source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Sue Ann Cappellino v. Town of Cheshire et al.
    (14608)
    Peters, C. J., Callahan, Berdon, Norcott and Katz, Js.
    Argued March 30
    decision released July 27, 1993

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant Second Injury and Compensation Assurance Fund).

      Edward T. Dodd, Jr., with whom were Jack Senich and, on the brief, Ross Lessack, for the appellee (plaintiff).

      Diana Garfield filed a brief for the Connecticut Business and Industry Association as amicus curiae.
   Berdon, J.

The sole issue in this workers’ compensation case is whether the plaintiff widow, Sue Ann Cappellino, is entitled to the full balance of permanent partial disability benefits that were awarded to her injured husband pursuant to General Statutes (Rev. to 1975) § 31-308 after he reached maximum medical improvement in 1978. After a portion of these benefits had been paid to the husband, he became totally disabled. Accordingly, the defendant Second Injury and Compensation Assurance Fund (defendant) interrupted the payment of § 31-308 permanent partial disability benefits and paid the husband temporary total disability benefits pursuant to General Statutes (Rev. to 1975) § 31-307 until his death in 1988 from a cause unrelated to his injury. The workers’ compensation commissioner for the fifth district (commissioner) awarded the plaintiff the full balance of the permanent partial disability benefits, and the compensation review division affirmed.

On appeal, the Appellate Court affirmed the decision of the compensation review division. Cappellino v. Cheshire, 27 Conn. App. 699, 608 A.2d 1185 (1992). We then granted certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the claimant’s widow was entitled to the unpaid balance of the claimant’s permanent partial disability benefits?” Cappellino v. Cheshire, 223 Conn. 914, 614 A.2d 820 (1992). We now affirm.

The undisputed facts are set forth in the Appellate Court opinion, Cappellino v. Cheshire, supra, 27 Conn. App. 699. By way of summary, on January 22, 1976, the plaintiff’s husband injured his lower back while working for the town of Cheshire. On January 12,1978, the commissioner determined that the husband’s injury was compensable and ordered the town to provide him with compensation and pay his medical bills. The commissioner also ordered that liability for the injury be transferred to the defendant effective January 20,1978. The husband received § 31-307 temporary total disability benefits from January 22,1976, until March 21,1978.

On March 1, 1978, the husband reached the point of maximum medical improvement with a permanent 30 percent impairment of his back. On July 3, 1978, the commissioner approved a voluntary agreement entitling the husband to 156 weeks of § 31-308 permanent partial disability benefits. The husband received these benefits until October 12, 1978, when he again became totally disabled. The fund interrupted the payment of permanent partial disability benefits and paid the husband temporary total disability benefits from October 12, 1978, until his death on October 4, 1988. The cause of death was unrelated to his injury.

The plaintiff, a surviving presumptive dependent of her husband, claimed entitlement to the balance of the § 31-308 permanent partial disability benefits that were awarded to her husband in 1978. On September 19, 1989, the commissioner ordered payment of the balance of those benefits to the plaintiff. The compensation review division affirmed the award on February 4, 1991. The Appellate Court affirmed the decision of the compensation review division.

In this appeal, the defendant claims that the Appellate Court improperly concluded that the plaintiff was entitled to the unpaid balance of her husband’s permanent partial disability benefits. The defendant argues that: (1) under the Workers’ Compensation Act (act), § 31-308 permanent partial disability awards do not survive the death of the employee and become payable to a surviving dependent; and (2) even if such awards survive the death of the employee and become payable to a dependent, the payment of § 31-307 temporary total disability benefits to an employee who again becomes totally disabled discharges the defendant’s duty to pay the permanent partial disability award. We disagree with the defendant and affirm the judgment of the Appellate Court.

I

The defendant’s first claim is that under the act, § 31-308 permanent partial disability awards do not survive the death of the employee and become payable to a surviving dependent. The commissioner, the compensation review division and the Appellate Court rejected the defendant’s claim. We reject it as well.

“The purpose of the workmen’s compensation law has always been to provide compensation for an injury arising out of and in the course of the employment regardless of fault, and the statutes are to be broadly construed to effectuate that purpose. . . . The underlying objective is to provide for the workman and those dependent on him.” (Citation omitted.) Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). In accord with this objective, this court has long held that the dependents of a deceased employee “have the right to the unmatured part of the award of compensation for a specified sum for a fixed period for loss or impairment of a member . . . .” Bassett v. Stratford Lumber Co., 105 Conn. 297, 303-304, 135 A. 574 (1926); see also Finkelstone v. Bridgeport Brass Co., 144 Conn. 470, 472, 134 A.2d 74 (1957).

The defendant argues that Bassett v. Stratford Lumber Co., supra, misconstrued the workers’ compensation statutes and should be overruled. We disagree. The holding in Bassett was based on two aspects of the statutory scheme that remain in place today: (1) workers’ compensation laws are meant to benefit the dependents of injured employees as well as the employees themselves; and (2) permanent partial disability awards may be commuted into lump sums and placed in trust for the benefit of the employee and his or her dependents. Id., 303-304. This court reasoned that “[i]f, upon commutation, the right of survivorship in the award . . . would pass to dependents, it would be a wholly unreasonable construction of the Act to hold that if commutation were not made, survivorship would not pass to the dependents.” Id., 305. Permanent partial disability awards, therefore, should survive to an employee’s dependents, whether or not they are commuted. Id., 305-306.

The rationale of the Bassett case remains valid. In addition, we note that “the legislature is presumed to be aware of the judicial construction placed upon its enactments.” Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992). The legislature has amended the workers’ compensation statutes several times since Bassett v. Stratford Lumber Co., supra, but has never taken action to make § 31-308 permanent partial disability awards nonsurvivable. See Lumbermens Mutual Casualty Co. v. Huntley, supra. In fact, the legislature amended § 31-308 in 1989 to designate the class of people to whom such awards may survive. Although this amendment does not apply to the award in this case; see Iacomacci v. Trumbull, 209 Conn. 219, 550 A.2d 640 (1988) (upholding the validity of the date of injury rule in workers’ compensation cases); the legislative history of the amendment reveals that it has been the legislature’s understanding that, consistent with Bassett, § 31-308 benefits survive the employee’s death and pass to the dependents. See 32 H.R. Proc., Pt. 17, 1989 Sess., pp. 5876-77.

We decline to overrule our long-standing holding that the balance of a permanent partial disability award passes to an employee’s dependents if the employee dies of unrelated causes before the award is paid in full. Accordingly, we affirm the holding of the Appellate Court on this issue.

II

The defendant next claims that even if § 31-308 permanent partial disability awards ordinarily do survive the death of the employee, the payment of § 31-307 temporary total disability benefits to the plaintiff’s husband after he again became totally disabled discharged the defendant’s duty to pay the permanent partial disability award. We disagree.

The defendant concedes that the benefits received by the plaintiff’s husband from October 12,1978, until his death were for temporary total disability, not permanent partial disability. The defendant also concedes that the voluntary agreement awarding permanent partial disability benefits to the plaintiff’s husband was never modified or vacated. The defendant argues, however, that either: (1) the voluntary agreement remained in effect after October 12, 1978, but the defendant’s payment of § 31-307 temporary total disability benefits at a rate exceeding that for § 31-308 permanent partial disability benefits discharged its obligations under the agreement; or (2) the defendant’s payment of § 31-307 temporary total disability benefits starting on October 12, 1978, acted to vacate the voluntary agreement. We find both of these arguments unpersuasive.

