Miller v. Westport

• Decision Date: 16 March 2004
• Docket Number: (SC 16953)
• Citation: 268 Conn. 207,842 A.2d 558
• Court: Connecticut Supreme Court
• Parties: ELIZABETH O. MILLER, EXECUTRIX (ESTATE OF FRANK L. MILLER III) v. TOWN OF WESTPORT.

268 Conn. 207

842 A.2d 558

ELIZABETH O. MILLER, EXECUTRIX (ESTATE OF FRANK L. MILLER III) v. TOWN OF WESTPORT.

(SC 16953)

Supreme Court of Connecticut

Argued November 26, 2003

Officially released March 16, 2004

Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

Robert A. Fuller, for the appellant (plaintiff).

Mark J. Kovack, for the appellee (defendant).

Opinion

KATZ, J.

The plaintiff, Elizabeth O. Miller, individually and as executrix of the estate of Frank L. Miller III, her deceased husband, appeals from the judgment of the trial court rendered for the defendant, the town of Westport, in the plaintiff's action to recover damages for the inverse condemnation of certain real property owned by the decedent. On appeal,¹ the plaintiff claims that the trial court improperly determined that the withdrawal of the plaintiff's administrative appeal from the denial by the Westport zoning board of appeals (board) of a zoning variance for that same property precluded her inverse condemnation² action under the takings clauses of the fifth amendment to the United States constitution³ and article first, § 11, of the constitution of Connecticut.⁴ The plaintiff also claims that the sale of the property, during the pendency of the trial court's decision in this matter, did not preclude her claim for damages for a temporary taking of the property. In response, the defendant raises several alternate grounds for affirmance. We agree with the plaintiff and, accordingly, we reverse the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff brought this action against the defendant for the inverse condemnation of certain of the decedent's real property, an undeveloped one acre lot that has existed since 1942. The lot is located in an area zoned for residential use and access to the lot is by a twenty-one foot wide right-of-way across an adjacent property (accessway). The parties are in disagreement as to whether the lot conformed to the town zoning regulations at the time of its creation,⁵ but, due to revisions of the zoning regulations in later years, the lot currently does not comply in three respects: (1) it does not meet the lot area and shape requirements, which mandate that the lot accommodate a 150 foot square as provided in §§ 31-2.1⁶ and 12-3⁷ of the Westport zoning regulations; (2) the twenty-one foot wide accessway serves multiple lots and is not owned by the same title owner as the lot pursuant to §§ 31-1.2⁸ and 31-2.2⁹ of the Westport zoning regulations; and (3) the length of the accessway exceeds 350 feet in violation of § 31-2.2.1 of the Westport zoning regulations.¹⁰

In its memorandum of decision finding in favor of the defendant in the inverse condemnation proceeding, the trial court, Hon. William F. Hickey, Jr., judge trial referee, found the following facts and set forth the following procedural history, which are relevant to our resolution of this claim. "The plaintiff [as executrix of the decedent's estate], at the time of [the] inverse condemnation action owned the lot, which was purchased by [the decedent] in 1980 for $1 from Buddy B., Inc. When the [decedent] attempted to sell the lot in 1991, the Westport director of planning and zoning informed the prospective purchaser that the lot did not comply with the zoning regulations because it could not accommodate a 150 foot square shape according to . . . Westport Zoning Regulations §§ 12-3 and 31-2.1 (the minimum square foot provisions).¹¹ In 1991, the [decedent] applied for a variance of the minimum square foot provisions. The [board] denied that variance application.¹² . . . On February 22, 1995, the [decedent] applied for a variance of §§ 31-1.2 and 31-2.2 [of the Westport zoning regulations] (the access provisions) to allow the accessway to be used by other lots. The [board] denied that variance application.¹³ On November 3, 1998, Richard Montanaro . . . as agent for the plaintiff [in her capacity as executrix of the decedent's estate], applied for a variance of the minimum square foot provisions and access provisions, in order to use the lot for the construction of one single-family residence. The [board] denied that variance application without prejudice [on February 18, 1999]. On March 12, 1999, the plaintiff, along with Montanaro . . . appealed the denial of the preceding variance applications (the administrative appeal).¹⁴ . . . On November 18, 1999, the plaintiff brought this inverse condemnation action.¹⁵ On April 23, 2001, the court, Mintz, J., granted the plaintiff's motion to consolidate the administrative appeal with [the] inverse condemnation action. . . . [The] consolidated case was tried to conclusion before [Judge Hickey] on May 10, 11 and 17, 2001.

