Bauer v. Waste Management of Connecticut, Inc., s. 14949

Citation234 Conn. 221,662 A.2d 1179
Decision Date11 July 1995
Docket NumberNos. 14949,14951,s. 14949
PartiesRobert BAUER v. WASTE MANAGEMENT OF CONNECTICUT, INC. v. WASTE MANAGEMENT OF CONNECTICUT, INC. v. ZONING COMMISSION OF the TOWN OF NEW MILFORD.
CourtSupreme Court of Connecticut

Jeffrey B. Sienkiewicz, with whom was Michael S. McKenna, for appellant (substitute plaintiff in Docket No. 14949, defendant in Docket No. 14951).

Timothy S. Hollister, with whom was Clare E. Kindall, for appellee (defendant in Docket No. 14949, plaintiff in Docket No. 14951).

William H. Ethier filed a brief for Home Builders Ass'n of Conn., Inc., as amicus curiae in Docket No. 14951.

Bruce J. Parker, pro hac vice, Andrew J. Pincus, pro hac vice, and Richard G. Adams filed a brief for Nat. Solid Wastes Management Ass'n as amicus curiae in Docket No. 14951.

Before CALLAHAN, BORDEN, BERDON, KATZ and PALMER, JJ.

BORDEN, Associate Justice.

The principal issues in these appeals and cross appeal are whether the trial court properly determined that: (1) the New Milford zoning commission (commission) had not waived its opportunity to restrict the height of a landfill in New Milford (landfill) owned and operated by Waste Management of Connecticut, Inc. (Waste Management), by the commission's failure to appeal from the issuance of a department of environmental protection (DEP) expansion permit (permit); (2) the ninety foot height limitation imposed by the commission was not preempted by the DEP permit and by the Connecticut Solid Waste Management Act, General Statutes § 22a-207 et seq., and the regulations promulgated thereunder; (3) the vertical expansion of the landfill constitutes a permissible intensification of a preexisting nonconforming use under the New Milford zoning regulations; (4) the zoning enforcement officer was estopped from enforcing the ninety foot height limitation; and (5) the enactment of a ninety foot height limitation constituted an unconstitutional taking of Waste Management's property without just compensation. We reverse the judgment of the trial court in both cases.

These appeals arise from two separate actions: Bauer v. Waste Management of Connecticut, Inc., (Docket No. 14949) (enforcement action); and Waste Management of Connecticut, Inc. v. Zoning Commission, (Docket No. 14951) (administrative appeal). In the administrative appeal, the commission appeals and challenges the trial court's conclusion that a ninety foot height limitation imposed on the landfill by the commission constitutes an unconstitutional taking of Waste Management's property in violation of article first, § 11, of the Connecticut constitution. 1 Waste Management cross appeals and challenges the trial court's conclusion that the commission had not waived its opportunity to seek height restrictions by its failure to appeal from the issuance of the DEP permit, and the court's conclusion that the height regulation was not preempted by state law. In the enforcement action, the zoning enforcement officer for New Milford (zoning enforcement officer) appeals from the trial court's judgment refusing to grant the zoning enforcement officer's request for prohibitory and mandatory injunctive relief to cure Waste Management's violation of the height limitation. Because the cases involve the same property and the same zoning regulation, and were tried together before the trial court, oral argument was consolidated before this court and we resolve both cases jointly in this opinion.

The trial court found the following facts. Waste Management is the owner of property that is located in an industrial zone in New Milford, on which it operates a solid waste landfill. The landfill was established by Waste Management's predecessor in title prior to the 1971 adoption of zoning regulations, which prohibited a landfill in an industrial zone. Because the landfill existed prior to the adoption of the zoning regulations, it became a permitted nonconforming use. Waste Management's predecessor subsequently received a permit from the DEP to operate the landfill to a maximum height of ninety feet.

In 1985, Waste Management applied to the DEP for a modified permit, pursuant to General Statutes § 22a-208a(d), 2 that would allow it to increase the maximum height of the landfill from 90 to 190 feet. In compliance with § 22a-209-4(b)(3) of the Regulations of Connecticut State Agencies, Waste Management published notice that it had applied for the modified permit and invited the public to comment thereon. No comments were received from New Milford town officials or from the commission, and on February 24, 1987, the DEP issued the modified permit. No appeal was taken from the granting of the permit.