Section § 31-308 specifically provides that compensation for permanent partial disability shall be “in addition to the usual compensation for total incapacity.” While we have held that the act prohibits concurrent payment of benefits for permanent partial disability and temporary total disability; Paternostro v. Edward Coon Co., 217 Conn. 42, 49, 583 A.2d 1293 (1991); it is clear that these two types of benefits compensate an employee for different types of loss; see Morgan v. East Haven, 208 Conn. 576, 584, 546 A.2d 243 (1988); and that the payment of § 31-307 temporary total disability benefits does not discharge the obligation to pay § 31-308 permanent partial disability benefits at some point in the future. Paternostro v. Edward Coon Co., supra, 46-47. We therefore reject the defendant’s argument that the payment of temporary total disability benefits automatically discharged its obligation under the voluntary agreement to pay permanent partial disability benefits.

We also reject the defendant’s alternative argument that its payment of § 31-307 temporary total disability benefits acted to vacate the voluntary agreement. In essence, the defendant is asking us to hold that the payment of temporary total disability benefits to the plaintiff’s husband vacated the voluntary agreement by operation of law. We note, however, that the legislature has provided a mechanism for modifying voluntary agreements following a change in circumstances. See General Statutes § 31-315. The defendant failed to avail itself of this legislatively created mechanism for modifying the agreement. We refuse to create a judicial mechanism for achieving the same result.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1975) § 31-308 provided in relevant part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly . . . (m) for the loss of the use of the back, that number of weeks which the proportion of incapacity represents to the maximum of five hundred and twenty weeks. If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or the loss of the use of, such member or for incapacity or both as represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in his discretion. . . .”
      These provisions of § 31-308 currently provide: “(b) With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be eighty per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal taxes and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310, but in no case more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, or less than fifty dollars weekly. All of the following injuries include the loss of the member and the complete and permanent loss of use of the member referred to . . . Back . . . Number of weeks which the proportion of incapacity represents to a maximum of 520 weeks. . . .
      “If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured employee the proportion of the sum provided in this subsection for the total loss of, or the loss of the use of, the member or for incapacity or both that represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in his discretion.”

       Although the town of Cheshire is the named defendant in this appeal, it has not submitted a brief or otherwise actively participated.

       General Statutes (Rev. to 1975) § 31-307 provided in relevant part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred, or less than twenty dollars weekly; and such compensation shall not continue longer than the period of total incapacity. ...”
      These provisions of § 31-307 currently provide: “(a) If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to eighty per cent of his average weekly earnings as of the date of the injury, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal taxes and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310; but the compensation shall not be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed eighty per cent of the employee’s average weekly wage, as determined under section 31-310, and the compensation shall not continue longer than the period of total incapacity.”

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the compensation review board upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review board to the appellate court.”

         Practice Book § 4126 provides: “Appeals may be taken to the supreme court in causes determined in the appellate court where the supreme court, upon petition of an aggrieved party or request of the appellate panel which heard the case, certifies the case for review.”

       Mr. Cappellino had a preexisting injury to Ms back. The Second Injury and Compensation Assurance Fund is a state administered fund that is maintained by contributions from all workers’ compensation insurers and self-insurers in Connecticut. See General Statutes (Rev. to 1975) § 31-354. If an employee with a preexisting disability is injured on the job and this injury results in a permanent disability caused by both the previous disability and the on-thc-job injury that is materially and substantially greater than the disability that would have resulted from the on-the-job injury alone, the employer is liable only for the first 104 weeks of compensation and medical expenses. Thereafter, the second injury fund assumes financial responsibility for the employee, provided the employee meets certain conditions. See General Statutes (Rev. to 1975) § 31-349; see generally J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) pp. 67-70.

       General Statutes (Rev. to 1975) § 31-306 provided in relevant part: “The following-described persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee and are referred to hereinafter as presumptive dependents: (1) A wife upon a husband with whom she lives at the time of his injury or from whom she receives support regularly . . . Public Acts 1991, No. 91-32, moved the definition of presumptive dependent from General Statutes § 31-306 to § 31-275 (19).

       See General Statutes § 31-306.

       See General Statutes § 31-302.

       Public Acts 1989, No. 89-346, provided: “Any award for compensation made pursuant to this section shall be paid to the employee, or in the event of such employee’s death, to his surviving spouse or, if he has no such spouse, to his dependents in equal shares or, if he has no such spouse or dependents, to his children, in equal shares, regardless of their age.”


author: Peters, C. J.

text:
    John A. Samperi et al. v. Inland Wetlands Agency of the City of West Haven et al.
    (14616)
    Peters, C. J., Callahan, Borden, Katz and Palmer, Js.
    Argued June 1
    decision released July 27, 1993

      Jonathan Katz, for the appellants-appellees (plaintiffs).

      David H. Wrinn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellee-appellant (defendant commissioner of environmental protection).

      Brian G. Enright, assistant corporation counsel, for the appellee (named defendant).

      Maureen P. Williams, with whom was Stephen I. Small, for the appellee (defendant Minor Farm Limited Partnership).
   Peters, C. J.

The principal issue in this inland wetlands agency administrative appeal is the proper interpretation of General Statutes § 22a-41 (b) of the Inland Wetlands and Watercourses Act (act), specifically, the meaning of the requirement that a local inland wetlands agency shall not issue a permit after a public hearing unless the agency finds that “a feasible and prudent alternative does not exist.” The defendant Minor Farm Limited Partnership (Minor Farm) filed an application with the defendant Inland Wetlands Agency of the city of West Haven (agency) to build a residential subdivision on a wetlands area. After a public hearing, the agency granted the permit. The plaintiffs, John A. Samperi, Carol Samperi, William Johnson, Hazel Johnson and Edward J. Nycek, Jr., who are West Haven residents and the owners of property abutting the subject property, appealed the agency’s decision to the Superior Court. The plaintiffs also named Timothy Keeney, the commissioner of environmental protection (commissioner), as a defendant in the appeal. The commissioner appeared in this appeal in support of the plaintiffs’ position. The trial court found that the plaintiffs were aggrieved by the agency’s action and upheld the agency’s decision to grant the permit. The plaintiffs appealed to the Appellate Court from the judgment of the trial court and the commissioner filed a cross appeal in support of the plaintiffs’ position. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

The relevant facts are as follows. Minor Farm filed an application with the agency on December 31,1990, to conduct a regulated activity on wetlands in the city of West Haven. The regulated activity consisted of the construction of a sixty-one unit subdivision impacting approximately 0.8 acres of designated inland wetlands out of a nineteen acre parcel. Minor Farm proposed to construct four filter fabric/stone envelope road crossings across the wetlands, reroute much of the natural drainage of the site into a drainage basin by building a three foot earthen dike to hold back the water and utilizing a twelve inch drainage pipe to regulate the water flow, and fill in two small areas of wetlands on two of the sixty-one subdivided building lots. The agency accepted the application at its meeting on February 11, 1991. The agency thereafter conducted a walk through site review of the property and solicited and received the opinion of its city engineer. Throughout the entire application process, the agency received memoranda, reports and testimony from experts hired by the plaintiffs and by Minor Farm.

The plaintiffs intervened in the application proceedings in timely fashion pursuant to General Statutes § 22a-19. Seventeen other neighbors also intervened to oppose the project.

At the public hearing, which commenced on June 10, 1991, and was continued and concluded on June 26, 1991, the agency heard over five hours of testimony, listened to more than thirty-five witnesses, including six experts and attorneys representing both sides, and compiled a transcript of more than eighty pages. Minor Farm, through its attorney, Stephen Small, its engineers, Anthony V. Giordano and Robert Lynn, and its soil and environmental consultant, Frank Indorf, first presented evidence to the agency in support of its application. After Small and Giordano characterized the proposed project in general, Indorf described in detail the use of geotextiles and stone as a permeable envelope over which the four road crossings on the wetlands would be built. Indorf stated that the road crossings would impact only 0.3 acres of wetlands and that the method used to cross the wetlands would mitigate the impact on the wetlands. Lynn then discussed the rerouting of the storm water drainage into an existing drainage basin by adding a small three foot berm across the wetland body and utilizing a twelve inch pipe to control the drainage of water into an existing canal. He stated that this drainage plan would decrease and control the amount of drainage exiting the site. The agency commissioners assiduously questioned Minor Farm’s witnesses about the rationale behind their chosen alternative, its impact on the wetlands and the possibility of altering their methods of development on the site, among other relevant matters.

