Kelley Property Development, Inc. v. Town of Lebanon

• Decision Date: 06 July 1993
• Docket Number: No. 14640,14640
• Citation: 226 Conn. 314,627 A.2d 909
• Court: Connecticut Supreme Court
• Parties: KELLEY PROPERTY DEVELOPMENT, INC., et al. v. TOWN OF LEBANON et al.

Page 909

627 A.2d 909

226 Conn. 314

KELLEY PROPERTY DEVELOPMENT, INC., et al. v. TOWN OF LEBANON et al.

No. 14640.

Supreme Court of Connecticut.

Argued Feb. 10, 1993.

Decided July 6, 1993.

Timothy S. Hollister, with whom was Gregory T. D'Auria, Hartford, for appellants (plaintiffs).

Stephen P. Fogerty, Hartford, with whom were Juri E. Taalman, Norwich, and Mary Driscoll, New London, for appellees (named defendant et al.).

Michael G. Durham, Wallingford, for appellee (defendant Edward Tytor).

PETERS, C.J., and CALLAHAN, BORDEN, BERDON, NORCOTT, KATZ and SANTANIELLO, JJ. ¹

PETERS, Chief Justice.

The principal issue in this civil rights appeal is whether the Connecticut constitution affords a monetary remedy for damages to persons whose state due process rights have allegedly been violated by local zoning officials. The plaintiffs, Kelley Property Development, Inc., and John J. Kelley, Sr. (collectively, Kelley), sought compensatory and punitive damages for injuries allegedly resulting from the defendants' ² denial of Kelley's subdivision application. Kelley asserted claims pursuant to 42 U.S.C. § 1983 alleging the defendants' violation of his federal substantive and procedural due process rights, ³ as well as claims pursuant to the state constitution alleging the defendants' violation of his state substantive and procedural due process rights. ⁴ The trial court, Austin, J., granted summary judgment in favor of the defendants. ⁵ Kelley appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm.

The record of the findings of fact by the trial court and the stipulation of the parties contains the following relevant facts. In September, 1988, Kelley purchased a 573 acre tract of land (property) located in the towns of Lebanon and Colchester. Although the commission initially rejected Kelley's request to meet informally to discuss his development plans, Kelley presented several development proposals to the commission in January, 1989. The commission endorsed a cluster housing proposal, which would require amendment of the subdivision regulations. In February, 1989, Kelley forwarded proposed amended regulations to the commission. In March, 1989, the commission met to discuss the proposed regulations and held a public hearing on them. In April, 1989, Kelley decided to abandon the cluster housing proposal and instead to pursue a more traditional residential subdivision that would accord better with expressed public opinion regarding the development of Kelley's property. ⁶ In May, 1989, Kelley submitted an "Application For Approval Of A Subdivision Plan." Kelley's application included an area of open space that exceeded the commission's regulatory minimum size requirement. In July, 1989, the commission voted to deny Kelley's application, but later rescinded that denial when Kelley advised the commission that the denial was null and void because it had been issued before the commission had received a report from the inland wetlands commission. In August, 1989, the commission received a report from its planning consultant regarding the application's compliance with subdivision regulations and outstanding issues that needed to be resolved before the application could be approved. After holding public hearings on the application in September, 1989, the commission sought a legal opinion from its attorney advising whether property zoned industrial could properly form part of the open space reservation for a residential subdivision. After receiving its attorney's legal opinion and a letter from Kelley's attorney expressing disagreement with that opinion, the commission denied Kelley's application on November 29, 1989, because of an insufficient area of dry land in the proposed open space reservation. ⁷

In December, 1989, Kelley filed a timely zoning appeal from the commission's denial to the trial court, J. Walsh, J., ⁸ pursuant to General Statutes § 8-8. On January 14, 1991, Judge Walsh sustained Kelley's appeal on the ground that the commission's denial of his application had been an abuse of discretion because the applicable regulation did not permit a distinction between wet and dry land in proposed open space. ⁹ Judge Walsh also determined that the applicable regulation was not reasonably precise and, therefore, could not be used to deny Kelley's application. Without appealing from Judge Walsh's decision, the commission approved Kelley's subdivision application on February 13, 1991.

