Farmington-Girard, LLC v. Planning & Zoning Comm'r of Hartford

• Decision Date: 25 June 2019
• Docket Number: AC 41601
• Citation: 190 Conn.App. 743,212 A.3d 776
• Court: Connecticut Court of Appeals
• Parties: FARMINGTON-GIRARD, LLC v. PLANNING AND ZONING COMMISSION of the City of Hartford The Pamela Corporation et al. v. Planning and Zoning Commission of the City of Hartford

190 Conn.App. 743

212 A.3d 776

FARMINGTON-GIRARD, LLC

v.PLANNING AND ZONING COMMISSION of the City of Hartford

The Pamela Corporation et al.

v.Planning and Zoning Commission of the City of Hartford

AC 41601

Appellate Court of Connecticut.

Argued March 12, 2019

Officially released June 25, 2019

David F. Sherwood, Glastonbury, for the appellant (plaintiff Farmington-Girard, LLC).

Daniel J. Krisch, Hartford, with whom was Matthew J. Willis, Hartford, for the appellee (defendant).

Lavine, Bright and Alexander, Js.

LAVINE, J.

The plaintiff Farmington-Girard, LLC,¹ appeals from the judgments of the trial court, rendered after a trial to the court, dismissing the plaintiff's four consolidated appeals that challenged text amendments to the Hartford Zoning Regulations (regulations) and zoning map changes made by the defendant, the Planning and Zoning Commission of the City of Hartford (commission), for failure to exhaust its administrative remedies. In this appeal, the plaintiff claims that (1) the trial court improperly concluded that it was required to appeal to the city's Zoning Board of Appeals (board) and, thus, failed to exhaust its administrative remedies, and (2) the defendant is estopped from applying the current regulations to the plaintiff's property.² We affirm the judgments of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to this appeal. The plaintiff owns property at 510 Farmington Avenue in Hartford. On December 10, 2012, the plaintiff submitted a special permit application, which the plaintiff describes as a "hastily submitted" placeholder application "in order to preserve its rights," proposing the construction of a small fast food restaurant with a drive-through. On December 11, 2012, the defendant made changes to the city zoning map causing the classification of the plaintiff's property to change from a B-3 zone that allows drive-through operations to a B-4 that does not. In response to the plaintiff's application, Kim Holden, the city's chief staff planner, sent a letter dated December 19, 2012, to the plaintiff, stating in relevant part: "A site plan with minimal information was attached to the application which is not sufficient to review with respect to the zoning regulations.... The application is considered incomplete and as such, the time clock on the application has been stopped."³

The plaintiff appealed the defendant's zoning map change to the Superior Court, Peck, J. , which invalidated the commission's December 11, 2012 zoning map change because the commission failed to comply with prehearing and posthearing statutory notice requirements.⁴ Farmington-Girard, LLC v. Planning & Zoning Commission , Superior Court, judicial district of Hartford, Docket No. CV-13-6038698-S, 2014 WL 4815345 (August 19, 2014).

On September 23, 2014, the defendant amended the text of the regulations, resulting in the plaintiff's inability to use its property for a fast food restaurant with a drive-through. The plaintiff appealed this amendment to the Superior Court in a complaint dated February 18, 2015, on the ground that the defendant failed to comply with procedural notice requirements.

In response to Holden's letter, stating that the plaintiff's December 10, 2012 application was incomplete, Michelle Carlson wrote a letter dated October 20, 2014, on behalf of the plaintiff to Khara L. Dodds, the director of the city's planning division. According to the plaintiff, it had waited until after the court invalidated the 2012 zoning map change to complete its application. Carlson's letter purportedly supplied all of the required information outlined by Holden and requested that the time clock on the application run and that a public hearing for the application be set. In an affidavit, Carlson attested that she verbally was informed by the city that a new application was required and that the supplemental materials would not be accepted. Dodds responded to Carlson in a letter dated October 28, 2014, stating: "We are contacting you with regard to a site plan review application submitted December 10, 2012 and your desire to re-activate this application with your current plan submittal. After our initial review, it was clear that the original site plan application, #2012-6263 filed in December 2012, lacked the required materials to be considered valid. The application was submitted without site and architectural elevation plans: as a result the application is void. A new site plan application with the required materials must be submitted. Please note several changes to the City of Hartford Zoning Regulations have occurred since your last submittal. Please review these changes to ensure that all required materials are submitted with your new application."