The plaintiffs, their experts and a number of other witnesses, mostly neighborhood residents, then testified in opposition to the project. Those testifying in opposition included a licensed architect, a licensed professional engineer and surveyor, an ecologist, an excavation contractor and a manufacturing layout technician and conservationist. They proposed a number of alternatives to the proposed project and numerous alternative design modifications to the proposal. Among the alternatives presented by the plaintiffs, their experts and others opposed to approving the permit were alternative road layouts, the use of culverts rather than the filter fabric/stone envelope road crossings, revised subdivision layouts accommodating fewer homesites, and an alternative to purchase the property for open space.

The agency next offered Minor Farm an opportunity to reply to the opposition’s comments. Through its experts and attorney, Minor Farm rebutted the opposition’s suggested alternatives and responded to a myriad of questions addressed to them by the opposition.

Immediately after the public hearings had been completed, the agency commenced its deliberations on the application. Its deliberations centered on the impact on the wetlands of the four road crossings and the proposed drainage basin to reroute the storm runoff. The agency decided that night, by a three to two vote, to approve the permit with stipulated conditions.

The plaintiffs appealed to the trial court, which upheld the agency’s decision. In deciding for the defendants, the trial court applied Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 569 A.2d 1094 (1990), and searched the agency’s record for evidence that would adequately support the agency’s decision. The court determined that the agency had found and considered various alternatives as required by § 22a-41, and that the evidence amply warranted approval of the application. The court, therefore, concluded that the agency had not acted illegally, improperly or in abuse of its discretion and dismissed the appeal.

The plaintiffs have appealed and the commissioner has cross appealed from the judgment upholding the agency’s decision. The plaintiffs and the cross appellant claim that the trial court misinterpreted and misapplied the no “feasible and prudent alternative” standard of § 22a-41 (b) to the agency’s actions because, in their view, the agency failed to consider feasible and prudent alternatives, or to find on the record that such alternatives do not exist. In addition, the plaintiffs raise two other issues as grounds for overturning the trial court’s judgment. They claim that the trial court should have sustained their appeal because: (1) the agency ignored uncontroverted expert testimony and failed to consider the statutory criteria of § 22a-41 (a), which mandate the rejection of an application that impairs legislatively protected wetlands; and (2) the agency lacked jurisdiction to issue a wetlands permit to construct a dam.

I

The plaintiffs and the cross appellant claim that the trial court, in upholding the agency’s permit approval, misinterpreted and misapplied § 22a-41 (b) of the act. Specifically, they contend that the agency did not comply with the requirement that a local inland wetlands agency shall not issue a permit after a public hearing unless that agency finds that “a feasible and prudent alternative does not exist.” They assert that, in order to manifest compliance with the statute, the agency was required, not only explicitly to consider every alternative presented at the public hearing, but also to make an explicit finding that the alternative presented by the applicant was the only feasible and prudent alternative. Because the agency never made an express finding that no other feasible and prudent alternatives exist and because the record of the agency’s deliberations does not show that each and every alternative presented by the opposition at the public hearing was explicitly considered, the plaintiffs and the cross appellant argue that the trial court should not have dismissed their appeal. We disagree.

In challenging an administrative agency action, the plaintiff has the burden of proof. Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478, 482, 181 A.2d 596 (1962); see also Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989); Lovejoy v. Water Resources Commission, 165 Conn. 224, 229, 332 A.2d 108 (1973). The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo; Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979); the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency’s decision. Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980).

In reviewing an inland wetlands agency decision made pursuant to the act, the reviewing court must sustain the agency’s determination if “an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-42, 525 A.2d 940 (1987).

In adhering to this “substantial evidence” standard for an inland wetlands agency appeal, we have held that it is improper for the reviewing court to reverse an agency decision simply because an agency failed to state its reason for its decision on the record. The reviewing court instead “must search the record of the hearings before that commission to determine if there is an adequate basis for its decision.” Gagnon v. Inland Wetlands & Watercourses Commission, supra, 611. In reaching this conclusion, we analogized cases and statutory language governing planning and zoning agencies to those governing inland wetland agencies and found the two statutory schemes to be either identical or extremely similar. Id., 606-609, 611. We also determined that public policy reasons make it “practical and fair” to have a trial court on appeal search the record of a “local land use body . . . composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate.” Id., 611.

The plaintiffs and the cross appellant argue, nonetheless, that the statutory mandates of the act require the agency to create a record concerning each and every separate incursion or regulated activity in a wetland and to make an express finding that no feasible and prudent alternative exists before it can issue a permit. In support of their contention, they point to the specific language of § 22a-41 (b), which provides: “In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.” We agree with the plaintiffs and the cross appellant that the statute does not permit an agency to grant a permit if the agency finds that a feasible and prudent alternative exists with regard to any of the incursions or regulated activities. We disagree, however, that the agency’s decision-making process in this regard requires explicit consideration of each proposed alternative and an explicit finding that all other alternatives are not feasible and prudent.

In construing a statutory provision, we first look to its language, and if that language is plain and unambiguous, “we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature.” Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Section 22a-41 (b) requires only that the commissioner make a singular “finding” that a feasible and prudent alternative does not exist. The use of the singular word “finding” is unambiguous. The statute does not require that multiple findings be made. If the legislature had intended to require the inland wetlands agency to rule out each and every possible alternative, it would have required “findings,” rather than a “finding.”

According to the plaintiffs’ and the cross appellant’s proposed interpretation, however, the agency would have to consider and rule on each and every possible alternative presented to it. The only practical way that an agency decision could survive a challenge under this interpretation would be for the agency explicitly to state its view on every alternative. Otherwise, the appealing party could argue that the agency’s decision should be overturned because it overlooked an alternative. Such an elaborate agency process not only would require multiple findings to be made, but it would also contradict our holding in Gagnon v. Inland Wetlands & Watercourses Commission, supra, 611, that an agency is not required to state all its determinations on the record so long as the record provides an adequate basis for the agency’s decision.

Even if we go beyond the plain language of § 22a-41 (b) of the act, we are also “guided by the well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature.” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Rhodes v. Hartford, supra, 93. The legislative purpose of the act is described in General Statutes § 22a-36, which contains the legislative finding regarding wetlands. The act was designed to protect and preserve the “indispensable and irreplaceable but fragile natural resource” of inland wetlands “by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology . . . .” General Statutes § 22a-36. Instead of banning all economic activities on wetlands, the legislature realized that a balance had to be struck between economic activities and preservation of the wetlands. Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 354, 362 A.2d 948 (1975) (“[a]gainst that laudable state policy [of protecting wetlands] must be balanced the interests of the private landowner who wishes to make productive use of his wetland”).

The legislature, therefore, created an orderly statutory scheme whereby each municipality is required to “establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of [the act]. ...” General Statutes § 22a-42 (c). The local inland wetlands agency was given the sole authority to license and regulate wetland activities, consistent with the factors set forth by the legislature in § 22a-41. By designing the statutory scheme in this manner, the legislature gave broad discretion to local agencies to oversee wetland activities. Huck v. Inland Wetlands & Watercourses Agency, supra, 551; Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 66, 127 A.2d 48 (1956); Kaeser v. Conservation Commission, 20 Conn. App. 309, 317, 567 A.2d 383 (1989); Klug v. Inland Wetlands Commission, 19 Conn. App. 713, 717-18, 563 A.2d 755, cert. denied, 213 Conn. 803, 567 A.2d 832 (1989). The legislature, in effect, has placed the initial and principal responsibility for striking the balance between economic activities and preservation of wetlands in the hands of the local authorities. In striking that balance, the local inland wetlands agency is required only to manifest in some verifiable fashion that it has made a finding of no feasible and prudent alternative. Although the agency may manifest its finding explicitly, in those cases in which its finding is implicit in its decision, the reviewing court has the responsibility to search the record for substantial evidence in support of the agency’s action.

