text:
    The Rector, Wardens and Vestrymen of Trinity-St. Michael’s Parish, Inc., et al. v. The Episcopal Church in the Diocese of Connecticut et al. The Episcopal Church in the Diocese of Connecticut et al. v. Trinity-St. Michael’s Parish, Inc., et al.
    (14434)
    Peters, C. J., Callahan, Borden, Norcott and Katz, Js.

      Argued December 8, 1992
    decision released March 2, 1993

      William H. Narwold, with whom was William H. Bright, Jr., for the appellants (Trinity-St. Michael’s Parish, Inc., et al.).

      David J. Elliott, with whom were Allan B. Taylor and Alan T. Levesque, for the appellees (The Episcopal Church in the Diocese of Connecticut et al.).
   Katz, J.

This appeal involves a dispute over the ownership of church property arising out of the withdrawal of a local parish from its prior affiliation with a hierarchical church organization. The issue is whether, in the absence of an express trust, the governing church documents, read “in purely secular terms,” impose a trust in favor of the general church on property held by a local parish.

This case originated as two separate actions. The Episcopal Church in the Diocese of Connecticut (Diocese) et al. and Trinity-St. Michael's Parish, Inc., et al., each brought a declaratory judgment action seeking a declaration of sole right, title and interest in certain real and personal church property located in Fairfield. The trial court, Koletsky, J., consolidated these actions and designated Trinity-St. Michael’s Parish, Inc., et al., as the defendants. Following a trial to the court, the trial court rendered judgments in favor of the plaintiffs, the Diocese et al., declaring the Diocese to be the owner of the property involved in both actions. From those judgments, the defendants appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgments of the trial court.

I

To understand the constitutional boundaries of the inquiry necessitated by this appeal, we must first describe our authority in adjudicating church property disputes. Civil courts have the general authority to resolve the question of church property ownership. Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979); New York Annual Conference of the United Methodist Church v. Fisher, 182 Conn. 272, 281, 438 A.2d 62 (1980) (New York Annual Conference). “The State has an obvious and legitimate interest in the peaceful resolution of property disputes and in providing a civil forum where the ownership [and control] of church property can be determined conclusively.” Jones v. Wolf supra, 602; Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969) (Blue Hull). The first amendment to the United States constitution, however, “ ‘severely circumscribes the role that civil courts may play in resolving church property disputes.’ ” Jones v. Wolf, supra, quoting Blue Hull, supra, 449. It therefore forbids civil courts from resolving church property disputes by inquiring into and resolving disputed issues of religious doctrine and practice. Jones v. Wolf, supra; Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368, 90 S. Ct. 499, 24 L. Ed. 2d 582 (1970) (Brennan, J., concurring) (Sharps-burg). Accordingly, courts may not support the tenets of any one religion and must respect the right of all persons to choose their own course with reference to religious observance. See Jones v. Wolf, supra. States are free to adopt any approach to adjudicate church property disputes “ ‘[s]o long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.’ ” Id., quoting Sharpsburg, supra (Brennan, J., concurring).

The United States Supreme Court first adjudicated a church property dispute in Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L. Ed. 666 (1872). Watson involved a church schism and property dispute that arose out of the Civil War. When a group of members of a local Presbyterian church in Kentucky withdrew from the national Presbyterian church rather than obey the national church’s order to support the union and disavow slavery, the court was called upon to determine ownership of church property. It held that if a local church is congregational in nature, the ordinary principles that govern associations should be relied upon to determine the rights of the conflicting groups. The corporate and property decisions made by a majority of the members of the local church “or by such other local organism as [the congregational organization] may have instituted for the purpose of ecclesiastical government” should be enforced. Id., 724. If, however, “the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization”; id., 722-23; a court has the obligation to enforce the decision of the highest church tribunal that has ruled on a question “of discipline, or of faith, or ecclesiastical rule, custom, or law. . . .” Id., 727. As evidenced by the court’s decision in enforcing the resolution of the property dispute by the national Presbyterian church in Watson, issues of control over and rights to property are subsumed within that list. Id.; see also Sharpsburg, supra, (Brennan, J., concurring).

Over one hundred years later, the United States Supreme Court adopted and applied a somewhat different approach, invoking the “neutral principles of law” for resolving disputes over church property. Jones v. Wolf, supra, 602. This method, as enunciated by the United States Supreme Court in Blue Hull, relies on objective, traditional concepts of trust and property law familiar to attorneys and judges. It calls “for the completely secular examination of deeds to the church property, state statutes and existing local and general church constitutions, by-laws, canons, Books of Discipline and the like to determine whether any basis for a trust in favor of the general church exists.” Protestant Episcopal Church v. Graves, 83 N.J. 572, 578, 417 A.2d 19 (1980), cert. denied sub nom. Moore v. Protestant Episcopal Church, 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981); see also Sharpsburg, supra.

Jones v. Wolf, supra, concerned a property dispute between the local church and the general church in which the Georgia courts had examined the property deeds, state statutes, local church charter, the general church constitution and Book of Church Order. Because this examination did not reveal any language of trust in favor of the general church, the Georgia courts were left with a mere connectional relationship between the local and general church that they found was an insufficient basis upon which to establish property rights in the general church. In the absence of anything more, the court ruled that legal title to the church property was vested in the local church congregation. In approving this “neutral principles of law” approach as an acceptable method of resolving the particular dispute, the United States Supreme Court concluded that although the analysis may involve examination of some religious instruments, such as a church constitution, the inquiry must be performed in purely secular terms without relying “on religious precepts in determining whether the document indicates that the parties have intended to create a trust.” Id., 604.

Before Jones v. Wolf, supra, we followed Watson in Independent Methodist Episcopal Church v. Davis, 137 Conn. 1, 13, 74 A.2d 203 (1950), and in Trustees of Trinity Methodist Episcopal Church v. Harris, 73 Conn. 216, 224, 47 A. 116 (1900). In the year following Jones we had the opportunity to reexamine this issue in New York Annual Conference, supra. Recognizing that each of these possible approaches for resolving church property disputes has received explicit approval by the United States Supreme Court and that we were free to adopt either approach, or any other approach that did not involve consideration of doctrinal matters, we decided that the Jones and Watson methods should be read to complement one another.

Therefore, in resolving ownership disputes over church property, a civil court must first determine whether an express trust exists, and if it does, the court must enforce its terms. If no express trust is found, the court must determine whether an implicit trust exists in favor of the general church. In conducting this inquiry, the court must examine the polity of the church, in addition to the church constitution and its canons, for language of trust in favor of the general church. See New York Annual Conference, supra, 282.

Inasmuch as the polity of the church represents the agreement of church members in a particular system of government, including the structural allocation of authority, a civil court must ascertain the facts to determine whether members of a parish within a hierarchical church organization have agreed to be bound by the higher ecclesiastical authority within the church. See A. Adams & W. Hanlon, “Jones v. Wolf: Church Autonomy and the Religion Clauses of the First Amendment,” 128 U. Pa. L. Rev. 1291 (1980). The underlying rationale for this contractual approach is to permit individuals or groups to affiliate themselves with other individuals or groups for religious purposes without interference from the courts. See note, “Constitutional Law—First Amendment—the Role of Civil Courts in Church Disputes,” 1977 Wis. L. Rev. 904, 910.

In this case, the parties have agreed, and we concur, that title 1, canon 7, § 4 of the Episcopal Church canons (hereinafter the Dennis Canon), enacted at the General Convention of the Episcopal Church in 1979, is an express trust provision. It states: “All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.” Because the Dennis Canon was not enacted until 1979, it is undisputed that no express trust existed at the time of the relevant property transactions involved in this case.

The defendants maintain that the absence of an applicable express trust provision at the time they acquired their property definitively resolves the trust issue in their favor. In support of this claim, they cite a California case, Protestant Episcopal Church v. Barker, 115 Cal. App. 3d 599, 171 Cal. Rptr. 541, cert. denied, 454 U.S. 864, 102 S. Ct. 323, 70 L. Ed. 2d 163 (1981). We decline to follow that case because it directly contradicts our determination in New York Annual Conference, supra, 283: “Where the property is not subject to an express trust, we must decide, without becoming entangled in religious controversy, what is the nature of the relationship between the [Episcopal] Church and the local church, and the nature of the affiliation of [Trinity-St. Michael’s Parish, Inc.,] to the [Episcopal] Church.”

Thus, in determining whether the defendants and their predecessors had agreed to the manner in which their property would be held in regard to the Diocese, the trial court was required to determine whether there was, nonetheless, an implied trust. Where the nature of the relationship may, without entanglement in religious doctrine, be judicially determined by reference to the polity of the church, by its constitution and canons, and by the clear factual evidence regarding the historical subordinate relationship between the local church and the general church, there is no reason for a court not to enforce the terms of that relationship. If a trust has been implicitly acknowledged by the parties and is embodied in some legally cognizable form, it must be respected. If the trial court has reasonably found that the facts before it establish the existence of an implied trust, this court, in turn, must sustain the judgment of the trial court.

II

The following facts, as stipulated by the parties, or as reasonably found by the trial court, provided the basis for the trial court's decision. The factual record addressed two issues: the polity of the Protestant Episcopal Church, and the historical relationship of the defendants and their predecessors with the Protestant Episcopal Church.

