Cumberland Farms, Inc. v. Groton, (SC 15797)

• Decision Date: 03 November 1998
• Docket Number: (SC 15797)
• Citation: 247 Conn. 196,719 A.2d 465
• Court: Connecticut Supreme Court
• Parties: CUMBERLAND FARMS, INC. v. TOWN OF GROTON

247 Conn. 196

719 A.2d 465

CUMBERLAND FARMS, INC. v. TOWN OF GROTON

(SC 15797)

Supreme Court of Connecticut.

Argued April 24, 1998.

Officially released November 3, 1998.

Callahan, C. J., and Borden, Norcott, Katz and McDonald, JS. Michael A. Zizka, with whom, on the brief, was Everett E. Newton, for the appellant (plaintiff).

Raymond L. Baribeault, Jr., with whom, on the brief, was James F. Brennan, Jr., for the appellee (defendant).

Richard Blumenthal, attorney general, and Janet P. Brooks, assistant attorney general, filed a brief for the commissioner of environmental protection as amicus curiae.

Opinion

CALLAHAN, C. J.

The zoning board of appeals of the town of Groton (board) denied, for lack of hardship, the application of the plaintiff, Cumberland Farms, Inc., for a zoning variance. The dispositive issue in this appeal is whether the board's denial of the variance application constituted a final decision that rendered ripe for adjudication an inverse condemnation claim the plaintiff subsequently brought against the defendant, the town of Groton, based on the denial of its variance application. We conclude that it did. The Appellate Court opinion adequately sets forth the facts and the underlying procedural history. "The relevant facts are not in dispute. As set forth in the trial court's memorandum of decision, `the plaintiff ... owns land with a building, other structures and improvements in Groton. The building is more than twenty years old and was used as a car repair garage and gasoline service station since before the area was zoned residential by the defendant town. Three underground gasoline storage tanks are also located on the property. The car repair use of the building was abandoned in 1979. The remainder of the building continues to be used to sell gasoline and, to a limited extent, snacks and sundries.

"`To comply with environmental laws and regulations, the plaintiffs property requires substantial upgrading. To offset the costs of these improvements, the plaintiff applied to the [defendant's] zoning board of appeals for a variance to the zoning regulations so that the [existing] nonconforming use of the property could be expanded to include a convenience store, as well as the existing gasoline service station. The [board] denied the plaintiffs application after a hearing.' The plaintiff appealed the board's decision regarding its variance application to the Superior Court.¹ That appeal is presently pending.² "On September 5, 1996, the plaintiff filed [a separate] amended complaint, claiming inverse condemnation of the property and seeking damages and other compensation, pursuant to the fifth and fourteenth amendments to the United States constitution, as well as article first, §11, of the Connecticut constitution.³ The defendant filed a motion to dismiss the plaintiffs amended complaint on the ground that the court lacked subject matter jurisdiction over the plaintiffs inverse condemnation action due to the pending appeal of the board's decision. The plaintiff filed a memorandum of law in opposition to the defendant's motion.

"On December 9, 1996, the trial court issued a twelve page memorandum of decision in which it determined that because the plaintiff submitted only one application for a variance to the defendant's zoning regulations, no final administrative decision had been made. The trial court also concluded that the plaintiff was required to exhaust its administrative remedies, through an appeal of the board's adverse decision on its variance application, before it could maintain a separate takings action. Finally, the trial court determined that because the plaintiff could have raised its takings claim in the appeal from the denial of its variance application, the prior pending action rule required that the plaintiff's inverse condemnation action be dismissed. Accordingly, the trial court granted the defendant's motion to dismiss the plaintiff's amended complaint for lack of subject matter jurisdiction." Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 514-16, 699 A.2d 310 (1997).

The plaintiff appealed from the judgment of the trial court to the Appellate Court. On appeal, the plaintiff claimed that the trial court improperly determined that:

(1) a landowner must appeal the denial of a variance to the Superior Court before it can file a taking claim under the United States and Connecticut constitutions;

(2) a landowner must always submit more than one application for a variance to a zoning board of appeals for the denial of the variance to be considered an appealable "final action"; and (3) an inverse condemnation lawsuit is precluded by the "prior pending action" rule when the other action at issue is an appeal of the denial of a variance. Id., 514-15.

