Opinion
No. 37827.
06-28-2016
HAYES FAMILY LIMITED PARTNERSHIP et al. v. TOWN OF GLASTONBURY.
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).
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, and (5) dismissed their claims where the application of the town zoning regulations resulted in at least a partial taking of their property. We affirm the judgment of the trial court.
We summarily dispose of this claim. Although the plaintiffs contend that they demonstrated that “no economically viable use of the property is possible,” they have provided no references to the transcript or other portions of the record that support this statement. “We are not required to review issues that have been improperly presented to this court through an inadequate brief.” (Internal quotation marks omitted.) Burns v. Quinnipiac University, 120 Conn.App. 311, 323–24 n. 12, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).
Because the plaintiffs' claims are interrelated, we necessarily address them together in this opinion.
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. 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.
In their appellate brief, the plaintiffs also included the following issues: (1) “Did the trial court err in holding that plaintiffs had not met the finality requirement where alternative uses would be subject to denial based upon traffic concerns?,” and (2) “Did the trial court err in holding that plaintiffs had not met the finality requirement where alternative uses would be subject to denial based upon noncompliance with the plan of development?”
The commission provided a collective statement that gave the reasons for its denial of the plaintiffs' application for a special permit. Those reasons did not include traffic concerns or noncompliance with the plan of development. “In zoning cases, we have held that, when a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement ... [and] attempt to search out and speculate [on] other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision.” (Internal quotation marks omitted.) Gibbons v. Historic District Commission, 285 Conn. 755, 769, 941 A.2d 917 (2008). “To go beyond those stated reasons invades the factfinding mission of the agency by allowing the court to cull out reasons that the agency may not have found to be credible or proven.” (Internal quotation marks omitted.) Id., at 771, 941 A.2d 917. Accordingly, we decline to address these 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, 794 A.2d 1016 (2002) ; see also Richardson v. Zoning
Commission, 107 Conn.App. 36, 43–44, 944 A.2d 360 (2008).
In the present case, the plaintiffs argue that the “commission will be bound under the prior application rule from allowing any reasonable commercial use of the property” because “[d]ue to the size, location, and topography of the subject property, any viable commercial development will present at least one of the issues that caused the denial of the CVS application.” During the trial, as noted by the trial court, alternative proposals were offered to demonstrate uses that could be made of the property. Although the plaintiffs contended that they would not be accepted by the commission because any commercial development would result in an adverse impact to the neighborhood, it is sheer speculation to assume that a less intensive proposal than the one originally submitted would be denied by the commission. It is true that, under the prior application rule, the plaintiffs could not submit the same proposal for approval; however, changes made to bring a future application into compliance with the regulations may or may not be acceptable to the commission. “[B]y refusing to engage the commission in the zoning approval process, [the applicant] eliminated the possibility that this matter could be resolved by local political choices and settlements.” Lost Trail, LLC v. Weston, 140 Conn.App. 136, 149, 57 A.3d 905, cert. denied, 308 Conn. 915, 61 A.3d 1102 (2013). Accordingly, this claim fails.
II
PRIOR APPELLATE COURT DECISION
Additionally, the plaintiffs argue that this court's previous decision in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 655, 974 A.2d 61, will have a preclusive effect on any future applications for a special permit. According to the plaintiffs, the preclusive effect is certain because of “the Appellate Court's finding that a commercial development on the subject property would have an adverse impact on neighboring residences.” (Emphasis added.) The plaintiffs also claim that “[t]he Appellate Court found that the proposed development would adversely impact the neighboring residences with regard to noise, traffic, and property values.” (Emphasis added.) The plaintiffs contend that “[t]he Appellate Court's findings were not based upon any particular characteristics of [the] plaintiffs' proposal but, rather, were based upon it being a commercial development adjacent to residences. Such findings doom any alternative commercial development at the subject site because any commercial development will have an adverse impact on the neighboring residences under the Appellate Court's reasoning upholding the commission's denial.” (Emphasis added.)