A

The uncontroverted evidence at trial demonstrated that the polity of the Protestant Episcopal Church of the United States of America (PECUSA) is hierarchical. PECUSA was established in 1789 by the General Convention of the Episcopal Church in Philadelphia, Pennsylvania. It presently consists of ninety-five geographical dioceses that are presided over by a bishop, who is the ecclesiastical authority. Each diocese is made up of a confederation of congregations, known as parishes, located in its geographic area. Parishes that are affiliated with PECUSA hold their membership in a diocese of the church, and not in the general church.

PECUSA is governed by the General Convention of the Episcopal Church and by the Episcopal Church’s own constitution and canons. The Episcopal Church’s legislative body is the General Convention of the Episcopal Church, consisting of the House of Bishops and the House of Deputies, either of which may originate and propose legislation. The General Convention has enacted a constitution and a set of church laws, known as canons, by which all affiliated dioceses and local churches are bound. Additionally, each diocese has its own supplementary constitution and set of canons by which each diocese and its local parishes are bound. The Episcopal Church in the Diocese of Connecticut is a constituent part of PECUSA, and accedes to, recognizes and adopts the General Constitution of PECUSA and acknowledges the authority of the Episcopal Church thereunder.

Uncontradicted testimony offered by the plaintiffs at trial described the attributes of the hierarchial polity of PECUSA. Bishop Orris J. Walker of the Diocese of Long Island described PECUSA’s polity as one in which the parish is the local manifestation of the larger Episcopal community. Walker testified that, prior to the 1979 enactment of the Dennis Canon, the polity of PECUSA embraced the concept of a trust by implication because of the acceptance by a parish of the doctrine of the church and its stewardship over parochial property beginning with the formation of the parish. Moreover, he testified that the polity of PECUSA was exemplified in the understanding between a diocese and a parish that parochial property—both real and personal—is held “in trust for the use of the ministry and mission of the Protestant Episcopal Church.”

Walker, who was the vice-chair of the Committee on Constitution and Canons of the House of Deputies at the General Convention, testified that the preamble paragraphs to Resolution D-24 describe the purpose of the Dennis Canon, reflect generally the polity of PECUSA, and introduce no new concepts to the previous understanding of the church and its parishes with respect to the ownership of parochial property.

Walker also referred to two significant church documents. The first was the preamble to Resolution D-24, which states in part: “Whereas, the Episcopal Church is an hierarchial church, in which local parish churches are part of, and are subject to, the Constitution and Canons of the Episcopal Church and of the Diocese in which they are geographically present; and whereas, the Episcopal Church recognizes that local parishes have broad autonomy in the use of their property, so long as they act within the confines of the Constitution and Canons of the Episcopal Church and of the Diocese in which they are geographically present.” Walker then added that title 1, canon 7, § 3 of the canons of the Episcopal Church, which prohibits the encumbrance or the alienation of parochial real property without the written consent of the Bishop and the Standing Committee of the Diocese, expresses “the same thing but in different words. It expresses the Polity of the Church and how we have operated down through the years,” specifically as regards the holding of the parochial property.

Title 1, canon 7, § 5 of the canons of the Episcopal Church provides that the several dioceses may, at their election, further confirm the trust declared by § 4 by appropriate action, but that no such action is necessary for the existence and validity of the trust. The Diocesan Bishop, the Right Reverend Arthur E. Walmsley, testified that the Diocese took no further action, pursuant to § 5 of the Dennis Canon, regarding the property in issue because the Diocese believed that § 4 merely restated long-standing Episcopal doctrine and understanding regarding parochial property and that no further action on its part was needed. In addition, the Diocese interpreted what had already been contained in title 1, canon 7, § 3, which the Diocese had enacted in 1956 as Diocesan Canon VIII, § 3, to cover the same subject matter as the Dennis Canon. Walker concurred.

Hugh R. Jones, formerly an associate judge for twelve years on the New York Court of Appeals, testified as an expert witness because of his extensive work at the First General Convention of PECUSA, his position as chancellor to four successive bishops in the dioceses of central New York, his membership on the executive council and the commission of the Episcopal Church National, and his position as chancellor to three successive presiding bishops of PECUSA. As chancellor, Jones described having been consulted on a wide variety of areas regarding the canons generally and, specifically, the canonical aspects of church property disputes. His positions required, among other things, that he attend PECUSA conventions and aid in the legislative process. His testimony was significant because of his position at the convention when the Dennis Canon was passed. Jones also described the attributes of the hierarchical polity of PECUSA. He explained the import of its written legislative history: the preamble of the Dennis Canon “recognizes that local parishes within this framework have the right to make churches and use the property, but it has got to be used with the doctrine, worship, and discipline of the church.” He viewed the Dennis Canon as itself recognizing a preexisting trust on parochial property in favor of PECUSA. He testified that this was not a new concept and that no one had ever “questioned the existence of the legal relationship which is reflected in that canon as preexisting the adoption of the canon. . . . [I]t states in my opinion exactly what the relationship was before the canon was introduced” and it dates “all the way back to 1789 when the Protestant Church was formed in this country. That has been the nature of the covenant relationship between the parishes and the National Church and the dioceses.” Although Jones had great regard for the publication by Edwin White and Jackson Dykman, and viewed it as an authoritative work on canons of PECUSA, he disagreed very strenuously with the suggestion found on page 310 of that text that the Dennis Canon was not declaratory or that it introduced a new concept. Jones testified that he could think of no one who held that view at the time of its adoption.

The Very Reverend James E. Annand, then dean of the Berkeley Divinity School at Yale University, stated that the hierarchical polity of the church allocates authority from the diocese down to the parish; that the bishop is the ecclesiastical authority with responsibility over the parishes; that there was no distinction in the church’s hierarchical polity or in the allocation of ultimate authority to the bishop as to spiritual matters and temporal matters; that parochial property in the church is held solely for the larger, overall mission of the church; that, dating back to 1789, the historical understanding in PECUSA was that parochial property is held in trust for PECUSA and the Diocese; and that the express trust provided in the Dennis Canon by the General Convention of PECUSA in 1979 was merely declarative of existing understandings within the church.

The defendants contend that because Trinity Church, a predecessor to Trinity-St. Michael’s Parish, Inc., had been allowed to exercise discretion in the management and control of their property, they must be deemed to own it. The canons of the Diocese, however, are indicative of the bilateral and consensual relationship between the Diocese and a parish. While the property and business affairs of a parish are generally subject to the discretion, management and control of the vestry, the property of a parish may be acquired in the first place only for the purposes set forth in the canons: to support worship according to the doctrine and discipline of PECUSA and pursuant to the constitution and canons thereof. Indeed, as early as 1868, a church canon provided that it would be unlawful for any parish to encumber or alienate any dedicated consecrated church or chapel or any church or chapel that has been used solely for the divine service, without the previous consent of the bishop, acting with the advice and consent of the Standing Committee of the Diocese. See title II, canon 7, § 2.

B

Trinity Church was incorporated in Bridgeport on June 1, 1863. It was organized after various individuals from the city of Bridgeport sought the permission of the bishop to form a new Episcopal parish. At the time of incorporation, Trinity Church’s members voted to associate themselves with the Diocese, and hence, PECUSA. Thereafter, the members of Trinity Church purchased land with their own funds and built a church on Broad Street in Bridgeport. Title to the property was taken in the name of Trinity Church. Trinity Church’s articles of incorporation identified it with the Episcopal Church, stating that it desired to become a “body corporate” for the purpose of establishing and supporting the worship of God according to the doctrine and discipline of PECUSA, and asking for admission into union with the Episcopal Church and the Diocese of Connecticut.

In 1864, Trinity Church petitioned the bishop to consecrate its church building and agreed in writing with the Diocese to “preserve and defend the same from all unhallowed worldly and common uses.” Representatives of Trinity Church divested themselves of all ownership and right of control in and over the church building for any purpose other than that for which the church was consecrated. For the next sixty years, the members of Trinity Church worshipped at the Broad Street church.

In 1924, Trinity Church relocated to Courtland Street in Bridgeport. The moneys used to purchase the land and fund the construction of the new church were advanced solely by the members of Trinity Church. Title to the church property was taken again in the name of Trinity Church. On January 6, 1926, the bishop consecrated the newly constructed church building in the same manner as the old building had been consecrated in 1864.

In 1955, the Diocese decided that it could no longer support St. Michael’s Mission, another of its churches in Bridgeport, and began to look for a parish to accept that responsibility. When St. Michael’s Mission had been first organized by the Diocese as a mission station in 1921, the church edifice had been consecrated. In the consecration ceremony, St. Michael’s Mission had certified to the bishop that the church property had been secured for the use of those who profess and practice the doctrine and discipline of the Episcopal Church, and that the property was being consecrated “for the sole use of a congregation in communion with the Protestant Episcopal Church and under the spiritual jurisdiction of the Bishop of the Diocese of Connecticut.”

In 1956, Trinity Church agreed to assume responsibility for St. Michael’s Mission as a parochial mission upon the express condition that the property of St. Michael’s Mission, which was then held by the Diocese, be transferred to Trinity Church. The Diocese agreed to convey to Trinity Church all the property held by it for St. Michael’s Mission, with the exception of one parcel of land. The single parcel not conveyed by the Diocese had previously been deeded to the Diocese in express trust for St. Michael’s Mission. The Diocese apparently did not believe, at that time, that it could legally transfer title of the property to Trinity Church because of the trust. On March 2, 1956, the Missionary Society of the Diocese conveyed the St. Michael’s Mission property located at 554 Tunxis Hill Road, Fair-field, to Trinity Church, subject to the restrictions that (1) the premises would be adequately maintained so long as St. Michael’s Mission continued to exist on the premises and that if the congregation were disbanded or ceased to use the Mission, the Mission would be torn down, and (2) if the premises were sold, the proceeds of the sale would be given to the Missionary Society of the Diocese to be expended in the Bridgeport or Fair-field areas.

