37. We agree with the defendants.

Citing Cristofaro v. Burlington, 217 Conn. 103, 107, 584 A.2d 1168 (1991), the Appellate Court concluded that the commission lacked the authority “to include historical factors in its regulations” because “[subdivision regulations cannot impose minimum lot size, shape, width and depth requirements greater than those required under the zoning regulations for the zone where the property is to be subdivided or deny approval of lots that meet all zoning requirements.” Smith v. Zoning Board of Appeals, supra, 36. Cristofaro, however, is inapposite. In Cristofaro, the planning and zoning commission enacted a regulation that directly intruded on a subject that was exclusively a zoning matter. See Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 238-39, 215 A.2d 409 (1965) (fees in subdivision regulations in excess of fees in zoning regulations invalid). A subdivision regulation may not conflict with applicable zoning regulations.

Although subdivision regulations and zoning regulations have separate functions, landowners must comply with the requirements of each applicable regulation. Vose v. Planning & Zoning Commission, 171 Conn. 480, 483, 370 A.2d 1026 (1976); see Cristofaro v. Burlington, supra, 106; Sheridan v. Planning Board, 159 Conn. 1, 9, 266 A.2d 396 (1969). Only if the commission enacts subdivision regulations that exclusively concern zoning power, or if the subdivision regulations directly conflict with a zoning power, will the subdivision regulation be invalid. Cristofaro v. Burlington, supra, 107; Avonside, Inc. v. Zoning & Planning Commission, supra.

In this case, the subdivision regulations neither encroach upon an area that is uniquely a zoning power, nor directly conflict with applicable zoning regulations. As we discussed above, § 101 (d) of the charter permits the commission to enact regulations that consider historical factors. Although General Statutes § 8-2 authorized the zoning commission to enact zoning regulations that consider historical factors, the parties have not pointed to any zoning regulation that does so. The record therefore does not indicate any conflict between the pertinent subdivision regulations and any of the applicable zoning regulations.

Accordingly, the zoning regulations in this case do not prevent the board’s review of historical factors in considering whether to grant or deny the plaintiffs’ subdivision application. The Appellate Court was mistaken in relying on a conceived conflict of regulations as a ground for sustaining the plaintiffs’ appeal.

V

Last, the plaintiffs argue, as an alternate ground for affirming the judgment of the Appellate Court, that the denial of their subdivision application results in an unconstitutional taking of their property without just compensation. Because the plaintiffs have not met their burden of proving that there are no viable options for the property, we conclude that this claim cannot be sustained.

The plaintiffs claim that the board’s denial of their subdivision application was a practical confiscation of their land and that they have no viable alternatives. The board rejected the plaintiffs’ contention, concluding that other alternatives for development of their land exist and that the plaintiffs therefore had not been deprived of their due process rights. Although the trial court acknowledged that the plaintiffs had advanced this argument, it did not resolve it and the plaintiffs did not ask the trial court to articulate its reasons for failing to do so.

The plaintiffs have the burden of proving that they have been finally deprived by the board of the use of their property. Gil v. Inland Wetlands & Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991); Bom bero v. Planning & Zoning Commission, supra, 746; Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 357, 362 A.2d 948 (1975). We have held that a final deprivation has occurred when there were no economically viable uses of the land; Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 311, 197 A.2d 770 (1964); see Gil v. Inland Wetlands & Watercourses Agency, supra; or there has been a practicable confiscation of the entire property.

In this case, the board found, as a matter of fact, that other viable options exist for the development of the plaintiffs’ property. The board’s rejection of the plaintiffs’ subdivision application does not lead to the conclusion that other plans will be denied as well and the trial court has made no relevant findings to the contrary. “ ‘[Ujntil it appears that the plaintiff[s] [have] been finally deprived ... of the reasonable and proper use of the property, it cannot be said that there has been an unconstitutional taking of property without just compensation.’ ” Luf v. Southbury, 188 Conn. 336, 351-52, 449 A.2d 1001 (1982). Consequently, we cannot conclude that there has been a taking. Gil v. Inland Wetlands & Watercourses Agency, supra; Luf v. Southbury, supra, 354; Brecciaroli v. Commissioner of Environmental Protection, supra, 358.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the trial court’s judgment dismissing the plaintiffs’ appeal.

In this opinion the other justices concurred.

       We granted certification to appeal the following issue: “In acting on a subdivision proposal that conforms to applicable zoning regulations, may a planning and zoning commission take into account the fact that the property is located in a historic district and that the development of the property may be inconsistent with historic preservation of the district?” Smith v. Zoning Board of Appeals, 224 Conn. 912, 913, 617 A.2d 167, 168 (1992). In the proceeding at issue here, the zoning board of appeals acted, in effect, as the planning and zoning commission because it reviewed the challenged decision of the commission de novo. See footnote 4.

       The commission’s preliminary approval provided the following: “1. That Lot 1 be shifted to the southerly property boundary of the tract. Concurrently that portion of the park and playground area displaced by the relocation of Lot 1 shall be moved to the northerly property line of Lot 1.
      “2. The Commission observed that the area reserved for park and playground being 14.67%, conventionally required to be 15%, is acceptable as it is calculated from a gross area which includes a free-throw lot for which park and playground is not required.
      “3. The utility easement shall be located so as to minimize impacts to significant trees.