The plaintiffs and the cross appellant argue, nonetheless, that the trial court improperly construed the phrase, “feasible and prudent alternative,” when it affirmed the agency’s determination. We now turn to that contention. In order to issue a permit, the local inland wetlands agency must find that “a feasible and prudent alternative does not exist.” General Statutes § 22a-41 (b). We have determined that an applicant for an inland wetlands permit has the burden of proving that it has met the statutory prerequisites for a permit. Strong v. Conservation Commission, 226 Conn. 227, 229, 627 A.2d 431 (1993); see also Huck v. Inland Wetlands & Watercourses Agency, supra, 553 n.18. The applicant, accordingly, must demonstrate to the local inland wetlands agency that its proposed development plan, insofar as it intrudes upon the wetlands, is the only alternative that is both feasible and prudent.

The evidentiary burden imposed on the applicant to demonstrate that its proposal is the only feasible and prudent alternative will ordinarily require an affirmative presentation to that effect. If only one alternative is presented, the inland wetlands agency can approve the application for a permit only if no other feasible and prudent alternatives exist. In practical terms, this will usually require that the applicant present evidence of more than one alternative to the local agency.

Although we have not defined the phrase “feasible and prudent alternative” as used in the act, we have construed it in the context of the Environmental Protection Act of 1971 (EPA). Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 441 A.2d 68 (1981). In that case, we examined the question of who has standing to bring a legal action against any entity or person who unreasonably pollutes the environment under General Statutes § 22a-16. See id., 56-57. General Statutes § 22a-17 (a) uses the phrase, “feasible and prudent alternative,” to describe the possible defenses available to a defendant who has been sued under the EPA. That subsection states: “When the plaintiff in any such action has made a prima facie showing that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also prove, by way of an affirmative defense, that, considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant’s conduct and that such conduct is consistent with the reasonable requirements of the public health, safety and welfare. . . .’’(Emphasis added.) Relying on the United States Supreme Court’s interpretation of federal environmental legislation in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), we defined “feasible” to mean “ ‘as a matter of sound engineering.’ ” Manchester Environmental Coalition v. Stockton, supra, 62, quoting Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 411. We construed “prudent alternatives” as “those which are economically reasonable in light of the social benefits derived from the activity.” Manchester Environmental Coalition v. Stockton, supra, 63.

We interpret in a similar manner the phrase, “feasible and prudent alternative,” as used in the act. Thus, for a wetlands permit to issue, the local inland wetlands agency must determine that the alternative presented by the applicant is not only sound from an engineering standpoint but is also economically reasonable in light of the social benefits derived from the activity. See Gardiner v. Conservation Commission, 222 Conn. 98, 109-11, 608 A.2d 672 (1992). An alternative will be deemed to be a feasible and prudent alternative only if it meets both criteria.

The plaintiffs and the cross appellant argue, however, that because they proposed an alternative that they characterize as feasible and prudent, the agency should have rejected the application. Additionally, they contend that a wetlands permit can issue only if the local inland wetlands agency has specifically and explicitly considered and ruled out each and every other alternative as not being feasible and prudent. We disagree.

As a preliminary matter, the plaintiffs’ and the cross appellant’s belief that their alternative is feasible and prudent cannot be dispositive, because that judgment can be made initially only by the local inland wetlands agency. General Statutes § 22a-42 (c) (“the board or commission authorized by the municipality or district . . . shall serve as the sole agent for the licensing of regulated activities”). More importantly, Gagnon holds that an agency’s statutorily required finding cannot be overruled simply because the agency’s decision is not explicitly stated on the record. As long as a search of the record reveals the basis for the agency’s decision consistent with the substantial evidence standard enunciated in Huck, then the reviewing court must infer that the local wetlands agency made a finding that the applicant’s alternative was the feasible and prudent alternative. See Gardiner v. Conservation Commission, supra, 109-11. “Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions.” Gulf Oil Corporation v. Board of Selectmen, supra, 66. This cautionary advice is especially apt whenever the court is reviewing a decision of a local commission composed of laypersons. Gagnon v. Inland Wetlands & Watercourses Commission, supra, 611.

The substantial evidence standard of review in inland wetlands agency cases is met in this case. The agency listened to a considerable amount of testimony from innumerable witnesses, including laypersons, experts and attorneys on both sides. It diligently asked questions and engaged in ample deliberations. Huck v. Inland Wetlands & Watercourses Agency, supra, 543-44. The agency evaluated the evidence presented and appraised the credibility of the witnesses. We conclude, as did the trial court upon its review of the record, that the agency’s decision to approve the permit constituted an implicit finding that no other feasible and prudent alternatives existed besides the Minor Farm proposal. The trial court properly applied the requirements of § 22a-41 (b).

II

The plaintiffs next claim that the trial court improperly dismissed their appeal because the agency ignored uncontroverted expert testimony and failed to consider the statutory criteria of § 22a-41 (a), which mandate specific inquiries for the environmental protection of legislatively protected wetlands. We disagree with both contentions.

First, the evidence before the agency in this case did not involve uncontroverted expert testimony. Unlike the situation in Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), in which the agency disregarded testimony on a technically complex matter by the only expert who appeared at the hearing, without affording the expert an opportunity to rebut the agency’s concerns, the present case included testimony by a myriad of experts. Minor Farm’s experts testified and the opposition’s experts testified. The experts disagreed as to the extent of the impact on the wetlands. That the commissioners assessed these various expert opinions with care is demonstrated by the three to two vote approving the application. Furthermore, as we stated in Huck v. Inland Wetlands & Watercourses Agency, supra, 542, “an administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.” See also Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980).

The agency also did not fail to consider the statutory criteria of § 22a-41 (a) in making its determination. That subsection provides: “In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to: (1) The environmental impact of the proposed action; (2) The alternatives to the proposed action; (3) The relationship between short-term uses of the environment and the maintenance and enhancement df long-term productivity; (4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity; (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and (6) The suitability or unsuitability of such activity to the area for which it is proposed.” These criteria determine the factors that an agency must consider before issuing a permit that allows a regulated activity to be conducted in the wetlands, but, as we have indicated in our discussion of § 22a-41 (b), the statute does not require an inland wetlands agency explicitly to specify the factors that it has utilized in its evaluation of an application. As long as a search of the entire record reveals the basis for the agency’s decision and supports reasonable inferences that the agency adhered to the factors enumerated in § 22a-41 (a), then the argument that the agency failed to apply the proper statutory criteria must be rejected. Gagnon v. Inland Wetlands & Watercourses Commission, supra.

The record in this case indicates that the agency considered the statutory criteria specified in § 22a-41 (a). For example, the agency’s deliberations after the completion of the public hearing centered on the impact that the four road crossings and the drainage basin would have on the quality of the wetlands. In light of this evidence that the agency properly considered the environmental impact criteria pursuant to § 22a-41 (a) (1), the plaintiffs’ appeal on these grounds is without merit.

Ill

The plaintiffs’ final claim is that because the agency lacked jurisdiction to issue a wetlands permit to construct a dam, the trial court improperly dismissed their appeal of the agency’s determination. We are unpersuaded.

We agree with the plaintiffs’ assertion that before a dam can be constructed, the state department of environmental protection (DEP) must issue a permit for its construction. General Statutes § 22a-403. It does not follow, however, as the plaintiffs assert, that the agency, in approving the wetlands permit, gave Minor Farm permission to construct a dam. The agency neither had such authority nor did it purport to exercise it.