On October 18, 1988, the commission held a properly noticed public hearing to consider an amendment to the New Milford zoning regulations that would limit any landfill or solid waste facility existing as a nonconforming use within New Milford to a maximum height of ninety feet (height limitation). No action was taken on the proposed amendment until the commission voted to adopt it on November 14, 1989.

Waste Management appealed to the trial court from the adoption of the height limitation by the commission. In the administrative appeal, Waste Management claimed that: (1) the height limitation was preempted by § 22a-207 et seq. and by the DEP permit; (2) the commission had waived its rights to restrict the height of the landfill when it failed to exercise its statutory right to appeal from the grant of the DEP permit in 1987; (3) the height limitation prohibited the continuance of Waste Management's nonconforming use, thus constituting an illegal amortization; and (4) the height limitation effected a taking of Waste Management's property through inverse condemnation in violation of article first, § 11, of the Connecticut constitution. 3 The trial court bifurcated the issues, hearing the first three issues separately from the taking issue.

At the conclusion of the first part of the bifurcated trial, the court rejected each of Waste Management's claims. Specifically, the court determined that our holding in Beacon Falls v. Posick, 212 Conn. 570, 563 A.2d 285 (1989), in which we concluded that the act preludes local zoning regulations only to the extent that they conflict with a DEP permit regulating land owned by the Connecticut Resources Recovery Authority, was dispositive of Waste Management's preemption claim. The court further concluded that the adoption of the height limitation was not precluded by the commission's failure to appeal from the issuance of the DEP permit. Finally, the court concluded that the height limitation did not constitute an illegal amortization of Waste Management's nonconforming use because it was a properly enacted reasonable regulation that furthered a public interest.

After the first part of the trial, but preceding the trial on the taking issue, the zoning enforcement officer, Robert Bauer, 4 brought the enforcement action seeking a permanent injunction to prohibit Waste Management from violating the ninety foot height limitation. It was uncontested that Waste Management was in violation of the height limitation at that time.

Following a trial on the taking issue, the court determined that "[o]nce the landfill reached ninety feet in March, 1993, application of the amended zoning regulation constituted a taking of [Waste Management's] property.... [The commission's] amendment to the zoning regulations is in violation of the Connecticut constitution and [is] therefore illegal." (Citation omitted.) Accordingly, the trial court sustained Waste Management's administrative appeal and remanded the case to the commission to revoke the height limitation. On the basis of this holding, the court contemporaneously also denied the injunctive relief sought in the enforcement action. In a subsequent articulation, the trial court found that Waste Management's use of the landfill was a permissible intensification of its prior use. Quoting Hall v. Brazzale, 31 Conn.App. 342, 349, 624 A.2d 916, cert. denied, 227 Conn. 905, 632 A.2d 691 (1993), the trial court concluded that " '[m]ore of the same ... cannot be the basis for a finding of an unlawful expansion of a prior existing nonconforming use.' " The court also concluded that the zoning enforcement officer was estopped from enforcing the height limitation because the zoning enforcement officer had approved plans for a gas cogeneration facility, and a landfill inspector was aware that Waste Management had begun construction of the cogeneration facility in reliance on its use of the DEP permit. These appeals and this cross appeal followed. 5

In its appeal from the trial court's judgment in the administrative appeal, the commission raises several challenges to the court's determination that the height limitation constitutes an unconstitutional taking of Waste Management's property. Specifically, the commission claims that the trial court improperly: (1) concluded that Waste Management had a constitutionally protected property interest in the vertical expansion of the landfill by virtue of the 1987 DEP permit; (2) concluded that the height limitation effected a practical confiscation of Waste Management's property by rendering that property without any economic value; and (3) applied a balancing test to find that the application of the height limitation effected an unconstitutional taking of Waste Management's property. In its cross appeal from the administrative appeal, Waste Management claims that the trial court improperly: (1) failed to conclude that the commission had waived any opportunity to seek height restrictions on the landfill by its failure to appeal from the DEP's granting of the expansion permit; and (2) failed to conclude that the height limitation was preempted by the DEP permit and state law and regulations.

In her appeal from the trial court's judgment in the enforcement action,...

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