Hayes Family Ltd. P'ship v. Town of Glastonbury

• Decision Date: 28 June 2016
• Docket Number: No. 37827.,37827.
• Citation: 142 A.3d 408,166 Conn.App. 585
• Court: Connecticut Court of Appeals
• Parties: HAYES FAMILY LIMITED PARTNERSHIP et al. v. TOWN OF GLASTONBURY.

166 Conn.App. 585

142 A.3d 408

HAYES FAMILY LIMITED PARTNERSHIP et al.

v.TOWN OF GLASTONBURY.

No. 37827.

Appellate Court of Connecticut.

Argued April 5, 2016.

Decided June 28, 2016.

Richard P. Weinstein, West Hartford, with whom, on the brief, was Sarah Black Lingenheld, Farmington, for the appellants (plaintiffs).

Matthew Ranelli, New Haven, with whom was Andrea L. Gomes, Hartford, for the appellee (defendant).

BEACH, ALVORD and WEST, Js.

ALVORD

, J.

The plaintiffs, Hayes Family Limited Partnership, Richard P. Hayes, Jr., and Manchester/Hebron Avenue, LLC, appeal from the judgment of the trial court granting the motion to dismiss their action filed by the defendant, the town of Glastonbury. The court dismissed the plaintiffs' inverse condemnation action on the ground that they failed to meet the finality requirement for a claim of a regulatory taking of property without just compensation in violation of article first, § 11, of the Connecticut constitution and the fourteenth amendment to the United States constitution. Specifically, the plaintiffs claim that the court improperly (1) failed to consider the prior application rule and its preclusive effect on future applications for a special permit, (2) failed to conclude that this court's decision in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, 115 Conn.App. 655, 974 A.2d 61

, cert. denied, 293 Conn. 919, 979 A.2d 489 (2009), contains “findings [that] doom any alternative commercial development at the subject site,” (3) concluded that the plaintiffs' single application for a special permit was not sufficient to establish finality, (4) failed to consider whether the plaintiffs' property could be used for any economically viable use,¹ and (5) dismissed their claims where the application of the town zoning regulations resulted in at least a partial taking of their property.² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs' claims. On June 27, 2005, the plaintiffs filed an application for a special permit to construct a CVS pharmacy located on 2.4 acres of land located at the corner of Hebron Avenue and Manchester Road in Glastonbury. The subject property is zoned for commercial development, but all uses require a special permit with design review approval. The property is abutted by an established single-family neighborhood in a rural residential zone. Following an extended public hearing, the town's Plan and Zoning Commission (commission) denied the application because of its scale and intensity in relation to the size and topography of the parcel, its impact on and lack of compatibility with the existing neighborhood, and the inadequacy of the proposed landscaping.

The plaintiffs appealed from the commission's decision to the Superior Court, which dismissed their appeal on the ground that the decision was supported by substantial evidence in the record. Following this court's granting of the plaintiffs' petition for certification to appeal, they filed their appeal challenging the trial court's determination. This court affirmed the judgment of the trial court. Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 655, 974 A.2d 61

.

On October 1, 2009, the plaintiffs commenced the present action against the defendant, claiming that the denial of their application for a special permit “preclude[d] any reasonable economical development of the site and constitute [d] a[n] [unconstitutional] taking without just compensation....” The defendant filed a motion to dismiss the complaint, arguing that the facts as pleaded were insufficient to establish the finality required for an unconstitutional taking claim. The court, Aurigemma, J., concluded that the plaintiffs had failed to establish that the commission would not allow any reasonable alternative use of the property and dismissed the action. On appeal, this court concluded that the trial court should have held an evidentiary hearing before deciding the motion to dismiss and, therefore, reversed the judgment and remanded the case for further proceedings. Hayes Family Ltd. Partnership v. Glastonbury,

132 Conn.App. 218, 219, 31 A.3d 429 (2011).

On remand, the court, Berger, J., by agreement of the parties, conducted a trial on the merits, but in a bifurcated manner. The parties agreed that if the court concluded that the plaintiffs had established finality, the court would deny the motion to dismiss and then determine whether they had proved their claim of inverse condemnation. After several days of evidence, the parties filed posttrial briefs for the court's consideration. On February 6, 2015, the court issued its memorandum of decision granting the defendant's motion to dismiss and rendering judgment of dismissal.

In its decision, the court recited the factual and procedural background of the case, the case law applicable to regulatory taking actions, the case law applicable to the finality requirement, and a summary of the testimony and exhibits presented to the court with respect to proposed alternatives for development at the site. The court, in a comprehensive and well reasoned decision, addressed the plaintiffs' claims as set forth during the trial and in their posttrial brief, and concluded that they “failed to meet their burden to prove finality.” In reaching that conclusion, the court stated: “The rejection of the 13,000 square foot CVS prototype, without examining whether an alternative might pass muster, does not establish finality. Moreover, this court does not agree with the plaintiffs that a revised application for a different development with presumably a different impact might not be acceptable under the reasons for denial in the first application.”

We conclude that the record supports the court's factual and legal bases for its conclusion that the plaintiffs failed to satisfy the finality requirement for judicial review of an inverse condemnation claim. It would serve no useful purpose for this court to repeat the analysis contained in the trial court's decision. See Norfolk & Dedham Mutual Fire Ins. Co. v. Wysocki, 243 Conn. 239, 241, 702 A.2d 638 (1997)

. We therefore adopt that decision as the proper statement of the relevant facts, issues, and applicable law. See Hayes Family Ltd. Partnership v. Glastonbury, 166 Conn.App. at 596, 142 A.3d 408 (2015) (appendix).

We do believe, however, that it would be helpful to provide additional analysis with respect to two of the plaintiffs' arguments that they claim were not addressed or were inadequately addressed by the trial court in its decision. Those particular claims relate to the alleged preclusive effect of the prior application rule and this court's decision in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 655, 974 A.2d 61

, on any future applications for a special permit.³ Although the trial court concluded that the commission's denial of the first application did not logically require the denial of a less ambitious revised plan, the court did not provide a detailed explanation for its rejection of those claims.

I

PRIOR APPLICATION RULE

“When a party files successive applications for the same property, a trial court's inquiries may vary depending on whether the application before the zoning agency is an application for a variance or an application for a permit. In considering a subsequent variance application where it has already denied a similar prior one, [a] zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen.... The board is disallowed from revisiting its prior determination that the requirements for a variance are not present because, if a reversal of that determination was allowed, there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence....

“Finality of decision is just as desirable in the case of an exception [or permit] as in one involving a variance. Because of the nature of an exception [or permit], however, the power of a zoning board to review a prior decision denying the exception [or permit] is not limited, as it is when a variance is sought, to the two situations mentioned above. An additional situation arises when the owner requesting an exception [or permit] files a subsequent application altering the plan under which he previously sought the exception [or permit], in order to meet the reasons for which the board denied the prior one.... To justify a special exception [or permit] ... it must appear that the manner in which the owner proposes to use his property will satisfy the conditions imposed by the regulations. If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the manner of use planned by the owner, the board is faced with an application materially different from the one previously denied. It may well be that the new plan, by reason of the changes made therein, will succeed, where the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the board is not precluded from granting the second application merely because it has denied the first....

“A subsequent [permit] application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect.... The board may grant the exception [or permit] once it finds that all the requirements of the ordinance have been satisfied....” (Emphasis omitted; internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 244–46...