We presume that agencies act within the scope of their authority and that permits that are conditioned upon compliance with other relevant federal, state and local regulations mean what they say. “[LJocal inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity that is situated outside their jurisdictional limits.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). Nothing in the record suggests that the agency exceeded these bounds.

Although there was some discussion during the public hearing as to whether the earthen dike of the drainage basin constituted a dam or a berm, the agency never explicitly or implicitly approved an application for a dam. Minor Farm’s expert, Frank Indorf, stated that it would obtain a permit from DEP if the dike were deemed to be a dam. The written notice of decision by the agency approving the issuance of the inland wetlands permit to Minor Farm never asserted that it was approving an application to construct a dam or even mentioned a dam. In addition, general condition number seven of the agency’s notice of decision states “[t]hat this permit shall not be construed as relieving the permittee of the obligation to obey all applicable federal, state and local laws.” The permit’s approval, therefore, did not relieve Minor Farm of the obligation to seek and obtain prior approval if the “berm” were subsequently determined to be a “dam.”

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 22a-41 (b) provides: “In the case of an [inland wetlands permit] application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.” This court, in Gardiner v. Conservation Commission, 222 Conn. 98, 109-10, 608 A.2d 672 (1992), determined that the requirements of the Inland Wetlands and Watercourses Act are as equally binding on local inland wetlands agencies as they are on the commissioner. See also General Statutes § 22a-42.

       The Inland Wetlands and Watercourses Act is found at General Statutes §§ 22a-36 through 22a-45a.

       The plaintiffs also named the city of West Haven and the town clerk of West Haven as defendants in the appeal. They have not participated in this appeal.

       Soil scientist Frank Indorf, testifying as a consultant for Minor Farm on June 10, 1991, stated that the entire site contained two and one-half acres of inland wetlands.

       General Statutes § 22a-19 provides in relevant part: “(a) In any administrative, licensing or other proceeding . . . any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       Anthony V. Giordano had submitted a memorandum to the agency on April 8,1991, describing the geotextile materials and their use in the road crossings. Small, at the June 10,1991 hearing, submitted a wetlands assessment report prepared by Environmental Resource Associates of Meriden, the firm of Frank Indorf, which analyzed the proposed project’s impact on the site and depicted the use of the geotextile stone envelope in terms of the road crossings. At the June 26, 1991 hearing, Robert Lynn, an employee of Anthony Giordano and Associates, Minor Farm’s consulting engineer, also described the use of the filter fabric/stone envelope in the construction of the four road crossings on the wetlands. He stated that the filter fabric/stone envelope “is placed in the road bed at the wetlands . . . and . . . allows the ground water flow which is taking place today through the wetland area to continue. So the road is not acting as a dam preventing, separating the two wetland areas it is crossing. The road is going over the top, the wetlands beneath are remaining continuous.” In response to a question by agency commissioner Richard DeLeo concerning the impact of road salt from sanding operations on the wetlands, Lynn answered that “[tjhis method [of filter fabric/stone envelope] construction will have no effect upon the wetlands, we’re putting a road on top of the wetlands, and the salt that’s put on top of the road surface isn’t going to get into the wetlands beneath the road .... The storm drainage is gonna collect the storm water from the road surface, and lead it to the detention basin area.”

       The wetland impact assessment report prepared by Environmental Resource Associates stated that “[t]he wetland crossings were thoroughly studied and there does not appear to be any alternatives that would provide less impacts on the wetland areas involved with this proposal, except not making the roadway crossings which is neither prudent nor practical.”

       The agency approved the permit with four specific conditions and ten general conditions. The four specific conditions were:
      “1. That the Addendum received at the 6/26/91 Public Hearing for a 100 Year Hydrograph thru proposed basin, prepared by Anthony V. Giordano & Assoc, be reviewed for calculations and approved [by] the City Engineer;
      “2. A[n] 18" Pipe be installed at the large spillway going out to David Street;
      “3. There be as little destruction of trees; and

        “4. Hay Bales and Siltation Fences be installed and monitored by the Agency periodically.”
      The permit also included the following general conditions:
      “1. That initiation of activity under this permit shall be within one year of its issuance, unless the time period is extended by the said Commission. Regulation Inland Wetlands and Water Courses Agency of the Conservation Commission City of West Haven, Section 7.2.
      “2. That the Contractor’s Acknowledgment Form be returned to this office prior to commencement of work.
      “3. That the permittee shall notify the Inland Wetlands and Water Courses Agency of the Conservation Commission in writing immediately of the commencement of work and supply photographs at least 5” x 7” of original site if so specified by said Commission.
      “4. That any material removed from wetlands or water courses during work herein authorized shall not be deposited on or in any wetlands or water courses of the city unless so specifically authorized by license.
      “5. That the permittees shall immediately inform said Commission if problems involving sedimentation develop in the course of, or caused by, the work herein authorized.
      “6. That this permit may be revoked if the permittee exceeds the conditions or limitations of this permit or has secured this permit through deception or inaccurate information. Regulations of the Inland Wetlands and Water Courses Agency of the Conservation Commission of West Haven, Sections 11.2 and 5.1.d.
      “7. That this permit shall not be construed as relieving the permittee of the obligation to obey all applicable federal, state and local laws.
      “8. That this permit is valid for one (1) year from commencement of work. If work is not completed at that time, applicant will appear before this agency and request an extension.
      “9. That within two weeks of completion of the work, the permittee shall submit to said Commission photographs, no less than 5" x 7", of the work as built, or of portions of the work if so specified by said Commission.
      “10. That the assignment or transfer of this permit to any other person or persons shall be reported immediately to the Conservation Commission.”

       The plaintiffs and the cross appellant raise an additional issue. They claim that the trial court improperly dismissed the appeal, because the agency failed to comply with its own local regulations, which require a written opinion from the agency. The plaintiffs made only a singular reference in their trial court brief to a defect in the agency’s procedure concerning this issue and neither the plaintiffs nor the commissioner orally argued this issue before the trial court. The trial court’s memorandum of decision never addressed or mentioned this issue. In addition, the plaintiffs, in their motion for articulation pursuant to Practice Book § 4051, did not request that the trial court make an articulation concerning this issue. By failing to develop the appropriate trial court record concerning this issue, the plaintiffs and the cross appellant have abandoned the issue. See Barnes v. Barnes, 190 Conn. 491, 493-94, 460 A.2d 1302 (1983). We, therefore, do not need to consider it further.

       For example, the plaintiffs and the cross appellant would require the agency, before approving Minor Farm’s wetlands permit, to look at each one of the four wetland road crossings individually, consider Minor Farm’s alternative of using a filter fabric/stone envelope and weigh that against each of the opponents’ alternatives of using a culvert, altering the road layout, altering the density of the proposed development or leaving the site as open space and then explicitly to rule out each of the opponents’ alternatives as infeasible and imprudent.

       General Statutes § 22a-41 provides: “(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability or unsuitability of such activity to the area for which it is proposed.
      “(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

       The 1987 amendments to the act were primarily enacted to require all municipalities to establish local inland wetlands commissions, to set forth a uniform and explicit standard for local agencies to follow—namely, that the local agency must find that a feasible and prudent alternative to wetlands intrusion does not exist—and to promulgate a coordinated time table for the permit application process. 30 S. Proc., Pt. 9, 1987 Sess., pp. 3115-16, remarks of Senator Michael Meotti; 30 H.R. Proc., Pt. 28, 1987 Sess., p. 10228, remarks of Representative Mary Mushinsky.

       In contrast, an applicant who submits an application to a local zoning commission, pursuant to General Statutes § 8-3 (g), is required to submit only one site plan. The applicant does not have the burden either of submitting more than one alternative nor of proving that its submitted plan is the most feasible and prudent alternative. See, e.g., Carr v. Bridgewater, 224 Conn. 44, 54-55, 616 A.2d 257 (1992); Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 613-14, 610 A.2d 1205 (1992).