In 1960, the state of Connecticut began condemnation proceedings against Trinity Church’s Courtland Street property. Trinity Church defended the condemnation action and was eventually awarded $1,077,000. Throughout the condemnation proceedings and in the years that followed, Trinity Church explicitly adhered to the dictates of the canons with respect to the sale of its property to the state of Connecticut, the request that it relocate to another site, the request that it ultimately be permitted to merge with St. Michael’s Mission in the early 1970s, and its request to form Trinity-St. Michael’s Parish. Additionally, the Trinity Church property in Bridgeport was deconsecrated and the ceremony of consecration that had taken place on January 6, 1926, was canonically annulled.

From 1966 through 1972, the members of Trinity Church worshipped at the church of St. Michael’s Mission while they looked for a location on which to build a new church. In 1972, Trinity Church acquired additional property adjacent to St. Michael’s Mission with its own funds in its own name, and without prior approval of the bishop and the Standing Committee of the Diocese. In 1972, Trinity Church received consent from the bishop and the Standing Committee of the Diocese to relocate permanently to St. Michael’s Church, effectively terminating the separate existence of St. Michael’s Mission. The Diocese agreed to convey to Trinity Church the title to the one parcel of property that it had continued to hold in trust for St. Michael’s Mission and also agreed to petition the Missionary Society of the Diocese to release certain restrictions contained in the March 2, 1956 deed to Trinity Church. When Trinity Church and St. Michael’s Mission combined and formed Trinity-St. Michael’s Parish in 1973, the church edifice was consecrated according to the same ceremony as described above. Representatives of Trinity-St. Michael’s Church agreed with the Diocese as part of the consecration ceremony to separate their church from all worldly and common uses and to dedicate it to the purpose of worship and service according to the provisions of PE CUSA.

Thereafter, Trinity Church invested approximately $260,000 of its endowment fund into the remodeling of St. Michael’s Mission’s buildings, and Trinity Church became known as Trinity-St. Michael’s Parish. In 1974, a trust agreement between Trinity-St. Michael’s Parish and the endowment committee of the Diocese was executed, creating a trust fund known as the Bishop-Booth-Spooner endowment fund. (Spooner fund). By the terms of the trust agreement, if Trinity-St. Michael’s Parish should cease to exist under the laws of the state of Connecticut, the proceeds of the trust fund would be divided among the fifty poorest Episcopal parishes in the state of Connecticut.

Between 1969 and 1979, Trinity-St. Michael’s Parish and its predecessors requested the bishop’s permission to build a new church on property it had acquired on Black Rock Turnpike in Fairfield, which was denied. In 1971, the bishop denied Trinity Church’s request to sell the Black Rock Turnpike property. The parish did not sell its property until 1979, when the bishop finally gave permission for the sale provided that the proceeds of such sale be deposited into a trust fund with terms similar to those of the Spooner fund. The parish promptly formulated the Racioppi trust fund agreement, which was established for the benefit of Trinity-St. Michael’s Parish and the Diocese in accordance with the canons of PE CUSA. The trust agreement required that in the event that Trinity-St. Michael’s Parish ceased to exist as a parochial organization, the trust property was to be distributed to the fifty poorest parishes of the Diocese, as determined by the Missionary Society of the Diocese.

The disaffection of Trinity-St. Michael’s Parish that ultimately led to its secession from the Diocese and PECUSA began with the appointment of Father Ross Baxter as rector in 1979. Because Baxter could not resolve his feelings about certain changes in the church liturgy made in 1979 he began, in 1985 and 1986, to transfer moneys from the Spooner fund in order to remove such moneys from the control, or the claim of control, of the Diocese in what he perceived to be an impending lawsuit.

On May 2, 1984, a majority of the members of Trinity-St. Michael’s Parish voted to incorporate pursuant to the Connecticut Nonstock Corporation Act, General Statutes § 33-419 et seq., under the name “Trinity-St. Michael’s Parish, Inc.,” and the corporation was formed on May 9, 1984. Trinity-St. Michael’s Parish, Inc., was not then, and presently is still not, organized under the Religious Corporation Act, General Statutes § 33-264d. The membership provisions of the corporation, which limited membership to persons who essentially did not accept the then current doctrine of the church, violated both state law as to membership in PECUSA; General Statutes § 32-266; and the membership provisions of PECUSA.

In the summer of 1986, Baxter resigned as rector of Trinity-St. Michael’s Parish, Inc., after having been “defrocked” by the bishop. Ignoring the bishop’s selection of a new rector, the incorporated parish instead elected the Reverend Rocco A. Florenza as rector. On November 30, 1986, members of Trinity-St. Michael’s Parish, Inc., voted forty-six to twelve to leave PECUSA and join the Diocese of Christ the King, which at the time was a member of the Anglican Catholic Church. Neither the Diocese of Christ the King nor the Anglican Catholic Church is affiliated with PECUSA. Following this vote, several members of Trinity-St. Michael’s Parish, Inc., who did not agree with the majority, began to worship at the Golden Hill Methodist Church in Bridgeport, where they continue to worship today. Shortly after Trinity-St. Michael’s Parish, Inc., severed its relationship with the Diocese, these cross actions for declaratory judgments were brought seeking a determination as to the ownership of certain real and personal property in the possession of Trinity-St. Michael’s Parish, Inc.

In addition to all the evidence set forth thus far, the trial court heard other evidence upon which it relied to conclude that between 1863 and November 30, 1986, Trinity-St. Michael’s Parish, Inc., and its predecessors had a relationship with the Diocese and PECUSA that unqualifiedly and unambiguously manifests the acceptance of their role in, and relationship to, the Diocese and PECUSA within its hierarchical polity. For example, Trinity-St. Michael’s Parish, Inc., and each of its predecessors came into existence only with the canonical permission of the bishop. In May, 1863, when the bishop objected to the formation of the parish of Trinity Church, the parish could not, and did not, come into being until permission of the bishop was obtained. In 1892, although Trinity Church wanted to relocate, it refrained from doing so because the bishop “forbade the change of location.” In 1893, the bishop conditioned his consent to a sale by Trinity Church of its church building upon a caveat that it not be used for secular purposes. In 1923, Trinity Church sought the permission of the bishop before relocating. In 1924, Trinity Church sold its property on Fairfield Avenue and Broad Street, Bridgeport, but only after first seeking the permission and receiving the consent of the bishop.

Trinity-St. Michael’s Parish, Inc., has acknowledged its role in PECUSA and the Diocese in numerous other ways. Fot the majority of the years between 1863 and 1984, moreover, Trinity-St. Michael’s Parish, Inc., and its predecessors presented annual reports to the Diocese regarding the parish’s financial condition. Between 1864 and 1984, Trinity-St. Michael’s Parish, Inc., and its predecessors sent clerical and lay delegates to the annual convention of the Diocese. Furthermore, for the majority of the years between 1863 and 1986, Trinity-St. Michael’s Parish, Inc., and its predecessors paid their assessment and proportionate share to the Diocese as required by the canons.

Ill

On the basis of this evidentiary record, the trial court found that Trinity-St. Michael’s Parish, Inc., and its predecessor churches, Trinity Church and St. Michael’s Mission, were ecclesiastical organizations in union with the Diocese and PECUSA and had conducted their affairs for 123 years substantially in accordance with the constitution and the canons of the Diocese and of PECUSA. That conclusion finds ample support in the uncontradicted showing that Trinity-St. Michael’s Parish, Inc., and its predecessors had agreed, as a condition to their formation as ecclesiastical organizations affiliated with the Diocese and PECUSA, to use and hold their property only for the greater purposes of the church.

The evidence at trial overwhelmingly established that the Dennis Canon adopted in 1979 merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses since the founding of PECUSA in 1789. See, e.g., Bishop & Diocese of Cobrado v. Mote, 716 P.2d 85, 105 (Colo.), cert. denied, 479 U.S. 826, 107 S. Ct. 102, 93 L. Ed. 2d 52 (1986). As was made clear at trial, the panoply of constitutional and canonical provisions of PECUSA and the Diocese “strongly indicate that the local church property was to be held for the benefit of the general church, and . . . show the extensive nature of the policy direction and property control to be exercised by the general church.” Id., 104. PECUSA is and always has had a hierarchical polity within which the constitution and canons of PECUSA and the Diocese govern the life of the local parishes. The courts of this state and many other jurisdictions have uniformly acknowledged these defining principles of the Episcopal polity. See, e.g., Christ Church v. Trustees, 67 Conn. 554, 568, 35 A. 552 (1896); Bishop & Diocese of Colorado v. Mote, supra, 104-105; Duncan v. Watterson, Docket No. 77-3926 CA(L)01k, slip op. p. 9 (Fla. Cir. Ct., Feb. 21, 1979); Protestant Episcopal Church v. Graves, 83 N. J. 572, 578, 417 A.2d 19 (1980), cert. denied sub nom. Moore v. Protestant Episcopal Church, 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981); Church of the Ascension v. Diocese of Newark, Docket No. C-16372-88E, slip op. p. 10 (N.J. Sup. Ct. Ch. Div., Feb. 1, 1989); Tea v. Protestant Episcopal Church, 96 Nev. 399, 402, 610 P.2d 182 (1980).