Kelley thereafter filed this action seeking damages for losses incurred as a result of the delayed approval of his application. In count one of his six count second amended complaint, Kelley alleged that his interest in approval of his subdivision application was a property interest protected by the due process clause of the fourteenth amendment to the federal constitution, and that the defendants had violated the substantive guarantees of that provision by, inter alia, intentionally depriving Kelley of fundamentally fair procedures, misleading Kelley, ignoring the advice of consultants and arbitrarily denying his application. Kelley contended that, in light of these substantive due process violations, he was entitled to damages under § 1983. In count two, Kelley claimed damages under § 1983 because of the defendants' alleged violation of federal procedural due process guarantees in failing adequately to provide notice to Kelley of its actions regarding his application and in committing other procedural irregularities. Count three alleged the violation of Kelley's federal substantive and procedural due process rights by the commission members and Tytor in their individual capacities and sought punitive damages. Counts four, five and six of the second amended complaint asserted state constitutional claims that essentially mirrored the federal claims alleged in counts one, two and three, respectively.

After the pleadings had been closed, the trial court granted the defendants' motion for summary judgment on all six counts. ¹⁰ As to the federal claims, the trial court concluded that Kelley's claims were insufficient as a matter of law because Kelley did not meet the threshold requirement of possessing a property interest in approval of his subdivision application. As to the state claims, the trial court held that Kelley could not prevail because, even if the state constitution's due process provision affords broader protection than does the federal constitution's due process provision, violations of the Connecticut constitution cannot be redressed through a cause of action for damages in the absence of prior statutory or common law recognition of such an action.

On appeal, Kelley claims that the trial court improperly: (1) rejected his federal due process claims on the ground that he did not have a protected property interest in approval of his subdivision application; and (2) held that no damages remedy exists for the defendants' alleged violations of his state constitutional due process rights. ¹¹ We disagree with both of these contentions. ¹²

I

Kelley first claims that his interest in the approval of his subdivision application was a property interest protected by the federal constitution and, therefore, that the trial court improperly rejected his federal due process claims on the ground that he had no constitutionally protected interest. ¹³ We are not persuaded.

A

This court recently adopted the Second Circuit Court of Appeals' "clear entitlement" test as a guide to determining whether a civil rights claimant in a land regulation case has stated a due process claim under the federal constitution. See Red Maple Properties v. Zoning Commission, 222 Conn. 730, 738-39, 610 A.2d 1238 (1992), citing RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911, 915-18 (2d Cir.), cert. denied, 493 U.S. 893, 110 S.Ct. 240, 107 L.Ed.2d 191 (1989). The "clear entitlement" test mandates the possession of a constitutionally protected property interest as a threshold requirement for a successful substantive or procedural federal due process claim. ¹⁴ See RRI Realty Corporation v. Incorporated Village of Southampton, supra, at 915-17; but see Bello v. Walker, 840 F.2d 1124 (3d Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 134, 102 L.Ed.2d 107 (1988). If a claimant does not establish a constitutionally protected interest, the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude. If, however, a due process claimant does establish a constitutionally protected interest, he or she may then seek to establish other required elements of the due process claim, such as reliance on inappropriate procedures or arbitrary or oppressive conduct. See generally Zinermon v. Burch, 494 U.S. 113, 127-28, 110 S.Ct. 975, 984-85, 108 L.Ed.2d 100 (1990) (procedural due process); Daniels v. Williams, 474 U.S. 327, 331-32, 106 S.Ct. 662, 664-66, 88 L.Ed.2d 662 (1986) (substantive due process).

The "clear entitlement" test asks whether there is a certainty or a very strong likelihood that the application in question would have been granted, but for the wrongful conduct of the local officials. RRI Realty Corporation v. Incorporated Village of Southampton, supra, at 915-17; see also Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir.1985). A very strong likelihood means not simply a high probability of approval, but rather a virtual assurance of approval because any discretion is narrowly circumscribed. See Red Maple Properties v. Zoning Commission, supra, at 737-38. "Application of the ['clear entitlement'] test must focus primarily on the degree of discretion enjoyed by the issuing authority, not on the estimated...