        “4. The applicant shall meet with the Historic District Commission in order to determine an appropriate house location for Lot 1. The preservation of significant trees shall be taken into consideration in determining house location, as well as conformity as nearby as possible to the existing setback/streetscape of house locations to the south.
      “5. The applicant shall meet with the Conservation Coordinator in order to develop tree preservation details as required by house and utility easement siting.
      “6. That the Declaration of Restrictions for the reserved areas be submitted to the Law Department in accordance with the model document.
      “7. That provisions for access easements be indicated on the record sheet.
      “8. That the existing southerly curbcut be the sole accessway to Lot 1.
      “9. That the appropriate utility easements to the northerly property (Ward) be indicated on the record sheet.
      “10. That a sight line improvement plan indicating any modifications to existing features of walls and trees, etc., be submitted for review and approval by the Department of Public Works. Historic District Commission should also comment on alternate plans to achieve acceptable sight distance, if significant trees or the stone wall are adversely [a]ffected.
      “11. The applicant must obtain a sewer permit prior to the issuance of a Building Permit.
      “12. The applicant shall obtain confirmation from the Engineering Division that there will be no adverse impacts to nearby properties and water bodies due to site drainage.
      “13. The following note is to appear on the construction sheet: ‘Prior to any excavation(s) the applieant(s), in accordance with Public Act 77-350, shall be required to contact Call Before You Dig, Inc., at 1-800-922-4455 for markout of underground utilities.’
      “14. Submit a driveway plan in accordance with Sec. 6-131 [of the Greenwich Municipal Code], In the event significant open space or trees are impacted, it is recommended that the applicant apply for a variance in order to use as much of the existing driveway as possible while providing safe sight distance and maneuverability. The plan should be reviewed with Planning Staff, HDC [historic district commission] and D.P.W. [department of public works] prior to submitting final plan.”

       The commission adopted the following final resolution: “WHEREAS, the Town of Greenwich Plan of Development, 1984 states as a basic development objective the preservation of historic and architectural resources; and
      “WHEREAS, the subject lot is contained within the duly established Mill Pond Historic District, and
      “WHEREAS, the Commission recognizes that the existing streetscape, which is defined by the open space of the subject tract in relation to adjoining historical properties, structures, and open spaces is a significant element of the historic district in terms of visual appearance as well as historic use and occupancy of the land; and
      “WHEREAS, the subdivision would permit construction of a house in the previously defined, significant open space, thereby disrupting an essential characteristic of the historic district; and
      “WHEREAS, a stated purpose of the Subdivision Regulations of the Town is to ‘Further the orderly development of the Town in accordance with the Town Plan of Development’ ”; and
      “WHEREAS, the Commission finds that there are other zoning options for development of the property which would provide for the same or greater number of dwelling units while preserving the site’s open space and natural features which are significant components of the historic streetscape;
      “THEREFORE, BE IT RESOLVED that final Subdivision #1066 of E. Don Smith and Eileen Smith owners of property located on Strickland Road consisting of a record sheet prepared by J.A. Kirby Company dated March 17, 1988 revised September 26, 1988 is hereby denied.”

       Section 103 (a) of the Greenwich town charter provides: “The action of the Commission in approving or disapproving any subdivision may be reviewed by the Planning and Zoning Board of Appeals on petition by any Town agency, the Board of Education or the Housing Authority, by any person owning property in the Town, or by the person seeking approval of such subdivision, provided written notice of such petition is filed by the petitioner with the Commission and the Town Clerk within twenty (20) days from the effective date of such action. Upon receipt of such written notice, the Commission shall transmit a record of the proceedings had before it to the Planning and Zoning Board of Appeals which after a public hearing had de novo shall have the power to uphold or reverse such action.”

       Section 6-260 of the Greenwich Land Use Regulations, also referred to as the subdivision regulations, provides in pertinent part: “purposes of ARTICLE, (a) The purposes of this Article shall be to: (1) Further the orderly development of the Town in accordance with the Town Plan of Development.”

       Section 104 of the Greenwich town charter provides: “subdivision appeals. Any person aggrieved by an official action of the Planning and Zoning Board of Appeals may appeal therefrom in the manner and with the effect provided in Sec. 8-28 of the General Statutes.”
      General Statutes § 8-8 (2) (b) provides in pertinent part: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located.”

       Municipalities in Connecticut may exercise zoning power either by adopting the provisions of chapter 124 of the General Statutes, §§ 8-1 through 8-13a, or by enacting a municipal charter authorized by a special act of the legislature. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 263-64, 455 A.2d 339 (1983). “In either case, the power of the local zoning authority to adopt regulations is limited by the terms of the statute or special act.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 42.

       Section 101 of the Greenwich town charter provides in pertinent part: “(a) No subdivision of land shall be made until a plan for such subdivision has been approved by the Commission. Any person, firm or corporation making any subdivision of land without the approval of the Commission shall be fined not more than Two Hundred Dollars ($200.00) for each lot sold or so subdivided. . . .
      “(c) Before exercising the powers granted in this Section the Commission shall adopt regulations covering the subdivision of land. No such regulations shall become effective until after a public hearing, notice of the time, place and purpose of which shall be given by publication in a newspaper of general circulation in the municipality at least seven (7) days prior to the date of such hearing, and until the same or any material amendment thereof, shall be approved by the Representative Town Meeting.”

       Although the plaintiffs did not raise this claim in the trial court, “[t]he court may in the interest of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185; Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 59, 594 A.2d 981 (1991). “ ‘We have noticed plain error in the failure of the trial court to apply a clearly relevant statute to the case before it.’ ” Ralto Developers, Inc. v. Environmental Impact Commission, supra; State v. Hinckley, 198 Conn. 77, 88, 502 A.2d 388 (1985). Because this charter limitation is applicable law, we will address it. Cunningham v. Cunningham, 72 Conn. 157, 160, 44 A. 41 (1899).