Dodds' October 28, 2014 letter coincided with the defendant's adoption of another zoning map change that blocked the plaintiff's plan to build a drive-through fast food restaurant. The plaintiff appealed the October 28, 2014 zoning map change to the Superior Court in a complaint dated November 14, 2014, on the ground that the defendant failed to comply with procedural notice requirements. The plaintiff filed a variance application on October 28, 2014, as well.

The plaintiff additionally appealed to the Superior Court, in complaints dated December 15, 2014 and April 28, 2015, respectively, from the defendant's December 9, 2014 zoning map change and its April 14, 2015 text amendment to the regulations. The defendant amended its December 9, 2014 zoning map and its April 14, 2015 text in the same manner as it had on September 23, 2014 and October 28, 2014, respectively. In its appeals, the plaintiff again asserted that the defendant failed to comply with procedural notice requirements.

On January 20, 2015, the board denied the plaintiff's variance application. The plaintiff's appeals challenging the defendant's October 28 and December 9, 2014 zoning map changes were filed before the board denied the plaintiff's variance application.

After the plaintiff filed the four appeals that constitute the present matter, the defendant adopted new regulations on January 12, 2016, that place the plaintiff's property in a MS-1 zone. The plaintiff has not appealed from the new zoning scheme or designation of its property.

On May 4, 2016, the defendant moved to dismiss the plaintiff's appeals as moot due to the passage of the new zoning scheme. The trial court, however, concluded that "if the plaintiff's particular application was complete on October 20, 2014, and the zone change was improper because of the failure to provide proper notice, then [the plaintiff] may have had a viable complete application that was in conformance with the applicable zoning regulations at that time." (Internal quotation marks omitted.)

After the parties filed briefs, including additional briefing on the exhaustion issue as requested by the court, and the court heard the appeals, the court made various findings. First, the court found that the defendant failed to comply with the procedural requirements for the September 23, October 28 and December 9, 2014, and April 14, 2015 zoning map changes and text amendments to the regulations. The court, therefore, concluded that the zoning map changes and text amendments were void. Second, the court concluded that the plaintiff had an application pending on or about October 20, 2014, as it found that "[w]hile the December 19, 2012 letter from the planning division informs [the plaintiff] that the application is incomplete, there is no evidence that [the] application was rejected or deemed void until 2014. The language of the December 19, 2012 letter was less than unequivocal." (Internal quotation marks omitted). Third, the court found that, contrary to the plaintiff's arguments, Dodds had the authority to declare the application void and that she had articulated "a clear and definite interpretation of the zoning regulations in her letter declaring the plaintiff's application void ...." (Citations omitted; internal quotation marks omitted.) Therefore, the court concluded that the plaintiff had a statutory right to appeal Dodds' decision to the board and had failed to do so. As a result, the court dismissed the plaintiff's appeals for a failure to exhaust its administrative remedies.

The plaintiff filed a motion to reargue on September 25, 2017, which the court granted. At the February 8, 2018 hearing, the court rejected the plaintiff's argument that an appeal to the board was not necessary because the futility exception applied, and denied the plaintiff relief from the dismissal of its claims. The plaintiff thereafter appealed to this court.

The plaintiff claims that the court improperly concluded that it was required to appeal Dodds' decision to the board and thus that it failed to exhaust its administrative remedies. Specifically, the plaintiff makes three arguments: (1) Dodds had no authority to deny the application, (2) there was no statutory authority requiring an appeal from an unsuccessful special permit application, and (3) an appeal would have been futile.⁵ We disagree.

"As a preliminary matter, we set forth the applicable standard of review.... Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.... [Additionally] [b]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc. , 310 Conn. 797, 807, 82 A.3d 602 (2014). "Moreover, [i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Novak v. Levin , 287 Conn. 71, 79, 951 A.2d 514 (2008).

"The doctrine of...