       The Environmental Protection Act can be found at General Statutes § 22a-14 et seq.

       Alternatively, the plaintiffs and the cross appellant seem to imply that the agency, at a minimum, should have explicitly stated that “we find that a feasible and prudent alternative does not exist.” We see no value in requiring an inland wetlands agency to make such a ritualistic assertion that would add nothing to the reviewing court’s search of the record for substantial evidence to support an inland wetlands agency’s determination.

       This claim is being raised only by the plaintiffs, and not by the commissioner.

       This claim is not being raised by the commissioner.

       General Statutes § 22a-401 et seq. gives jurisdiction over the construction and regulation of dams to the commissioner. See also Regs., Conn. State Agencies § 22a-39-4.3.a (providing that the commissioner shall exclusively regulate the construction or modification of any dam).

       At the June 26,1991 public hearing, the following discussion concerning the dike ensued:
      “[Commission] Chairman William Clabby: I have one question for the developers O.K. And that does relate back to the berm and the statement that was made about going to DEP, that leaves a question in my mind. I don’t know if there is a permit that is required by DEP in order to do that. That’s something that uh.
      “Frank Indorf: If a permit is necessary we will go to DEP and get the papers ....
      “[Commission] Vice Chairman Richard DeLeo: And if it’s gonna be a dam you need a permit from the DEP.
      “Frank Indorf: It’s not a dam ....
      “[Commission] Chairman William Clabby: It’s a berm.”


author:
Borden, J.
      Berdon, J.,

text:
    State of Connecticut v. Richard J. Tanzella
    (14627)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued March 26
    decision released July 27, 1993

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and John M. Malone, assistant state’s attorney, for the appellant (state).

      Jon L. Schoenhorn, for the appellee (defendant).
   Borden, J.

The certified issue in this appeal is whether, pursuant to Practice Book § 624, the trial court properly permitted the state to amend a criminal information after the commencement of trial. The defendant, Richard J. Tanzella, was convicted after a jury trial of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, and one count each of assault in the third degree in violation of General Statutes § 53a-61 (a) (1), threatening in violation of General Statutes § 53a-62 (a) (l), and unlawful restraint in the first degree in violation of General Statutes § 53a-95. He appealed to the Appellate Court from the judgment of conviction. The Appellate Court affirmed the judgment of conviction on the first, second and fifth counts, namely, both counts of sexual assault in the first degree and the count of unlawful restraint. With regard to the third and fourth counts, namely, assault in the third degree and threatening, however, the Appellate Court reversed the judgment of conviction and ordered a judgment of acquittal because the trial court had improperly permitted the state to amend the information by alleging different or additional offenses in violation of Practice Book § 624. State v. Tanzella, 28 Conn. App. 581, 590, 613 A.2d 825 (1992). We granted the state’s petition for certification to appeal regarding the third and fourth counts and now reverse the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following relevant facts: “On July 16,1988, the victim went to the Club Car, a Hartford nightclub, to meet some friends. At approximately 1:30 a.m. on July 17, she left the club by herself and walked to her car. As she was walking to her car, the defendant approached her and began a conversation. The defendant identified himself and asked if she would give him a ride to his house in Manchester. The victim initially refused but then changed her mind after the defendant emptied his pockets to show he did not have a weapon. The victim examined the defendant’s driver’s license after he emptied his pockets. She then drove the defendant to Manchester and stopped at a school parking lot near his apartment.

“According to the victim’s testimony, when they arrived at the school parking lot, the defendant grabbed her and turned off her car’s engine. The defendant told the victim to remove her pants but she attempted to struggle with him. She was able to restart the car but again he removed the keys and threatened her with death if she kept resisting. During the course of the struggle, the defendant punched the victim in the head and she bit him on the forearm. The defendant then sexually assaulted the victim and forced her to engage in sexual intercourse. After intercourse, the victim drove the car, following the defendant’s directions, toward his apartment. While driving, the victim saw a house with its lights on and drove into the driveway. She grabbed her keys and fled from the car to a side door of the house. She began to bang on the door and saw that the defendant had exited her car. The defendant ran up the street and the victim returned to her car. As she drove toward a hospital, the victim encountered a Manchester police officer and reported that she had been raped.

“After meeting with the victim and further investigation, the police went to the defendant’s apartment. The police officers told the defendant he was under investigation for sexual assault. The defendant denied any knowledge of a sexual assault and stated that he had been out with his girl friend all night. The defendant’s girl friend, Virginia Cross, was also at his apartment when the police arrived. The police arrested the defendant and took him into custody. The defendant telephoned Cross from the police station. A police officer who overheard the defendant’s conversation with Cross testified that he stated, ‘You are driving a nail into my coffin.’ According to this officer, the defendant also told Cross to change her story and tell the police that she did not remember anything because she suffered from blackouts. The police photographed a small bitemark on the defendant’s forearm.

“The defendant testified that after spending the evening with Cross at a club in Hartford, he became separated from her as the club was closing. The defendant stated that he and Cross were getting along very well and had not been fighting that evening. The defendant began to look for Cross outside of the club and during this search he met the victim. According to the defendant’s version, the victim offered to drive him home and during the drive placed her hand on his knee. At the school parking lot, they kissed and then had consensual sexual intercourse. After this, the victim asked if she could go to the defendant’s apartment with him. The defendant refused because his girl friend was at his apartment. The defendant told the victim that ‘having sex in a parking lot is not a way to start a relationship for the future.’ The victim then drove the defendant to a house whereupon she exited the car and walked into the house. The defendant exited the car and took the victim’s pants and nylons with him. He deposited the defendant’s pants and nylons in a dumpster near his apartment.” State v. Tanzella, supra. 583-85.

The state charged the defendant in a five count information. After the jury had been selected and sworn, the trial court clerk read the information to the jury. During the reading, the state’s attorney noticed errors in the third and fourth counts of the information. Although the third count charged the defendant with assault in the third degree in violation of General Statutes § 53a-61 (a) (2), the state’s attorney had intended to charge a violation of subsection (a) (1) rather than (a) (2). Also, the fourth count charged the defendant with threatening in violation of General Statutes § 53a-62 (a) (3); the state’s attorney, however, had intended to charge a violation of subsection (a) (1) rather than (a) (3).

Relying on Practice Book § 624, the state’s attorney moved to amend the information to correct the errors, and the defendant objected. The trial court granted the motion and the state amended the information accordingly. The third count of the amended information charged the defendant with assault in the third degree in violation of § 53a-61 (a) (1) and the fourth count charged him with threatening in violation of § 53a-62 (a) (1). The trial court offered the defendant the option of a continuance to remedy any possible surprise, but the defendant declined. The defendant was subsequently convicted on all five counts of the amended information. The defendant’s appeal to the Appellate Court and the state’s appeal to this court followed.

I

The state first claims that the Appellate Court improperly concluded that the amendment to the information violated Practice Book § 624 by charging different or additional offenses. We agree.

The amendment to the third count of the information, the charge of assault in the third degree, changed the allegation from an assault in which the defendant had recklessly caused serious physical injury to an assault with intent to cause physical injury. The Appellate Court held that the amended charge of assault in the third degree constituted a different offense because it changed: (1) the requisite mental state from recklessness to intent; and (2) the level of harm from serious physical injury to physical injury. Id., 587-88.

The amendment to the fourth count, the charge of threatening, changed the proscribed conduct from threatening in reckless disregard of terror or inconvenience to threatening by intentionally placing a person in fear of imminent physical injury. The Appellate Court concluded that the amended charge of threatening constituted a different offense because it changed: (1) the mental state from recklessness to intent; and (2) the nature of the harm. Id., 590.

Before the commencement of trial, a prosecutor has broad authority to amend an information under Practice Book § 623. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 624.