       Section 6-266 (a) of the Greenwich Land Use Regulations provides in pertinent part: “The preliminary layout shall include as many of the following items of information as is practicable. . . .
      “(19) For a subdivision of ten (10) lots or more or the subdivision of ten (10) or more acres, an environmental assessment by qualified environmental specialists shall be provided. The Commission may require said assessment for smaller subdivisions if deemed necessary. The assessment shall include an evaluation of the following:
      “(a) Conformance with the Open Space Plan of Development
      “(b) Significant wetlands
      “(c) Steep Slopes
      “(d) Stormwater Drainage
      “(e) Soils capabilities
      “(f) Vegetation including forested areas and the identification of trees over 10" in caliper when not part of forested areas
      “(g) Significant geological formations
      “(h) Historical and archaeological factors
      “(i) Animal habitats
      “(j) Water availability and quality

        “(k) Aquifer protection in accordance with the Statutes of the State of Connecticut
      “(l) Other data which the Commission deems appropriate.
      “The environmental assessment shall be subject to a review, after the receipt of recommendations of the Conservation Commission, by the Planning and Zoning Commission including the mitigation measures for minimizing environmental impact before the applicant proceeds to final plan.”

       See footnote 10 for the text of Greenwich Land Use Regs. § 6-266 (a) (19).

       The property comprises fewer than ten acres or ten lots.

       Because we conclude that the commission has authority under the charter and subdivision regulations to consider historical factors, we need not address whether the Coastal Area Management Act; General Statutes §§ 22a-90 through 22a-112; also allows the commission to consider historical factors.

       The plaintiffs also argue that they have been deprived of their due process rights because the phrases historical factors and historic streetscape did not provide sufficient notice as to whether they could subdivide and build on their property. Our conclusion that “historical factors” and “historic streetscape” are reasonably precise terms, thereby putting the plaintiffs on adequate notice, disposes of this argument.

       General Statutes § 8-26 provides in pertinent part: “The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations.” See Ferndale Dairy, Inc. v. Zoning Commission, 148 Conn. 172, 176, 169 A.2d 268 (1961).

       General Statutes § 8-2 provides in pertinent part: “Zoning regulations may be made with reasonable consideration for the protection of historic factors . . . .”

       The plaintiffs refer to testimony by the board commissioner concerning the option of building condominiums on the property. On the basis of the commissioner’s speculation that the historic district commission would not grant a certificate of appropriateness, the commissioner suggested that this option was not worth discussing. Contrary to the plaintiffs’ contention, this testimony does not establish that the board believes that there are no viable alternatives.

       The plaintiffs also claim that the subdivision regulations have been unequally applied to them and throughout the historic district. The plaintiffs, however, only peripherally raised this claim before the board and never corroborated it with evidence. Because the record is insufficient, we decline to review this claim.


author: Santaniello, J.

text:
    State of Connecticut v. Bernard Williams
    (13917)
    Peters, C. J., Borden, Berdon, Santaniello and Daly, Js.

      Argued June 3—
    decision released August 10, 1993

      Robert S. Bello, special public defender, with whom, on the brief, was Christopher R. Bello, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and David I. Cohen, senior assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant, Bernard Williams, was convicted, after a jury trial, of one count of felony murder in violation of General Statutes § 53a-54c and sentenced to a term of imprisonment of sixty years. He appeals directly to this court pursuant to General Statutes § 51-199 (b) (3). On appeal, the defendant claims that the trial court improperly: (1) refused to grant his motion for a new trial based upon the failure adequately to reconstruct the testimony contained in a missing trial transcript; (2) allowed the state to introduce into evidence a videotape of the crime scene; and (3) failed to suppress certain statements made by him to police officers. We affirm.

The jury could reasonably have found the following facts. On the evening of June 6,1988, the victim, who had parked her car in the Bloomingdale’s parking garage in Stamford, had been shopping at Bloomingdale’s. At approximately 7 p.m., a shopper returned to the garage and discovered the victim lying facedown in a pool of blood near the open trunk of the victim’s car. An autopsy revealed that she had bled to death as a result of five stab wounds about the neck region.

The police secured and searched the crime scene. The victim’s recent purchases, purse and watch were not found in the immediate area or in her car. The police found a silver colored watchband extension pin near the perimeter of the crime scene. The police took black and white photographs and made a videotape of the crime scene.

The following day, a Bloomingdale’s employee found, in one of the boys’ dressing rooms, a shopping bag containing the victim’s purse and the items purchased by her on the previous evening. Stains on these items contained blood that was consistent with the victim’s blood type.

On the evening of the murder, the defendant, on four separate occasions, told acquaintances that: (1) he had done something at Bloomingdale’s that he should not have done; (2) he had killed somebody at Bloomingdale’s; (3) he had done something to a woman and had gotten money and a watch from her; and (4) he had killed a woman in the parking lot at Bloomingdale’s. The defendant also showed two of these acquaintances a watch matching the description of the victim’s watch. One acquaintance noted that the side of the watchband was broken where the watchband connected to the face and that there was a red spot on the watch. Several days after the murder, the defendant had a second conversation with one of his acquaintances during which he described the murder in great detail.

I

The defendant first claims that the trial court improperly denied his motion for a new trial that was based upon the failure adequately to reconstruct the testimony contained in a missing trial transcript. We disagree.