The Appellate Court affirmed the trial court's decision, concluding that the plaintiffs inverse condemnation action was premature because its administrative appeal from the denial of its application for a variance was not yet final and, therefore, the action was not justiciable.⁴ Id., 517-19. The Appellate Court reasoned that "[u]ntil the plaintiffs underlying appeal of the board's decision has been resolved, there can be no final and authoritative determination of the type of development legally permitted on the plaintiffs property. Furthermore, because the extent of any damages sustained by the plaintiff cannot be determined until the resolution of its appeal of the board's decision, the plaintiff's inverse condemnation action is premature and is not presently capable of resolution on the merits." Id., 519.

We granted the plaintiffs petition for certification to appeal limited to the following question: "Did the Appellate Court properly conclude that the plaintiffs claim for inverse condemnation was not ripe for review and, therefore, was properly dismissed by the trial court?" Cumberland Farms, Inc. v. Groton, 243 Conn. 936, 702 A.2d 641 (1997). In order to answer the certified question, we must resolve both the first and second issues raised in the Appellate Court; namely, whether the plaintiffs action was not ripe for adjudication because: (1) the plaintiffs administrative appeal had not been resolved; and (2) the plaintiff had failed to submit multiple plans.⁵ To decide these issues, we must determine whether the board's denial of the variance application constituted a final decision that enabled the plaintiff to maintain an independent inverse condemnation action against the town for an alleged unconstitutional taking without first pursuing its administrative appeal to completion. If the resolution of that inquiry is in the affirmative, the Appellate Court improperly affirmed the trial court's dismissal of the plaintiffs inverse condemnation action for lack of subject matter jurisdiction. We conclude that the inquiry should be answered affirmatively, and, therefore, reverse the judgment of the Appellate Court.

In its inverse condemnation action, the plaintiff seeks compensation for an alleged taking of its property without just compensation in violation of the fifth amendment to the United States constitution and article first, § 11, of the Connecticut constitution.⁶ Specifically, the plaintiff maintains that the board's denial, pursuant to the defendant's zoning regulations, of the variance application operated to deprive the plaintiff of any economically feasible, reasonable use of its property.⁷ In the plaintiffs view, the regulatory action that the plaintiff alleges constitutes a taking of its property became final at the time the board denied the variance application, and it was at that point that the plaintiffs inverse condemnation action became ripe for adjudication. According to the plaintiff, because any subsequent action by the Superior Court sustaining its administrative appeal from the board's decision would have been purely remedial, resolution of the administrative appeal was not a necessary predicate to its inverse condemnation claim.

The defendant, however, argues that the plaintiffs inverse condemnation action was not justiciable because the plaintiff had submitted only one plan to the zoning board of appeals, and because the plaintiff's administrative appeal from the board's decision to the Superior Court pursuant to General Statutes § 8-8⁸ had not been resolved.

I

The parties agree that our decision in Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 600, 587 A.2d 126, cert, denied, 502 U.S. 814, 112 S. Ct. 64, 116 L. Ed.2d 39 (1991), is dispositive of this appeal. They diverge, however, with respect to the proper application of our holdings in Port Clinton Associates to these facts. A brief summary of the facts and the resolution of Port Clinton Associates is, therefore, appropriate.

Port Clinton Associates and Port Clinton Marina, Inc., (together Port Clinton) were the riparian owner and lessor, respectively, of three piers that extended into Clinton Harbor. The Clinton board of selectmen denied Port Clinton's application to expand its piers on the basis of a local ordinance that required the board's permission for expansions into the harbor beyond certain established building lines. Id., 590-93.

In Port Clinton Associates, we stated that a property owner challenging an application of a local ordinance as constituting a taking without just compensation may not maintain its claim unless and until a final decision has been rendered by the initial decision maker. Id., 607. The lack of such a final decision renders the claim unripe for review, and the Superior Court is without subject matter jurisdiction for lack of a justiciable issue. Id., 604. We stated further that "[v]ariances and exceptions in Connecticut are generally granted not by the zoning commission, but by the zoning board of appeals. General Statutes § 8-6. Thus, in many instances, a final decision by the `initial decisionmaker,' really means a decision by the zoning board of appeals, when that...