MTM Family, Ltd. P'ship v. City of Bridgeport
| Decision Date | 05 August 2016 |
| Docket Number | FBTCV146044600S |
| Court | Connecticut Superior Court |
| Parties | MTM Family Limited Partnership v. City of Bridgeport et al |
UNPUBLISHED OPINION
This action was brought by the plaintiff limited partnership against the City of Bridgeport and its Zoning Officer in four counts. The complaint alleges the following Factual Background:
1. MTM Family Limited Partnership (the " Plaintiff") is a Connecticut limited partnership.
2. This action concerns real property known as 1234 Huntington Turnpike, Bridgeport and Trumbull, CT described in Schedule A attached hereto (the " Property") The Property is located in a Residence A zone and consists of vacant land of approximately three (3) acres.[1]
3. On or about January 22, 1991, the Zoning Board of Appeals for the City of Bridgeport granted a zoning variance (the " Variance") to the then-owner Joseph Naudzaus which Variance, inter alia, waived the relevant residential zoning regulations and permitted the construction of a one-story commercial building with on-site parking spaces to be occupied as a retail shopping center (" Shopping Center") at the Property. A Notice of Variance was recorded in Volume 2871, Page 132 of the Bridgeport Land Records. A copy of the Variance is attached as Exhibit A. A copy of the Notice of Variance is attached as Exhibit B.
4. On or about December 1, 2004 the Plaintiff became interested in acquiring the Property. Plaintiff's agents and representatives conducted due diligence concerning the including the zoning status, and was informed by the City of Bridgeport Zoning Department (the " Zoning Department") that it could obtain a building permit to construct the Shopping Center without any further land use approvals by filing construction drawings with the City of Bridgeport Building Department (the " Building Department").
5. On May 16, 2005, relying on the results of its due diligence including the representations of City officials that the Plaintiff could obtain a building permit to construct the Shopping Center without any further land use approvals by filing construction drawings with the City of Bridgeport Building Department, the Plaintiff purchased the Property with the specific intent to develop the Property as a shopping center.
6. For business reasons related to the downturn of the Bridgeport real estate market, the Plaintiff did not begin development of the Property until 2011.
7. Initially desiring to modify the Shopping Center to add a residential component, in or about April 2001 the Plaintiff hired engineers and architects to begin preparing plans for the construction of a mixed-use facility consisting of both a retail shopping center and 14 residential units above the shopping center.
8. After submitting the mixed-use plans to the City, on June 13 2011, a plan review meeting was held at Bridgeport City Hall with numerous City officials. While the representatives of the City, including the Zoning Officer Dennis Buckley (" Buckley") and the Land Use Director William Minor (" Minor"), were not opposed to the mixed-use project at the plan review meeting, Minor advised the Plaintiff that development of a retail shopping center could commence immediately if the Plaintiff deleted the residential units from the development plan.
9. After the June 13, 2011 meeting, the Plaintiff began planning for the construction of a retail shopping center at the Property.
10. Plaintiff discovered that the original Variance plans were prepared by Guedes Kahn, Inc., a Bridgeport engineering and architectural firm.
11. On June 15, 2011, Plaintiff's construction manager, Joseph Miceli (" Miceli") met with John Guedes (" Guedes") of Guedes Kahn, Inc. to discuss whether his firm would be willing to prepare the construction drawings in order to obtain the building permit for the Shopping Center. During the course of the meeting, Guedes mentioned to Miceli that an appeal was taken on the Variance but that he was unclear as to the outcome of the appeal.
12. On June 16, 2011, Miceli met with Buckley to inform him of his meeting with Guedes and to inquire about the possibility that the Variance had been appealed. Buckley advised Miceli that he did not believe that an appeal of the Variance had been taken but that he would consult with the Office of the City Attorney regarding the same.
13. On June 16, 2011, after the meeting with Buckley, Miceli went to the Bridgeport Superior Court to inquire as to whether an appeal of the Variance had, in fact, been taken. The clerk of the Court informed Miceli that there was no record of an appeal of the Variance.
14. On July 6, 2011, Buckley received an email from Associate City Attorney Gregory M. Conte informing him that the Variance had been appealed but that the appeal was later abandoned. Buckley provided a copy of the email to Miceli, a copy of which is attached as Exhibit C. Buckley then authorized MTM to proceed with the preparation of the building permit application for construction of a retail shopping Center.