The plaintiffs have mischaracterized the holding in that decision. This court reviewed the evidence in the record to determine if it was sufficient to support the commission's denial of a particular application for a special permit. We concluded: “On the basis of the foregoing and our thorough examination of the record, we conclude that there was adequate evidence to support the commission's reasons for denying the special permit.” Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission , supra, 115 Conn.App. at 662, 974 A.2d 61. No mention was made of any possible future applications. Most importantly, no findings were made as to traffic, noise, property values or adverse impacts upon the neighborhood because this court is not a fact finder. “It is well settled that we do not find facts.” Bria v. Ventana Corp., 58 Conn.App. 461, 466, 755 A.2d 239 (2000) ; see also Multilingual Consultant Associates, LLC v. Ngoh, 163 Conn.App. 725, 737, 137 A.3d 97 (2016). Accordingly, this claim of the plaintiffs has no merit.
The plaintiffs also claim on appeal that the trial court improperly dismissed their action where the application of the zoning regulations resulted in at least a partial taking of their property. The court did not rule on a partial taking claim because it was never expressly raised. In their posttrial brief, the term “partial taking” is mentioned twice in twenty-six pages; the plaintiffs provided no case law or other authority with respect to this concept. No mention of “partial taking” is made in the plaintiffs' posttrial reply brief. The trial court did not rule on a claim of a partial taking because it had not been presented to the court. “For this court to ... consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Dauti Construction, LLC v. Planning & Zoning Commission, 125 Conn.App. 665, 674–75, 10 A.3d 92 (2010), cert. denied, 300 Conn. 924, 15 A.3d 630 (2011).
Moreover, the plaintiffs' failure to demonstrate that they met the finality requirement for a regulatory taking claim likewise is dispositive of this issue.
The judgment is affirmed.
In this opinion the other judges concurred.
APPENDIX HAYES FAMILY LIMITED PARTNERSHIP et al.
v.
Affirmed. Hayes Family Ltd. Partnership v. Glastonbury, 166 Conn.App. 585, 142 A.3d 408 (2016).
Appellate Court of Connecticut.
Feb. 6, 2015.
Superior Court, Judicial District of Hartford
File No. LND–CV–09–5033344–S
Memorandum filed February 6, 2015
Proceedings
Memorandum of decision on defendant's motion to dismiss. Motion granted.
Richard P. Weinstein, for the plaintiffs.
Matthew Ranelli and Beth Bryan Critton, for the defendant.
Opinion
BERGER, J.
I
The plaintiffs, Hayes Family Limited Partnership, Richard P. Hayes, Jr., and Manchester/Hebron Avenue, LLC, seek damages from the defendant, the town of Glastonbury, under a legal theory of inverse condemnation involving the plaintiffs' property at 1199 Manchester Road in Glastonbury. On November 29, 2005, the town's Plan and Zoning Commission denied the plaintiffs' application for a special permit to construct a CVS pharmacy on the property. The plaintiffs argue that this constituted a taking without just compensation under article first, § 11, of the constitution of Connecticut and the fourteenth amendment to the constitution of the United States. The present case is another chapter in the continuing litigation between the parties. The plaintiffs appealed from the commission's denial of their special permit application to the Superior Court in Hayes Family Ltd. Partnership v. Town Plan &
According to testimony of Hayes, he purchased the property in his name and transferred it to Manchester/Hebron Avenue, LLC, the named applicant before the commission.
Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV–06–4019700–S, 2007 WL 2245790 (Conn.Super.). The court, Miller, J., dismissed the appeal on July 19, 2007. The plaintiffs petitioned for certification to appeal, arguing that the trial court improperly concluded that substantial evidence in the record supported the denial and that the commission lacked discretion to deny an application for a special permit when the applicant complied with all applicable zoning regulations. Those arguments were rejected, and the trial court's decision was affirmed on July 14, 2009. 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).