On March 15,1990, the defendant requested a copy of the trial transcript. In the late fall of 1991, the court monitor informed the defendant that two tapes, containing the trial proceedings of the afternoon of October 31, 1989, were missing. The defendant promptly filed a motion for a new trial on the ground that a complete transcript of the trial was unavailable. The missing tapes contained the testimony of witnesses who had been examined concerning the introduction by the state of various exhibits, including a diagram of the parking garage, photographs of the crime scene and a videotape of the crime scene.

On November 15, December 18 and December 20, 1991, the trial court conducted hearings in order to attempt to reconstruct the proceedings that were contained on the missing tapes. At the hearings, the witnesses who had testified on the afternoon of October 31,1989, testified as to their recollection of the testimony they had given that afternoon. Notes taken by the court, counsel for both parties, the court monitor and other observers of the proceedings also became part of the reconstructed record. Each -witness testified that the exhibits that were introduced at the hearings were accurate to the best of his or her recollection and, although each witness could not state with certainty that the exhibits included the entire testimony, each witness could recall nothing that had been omitted. The trial court held that “the record has been sufficiently reconstructed to allow meaningful and effective appellate review” and denied the defendant’s motion for a new trial.

The absence of a portion of the trial transcript does not mandate a new trial. A new trial is required only if “the proceedings cannot be sufficiently reconstructed to allow effective appellate review of the claims raised by the defendant.” State v. Vitale, 190 Conn. 219, 223, 460 A.2d 961 (1983); see also State v. Stafford, 223 Kan. 62, 64, 573 P.2d 970 (1977); Smith v. State, 291 Md. 125, 137, 433 A.2d 1143 (1981); Commonwealth v. Harris, 376 Mass. 74, 77, 379 N.E.2d 1073 (1978); Lopez v. State, 105 Nev. 68, 76, 769 P.2d 1276 (1989); People v. Glass, 43 N.Y.2d 283, 286-87, 372 N.E.2d 24, 401 N.Y.S.2d 189 (1977). Although the state must furnish an indigent defendant with a trial record adequate to allow meaningful review of his claims; Draper v. Washington, 372 U.S. 487, 499, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); the state is not required to furnish a complete verbatim transcript. Mayer v. Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971). Possible substitutes include “[a] statement of facts agreed to by both sides, [or] a full narrative statement based perhaps on the trial judge’s minutes taken during trial or on the court reporter’s untranscribed notes . . . .” Draper v. Washington, supra, 495.

The sufficiency of a transcript to enable the appellate courts to review the issues on appeal is a matter of fact, because the trial court is in the best position to determine whether the reconstructed record adequately reflects what occurred at the trial. An appellate court should affirm a trial court’s finding that the reconstructed record was sufficient unless the appellate court finds that the trial court’s determination was “clearly erroneous.” United States v. Carrillo, 902 F.2d 1405, 1410 (9th Cir. 1990).

In determining whether a reconstructed record is sufficient, the trial court considers various factors, including the nature of the case, the claim of error advanced by the defendant, the availability of witnesses and exhibits from the original trial, the length of time that has passed, the length of the missing portion of the record and whether the defendant is represented by different counsel on appeal. See, e.g., Commonwealth v. Harris, supra, 78-79 (adequate opportunity to reconstruct entire trial transcript because trial was eighteen months earlier, trial judge and both counsel available, all witnesses and exhibits available and summaries of arguments and testimony existed); Lopez v. State, supra (one day’s transcript containing the testimony of six witnesses could be adequately reconstructed from notes of two state’s attorneys and two courtroom observers even though no notes included any objections by the defendant); People v. King, 160 App. Div. 531, 532, 554 N.Y.S.2d 517, appeal denied, 76 N.Y.2d 847, 559 N.E.2d 1291, 560 N.Y.S.2d 132 (1990) (reconstructed record of state’s case based on notes of trial court and prosecutor’s testimony valid even though witnesses were not called to testify at hearing).

In the case presently before this court, the trial court did everything possible to reconstruct the record. The trial court incorporated into the reconstructed record its notes, the log of the courtroom clerk and the notes of the courtroom monitor, the notes of both counsel and the notes of two courtroom observers. In addition, the witnesses who had testified on the afternoon of October 31,1989, were called to testify as to their recollection of the testimony they had given that afternoon. In its memorandum of decision on the defendant’s motion for a new trial, the trial court stated that “this court is satisfied that the record has been sufficiently reconstructed so as to provide the defendant with a near perfect record with which to pursue his appeal.” This determination of the trial court was not clearly erroneous.

The defendant, relying on two Wisconsin cases, claims that the reconstructed record must be adequate beyond a reasonable doubt. Most jurisdictions, however, require only that the reconstructed record afford the defendant effective appellate review. State v. Vitale, supra; see, e.g., Bell v. State, 296 Ark. 458, 463, 757 S.W.2d 937 (1988) (reconstructed record must be “adequate to inform [court] of what transpired at . . . trial”); Cole v. United States, 478 A.2d 277, 280-81 (D.C. App. 1984) (record must be sufficient to permit meaningful appellate review); Craig v. State, 510 So. 2d 857, 861 (Fla. 1987) (reconstruction must be “reasonably accurate”); State v. Stafford, supra, 64 (reconstructed record must afford effective appellate review); Lopez v. State, supra, 76, 86 (reconstructed record must be adequate for court to perform meaningful appellate review; defendant must demonstrate that reconstructed transcript “is materially less than essentially complete and accurate”); State v. Jonas, 793 P.2d 902, 910 (Utah App. 1990) (record must be “functionally adequate for review”).