The trial court’s review of the applicable constitutions and canons of PE CUSA and the Diocese as well as the historical relationship between the parish and the Diocese demonstrates the type of relationship found determinative of diocesan control by these other state courts. See, e.g., Bishop & Diocese of Colorado v. Mote, supra; Protestant Episcopal Church v. Graves, supra. The expert witnesses of the Diocese placed these canons in historical context, further establishing the trust relationship between the local parishes and the Diocese as a central element of Episcopal polity and practice.

We concur in the conclusion of the trial court that the evidence produced at trial established the existence of a legally enforceable trust in favor of the general church in the property claimed by the defendants.

The judgments are affirmed.

In this opinion the other justices concurred.

        Janes v. Wolf, 443 U.S. 595, 604, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979).

       The following parties joined the Diocese in this action: the Missionary Society of the Diocese of Connecticut, the Right Reverend Arthur E. Walmsley, the Bishop of the Diocese, and the Reverend Robert Sloan Beecher, William H. Baird, Janice Wilson and Hugo George Kenyon of the Diocese.

       The following parties joined Trinity-St. Michael’s Parish, Inc., in this action: the Reverend Rocco A. Florenza, Senior Warden James LaScala and Junior Warden Gayle Griffin, and vestry members Susan Fulljames, Edna Gough, Robert Haux, Jeff Robertson, Nora Lee Vayser, Matthew Victor, Paul Molocko, Warren Schmitt and Gail Soucy of Trinity-St. Michael’s Parish, Inc.

       In its declaratory judgment action, the Diocese et al. named Trinity-St. Michael’s Parish, Inc., as a defendant, in addition to the following members of the vestry, officers and wardens of Trinity-St. Michael's Parish, Inc.: the Reverend Rocco A. Florenza, Marie Reed, Gordon Sears, David Mattar, John Crane-Baker, Frank Regnery, Virginia Southouse, R. Preston Smith, Madge Blagys, Daniel B. C. Gardiner, Ron Burke, George Cody, Bonnie Giaquinto and Gayle Griffin, of Trinity-St. Michael’s Parish, Inc.
        Episcopal Church in the Diocese of Connecticut v. Trinity-St. Michael’s Parish, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV87 0326568S (June 21, 1990). In its declaratory judgment action, Trinity-St. Michael’s Parish, Inc., et al. named as defendants the Diocese, the Missionary Society of the Diocese of Connecticut and the Right Reverend Arthur E. Walmsley, Bishop of the Diocese. Trinity-St. Michael’s Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV87 0326093S (September 4, 1990). The attorney general of the state of Connecticut was named as a defendant in both actions, but he declined to appear in this case or participate in this appeal because he did not believe that this litigation was in the public interest.

       The first amendment to the United States constitution provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”

       The first amendment to the United States constitution is applicable to the states through the fourteenth amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

       The absolute deference afforded the decisions of hierarchical church tribunals has been subsequently tempered by the United States Supreme Court in Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976), in which the court stated that determinations by such tribunals will be enforced in the absence of fraud or collusion.

       “Polity” refers to the particular system of church government upon which church members have agreed, including the structural allocation of authority within the church and the established procedures for resolving internal disputes. Note, “Judicial Intervention in Disputes Over The Use of Church Property,” 75 Harv. L. Rev. 1142, 1143 (1962). A hierarchical organization has been defined by the United States Supreme Court as a general organization of churches having similar faith and doctrine with a common ecclesiastical leader. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 110, 73 S. Ct. 143, 97 L. Ed. 120 (1952). “Under the episcopal form of polity, all authority reposes in certain ecclesiastical officers.” A. Adams & W. Hanlon, “Jones v. Wolf: Church Autonomy and the Religion Clauses of the First Amendment,” 128 U. Pa. L. Rev. 1291, 1292 n.6 (1980). For example, bishops have the authority to govern their dioceses. In the Diocese of Connecticut, the Right Reverend Arthur E. Walmsley is the Bishop and, pursuant to the constitution and canons of the Diocese and those of the Episcopal Church, is the ecclesiastical authority of the Diocese.

      The parties submitted a lengthy joint stipulation of facts.

       The defendants offered no testimony, expert or otherwise, contradicting the plaintiffs’ expert testimony that the polity of the Episcopal Church is hierarchical. On the contrary, in their brief, the defendants presuppose that the polity of the church is hierarchical, but contend that the canons are of moral value only and do not create enforceable trust obligations.

       The defendants argue that the canons of PECUSA and the Diocese have no legal significance, but that they are of moral value only. This contention is refuted by New York Annual Conference of the United Methodist Church v. Fisher, 182 Conn. 272, 297, 438 A.2d 62 (1980), and Jones v. Wolf, 443 U.S. 595, 606, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979), both of which expressly direct civil courts to identify and apply “relevant ecclesiastical documents” in determining the existence of a trust. The testimony of the plaintiffs’ witnesses was consistent and uncontradicted: PECUSA considers its canons to have legal effect and to be enforceable in a civil court. This is particularly so in light of the provisions of General Statutes §§ 33-265 and 33-266, providing that a parish may be formed, conduct its affairs and “have power to receive and hold . . . property, real or personal, that has been or may be conveyed to them,” only as provided and prescribed by the constitution, canons and regulations of PECUSA. Indeed, James E. Annand, then dean of the Berkeley Divinity School at Yale University, testified that these statutes explicitly codified, as a matter of state law, the polity, constitution and canons of PECUSA.

       At oral argument, the defendants raised for the first time the claim that no expert testimony was needed in order for the trial court to assess the intent of these governing documents and that the trial court incorrectly entertained and relied upon such testimony. Because this issue was not briefed, we deem it waived. Kiniry v. Danbury Hospital, 183 Conn. 448, 449, 439 A.2d 408 (1981). Moreover, this is a curious argument to advance even at such a late stage in light of the expert evidence, albeit in book form, that they advanced at trial.

       Unquestionably, matters pertaining to property and the business affairs of PECUSA, dioceses and parishes are governed by the canons of PECUSA and of the diocese. These canons and the constitution also illustrate the manner in which a parish accedes to the authority of the diocese in matters both spiritual and temporal and in which the diocese accedes to the authority of PECUSA. Article 1 of the constitution of the Diocese provides that the Diocese, as a constituent part of PECUSA, accedes to, recognizes and adopts the general constitution of that church and acknowledges its authority accordingly. The Diocesan canons provide for the formation of parishes only with the authority of the bishop. Under the Diocesan canons, persons wishing to form a parish must request permission from the Diocese to unite as a parish under the laws of the church. If approved, the Diocese admits the parish into union with the Diocese and grants a certificate of permission for the organization of the parish. Similarly, no parish may terminate its membership in the Diocese without the permission of the bishop. The Diocesan canons further provide that no rector may be called to a rectorship without the written permission of the bishop. Additionally, the manner by which parishes are admitted to union with the Diocese and PECUSA is highly indicative of the hierarchical polity of PECUSA and the consensual nature of this polity. The canons provide for the formation of new parishes within a diocese and vest the authority for the formation of such parishes in the bishop. The canons further provide that the control of the worship and spiritual jurisdiction of the parish are vested in the rector, subject to the canons of PECUSA and counsel of the bishop.
      Business affairs relating other than to real property are also governed by the canons. Title 1, canon VII governs matters pertaining to personal property as well. This canon provides for the manner in which funds of a diocese or parish are to be held in trust; the keeping of records with respect to all trust and permanent funds; the bonding of treasurers and custodians of parishes; the keeping of books of accounts to provide the basis for satisfactory accounting; and the auditing of all accounts of the diocese and parishes annually. Canon II of the Diocesan canons provides for the submission by every parish of a parochial report and for financial assessments of the parishes by the Diocese. Canon VIII requires the observation of standard business methods by a parish, including the manner of deposit of trust and permanent funds; the keeping of records with respect to trust funds; the keeping of books of accounts so as to provide the basis for satisfactory accounting; the annual accounting by certified public accountants of such funds; and adequate insurance. Canon VIII further provides that no “Vestry, Trustee or other body authorized by civil or canon law to hold, manage or administer real property for any parish, mission station, congregation or institution shall encumber or alienate the same or any part thereof . . . without the written consent of the Bishop and the Standing Committee . . . .” Although none of these canons specifically controls whether an express trust for real or personal property exists, combined with the constitution and canons of PECUSA and the Diocese, the canons pervasively govern matters both spiritual and temporal within the Episcopal Church, its dioceses and parishes. They strongly reflect the polity of the church as one in which the parish is the local manifestation of PECUSA to be used for its ministry and mission.

       In the view of the Diocese, the Dennis Canon was enacted in 1979 to address the decision in Jones v. Wolfe, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979), and to make explicit that which was already implicit. The Supreme Courts of Colorado and New Jersey have held that the Dennis Canon both created an enforceable trust upon Episcopal parochial property and did nothing but confirm the relationships existing among PECUSA and dioceses and parishes within the Church. Bishop & Diocese of Colorado v. Mote, 716 P.2d 85, 105 n.15 (Colo.), cert. denied, 479 U.S. 826, 107 S. Ct. 102, 93 L. Ed. 2d 52 (1986); Protestant Episcopal Church v. Graves, 83 N.J. 572, 581, 417 A.2d 19 (1980), cert. denied sub nom. Moore v. Protestant Episcopal Church, 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981).

       E. White & J. Dykman, Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America otherwise known as the Episcopal Church (1981).

       Title II, canon 7, § 2 of the Episcopal canons provides in part: “It shall not be lawful . . . to encumber or alienate any dedicated and consecrated church or chapel . . . without the previous consent of the Bishop, acting with the advice and consent of the Standing Committee of the Diocese.”