Section 624 permits amendments to an information after trial has commenced provided “no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.” We agree with the decision of the Appellate Court in State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 732 (1986), that for purposes of § 624, a trial begins with the voir dire. In this case, the voir dire was complete and the jury had been sworn and read the information before the state’s attorney moved to amend. Thus, trial had commenced and § 624 applied.

We disagree, however, with the Appellate Court’s conclusion that the amended charges created different or additional offenses. Practice Book § 624 is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). The importance of notice is the reason that § 624 defines the commencement of trial as the voir dire rather than the swearing-in of the jury: the defendant needs to know the nature of the accusations against him in order to question jurors effectively. State v. Cole, supra, 551.

Because § 624 is primarily a notice provision, we decline the defendant’s invitation to determine whether offenses are different or additional by comparing the elements of the respective offenses. Although we compare elements to determine if offenses are the same for purposes of double jeopardy; see, e.g., State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990); such an analysis is inappropriate here. For purposes of § 624, the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense. We conclude that in this case the amended information did not charge the defendant with different or additional offenses that would violate his right to notice under § 624.

Our decision is guided by State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), and State v. Secore, 194 Conn. 692, 485 A.2d 1280 (1984). In Wallace, the defendant was charged with the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). Just before the state completed its case-in-chief, the trial court permitted the state to amend the information by deleting subsection (a) (2) of § 53a-134 and substituting in its place subsection (a) (4). State v. Wallace, supra, 238. The jury subsequently found the defendant guilty of the crime charged in the amended information.

Under the subsection originally charged in Wallace, § 53a-134 (a) (2), a person is guilty of robbery in the first degree if he “is armed with a deadly weapon.” Under the amended charge, subsection (a) (4), a person is guilty of robbery in the first degree if he “displays or threatens the use of what he represents by his words or conduct to be a . . . firearm . . . .” The amended charge differed from the original charge in two factual respects.

First, the original charge differed from the amended charge regarding the item that the defendant must have had on his person to be found guilty of the offense. The original subsection referred to a deadly weapon. The amended subsection, however, referred to anything that the defendant represented to be a firearm, even if it were not capable of actually firing a shot. Thus, the amended charge required the state to prove the presence of an item different from that referred to in the original charge. Second, the original and amended charges differed with respect to the actions they proscribed. Under the original subsection, the defendant needed only to be armed with a deadly weapon to be found guilty. He need not have displayed or threatened to use the weapon. The amended subsection, however, only pertained to one who actually displayed or threatened to use the item involved. Thus, the amended charge required the state to prove different conduct from the original charge.

Nevertheless, we concluded in Wallace that the amended information did not charge a different or additional offense. Both the original and the amended informations charged the defendant with the crime of robbery in the first degree. We concluded that the amended charge was the same as the original charge for purposes of Practice Book § 624. State v. Wallace, supra, 239.

We considered a related issue in State v. Secore, supra. The defendant in Secore was charged with sexual assault in the first degree under General Statutes (Rev. to 1979) § 53a-70 (a). A grand jury originally indicted him under subsection (a) (1) for sexual assault in the first degree “by the use of force.” The state later replaced the grand jury indictment with an information alleging a violation of subsection (a) (2), namely, sexual assault in the first degree “by the threat of use of force.” The precise procedural issue in that case was not whether Practice Book § 624 permitted the amendment of an information. The question related to whether the substitution of the information for the indictment violated the requirement that the defendant be indicted by a grand jury. As a preliminary matter, however, the court had to determine if the original and amended charges were the same. If they were, then the requirement of an indictment would have been satisfied by the original charge.

We concluded in State v. Secore, supra, 698, that the language of § 53a-70 (a) did not divide the statute into separate crimes; rather, it defined a single crime, sexual assault in the first degree, which could be committed in two separate ways. The first way to commit sexual assault in the first degree was described in subsection (a) (1) as “the use of force.” The second way to commit the crime was described in subsection (a) (2) as “the threat of use of force.” By substituting subsection (a) (2) for (a) (1), the state changed the conduct it would have to prove in order to convict, but it did not charge a different substantive offense.

Underlying the court’s reasoning was the requirement of notice. The purpose of the indictment was to give the defendant sufficient notice of the charges against him so that he could properly prepare his defense. Id., 701, citing Spencer v. Texas, 385 U.S. 554, 567, 87 S. Ct. 648, 17 L. Ed. 2d 606, reh. denied, 386 U.S. 969, 87 S. Ct. 1015, 18 L. Ed. 2d 125 (1967). Because the defendant in Secore made no claim of prejudice or unfair surprise caused by the substitute information, the court held that he had been adequately notified of the charges against him, even though the original and substituted subsections described somewhat different conduct. State v. Secore, supra.

Wallace and Secore do not stand alone. In State v. Sullivan, 11 Conn. App. 80, 525 A.2d 1353 (1987), the Appellate Court upheld the amendment, after voir dire, of an information alleging a violation of General Statutes § 53-21, namely, injury or risk of injury to, or impairing the morals of, children. A person can violate the pertinent part of this statute by engaging in two distinct courses of conduct: (1) placing a child in a situation likely to impair its morals; or (2) acting in a way likely to impair the child’s morals. The original information charged only the first course of conduct, and the amended information charged both courses of conduct. Id., 87. The Appellate Court concluded that the statute described two ways of committing the same crime, and the state’s belated decision to allege both ways did not violate Practice Book § 624. Id., 88-90. Under the Appellate Court’s analysis, as long as the state adequately notified the defendant of the charges he faced, the amendment was permissible.

In light of this case law, we conclude that the subsections of the statutes in question do not constitute different crimes for purposes of Practice Book § 624. Like the statutes in Sullivan and Secore, they describe alternative means of committing a single crime. The first of the two amendments pertained to the charge of violating General Statutes § 53a-61 (a), assault in the third degree. The original subsection, (a) (2), required the state to prove that the defendant had recklessly caused serious physical injury. The substituted subsection, (a) (1), required the state to prove that the defendant had intentionally caused physical injury. Consequently, the Appellate Court correctly observed that the amendment changed the requisite mental state from intent to recklessness and changed the requisite harm from serious physical injury to physical injury.

In our view, however, the substituted charge was not additional or different from the original charge under Practice Book § 624. The substituted charge specified a more culpable mental state and a lesser degree of harm; the original charge specified a less culpable mental state and a greater degree of harm. Both charges required the state to prove that the defendant, with a significantly culpable mental state, inflicted some degree of physical injury on another person. These are not different crimes but simply different means of committing the same crime, namely, assault in the third degree. Consequently, the amendment to the third count did not violate Practice Book § 624.

The same is true of the amendment to the fourth count. A person is guilty of threatening under the originally charged subsection of General Statutes § 53a-62, namely, (a) (2), if he threatened to commit a crime of violence in reckless disregard of the risk of terror. A person is guilty of the substituted charge, subsection (a) (1), if he intentionally placed or attempted to place another person in fear of imminent serious physical injury. This amendment also changed the requisite mental state from recklessness to intent, and substituted a different type of harm. Nevertheless, the two subsections are not so dissimilar as to constitute different offenses. Both subsections refer to one person, with a culpable state of mind, placing another person in fear of harm. They amount to two methods of committing the same crime to the same degree. Consequently, the amended information adequately notified the defendant of the charge against which he was required to defend himself. It did not charge additional or different offenses.

II

An amendment to an information is proper under Practice Book § 624 only if “no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.” Having determined that the amendments to the information did not charge additional or different offenses, we now consider whether the amendments prejudiced the defendant’s substantive rights. The state claims that the judgment of the Appellate Court must be reversed because the defendant’s substantive rights were not prejudiced. We agree.

If the state seeks to amend charges after the commencement of trial, it shoulders the burden of establishing that “no substantive rights of the defendant would be prejudiced.” Practice Book § 624. Like any other party petitioning the court, the state must demonstrate the basis for its request. Under § 624, the state must show: (1) good cause for the amendment; (2) that no additional or different offense is charged; and (3) that no substantive right of the defendant will be prejudiced. This allocation of burden encourages the state to prepare its case carefully because it bears the burden of justifying subsequent adjustments.