The focus now before this court concerns only the inverse condemnation claim based upon the commission's November 29, 2005 denial of the plaintiffs' special permit application. “An inverse condemnation action does not concern itself with the propriety of the board's action. The only inquiry is whether a taking has, in fact, occurred.” Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 208, 719 A.2d 465 (1998). “An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding.... [W]hether a claim that a particular governmental regulation or action taken thereon has deprived a claimant of his property without just compensation is an essentially ad hoc factual inquir[y].... Short of regulation which finally restricts the use of property for any reasonable purpose resulting in a practical confiscation, the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner.” (Internal quotation marks omitted.) Lost Trail, LLC v. Weston, 140 Conn.App. 136, 146, 57 A.3d 905, cert. denied, 308 Conn. 915, 61 A.3d 1102 (2013). “Connecticut law on inverse condemnation requires total destruction of a property's economic value or substantial destruction of an owner's ability to use or enjoy the property.” Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 85, 931 A.2d 237 (2007).
The plaintiffs filed their first suit alleging inverse condemnation on January 30, 2006, but withdrew it on September 9, 2009. Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV–06–4020760S. On October 1, 2009, the plaintiffs commenced the present action. The court, Aurigemma, J., granted the defendant's motion to dismiss on August 4, 2010. On appeal, the Appellate Court reversed the trial court's decision because it failed to hold an evidentiary hearing on whether the plaintiffs established the finality of the commission's determination, thereby providing the trial court with subject matter jurisdiction. Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn.App. 218, 224, 31 A.3d 429 (2011). The case was remanded to this court for consideration of this directive. Id. By agreement of the parties, evidence was also received, and the matter was heard as a trial on the merits, albeit in a bifurcated manner, addressing issues of liability only. Hence, if this court were to conclude that the plaintiffs have proven finality, the court would deny the motion to dismiss and then consider whether the plaintiffs were successful in proving their allegation of inverse condemnation.
Additionally, Hayes Family Limited Partnership, along with Manchester–Hebron Avenue, LLC, also filed a suit that was a bill of discovery against certain individuals, namely, Attorney David F. Sherwood, Frank Longobardi, Patricia Synhorst, John Flanigan, and 1312 Manchester Road, LLC, to determine who opposed their special permit application and who paid Sherwood's fees. Motions to strike the action against the individual defendants were granted on June 25, 2008. Hayes Family Ltd. Partnership v. Sherwood, Superior Court, judicial district of Hartford, Docket No. CV–08–4035887–S, 2008 WL 2802400 (June 25, 2008) (Hon. Richard M. Rittenband, judge trial referee) (45 Conn. L. Rptr. 772 ). On March 9, 2009, the court, Elgo, J., entered judgment against the plaintiffs as to the individual defendants, and the matter was withdrawn as to the defendant partnership on March 30, 2009.
Trial occurred on November 5, 2013, through November 8, 2013, and on December 17, 2013. At the close of the plaintiffs' case on December 17, 2013, the defendant orally moved for judgment of dismissal under Practice Book § 15–8, alleging that the plaintiffs failed to make a prima facie case that the defendant's actions in denying the special permit constituted the finality required to make a regulatory takings claim. The defendant filed its motion on December 23, 2013, the plaintiffs filed a memorandum of law in opposition on January 15, 2014, and this court heard oral argument and denied the motion on March 31, 2014. Trial continued on June 24, 2014, through June 26, 2014. The plaintiffs filed a supplemental brief on July 30, 2014, and the defendant its supplemental brief on September 5, 2014. Posttrial oral argument was heard on November 6, 2014.
On November 6, 2013, the court, with counsel and representatives of the parties, viewed the subject premises.
Practice Book § 15–8 provides: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”
The motion was denied based upon Charter Oak Lending Group, LLC v. August, 127 Conn.App. 428, 434, 14 A.3d 449, cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011). “The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15–8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it.... For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15–8 ], it must be of the opinion that the plaintiff has failed to make out a prima facie case. In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint.... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.... [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor.” (Emphasis in original; internal quotation marks omitted.) Id.