       The significance of Trinity Church’s articles of incorporation and the ceremony of consecration of the church edifice is that an Episcopal parish, from the outset, holds its property not for itself but for the larger purposes of PECUSA. The ceremony of consecration has more than just religious significance; the ceremony involves the dedication of a building for a particular purpose, namely the worship of services in the building according to the doctrine of the Episcopal Church. If the building is no longer used for that purpose, it is deconsecrated. Moreover, only after individuals wishing to form a parish represent to the diocese that they will hold their property in this way are they considered for admission into the diocese as a parish.

       The Missionary Society of the Diocese held title to the St. Michael’s Mission property prior to 1956 because missions within the Diocese, unlike parishes, do not hold title to property.

       The trial testimony of Eugene Dardani, who was, in 1974, Junior Warden of Trinity-St. Michael’s Parish, and Thomas Dardani, the lawyer who drafted the trust document, was instructive as to the reversionary clause in favor of the fifty poorest Episcopal parishes in the Diocese. Both testified that the purpose of the reversionary language in the trust agreement was not to keep the corpus of the trust away from the Diocese, but rather to pass the funds to the benefit of the Diocese so it could assist the poorest Episcopal parishes in the Diocese.

       The trial court could reasonably have found that these admissions by Baxter, through his conduct, indicated his perception that the Diocese would have superior rights to the trust fund’s interest in the event of a lawsuit. He acknowledged that the disposition of the corpus of the Spooner fund for purposes other than those of the church would “violate the canons of the Episcopal Church.”

       Record title to the real property at issue in this case is held by the Diocese and two entities expressly affiliated with PECUSA. The three record owners are as follows: the Parish of Trinity Church owns lots Nos. 38, 39, 40, 41, 42, 44 and 45; the Missionary Society of the Diocese owns lot No. 43; and the Episcopal Society of Trinity Church owns lot Nos. 46 through 49. Whether a parish holds record title, however, is not dispositive of whether a trust agreement exists.
      As Bishop Walmsley testified at trial, the fact that within the Episcopal Church parishes typically hold title to their property does not in any way diminish the fabric of the Church’s hierarchical polity. As Walmsley explained, a parish’s property is dedicated and consecrated for the purposes that are outlined in the service of consecration and the parish is brought into being exclusively for the worship of the church according to its doctrine and disciplines. Only after individuals wishing to form a parish represent to the diocese that they will hold their property in this way are they considered for admission into the diocese as a parish.

       Although there were other instances of Trinity Church selling and purchasing property without prior approval of the bishop or the Standing Committee of the Diocese, the trial court acted within the proper exercise of its discretion by giving greater deference to the evidence that demonstrated strict compliance with the requirements of canonical law. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220-21, 435 A.2d 24 (1980).

       The only evidence relied upon by the defendants for the proposition that the Dennis Canon created a radical departure from existing doctrine is the publication by Edwin White and Jackson Dykman; see footnote 15; which the trial court was free to reject, particularly in light of the testimony of the plaintiffs’ four experts to the contrary. The defendants have also pointed to a handful of cases from other jurisdictions in support of their position that the other canons providing limitations on the alienation of property did not create an implicit trust. See York v. First Presbyterian Church, 130 Ill. App. 3d 611, 474 N.E.2d 716 (1984), cert. denied, 474 U.S. 865, 106 S. Ct. 183, 88 L. Ed. 2d 152 (1985); Foss v. Dykstra, 342 N.W.2d 220 (S.D. 1983). All the expert witnesses testified, however, that the canons did create an implicit trust.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    Joseph DiBlasi v. Zoning Board of Appeals of the Town of Litchfield et al.
    (14568)
    Peters, C. J., Borden, Berdon, Norcott and Santaniello, Js.

      Argued December 2, 1992
    decision released March 2, 1993

      Thomas P. Byrne, with whom was Steven E. Byrne, for the appellants (defendants).

      Franklin G. Pilicy, for the appellee (plaintiff).
   Santaniello, J.

This is an appeal from the judgment of the trial court sustaining the appeal by the plaintiff, Joseph DiBlasi, from the decision of the named defendant zoning board of appeals of the town of Litchfield (board). Upon the granting of the defendants’ petition for certification, they appealed to the Appellate Court. We transferred the case to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

The procedural and factual background of the case is as follows. In 1970, the town of Litchfield adopted zoning regulations and a zoning map. From the time of the adoption of the zoning regulations, the use by the then owner, the Connecticut Light and Power Company (CL&P), of the plaintiffs property, located in a residential zone, became a legally existing nonconforming use.

The plaintiffs property contains a building consisting of approximately 6000 square feet that was constructed in 1957 by CL&P, and site improvements sufficient for CL&P to park equipment that was used off-site. CL&P used separate sections of the building for administrative offices, storage of parts and materials, and maintenance and repairs of equipment. In addition, the public frequented the building to pay utility bills and purchase small appliances.

In 1978, Katherine B. Anderson purchased the property to house the J.O. Anderson Company, a plumbing and heating supplies company. In 1986, the plaintiff purchased the property. Since 1986, the building has been occupied by the J.O. Anderson Company, as a tenant, and the White Birch Construction Company, the plaintiffs business. Each company houses its offices in the building and runs its business from the site. The plaintiff garages most of his equipment off-site.

In September, 1990, the plaintiff submitted a proposed lease for 2000 square feet of office space, with an option for an additional 2000 square feet, to the state judicial department for an adult probation office. Sometime thereafter, the plaintiff applied for, and received, a permit to update the building for code changes and to remodel it for his proposed tenant.

On October 11,1990, the plaintiff spoke to the Litchfield land use administrator about the proposed lease, and was told that any change in use must be approved by the planning and zoning commission of Litchfield (commission). On October 12, 1990, in a letter to the state department of public works leasing agent, the first selectman of Litchfield expressed her displeasure at learning secondhand of the adult probation office’s proposed move to Litchfield. She requested the state to contact her before conducting any further negotiations to construct or lease a facility in Litchfield and noted that the permits required for occupancy of the plaintiff’s building had not been obtained.

On October 15, 1990, the land use administrator again notified the plaintiff that any “change of use from construction office to an adult probation office” must be reviewed and approved by the commission. She instructed the plaintiff that “[i]n order to avoid any distress to the parties involved, the State, the Town or to you, please be sure to make application to the Litchfield Planning and Zoning Commission before furthering lease negotiations.” The minutes of the commission meeting held that same evening indicate that “[a]fter hearing that an Adult Probation Office in the White Birch Construction Building was proposed, the Commission requested that Mr. DiBlasi appear before them. After discussion, Mr. DiBlasi was told that he would have to submit an application for change of use.”

In a letter dated October 19, 1990, the plaintiff explained that he was not changing the use, but rather was continuing the nonconforming use begun by CL&P in 1957. On October 22, 1990, the land use administrator responded to the plaintiff’s letter, informing him that the commission had been given the right by statute to review any proposed change in use. She informed the plaintiff that any delay in preparing the building for the state was attributable to his failure to file a change of use application in a timely manner. She noted that if he proceeded to negotiate a lease without commission approval, he would be doing so at his own risk.

The plaintiff followed these directives and filed an application for change of use on October 23, 1990. The application requested a change from “office use” to “office use.” The plaintiffs application was considered by the commission at its November 5, 1990 meeting. The plaintiff explained that the proposed use was a continuation of the nonconforming use established in 1957 and, even if it were not a continuation, the proposed use was less intensive. In support of his application, the plaintiff presented to the commission a record of observations of activity at the Torrington adult probation office and a traffic report indicating a less intensive use of the property.

In opposition to the application, the commission had received a letter from the Litchfield director of health expressing his concern about the adequacy of the septic system, testimony from the land use administrator on the anticipated use by the adult probation office, and testimony from the town planner claiming that the application was incomplete because it failed to address traffic, safety and sewage concerns. The town planner stated that the proposed use was of a different character and compared the probation office to a medical office rather than a business office. Neighboring property owners encouraged the commission not to allow changes to any aspect of the nonconforming use, including design, layout, percentage of space devoted to each type of use and occupation by owner rather than tenant. Finally the commission received a petition and letters protesting the application.

The commission denied the application “for a change of use (Adult Probation Office) . . . because it creates a more intensive use and, at present, does not address the sewage disposal needs or the traffic and pedestrian safety improvements.”

The plaintiff appealed the commission’s decision to the board. At the public hearing, on January 28, 1991, the board heard testimony from the plaintiff attesting to the financial hardship caused him by the commission’s decision, and claiming that he had been told to file an application and the section of the regulations pursuant to which the application was to be filed. In addition, the plaintiff reiterated his claims before the commission that the proposed use was a continuation of the existing nonconforming use.

At its February 25, 1991 meeting, the board characterized the plaintiffs application as a change of use that had been properly denied by the commission. One member of the board stated: “I think that when they (Planning and Zoning) based their decision, they based it on proper information. I think they had enough information and I think something like the health record is important to their decision. I think there is definitely a change of use in the property.” He also noted that although every company has an office, the building in which that office is located is not necessarily an office building. The board denied the appeal “based on the fact that we see nothing wrong with what Planning and Zoning did; they were within their scope, within the realm of their responsibilities and . . . they did what they felt was best for the community.”

On March 19, 1991, the plaintiff appealed the decision of the board to the Superior Court. The trial court sustained the plaintiffs appeal, holding that the commission had “abused its discretion and acted in an arbitrary and illegal manner in denying the plaintiff’s application to continue to use his property ... for office use . . . .”