15. At the request of Buckley, a mylar site plan depicting a one-story retail shopping center with on-site parking spaces was prepared by the Plaintiff. On August 8, 2011, Buckley stamped the mylar site plan, thereby confirming the Zoning Department's approval of the site plan. The Plaintiff revised the mylar site plan to correct a clerical error and the revised site plan was also approved by Buckley, Minor and the City Engineer's Office, and filed on the Bridgeport Land Records on August 29, 2011.
16. On or about September 15, 2011, the Plaintiff began site work at the Property, including the cutting of trees, installation of sediment and environmental measures and grading (cutting and filling) of the Property.
17. On October 6, 2011, Zoning Enforcement Officer Neil Bonney sent an email to Plaintiff's then counsel, Joseph Kubic wherein Bonney acknowledged that Plaintiff was entitled to continue with site work at the Property but requested that MTM implement certain additional soil erosion measures such as silt fencing and installation of an anti-tracking pad.
18. On November 3, 2011, MTM submitted an Application for Certificate of Zoning Compliance in relation to procuring a foundation building permit for the retail shopping center foundation and three sets of shopping center plans. Buckley that same day, approved the shopping center plans and the Application for Certificate of Zoning Compliance and certified that all land use approvals were in place for the retail shopping center.
19. Also on November 3, 2011, MTM applied to the Building Department for the foundation building permit and Buckley provided zoning approval for the foundation building permit that same day.
20. Plaintiff continued with site work to prepare the Property for the retail shopping center foundation.
21. On December 5, 2011, Buckley hand-delivered a letter to the plaintiff stating that there was, in fact, an appeal of the Variance and that the decision of the Zoning Board of Appeals granting the Variance was overruled by the Superior Court on October 6, 1992. The letter further stated that Plaintiff's approved Application for Certificate of Zoning Compliance was rescinded. Thereafter, the Plaintiff's foundation building permit application was terminated by the Building Department.
22. Through December 5, 2011 the Plaintiff incurred costs of more than $1, 500, 000, including acquisition costs, carrying costs, soft costs, (including, fees for engineers, architects, construction consultants, and attorneys) and site work.
The defendants, in their answer, have admitted all the foregoing Factual Background allegations of the complaint except paragraphs 9, 12, 14 and 22 (denied) and 13, 16, and 20 (no knowledge). They have pleaded two Special Defenses. The First Special Defense alleges that " THIS CASE WAS DECIDED TWENTY-TWO YEARS AGO. This case was already decided by Judge Melville on October 26, 1992, but this fact was not included in the plaintiff's complaint. See Iwanicki v. Bridgeport Zoning Board of Appeals et al., CV91-279597, which is attached as Defendant's Exhibit A. The Second Special Defense alleges " THIS IS AN APPEAL FROM A ZONING BOARD OF APPEALS DECISION, BUT PLAINTIFF HAS FAILED TO FILE ANY ADMINISTRATIVE RECORD."
The First Count sounding in Municipal Estoppel and the Second Court sounding in Municipal Estoppel via Collateral Estoppel ask for a declaration by the court that the City is estopped from denying the plaintiff a Certificate of Zoning Compliance and the required building permits to allow the Plaintiff to complete the Shopping Center in accordance with the plans submitted to the City. The Third Count sounding in Mandamus asks for a writ of mandamus ordering that Buckley and/or other City officials provide a Certificate of Zoning Compliance with the required building permits to allow the Plaintiff to complete the Shopping Center in accordance with the Plans submitted to the City. The Fourth Count, sounding in promissory estoppel, asks for a Summary Judgment as to liability only with a hearing in damages to be scheduled by the Court. (See Plaintiff's Memorandum of Law, January 26, 2015, p. 24.)
The decision overruling the Variance referred to in Buckley's December 5, 2011 letter, and pleaded in the First Special Defense was rendered in the case titled Iwanicki v Bridgeport Zoning Board of Appeals et al., Superior Court, Judicial District of Fairfield at Bridgeport, Docket Number FBT-CV-91-279597, (October 27, 1992, Melville, J.), 1992 WE...
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