"On November 20, 2001, the defendant's motion to [open] the proceedings to present new evidence was granted by [Judge Hickey] . . . . On December 3, 2001, a hearing was held to present new evidence and a deed establishing that on November 7, 2001, the lot was sold by the plaintiff for $475,000.¹⁶ . . . On this same day, [Judge Hickey] granted Montanaro and the plaintiff's motion to withdraw the administrative appeal." (Citations omitted.)

In his April 15, 2002 memorandum of decision, Judge Hickey determined that the plaintiff's action could not be based on a permanent taking of the lot because, after the lot had been sold, she no longer possessed any legal interest in it.¹⁷ Additionally, the trial court determined that the plaintiff's action could not be based on a temporary taking of the lot because the validity of the board's denial of the variance applications was never decided due to the withdrawal of the administrative appeal. The trial court subsequently rendered judgment for the defendant. This appeal followed.

Before we address the merits of the plaintiff's claims, we set forth the applicable standard of review. "[T]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 294, 823 A.2d 1184 (2003). With these standards in mind, we turn to the plaintiff's claims.

I

The plaintiff contends that, once the lot was sold, her inverse condemnation claim was transformed into a claim for damages for a temporary taking. See First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 318-19, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987) (when municipal land use regulations result in taking, owner entitled to temporary takings damages for period that use of land was denied until taking ends). The plaintiff asserts, however, that, under our decision in Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 719 A.2d 465 (1998) (Cumberland Farms I), the trial court improperly failed to address the merits of her temporary taking claim, and instead, improperly based its decision on her withdrawal of her administrative appeal from the board's denial of the variance applications.¹⁸ Although the defendant does not expressly disagree that the withdrawal of the administrative appeal did not preclude the plaintiff from making an inverse condemnation claim, the defendant argues that the trial court actually did decide the merits of the plaintiff's claim and specifically found that there was no temporary taking of the lot.

In its memorandum of decision, the trial court ruled: "[T]he plaintiff's action cannot be supported by a temporary taking of the lot for the following reason. . . . Temporary takings are defined by the United States Supreme Court as those regulatory takings which are ultimately invalidated by the courts. . . . Here . . . the plaintiff withdrew [the] administrative appeal. Therefore, the court never decided the administrative appeal in the plaintiff's favor nor did it invalidate the [board's] denial of the plaintiff's variances in the administrative appeal. Consequently, the plaintiff's action cannot be based on the temporary taking of the lot." (Citations omitted; internal quotation marks omitted.) It is clear to us, based upon this ruling, that the trial court concluded that there was no temporary taking of the lot because the board's denial of the variance was never "invalidated," as a result of the plaintiff having withdrawn her administrative appeal, and not because the plaintiff had failed to establish a valid temporary taking claim. We therefore agree with the plaintiff that the trial court never reached the issue of whether there was a temporary taking under these circumstances.

The plaintiff argues that the trial court's ruling was improper because, when a zoning board of appeals denies a variance from the zoning regulations, the property owner can still maintain an inverse condemnation action without an administrative appeal from the denial of the variance. As the plaintiff submits, our resolution of this issue is controlled by our decision in Cumberland Farms I, supra, 247 Conn. 196. In that case, we concluded that the denial of a variance by a zoning board of appeals is considered a final decision by an initial decision maker, which is all that is required to establish finality in order to bring a takings claim, and that once the zoning board of appeals makes its decision, the regulatory activity is final for purposes of an inverse condemnation claim. Id., 211-13. Therefore, an administrative appeal from the decision of the zoning board of appeals under General Statutes § 8-8 is not necessary in order to bring an inverse condemnation action. Id., 211. "The statutory appeals process . . . is . . . precisely the type of...