The defendants claim that the trial court improperly substituted its judgment for that of the board. The trial court concluded that the record did not support the board’s decision that the plaintiff’s proposed lease to the adult probation office constituted an impermissible change in use. The court found that the board had focused its attention on factors that were not relevant to a determination of whether the plaintiff’s proposed use of the property was a change in use. It did not find, as the defendants claim, that although the board’s decision was supported by the record, the court preferred a different result.

On appeal, the trial court may not retry the facts. The court will review the record before the board to determine “whether the board’s decision was a reasonably exercised honest judgment supported by the record.” Oakwood Development Corporation v. Zoning Board of Appeals, 20 Conn. App. 458, 461, 567 A.2d 1260, cert. denied, 215 Conn. 808, 576 A.2d 588 (1990); see Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980) (the court “ ‘reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons’ ”).

The issue before both the commission and the board was whether the lease of office space constituted a change in nonconforming use. The Litchfield zoning regulations provide that “[a]ny building or use of land or building legally existing at the time of the adoption of these regulations or of any amendment thereof, which does not conform to the provisions of these regulations for the use and area requirements of the district in which it is located, shall be designated a nonconforming use.” Litchfield Zoning Regulations, art. VI, § 1.1. When the town adopted zoning regulations in 1970, the property involved became a nonconforming use and remained so at the time of the plaintiff’s application to the commission.

The zoning regulations further provide that “[a] nonconforming use may be continued, changed to a conforming use, or changed to a use which is less intensive in character than the present nonconforming use. . . .’’Id., art. VI, § 1.5. The plaintiff contends that the proposed lease of office space is merely a continuation of the nonconforming use first established in 1957 by CL&P. The defendants maintain that the proposed lease represents a change in use and, therefore, that the right to make such use of the plaintiff’s property was correctly denied by the board as being more intensive than the current use of the property.

To determine whether the proposed use represents a change in use, we first consider the treatment of office use in the zoning regulations. A professional office is one that provides services of a professional as distinguished from a business nature. Id., art. II, § 25. This distinction is applied only in describing the type of office that can be maintained in a residential zone. Id., art. V, § 4.1. In describing business zones the regulations make no distinction between a professional office and a business office. Id., art. V, §§ 9.2 (c), 10.1 (c), 11.1 (c).

General Statutes § 8-2 restricts the ability of a town to eliminate a nonconforming use through its zoning regulations. “Such regulations shall not prohibit the continuation of any nonconforming use . . . existing at the time of adoption of such regulations.” General Statutes § 8-2 (a); see Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981); Gilbertie v. Zoning Board of Appeals, 23 Conn. App. 444, 446, 581 A.2d 746 (1990). Therefore, if office use was an existing use of the plaintiffs property in 1957, a continuation of that use would be protected.

“[W]e have stated, in defining the words ‘existing use,’ that we mean a utilization of the property so that it may be known in the neighborhood as being employed for a given purpose; that neither the extent nor the quantity nor the quality of the use which may be permitted to continue is prescribed by those words; and that it is only required that the use must have existed. The court is not generally required to speculate as to the number of acts or business transactions necessary to constitute an existing use.” Melody v. Zoning Board of Appeals, 158 Conn. 516, 520-21, 264 A.2d 572 (1969).

The evidence before the board and the commission did not support the defendants’ claim that office use was not an existing nonconforming use of the property. The plaintiff described the use of the property by CL&P as including administrative offices and an area where the public could pay bills and purchase small appliances as well as areas devoted to dispatching repairers and repairing equipment. The record discloses, therefore, that CL&P had used this building to conduct its business in the Litchfield area. In her October 15, 1990 letter, the land use administrator objected to the “change of use from construction office to an adult probation office . . . .” This letter itself acknowledges, therefore, that the property had been used for offices.

The testimony before the commission on which it relied to find a change of use noted the differences in usage of a business office as compared to a medical office. These differences relate to the hours of operation and number of visitors to the building. The probative value of this evidence is undermined by the fact that a business office and a medical office are both offices and are not differentiated in the zoning regulations. Therefore, the evidence before the board and the commission indicates that the building had been and continues to be known in the neighborhood as containing offices. The trial court properly held that the evidence before the board did not support the defendants’ claim of a change in use.

In addition, the trial court concluded that both the commission and the land use administrator had misidentified the plaintiff’s proposed lease as a proposal to extend or expand a present nonconforming use when they required the plaintiff to file an application for change of use or face legal action. The commission, and subsequently the board, inappropriately used this application as evidence that the plaintiff was seeking a change in the nonconforming use of his property.

The defendants also claim that there was equally sufficient testimony to support the board’s decision upholding the commission’s determination that the application was for a change of use. They point to the testimony of the land use administrator describing the proposed hours, number of staff members and number of anticipated visits to the adult probation office; the testimony of neighboring property owners who interpreted the language of the statute to mean that nothing about the use at the time of the adoption of zoning regulations could be changed; and the testimony of the town planner discussing the difference in character of a business office and a medical office.

None of this testimony provides support for the board’s decision. First, the testimony of the land use administrator focuses on the intensity of the use of the property. While a change in intensity may be a valid criterion for determining whether to allow a change in use, it is not an acceptable criterion for determining whether a proposed use is a change in use or a continuation of an existing use. “ ‘We have previously held that a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use.’ ” Zachs v. Zoning Board of Appeals, 218 Conn. 324, 331, 589 A.2d 351 (1991), quoting Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986). Second, the use at the time of the adoption of zoning regulations is not frozen. The amount of business may be increased; see Zachs v. Zoning Board of Appeals, supra; and the nonconforming use may continue despite changes in ownership or tenancy; see 1 R. Anderson, American Law of Zoning (3d Ed. 1986) § 6.40. Third, the town planner’s discussion of the difference in character between a business office and a medical office is inappropriate because the zoning regulations do not differentiate between these types of offices under these circumstances.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 8-8 (b) provides in relevant part: “Any person aggrieved by any decision of a board may take an appeal to the superior court . . . .”

       In addition to the board, the chairman of the board and the town clerk were also named as defendants.

       General Statutes § 8-8 (o) provides in relevant part: “There shall be no right to further review except to the appellate court by certification for review . . . .”

       Litchfield Partners also currently leases office space in the building from the plaintiff. The record does not reflect when Litchfield Partners became a lessee.

       The plaintiff has never conceded that there was a change in use. He did, however, comply with the demands of the local officials.

       Copies of this letter were sent to the first selectman and the department of public works director of leasing.

       The petition stated: “WE, THE UNDERSIGNED, ARE EXTREMELY CONCERNED ABOUT THE PROPOSED MOVE OF THE ADULT PROBATION OFFICE TO THE WHITE BIRCH CONSTRUCTION COMPANY BUILDING ON ROUTE 202 WHICH IS IN OUR RESIDENTIAL (R-80) NEIGHBORHOOD. ALSO THE PROXIMITY OF THIS PROPOSED OFFICE TO THE HIGH SCHOOL AND MIDDLE SCHOOL SHOULD BE A MAJOR CONCERN TO EVERYONE.”

       On November 6, 1990, the land use administrator notified the state that the commission had denied the plaintiffs application. This letter was followed, on November 7,1990, by a letter from the town attorney again noting the denial and stating the town’s intent to seek judicial relief if the state proceeded with its plans to lease the building. On November 8, 1990, the land use administrator notified the plaintiff that he was remodeling the building in violation of the zoning regulations and that he would face fines or fines and imprisonment if he continued the work. Finally, on November 18, 1990, the commission informed the plaintiff that his application had been denied.

       The trial court found that the plaintiff, as owner of the property, was aggrieved. The defendants have not challenged this determination on appeal.


text:
    State of Connecticut v. Matthew MacNeil
    Berdon, J., dissenting. I would grant the defendant’s petition for certification.

      Thomas P. Cody and Sally S. King, in support of the petition.
    Decided September 25, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 508, is denied.


text:
    State of Connecticut v. Keith Johnson
    Berdon, J., dissenting. I would grant the defendant’s petition for certification.

      Gregory T. D’Auria and James W. Bergenn, in support of the petition.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in opposition.
    Decided September 25, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 645, is denied.


text:
    Arnold L. Beizer v. Michael Goepfert Arnold L. Beizer v. Michael Goepfert et al.

      Mark R. Leder, in support of the petition.

      James F. Aspell, in opposition.
    Decided September 25, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 693, is denied.


text:
    Connecticut National Bank v. Investors Capital Corporation et al.

      Richard P. Weinstein, in support of the petition.

      Theodore R. Killiam, in opposition.
    Decided September 25, 1992
   The defendants’ petition for certification for appeal from the Appellate Court, 29 Conn. App. 48, is denied.


text:
    Samuel J. Veal v. Warden, State Prison

      Denise Ansell, special public defender, in support of the petition.

      Leon F. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided October 2, 1992
   The petitioner Samuel J. Veal’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 425, is denied.


text:
    William Strong et al. v. Conservation Commission of the Town of Old Lyme et al.

      James E. Mattern, in support of the petition.
    Decided October 2, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 435, is granted, limited to the following question:

“Under the circumstances of this case, did the Appellate Court improperly place the burden on the conservation commission to establish that no feasible and prudent alternative existed to the plaintiffs’ application?”


author: Berdon, J.,

text:
    State of Connecticut v. Richard Prunier

      Judith Machuga, special public defender, in support of the petition.