In this case, however, we agree with the trial court’s implicit conclusion that the defendant was not prejudiced by the amendments to the information. The amendments changed the mental states and types of harm for the charges of assault and threatening. The defendant’s defense, however, was that the victim had consented to the intercourse and that no threat or force had taken place. In effect, his defense to all the charges was that this had been a voluntary, consensual encounter from beginning to end. The state’s theory of the case, to the contrary, was that although the victim had voluntarily agreed to give the defendant a ride home, the entire episode thereafter was dominated by the defendant’s use of threats and force.

On the one hand, if the jury had believed that the victim had in fact consented or that there was a reasonable doubt about whether threat or force was involved, the defendant would have been acquitted on either the original or the amended offenses. The amendments would have been irrelevant. On the other hand, if the jury had believed beyond a reasonable doubt that the victim had not consented, the defendant would have been equally liable under both the original and amended charges. Again, the amendments would have been irrelevant. The amendments therefore did not prejudice the defense because the effect of the amendments was logically distinct from the defense asserted. Moreover, nothing in the record suggests that the defendant would have presented a different defense if the amended offenses had been alleged at the outset, or that the defendant suffered any unfair surprise that deprived him of substantive rights. See State v. Scognamiglio, 202 Conn. 18, 22-23, 519 A.2d 607 (1987).

Once again we are guided by State v. Wallace, supra. In Wallace, the state deleted the charge of robbery by a person armed with a deadly weapon and replaced it with a charge of robbery by a person displaying or threatening the use of what he represents to be a firearm. The defendant, however, claimed an alibi. We concluded that the defendant had not been prejudiced because the amendments regarding the means of the commission of the offense were unrelated to his defense that he was not the one who committed it. Id., 239. If there is such a disparity between the modification of the charge and the proposed defense, the defendant cannot have been prejudiced. See State v. McKnight, 191 Conn. 564, 587, 469 A.2d 397 (1983) (substitute information alleging that a different participant in a robbery, not the defendant, threatened to use a firearm did not prejudice the defendant whose defense was alibi); State v. Anderson, 211 Conn. 18, 31, 557 A.2d 917 (1989) (amendment to a count of sexual assault substituting anal intercourse for oral intercourse did not prejudice the defendant whose defense was alibi). The defendant’s claim in this case is nearly identical to the claim we rejected in State v. Franko, 199 Conn. 481, 508 A.2d 22 (1986). In Franko, the defendant claimed that the trial court had unconstitutionally enlarged the offense with which he was charged, sexual assault in the first degree, by instructing the jury that it could convict him if it found that he either used force or threatened to use force. Id., 488. Although the statute under which he was charged created liability for sexual assault by either force or threat of force, the state, in its information, had alleged only the use of force. The defendant argued, however, that the intercourse had been consensual. We rejected his argument because if the jury had believed that the victim consented, it would have been obligated to acquit the defendant under either theory of liability. Consequently, the defendant could not have been prejudiced by the trial court’s instructions. Id., 491.

We see no reason to depart from such precedent. The defendant could not have been prejudiced because his theory of defense was logically distinct from the difference between the original and amended charges. The fact that he did not request a continuance, even though it was offered to him, confirms our conclusion that he was not prejudiced. Finally, we note that the original and amended offenses carry the same potential penalty. Thus, the amendments did not put the defendant at risk of receiving a greater sentence.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion Peters, C. J., Callahan and Norcott, Js., concurred.

Berdon, J.,

dissenting. I agree with the Appellate Court that the trial court improperly allowed the state to amend the third and fourth counts of the information. State v. Tanzella, 28 Conn. App. 581, 587-90, 613 A.2d 825 (1992).

Accordingly, I respectfully dissent.

       Practice Book § 624 provides: “--SUBSTANTIVE AMENDMENT AFTER COMMENCEMENT OF TRIAL
      “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       General Statutes § 53a-70 provides in pertinent part: “sexual assault IN THE FIRST DEGREE: CLASS B FELONY .... (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-61 provides in pertinent part: “assault in the third degree: class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon. . . .”

       General Statutes § 53a-62 provides in pertinent part: “threatening: CLASS A MISDEMEANOR, (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience. ...”

       General Statutes § 53a-95 provides in pertinent part: “unlawful RESTRAINT IN THE FIRST DEGREE: CLASS D FELONY, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury. . . .”

       The Appellate Court’s rescript, ordering not a new trial but a judgment of acquittal, was correct under the then prevailing law. See State v. Jacobowitz, 182 Conn. 585, 594, 438 A.2d 792 (1981). Subsequently, however, we decided in State v. Welch, 224 Conn. 1, 5, 615 A.2d 505 (1992), that the proper remedy for a violation of Practice Book § 624 is not a judgment of acquittal but a new trial. Because we conclude that the judgment of conviction on the third and fourth counts should be reinstated, we need not address the propriety of the Appellate Court’s rescript under Welch.

       We granted certification to appeal 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?” State v. Tanzella, 224 Conn. 910, 617 A.2d 169 (1992).

       Practice Book § 624 also requires that the state show good cause for the amendment. The defendant did not argue at trial nor claim on appeal that the amendments were not made for good cause.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... he or another participant in the crime ... (2) is armed with a deadly weapon ... or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       General Statutes (Rev. to 1979) § 53a-70 provides in pertinent part: “sexual assault in the first degree: class b felony, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or (2) by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. . . .”
      The defendant in State v. Secore, 194 Conn. 692, 485 A.2d 1280 (1984), was originally indicted under § 53a-70 (a) (1) for first degree sexual assault committed by the use of force. At the time of the indictment, however, § 53a-70 did not contain a subsection (a) (1) and the indictment read inconsistently with the statute. We noted that the drafting error had technical significance only and did not prejudice the defendant or deprive him of notice of the charges against him. Id., 694 n.1.

       The defendant was required to be indicted because he faced a potential life sentence for being a persistent felony offender. General Statutes §§ 53a-40 and 54-45 (b).

       General Statutes § 53-21 provides: “injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       We do not suggest, however, that all subsections of a single statutory section necessarily define the same crime or alternative methods of committing the same crime for purposes of Practice Book § 624, regardless of the degree of difference between the conduct proscribed by each. It may be that there are cases in which the different subsections proscribe conduct so dissimilar to each other that they may constitute additional or different offenses for purposes of § 624. This, however, is not such a case. We leave that question to a case that properly presents it.

       We need not decide in this case whether a defendant could prevail on an appellate record that is silent with regard to whether his substantive rights were prejudiced. Nor need we decide whether, in the face of a proposed amendment pursuant to Practice Book § 624, a defendant may prevail by simply remaining silent at trial, or whether, on the contrary, he has some initial burden of suggesting possible prejudice.
      This case does not present either scenario. As we explain in footnote 15, this record is not silent with regard to possible prejudice, because the lack of effect of the amendment is apparent from the record. Furthermore, the defendant did not remain silent about potential prejudice in this case.

       The trial court did not make an express finding of whether the defendant was prejudiced and the Appellate Court did not directly address the issue. The defendant argued at trial that he had been prejudiced because he had subpoenaed hospital records to contradict the state’s allegation, in the original charge of assault in the third degree under General Statutes § 53a-61 (a) (2), that he had seriously injured the victim. This argument, however, was peripheral to his defense and was implicitly rejected by the trial court when it ruled to permit the amendments. Moreover, an amendment to an information does not necessarily prejudice a defendant’s substantive rights within the meaning of Practice Book § 624 simply because the defendant may have evidence available to contradict a factual allegation of the original charge, and, as a result of the amendment, he no longer faces that particular factual allegation.