Additionally, most jurisdictions hold that before a defendant can establish that he is entitled to a new trial on the ground that the reconstructed record is inadequate to review his claims, he must demonstrate specific prejudice that results from having to address his claims on appeal with the reconstructed record. See, e.g., Bell v. State, supra, 463 (defendant must demonstrate “prejudice resulting from the state of the record”); State v. Wright, 97 Idaho 229, 231, 542 P.2d 63 (1975) (defendant must demonstrate “specific prejudice resulting from” failure to reconstruct record); Simpson v. Commonwealth, 759 S.W.2d 224, 228 (Ky. 1988) (showing of “prejudicial error” required); Smith v. State, supra, 135 (“defects must be of a prejudicial character”); Commonwealth v. Chatman, 10 Mass. App. 228, 232, 406 N.E.2d 1037 (1980) (defendant must “come forward with articulable claims [by] which the reconstruction may be judged”); State v. Borden, 605 S.W.2d 88, 92 (Mo. 1980) (defendant must demonstrate prejudice); State v. Dupris, 373 N.W.2d 446, 449 (S.D. 1985) (appellant must show “specific error or prejudice” resulting from failure to record entire proceedings of trial); State v. Helmick, 169 W. Va. 94, 100, 286 S.E.2d 245 (1982) (defendant must demonstrate error or prejudice that has resulted from and is specifically related to the missing portion of the record); but see Van White v. State, 752 P.2d 814, 821 (Okla. Crim. 1988) (complete stenographic record required in all capital proceedings).

The defendant has identified no specific claim of error that the court will be unable effectively to review on the basis of the reconstructed record. The defendant claims that any objections he may have made to the introduction of exhibits and, in particular, to the introduction of the videotape are unavailable. The officer who had been questioned regarding the videotape recollected being asked by the defendant about breaks in the time superimposed on the videotape and the chain of custody of the videotape. As the trial court noted in its memorandum of decision, any concerns about tampering with the videotape can be resolved by comparing the tape to the photographs taken of the crime scene.

The defendant also claims that he has been prejudiced because the reconstructed record does not reflect any inflammatory remarks that may have been made that afternoon either by the witnesses or by courtroom observers. This claim is entirely speculative. The purpose of the reconstructed record is to enable the appellate court effectively to review identified claims of error; the record is not presumed to be “complete enough to dissect in the hope of discovering hitherto unnoticed issues or errors.” Commonwealth v. Hunt, 22 Mass. App. 932, 933, 493 N.E.2d 884 (1986). The reconstructed record in this case adequately presents for review the issue of the admissibility of the videotape, the only issue specifically identified by the defendant that is connected with the videotape. The trial court, therefore, properly denied the defendant’s motion for a new trial on the ground that the reconstructed record was sufficient to allow meaningful and effective appellate review.

II

The defendant next claims that the trial court improperly allowed the state to introduce a videotape of the crime scene into evidence because the probative value of the videotape was outweighed by its prejudicial impact on the jury. We disagree.

At approximately 7:45 p.m. on June 6,1988, one of the police officers arrived at the crime scene with a video camera. The officer was instructed to videotape the crime scene, beginning outside the parking garage, proceeding inside and ending at the location of the body. By the time the officer reached the location of the body, the medical examiner had turned the body over to a faceup position. The videotape, therefore, showed the body in the faceup position, rather than the facedown position in which it had been found.

The defendant contends that the changed position of the body in the videotape created an inaccurate portrayal of the crime scene and “highlighted the gruesomeness of the crime.” Although the defendant emphasizes that the videotape should have been excluded as excessively prejudicial, that claim is best addressed by first reviewing the reasons why photographic evidence is admissible.

This court has consistently held that “photographic evidence is admissible where the photograph has ‘a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787.’ State v. DeJesus, [194 Conn. 376, 381, 481 A.2d 1277 (1984)]. There is no requirement in this state that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, ‘the test for determining the admissibility of the challenged evidence is relevancy and not necessity. State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).’ State v. Haskins, 188 Conn. 432, 453, 450 A.2d 828 (1982).” State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986).

A potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs the prejudicial effect it might have on the jury. State v. Doehrer, supra; State v. DeJesus, supra, 382; State v. Haskins, supra, 452-53. The determination of the trial court will not be disturbed unless the trial court has abused its discretion. State v. DeJesus, supra; State v. Piskorski, supra, 701.

After viewing both the black and white photographs and the videotape, the trial court stated that the videotape was the most accurate, truthful and representative evidence of the crime scene. The trial court did not find the videotape so inflammatory that it would unduly prejudice the defendant and influence the jury’s ultimate decision. The court also stated that any inaccuracy in the videotape resulting from movement of the body went to the weight given by the jury to the videotape, not to the admissibility of the videotape. “[T]he prosecution, with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.” State v. Piskorski, supra, 701-702. Accordingly, we conclude that the trial court did not abuse its discretion by allowing the videotape into evidence.

Ill

Finally, the defendant claims that the trial court improperly denied his motion to suppress certain statements made by him to police officers. The defendant claims that the statements were made during a custodial interrogation without the benefit of Miranda warnings. We disagree.

“Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, [384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]. Custodial interrogation is ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Miranda v. Arizona, supra; see State v. Januszewski, 182 Conn. 142, 158, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Despite this definition of custodial interrogation, ‘[w]hat constitutes police custody for purposes of the Miranda warnings is not always self-evident. One thing is clear: the Miranda court was concerned with interrogation that takes place in a police dominated environment containing “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Miranda v. Arizona, supra, 467.’ State v. Januszewski, supra. In other words, ‘police officers are not required to administer Miranda warnings to everyone whom they question.’ State v. Januszewski, supra, 159.” State v. Brown, 199 Conn. 47, 51-52, 505 A.2d 1225 (1986).