      Leon F. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided October 2, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 612, is denied.

Berdon, J.,

dissenting. I would grant the defendant’s petition for certification.


text:
    State of Connecticut v. Cloid DeWitt

      Neal Cone, assistant public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided October 2, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 638, is denied.


text:
    Housing Authority of the City of Norwalk v. Mary Harris et al.

      Donna M. Lattarulo, in support of the petition.

      Steven R. Berg, in opposition.
    Decided October 2, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 684, is granted, limited to the following question:

“In the circumstances of this case, was the landlord required to give the tenant notice under General Statutes § 47a-15 before maintaining a summary process action against the tenant?”


text:
    State of Connecticut v. Derek J. Jackson

      Laurel Adams, deputy assistant public defender, in support of the petition.

      Paul J. Ferencek, assistant state’s attorney, in opposition.
    Decided October 2, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 721, is denied.

Berdon, J.,

dissenting. I would grant the defendant’s petition for certification.


text:
    State of Connecticut v. Eldred J. Hall

      Lowell Lee Paterson and Louise Van Dyck, in support of the petition.

      PaulJ. Ferencek, assistant state’s attorney, in opposition.
    Decided October 2, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 771, is denied.


text:
    Diane Passamano v. Salvatore J. Passamano

      Lynda B. Munro, in support of the petition.

      Charles J. Irving, in opposition.
    Decided October 13, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 854, is granted, limited to the following issue:

“Under the circumstances of this case, did the Appellate Court improperly conclude that the order that the defendant pay the mortgage and taxes on the marital home was modifiable as an order of alimony?”


text:
    Donald E. Bryant, Jr. v. Helen V. Bryant

      Donald E. Bryant, pro se, in support of the petition.

      Theodore Freedman, in opposition.
    Decided October 13, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 910, is granted, limited to the following questions:

“1. Was the Appellate Court correct in rejecting the plaintiffs claim that the trial court, under General Statutes § 46b-8, improperly refused to consider the plaintiff’s motion for modification simultaneously with the defendant’s motion for contempt?

“2. Was the Appellate Court correct in rejecting the plaintiff’s claim that the trial court’s finding of contempt was not based on sufficient evidence?”


text:
    Ellen Ann Ippolito v. Raymond Joseph Ippolito

      Richard L. Goldblatt, in support of the petition.

      Lee Marlow, in opposition.
    Decided October 13, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 745, is denied.


text:
    Peter C. White v. Edward S. Pajak

      Steven L. Seligman, in support of the petition.

      Daniel P. Scapellati, in opposition.
    Decided October 22, 1992
   The defendant-third party plaintiff Edward S. Pajak’s petition for certification for appeal from the Appellate Court is denied.


text:
    Jeri L. Billington v. Randall J. Billington

      Randall J. Billington, pro se, in support of the petition.

      Gerald L. Garlick, in opposition.
    Decided October 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 466, is denied.


text:
    John McIver v. Warden, State Prison

      Louis S. Avitabile, in support of the petition.

      Jacqueline J. Footman, assistant state’s attorney, in opposition.
    Decided October 22, 1992
   The petitioner John Mclver’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 195, is denied.


text:
    State of Connecticut v. Ronald Rumore

      Christopher M. Cosgrove, assistant public defender, in support of the petition.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in opposition.
    Decided October 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 402, is denied.

Berdon, J.,

dissenting. I would grant the defendant’s petition for certification.


text:
    State of Connecticut v. Dwayne Murray

      Matthew J. Collins, special public defender, in support of the petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
    Decided October 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 548, is granted, limited to the following issue:

“Did the Appellate Court correctly hold that the record was inadequate to rule whether General Statutes § 54-56d was unconstitutionally applied to the defendant?”


text:
    Richard R. Regis et al. v. Connecticut Real Estate Investors Balanced Fund, Inc., et al.

      David A. Ball, in support of the petition.

      Ernest J. Cotnoir, in opposition.
    Decided October 22, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 760, is denied.


text:
    State of Connecticut v. Mitchell Pitt

      Timothy Patrick Brady, in support of the petition.

      Margaret Gaffney Rodionovas, deputy assistant state’s attorney, in opposition.
    Decided October 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 825, is denied.


text:
    State of Connecticut v. Charles Anderson

      Lauren Weisfeld, assistant public defender, in support of the petition.

      Paul J. Ferencek, assistant state’s attorney, in opposition.
    Decided October 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 833, is granted, limited to the following issue:

“In the circumstances of this case, were the trial court’s instructions on self-defense (a) erroneous and (b) if erroneous, harmless?”


text:
    State of Connecticut v. Concetta Russell

      Linda P. Stambovsky and Patricia Buck Wolf, in support of the petition.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in opposition.
    Decided October 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 59, is denied.


text:
    Doreen Morelli v. Manpower, Inc.

      William F. Gallagher, in support of the petition.
    Decided October 22, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 132, is granted, limited to the following issue:

“Under what circumstances, if any, is the denial of a motion to open a judgment of dismissal under Practice Book § 251 an appealable judgment?”


text:
    Lamberto Lucarelli v. Paul M. Shapiro et al.

      Lamberto Lucarelli, pro se, in support of the petition.
    Decided October 30, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    State of Connecticut v. Essaid Mezrioui

      Martin Zeldis, assistant public defender, in support of the petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
    Decided October 30, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 26 Conn. App. 395, is denied.


text:
    Frances Martone v. Frank M. Martone

      Max Brunswick, in support of the petition.

      Steven D. Ecker, in opposition.
    Decided October 30, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 208, is denied.


text:
    Frances Martone v. Frank M. Martone
   The plaintiff’s cross petition for certification for appeal from the Appellate Court, 28 Conn. App. 208 (AC 10420), is granted, limited to the following issue:

“Having determined that a portion of the lump sum alimony award must be set aside, did the Appellate Court properly remand for a modified judgment rather than for a new hearing, or for a trial on all of the financial issues?”

The Supreme Court docket number is SC 14628.

Steven D. Ecker, in support of the petition.

Max F. Brunswick, in opposition.

Decided October 30, 1992


text:
    State of Connecticut v. Richard J. Tanzella

      Jon L. Schoenhorn, in support of the petition.

      Jack W. Fischer, deputy assistant state’s attorney, in opposition.
    Decided October 30, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 581, is denied.


text:
    State of Connecticut v. Richard J. Tanzella
    The Supreme Court docket number is SC 14627.

      Jack W. Fischer, deputy state’s attorney, in support of the petition.

      Jon L. Schoenhorn, in opposition.
    Decided October 30, 1992
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 581 (AC 9914), is granted, limited to the following issue:

“Did the amendments of the counts against the defendant constitute different offenses under Practice Book § 624 and, if so, whether the trial court properly held that the defendant was required to make a showing that his substantive rights would be prejudiced?”


text:
    State of Connecticut v. Edward F. Johnson
    The Supreme Court docket number is SC 14629.

      Mario PaulMikolitch, special public defender, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
    Decided October 30, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 708 (AC 10015), is granted, lirhited to the following questions:

“1. Was the Appellate Court correct in refusing to review the defendant’s claim that the trial court improperly denied his motion to dismiss which claimed that a peace officer does not have probable cause to effectuate a warrantless arrest for a misdemeanor committed outside the presence of that officer?

“2. In order to establish a violation of General Statutes § 14-224 (b), must the state prove that the defendant knew that the accident in which he was involved caused ‘injury or damage to property?’ ”


text:
    Trap Falls Realty Holding Limited Partnership et al. v. Board of Tax Review of the City of Shelton

      John H. Welch and Thomas J. Welch, in support of the petition.

      Gregory F. Servodidio and Elliott B. Pollock, in opposition.
    Decided October 30, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 97, is denied.


text:
    Property Group, Inc. v. Planning and Zoning Commission of the Town of Tolland
    The Supreme Court docket number is SC 14630.

      Richard S. Conti, in support of the petition.

      Edward S. Hyman, in opposition.
    Decided October 30, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 18 (AC 10367), is granted, limited to the following question:

“Under the facts of this case, did the Appellate Court properly conclude that the planning and zoning commission did not have the authority to condition its approval of the plaintiff’s subdivision application on the plaintiff’s widening of a public highway abutting the proposed subdivision?”


text:
    E. Don Smith et al. v. Zoning Board of Appeals of the Town of Greenwich et al.
    The Supreme Court docket number is SC 14632.

      James W. Macauley, assistant town attorney, in support of the petition.

      E. Don Smith, pro se, and Eileen Smith, pro se, in opposition.
    Decided October 30, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 28 (AC 10431), is granted, limited to the following question:

“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?”


text:
    E. Don Smith et al. v. Zoning Board of Appeals of the Town of Greenwich et al.
    The Supreme Court docket number is SC 14633.

      William E. Hegarty, in support of the petition.

      E. Don Smith, pro se, and Eileen Smith, pro se, in opposition.
    Decided October 30, 1992
   The defendants The Historical Society of the Town of Greenwich, Incorporated, and Anita de Lessups Keefe’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 28 (AC 10431), is granted, limited to the following question:

“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?”


text:
    Anilda Sanchez et al. v. Alfred Prestia et al.

      Dennis J. O’Brien, in support of the petition.
    Decided October 30, 1992
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 29 Conn. App. 157, is denied.


text:
    Kenneth Polverari et al. v. William T. Peatt, Jr., et al.

      Alan R. Spirer, in support of the petition.

      Louis Ciccarello and Walter G. Ryba, in opposition.
    Decided October 30, 1992
   The defendants’ petition for certification for appeal from the Appellate Court, 29 Conn. App. 191, is denied.


text:
    State of Connecticut v. Albert Indrisano
    The Supreme Court docket number is SC 14631.

      Sally S. King, in support of the petition.

      Rita M. Shair, in opposition.
    Decided October 30, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 283 (AC 10659), is granted, limited to the following questions:

“1. Was the Appellate Court correct in concluding that the record was insufficient, pursuant to State v. Golding, 213 Conn. 233 (1989), to permit adequate appellate review of the defendant’s claims that, on its face and as applied, General Statutes § 53a-182 was void for vagueness under the state and federal constitutions?

“2. Is General Statutes § 53a-182 void for vagueness on its face and as applied to this case, under the state and federal constitutions?”


text:
    State of Connecticut v. Jonathan Miller
    The Supreme Court docket number is SC 14634.
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 207 (AC 10071), is granted, limited to the following question:

“In the circumstances of this case, did the warrant-less search of the defendant’s car at the West Hartford police station violate article first, § 7, of the Connecticut constitution?”

LeonF. Dalbec, Jr., assistant state’s attorney, in support of the petition.

Ronald T. Murphy, special public defender, in opposition.

Decided November 4, 1992


text:
    State of Connecticut v. Jonathan Miller
    The Supreme Court docket number is SC 14634.

      Ronald T. Murphy, special public defender, in support of the petition.

      Leon F. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided November 4, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 207 (AC 10071), is granted, limited to the following question:

“Does the Connecticut constitution, in specific, article tenth, § 1, article first, § 7, or article first, § 9, prohibit municipal police from intentionally going into another municipality to perform investigations, stake-outs Terry stops, and/or warrantless seizures?”


text:
    Claudia Emerick v. Roger Emerick

      Roger Emerick, pro se, in support of thé petition.
    Decided November 5, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 794, is denied.


text:
    City of Stamford v. Milivoje Kovac
    The Supreme Court docket number is SC 14644.

      James V. Minor, in support of the petition.

      Sigmund L. Miller, in opposition.
    Decided November 5, 1992
   The plaintiffs petition for certification for appeal from the Appellate Court, 29 Conn. App. 105 (AC 10693), is granted, limited to the following questions:

“In the circumstances of this case, should the Appellate Court have treated the trial court’s temporary injunction as an appealable final judgment?

“In the circumstances of this case, did the Appellate Court-correctly conclude that the trial court exceeded its powers on issuing the temporary injunction?”


text:
    State of Connecticut v. Larry Jenkins

      Larry Jenkins, pro se, in support of the petition.
    Decided November 5, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 262, is denied.


text:
    Calvin Carter v. Edward Newman

      Leonard M. Crone, in support of the petition.

      Linda R. Stark, in opposition.
    Decided November 20, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 902, is denied.


text:
    State of Connecticut v. Bernard Sawyer
    The Supreme Court docket number is SC 14650.

      Harry Weller, assistant state’s attorney, in support of the petition.

      Lauren Weisfeld, assistant public defender, in opposition.
    Decided November 25, 1992
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 68 (AC 9728), is granted, limited to the following issues:

“1. Did the Appellate Court violate this court’s express requirements of State v. Aparo, 223 Conn. 384, 388 (1992), State v. Daniels, 207 Conn. 374 (1988), and State v. Stankowski, 184 Conn. 121 (1981), that Connecticut juries render unanimous verdicts, when it adopted a jury instruction which permits a jury to render a verdict on a lesser included offense when they are ‘unable to agree’ on the greater offense?

“2. Does the jury instruction adopted by the Appellate Court violate the separation of powers doctrine by denying a full and fair adjudication of charges brought by state’s attorneys under their independent constitutional authority (article fourth, § 27)?

“3. Did the Appellate Court improperly grant a new trial for a jury to consider manslaughter in the second degree and failing to find harmless error when this defendant’s jury: (1) was fully charged on all of the lesser included offenses including manslaughter in the second degree; (2) considered the lesser included offense of first degree manslaughter and murder simultaneously; (3) indicated that they unanimously agreed that the defendant was guilty of either murder or manslaughter in the first degree; and (4) convicted the defendant of manslaughter in the first degree under facts which indicated that such a verdict was a major victory for the defendant?”


text:
    Robert Summerville v. Warden, State Prison
    The Supreme Court docket number is SC 14649.

      PaulaManginiMontonye, assistant public defender, in support of the petition.

      Judith Rossi, assistant state’s attorney, in opposition.
    Decided November 25, 1992
   The petitioner Robert Summerville’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 162 (AC 10114), is granted, limited to the following issue:

“Did the Appellate Court correctly conclude that it should not decide the issue of whether an ineffective investigation by a defense expert witness in a fashion that impairs the petitioner’s defense is impugned to the defense attorney?”


text:
    Robert Summerville v. Warden, State Prison
    The Supreme Court docket number is SC 14649.

      Judith Rossi, assistant state’s attorney, in support of the petition.

      PaulaManginiMontonye, assistant public defender, in opposition.
    Decided November 25, 1992
   The respondent warden’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 162 (AC 10114), is granted, limited to the following issue:

“Did the Appellate Court have proper grounds for remanding this case to the habeas court for a consideration of expert testimony that was not presented at the petitioner’s criminal trial?”


text:
    New England Savings Bank v. Dennis P. Nicotra et al.
    The Supreme Court docket number is SC 14652.

      Thomas G. Benneche, in support of the petition.

      Kellie J. Garner, in opposition.
    Decided December 3, 1992
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 11352), is granted, limited to the following issue:

“Whether an order for disbursements of the receiver’s funds prior to vesting of title and assessment of a deficiency is an appealable interlocutory order?”


text:
    Morris Silverstein’s Appeal from Probate

      Morris Silverstein, pro se, in support of the petition.
    Decided December 3, 1992
   The petitioner Morris Silverstein’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 904, is denied.


text:
    Angelika Papagorgiou v. Angelo Anastopoulos et al.

      Diane Polan, in support of the petition.

      Angelika Papagorgiou, pro se, in opposition.
    Decided December 14, 1992
   The defendants’ petition for certification for appeal from the Appellate Court, 29 Conn. App. 142 (AC 10380), is denied.


text:
    City of New Haven et al. v. Angelika Konstandinidis Angelika Papagorgiou v. Angelo Anastopoulos
    (AC 10784)
    (AC 10380)

      Angelika Papagorgiou, pro se, in support of the petition.

      Diane Polan, in opposition.
    Decided December 14, 1992
   The petitioners Angelika Konstandinidis’ and Angelika Papagorgiou’s petitions for certification for appeal from the Appellate Court, 29 Conn. App. 139 (AC 10784) and 29 Conn. App. 142 (AC 10380), are denied.


text:
    David Naughton v. Alan Hager

      Edward N. Lerner, in support of the petition.

      Michael P. Foley, Jr., in opposition.
    Decided December 14, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 181 (AC 10551), is denied.


text:
    State of Connecticut v. Joseph Johnson
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 394 (AC 10360), is granted, limited to the following issues:

“1. Was the Appellate Court correct in finding that the improper exclusion of impeachment evidence did not constitute a constitutional violation to the defendant’s right to confront and cross-examine witnesses under article first, § 8 of the Connecticut constitution?

The Supreme Court docket number is SC 14660.

Denise Derby, in support of the petition.

Rita M. Shair, assistant state’s attorney, in opposition.

Decided December 22, 1992

“2. Was the Appellate Court correct in finding harmless error where the trial court had improperly excluded expert testimony, as a discovery sanction, offered to impeach the credibility of an eyewitness identification made by a police officer?”


text:
    City of New London et al. v. Zoning Board of Appeals of the Town of Waterford
    The Supreme Court docket number is SC 14662.

      Emmet L. Cosgrove, in support of the petition.

      Thomas J. Londregan, in opposition.
    Decided December 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 402 (AC 10307), is granted, limited to the following issues:

“1. Was the Appellate Court correct in allowing the trial court to substitute its judgment for that of the zoning board of appeals, which held that the city of New London’s nonconforming use of its property had been abandoned?

“2. Was the Appellate Court correct in its scope of review of a trial court decision in a zoning appeal by sustaining the trial court decision on an alternative ground, when the trial court itself refused to review the administrative record on the alternate ground?”


text:
    City of New London et al. v. Zoning Board of Appeals of the Town of Waterford

      Thomas J. Londregan, in support of the petition.
    Decided December 22, 1992
   The plaintiff city of New London’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 402 (AC 10307), is denied.


text:
    Frances Roswell v. State of Connecticut

      Edward T. Dodd, Jr, in support of the petition.
    Decided December 22, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 432 (AC 10982), is denied.


text:
    State of Connecticut v. David C. Wityak
    The Supreme Court docket number is SC 14661.

      Mary Miller Haselkamp, assistant public defender, in support of the petition.

      Susan C. Marks, assistant state’s attorney, in opposition.
    Decided December 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 455 (AC 10721), is granted, limited to the following issue:

“Was the Appellate Court correct in expanding State v. Cain, 223 Conn. 731 (1992), to find that Deputy Fire Marshall Driscoll’s call to the police station via his town radio, the dispatch call to Officer Cronin, and Officer Cronin’s broadcasts were not statements under Practice Book § 749 (2)?”


text:
    State of Connecticut v. Michael Rose

      Deborah DelPrete Sullivan, assistant public defender, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
    Decided December 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 29 Conn. App. 421 (AC 10471), is denied.