“The defendant had the initial burden of proving custodial interrogation. United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984); State v. Doehrer, [supra, 647]; State v. Vitale, [197 Conn. 396, 409, 497 A.2d 956 (1985)]. The trial court’s determination that the defendant was not in custody is a finding of fact. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). That finding of fact by the trial court will not be overturned unless it is clearly erroneous. Id.; see Practice Book § 4061; State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983). We will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence. State v. Toste, 198 Conn. 573, 580, 504 A.2d 1036 (1986); State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985).” State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989).

The record includes the following facts. At approximately 10 p.m. on the evening of the murder, a police officer who had been working an overtime shift in plain clothes was asked to “work the streets” for information about the murder at the Bloomingdale’s garage. The officer encountered an informant in a local pool hall. The informant told the officer that a man called “Blue” had been in the pool hall earlier that evening and had told the informant that he had done something at Bloomingdale’s. The informant also provided the officer with a description of “Blue.”

After receiving this information, the officer returned to the police station, changed into his uniform for his regular shift and returned to the same neighborhood with his partner to follow up on the lead. Near the pool hall, the officers noticed an individual matching the description provided by the informant. The individual had the word “Blue” tattooed on his chest. At trial, this individual was identified as the defendant.

The officers parked their vehicle and approached the defendant on the crowded street. In response to their inquiry, the defendant agreed to answer their questions. At no point was the defendant frisked, nor did he indicate that he did not waht to talk to the officers or that he wanted to leave. During the conversation, one officer stood a few feet in front of the defendant and asked him questions. The other officer stood about five feet away, behind and to the left of the defendant. With the defendant’s consent, the officers used their flashlights to check the defendant’s hands and clothing for signs of blood. After the conversation, described by one officer as a conversation between old friends, the officers thanked the defendant and left.

The trial court denied the defendant’s motion to suppress any statements he made to the police on the night of the murder. The trial court stated: “I find, as a matter of fact, that the record is devoid of evidence that would allow me to conclude that Mr. Williams, or a reasonable person in his situation, would not have felt free to leave or walk away from that situation.”

The defendant spoke to the police officers on a crowded street. He was friendly and responsive. The record contains no evidence that the defendant was threatened or coerced by the police. After carefully reviewing the record, we find no support for the defendant’s claim that he was in custody. See, e.g., State v. Rasmussen, 225 Conn. 55, 77, 621 A.2d 728 (1993) (defendant who voluntarily accompanied state police to barracks and talked with them in conference room was not in custody); State v. Brown, supra, 53 (defendant was not in custody even though officer drove police vehicle onto sidewalk within eight feet of defendant and carried portable radio when he left vehicle to speak to defendant).

The defendant also seeks review of this claim under article first, §§7 and 8, of the Connecticut constitution. The “unlawful, forcible detention of a person in the street” constitutes a seizure under the state constitution. (Emphasis in original.) State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992). “[W]hat starts out as a consensual encounter becomes a seizure if, on the basis of a show of authority by the police officer, a reasonable person in the defendant’s position would have believed that he was not free to leave.” Id., 653. As stated above, we agree with the determination of the trial court that the defendant was not seized; a reasonable person in the defendant’s position would have felt free to leave at any point during the conversation with the police officers. The defendant, therefore, was not seized under article first, § 7, of the Connecticut constitution.

Additionally, we have held that Miranda warnings are independently required under article first, § 8, of the Connecticut constitution to the same extent that they are required under the federal constitution. State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987). Miranda warnings, therefore, are required only for a custodial interrogation. We conclude that the defendant’s claim also fails on state constitutional grounds.

Accordingly, we affirm the trial court’s denial of the defendant’s motion to suppress the statements he made to the police. Whether the defendant’s claim is viewed under the federal or under the state constitution, the trial court’s findings that there was no custodial interrogation was supported by the record and makes the defendant’s suppression motion unsustainable.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants. . . .”

       General Statutes § 51-199 (b) (3) provides: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years.”

       Eight exhibits were introduced into evidence at the hearings: the trial court clerk’s log indicating the time frames within which the witnesses had testified and the exhibits that had been entered into evidence; a transcript of questions written down by the court monitor while she was recording the proceedings with answers extracted from the state’s notes; an additional copy of the transcript of the handwritten questions from the court monitor, without answers; the defense counsel’s notes; the trial court’s notes; the assistant state’s attorney’s notes; the notes of an inspector who was employed by the state; and the notes taken by the victim’s son while he was observing the proceedings.

       The Wisconsin Appellate Court stated: “In determining whether the trial court can resolve the dispute between the parties, the trial court must be satisfied to the same level of proof as required during the trial stage. In other words, in a criminal matter, the trial court must be satisfied beyond, a reasonable doubt, that the missing testimony has been properly reconstructed.” (Emphasis in original.) State v. DeLeon, 127 Wis. 2d 74, 82, 377 N.W.2d 635 (1985). In DeLeon, fifteen minutes of testimony, including the testimony of a social worker, was missing. One of the defendant’s claims on appeal was ineffective assistance of counsel regarding the examination of the social worker. Id., 77.
      In State v. Perry, 136 Wis. 2d 92, 95-96, 401 N.W.2d 748 (1987), a significant portion of the final two days of trial, including the entire testimony of two witnesses and portions of the testimony of five other witnesses, was missing. The Wisconsin Supreme Court stated: “DeLeon emphasizes that this procedure does not allow for speculation, but that the transcript must be established in accordance with the burden of proof required in the case, i.e., in a criminal case, beyond a reasonable doubt.” Id., 102.
      In both DeLeon and Perry, the missing testimony concerned whether the defendant had committed the crime with which he had been charged. The testimony did not establish a foundation for the introduction of evidence of the crime scene. The defendant has not provided, nor has our research revealed, any case in which a court has applied the “beyond a reasonable doubt standard” to the type of testimony that has been reconstructed in the present case.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The state argues that the defendant has provided no independent state constitutional analysis and that we should decline to review the claim on state constitutional grounds. Although the defendant has provided a less than extensive analysis, he has presented a claim under the state constitution and, accordingly, we will consider his claim.


author: Berdon, J.

text:
    Citicorp Mortgage, Inc. v. Felix Burgos, Jr., et al.
    (14717)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued April 29—
    decision released August 10, 1993

      Richard S. Scalo, with whom were Stephen E. Reck and, on the brief, Abraham I. Gordon and Ronald D. Japha, for the appellant (defendant Investors Mortgage Company, Inc.).

      Beth S. Becker, with whom was Anne R. Hoyt, for the appellee (plaintiff).
   Berdon, J.

The defendant Investors Mortgage Company, Inc. (Investors), appeals from the trial court’s denial of its motion to set aside a confirmed foreclosure sale and for the return of its deposit. The principal issue in this case is whether a purchaser at a foreclosure sale may be released from its obligation to purchase and have its deposit returned after the sale has been confirmed by the court because the closing, which was scheduled to take place within thirty days of confirmation, was substantially delayed.

The following facts are undisputed. On October 25, 1985, the named defendant, Felix Burgos, Jr. (Burgos), and the defendant Luz Burgos, executed a promissory note in favor of the plaintiff Citicorp Person-to-Person Financial Center of Connecticut, Inc., now known as Citicorp Mortgage, Inc., in the amount of $65,000. The note was secured by a mortgage on property located in Bridgeport. Investors held a second mortgage on the property in the amount of $20,000.

On August 13,1990, the plaintiff obtained a judgment of strict foreclosure. On September 3,1991, Investors filed a motion for foreclosure by sale. The trial court granted the motion and scheduled the sale for November 16, 1991. After successfully bidding the sum of $101,500 at the sale, Investors deposited the sum of $14,000 with the committee appointed by the trial court to conduct the sale. Various documents, including the notice of judgment of foreclosure by sale, the notice to bidders, and the bond for deed executed by the committee and Investors on the sale date, provided that the closing was to take place within thirty days from the court’s approval of the sale. The court approved the bond for deed and confirmed the sale on December 5,1991, but the closing did not follow within thirty days because Burgos had, in the meantime, appealed the trial court’s decision to the Appellate Court, resulting in an automatic stay. See Practice Book § 4046. On February 25, 1992, the trial court granted the plaintiff’s motion, filed on behalf of the committee, to terminate the stay to allow the closing to take place. Burgos subsequently filed in the Appellate Court a motion for review of the trial court’s order terminating the automatic stay.

On March 9,1992, ninety-five days after the approval of the sale and sixty-five days after the thirty day closing deadline, the closing still had not taken place and Investors moved to set aside the sale and for the return of its deposit. On March 26, the Appellate Court dismissed as moot both Burgos’ appeal and his motion for review of the trial court’s order terminating the automatic stay. It was not until April 20, 1992, 137 days after the approval of the sale and twenty-six days after the Appellate Court dismissed Burgos’ appeal, that Investors received notice from the committee that it was prepared to close.

The trial court subsequently heard and denied Investors’ motion to set aside the sale and for the return of its deposit on May 4,1992. Investors then filed a motion for articulation and a motion for reargument. On June 22,1992, after hearing both parties, the trial court reaffirmed its denial of the motion to set aside the sale and for return of deposit, articulating its reasons in open court. The trial court noted that Investors was a sophisticated bidder, familiar with Burgos, and therefore knew or should have known that delays in the closing were possible. Consequently, the trial court concluded that Investors must go forward with the sale. The court ordered, however, that if it did not go forward, it would not be required to forfeit its entire deposit of $14,000, but only the difference, if any, between the original sale and a new sale, if one was required. Investors appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

Relying on principles of equity and fairness, Investors argues that it was improper for the trial court to refuse to set aside the sale and return its deposit. Investors argues that it had relied on representations by the court and the committee that the closing would take place within thirty days of the court’s approval of the sale and submits that it has been prejudiced by the delay because certain investors who were going to finance the purchase withdrew when the closing did not occur within a reasonable period of time.

“It is well established that a foreclosure action constitutes an equitable proceeding.” Harbour Landing Development Corporation v. Herman, 27 Conn. App. 98, 101, 603 A.2d 779 (1992). “In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Id., 101-102; see also Banca Commerciale Italiana Trust Co. v. Westchester Artistic Works, 109 Conn. 23, 26, 145 A. 20 (1929); Mariners Savings Banks v. Duca, 98 Conn. 147, 152, 118 A. 820 (1922). Although we make every reasonable presumption in favor of the trial court’s action in determining whether the trial court abused its discretion, “ ‘[s]uch discretion . . . should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.’ ” Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 575, 620 A.2d 118 (1993); see also Society for Savings v. Stramaglia, 225 Conn. 105, 109-114, 621 A.2d 1317 (1993).

“ ‘A judicial sale is one made as a result of judicial proceedings by a [committee of sale] legally appointed by the court for [that] purpose. . . . The court is the vendor, and the [committee] appointed to make the sale is the mere agent of the court. . . .’” Raymond v. Gilman, 111 Conn. 605, 613-14, 151 A. 248 (1930). Only after a sale has been confirmed and ratified by the court does it become complete. Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 247, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988). Following confirmation of the sale, a judicial sale generally will not be set aside in the absence of fraud, mistake or surprise. “The rule of caveat emptor is generally applicable to judicial sales.... When relaxatio'n of this rule is granted . . . it is on the theory that the purchaser bids on the assumption that there are no undisclosed defects.” (Citations omitted.) Raymond v. Gilman, supra, 614. In the event of default by the purchaser, several alternatives are open to the trial court. The court may discharge the sale and order a resale; it may confirm the sale and order the purchaser to complete payment; or it may confirm the sale and order a resale, holding the purchaser liable for any deficiency arising out of the resale. Mariners Savings Banks v. Duca, supra, 155-56.

Although the procedural mechanisms for setting aside a sale are established, their application has been infrequent in Connecticut. In Willimantic Savings & Loan Assn. v. Boudreau, Appellate Session of the Superior Court, No. 655 (February 2, 1979) 5 C.L.T. No. 7, p. 11, the court noted that “[w]hen a court order respecting the conduct of a judicial sale is not complied with the court should scrutinize the transaction very carefully to assure itself that the sale has been conducted fairly and impartially and, if any irregularity has occurred, that no interested party has been injured by it. If any likelihood of injury is shown it would be an abuse of discretion for the trial court to approve the sale.” The court declined to set aside the sale, however, because the purchaser had failed to demonstrate “injury to himself resulting from the irregularity complained of. In re Receivership of Great Western Beet Sugar Co., [22 Idaho 328, 334, 125 P. 799 (1912).]” Id. Similarly, in Raymond v. Gilman, supra, 614-15, this court recognized its power to set aside a sale after confirmation if equitable principles so demanded, but declined to do so after considering the particular facts of the case. In Raymond, the purchaser sought to set aside the sale after it had been confirmed because the court had appointed a permanent receiver without first ordering “full notice and opportunity to be heard to all concerned,” as required by Practice Book § 51, now Practice Book § 487. The purchaser also claimed that the sale was void because of variances between the judgment ordering the sale and the advertisements publishing the sale. This court upheld the trial court’s refusal to set aside the sale on the grounds that the defendants had not objected to the confirmation of the sale and because none of the “intending bidders” present at the sale could have been misled by the advertisement. Raymond v. Gilman, supra, 611, 613.

Applying the same equitable principles outlined in Connecticut cases, the New York Court of Appeals held that a four month delay in furnishing good title was sufficient ground to relieve the purchaser at a judicial sale from being required to take title. Batchelar v. Batchelar, 244 N.Y. 274, 277, 155 N.E. 123 (1927). Similarly, the Indiana Court of Appeals held that the trial court had not abused its discretion in setting aside a sheriff’s sale when the evidence indicated “confusion as to the scope and extent of the mortgage assignment.” Smith v. Federal Land Bank of Louisville, 472 N.E.2d 1298, 1303 (Ind. Ct. App. 1985).

Our determination of whether the trial court abused its discretion must begin with a review of the particular facts and circumstances of this case. The parties agree that the closing was scheduled to. take place within thirty days of the court’s confirmation of the sale on December 5,1991. The plaintiff claims that the committee was unable to proceed with the closing because Burgos had filed an appeal of the trial court’s ruling thereby resulting in an automatic stay. Moreover, the plaintiff contends that Investors cannot legitimately claim any prejudice from the delay in closing because it was aware of the possibility that Burgos might appeal the ruling and delay the proceedings. As Investors notes, however, the record indicates that it did not receive notice that the committee was ready to close until April 20,1992—107 days beyond the thirty day deadline and twenty-six days beyond the Appellate Court’s dismissal of Burgos’ appeal. By that time, Investors had already filed a motion to set aside the sale and for return of its deposit and the committee had received notice of its inability to proceed with the sale. In this case, unlike the case of the bidder in Willimantic Savings & Loan Assn. v. Boudreau, supra, Investors has shown prejudice because the individuals who had been willing to finance the project withdrew their support as a result of the committee’s delay.

Although this court is generally reluctant to set aside a judicial sale after it has been confirmed, we conclude that in view of the specific facts and equities of this case, the trial court abused its broad discretion by refusing to set aside the sale and order the return of the deposit. Investors bid on the property and deposited $14,000 in the good faith belief that the court and the committee would honor the agreement to close as scheduled. Although Investors was ready to proceed with the closing as scheduled, the committee took no action to close, despite the Appellate Court’s dismissal of Burgos’ appeal. “A committee of sale functions as an arm of the court in a judicial sale. The committee conducting a sale is an agent or representative of the court.” Hartford Federal Savings & Loan Assn. v. Tucker, supra, 252. As an agent of the court, the committee was obligated to fulfill the specific conditions of the sale to the best of its ability. The committee’s failure to close even after the Appellate Court had dismissed Burgos’ appeal unjustly prejudiced Investors. Potential investors withdrew from the project because of the committee’s failure to close, leaving Investors to absorb the full loss of the $14,000 deposit.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       In addition to the named defendant, the Investors Mortgage Company, Inc., Sikorsky Federal Credit Union, Iris Gomez, Carmen Portillo and Luz Burgos are also defendants in this case.

       Prior to Ms appeal of the trial court’s December 5,1991 ruling, Burgos filed numerous appeals challenging a variety of rulings not germane to the present appeal.