In the present case, the Appellate Court acknowledged that “the plaintiffs were required to establish the finality of the commission's determination to confer subject matter jurisdiction on the court.... On the basis of the complaint and the affidavits submitted by both parties, the court determined that the plaintiffs could not prove finality because the plaintiffs only submitted one special permit application for a particularly intensive development.” (Citations omitted.) Hayes Family Ltd. Partnership v. Glastonbury, supra, 132 Conn.App. at 223, 31 A.3d 429. As previously noted, the Appellate Court found that in light of our motion practice, an evidentiary hearing was required on factual disputes. Id., at 223–24, 31 A.3d 429. The motion for judgment of dismissal, taking the plaintiffs' evidence as true, cannot really address the fundamental issue of the finality of the agency decision with only one application, i.e., if there are other uses for the property, and, more importantly, if any other application would be rejected. The finality issue is addressed in this decision notwithstanding the denial of the motion for judgment of dismissal. Of course, a plaintiff's initial success in establishing a prima facie case does not equate to success on the merits; the plaintiff's testimony can be rebutted. See, e.g., Fisher v. Big Y Foods, Inc., 298 Conn. 414, 419 n. 10, 3 A.3d 919 (2010) ; Eagen v. Commission on Human Rights & Opportunities, 135 Conn.App. 563, 577 n. 5, 42 A.3d 478 (2012).
II
A
As stated by the Appellate Court, “[t]he plaintiffs own a 2.4 acre parcel of land located at 1199 Manchester Road in Glastonbury. The property is comprised of a ledge, which rises steeply from the edges of the southwesterly corner of the intersection of Hebron Avenue and Manchester Road to a heavily wooded plateau abutting an established single-family neighborhood in a rural residential zone. On June 27, 2005, the plaintiffs filed a special permit application with the Glastonbury planning and zoning commission (commission). The plaintiffs proposed to build a 13,013 square foot, thirty-two foot high building with seventy parking spaces and a drive-through window on the property. On November 29, 2005, the commission denied the plaintiffs' application, citing the project's 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.” Id., at 219–20, 31 A.3d 429.
In the previous land use appeal, the Appellate Court noted that the commission denied the application because: “(1) The scale of the proposal (building size and associated infrastructure) is inappropriate based upon the project intensity in relationship to the parcel size and steep topography. Site development activity and topographic modifications in the form of grading, excavation, vegetation removal and construction of a large retaining wall exceeds acceptable conditions and therefore does not meet the intent and standards of [s]ection 12 ( [s]pecial [p]ermit with [d]esign [r]eview) of the [b]uilding [z]one [r]egulations.
“(2) The project would result in an unacceptable level of impact on neighboring properties, in the form of both noise and visual intrusions, and on the environment, and is therefore incompatible with the existing neighborhood.
“(3) Landscaping proposed will not adequately replace existing vegetation nor provide adequate buffering to residential properties.” (Internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 658 n. 3, 974 A.2d 61. B
(See also plaintiffs' [pls.] exhibit [exh.] 25.)
The plaintiffs allege that the commission's denial of their special permit constitutes a taking without just compensation. In the decision granting the motion to dismiss, the court, Aurigemma, J., discussed the substantive law concerning land use takings and the issue of finality or alternative use. Notwithstanding the Appellate Court's remand, the trial court's review of the substantive law is sound, and this court adopts the reasoning and sets forth part of that discussion here:
“The issues of when and whether regulatory action constitutes taking of property was addressed by the Connecticut Supreme Court in Gil v. Inland Wetlands & Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991), where the Court stated:
“ ‘As we have recently reiterated, however, the plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination.... To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property.’ ...
“In Gil, the plaintiff submitted four applications to the Greenwich Inland Wetlands & Watercourses Agency. Each application was denied. The trial court and the Appellate Court determined that the Agency's denials of the four applications were sufficient to establish finality. The Court disagreed, stating:
“ ‘First, although we agree with the Appellate Court that the plaintiff had a reasonable expectation of developing the property for residential purposes, the wetlands status of a portion of the property should also have warned the plaintiff that development would be difficult and that repeated applications might be necessary before the agency would approve an application for a building permit.’ [Id., at 416, 593 A.2d 1368 ].
“ ‘Furthermore, although the plaintiff's final application reduced the footprint of the proposed house to 1800 square feet from the 2100 square feet of the preceding application, the final application nonetheless represented an increase from an earlier application's 1500 square feet proposed residence. In light of these factors, we cannot say that the agency would have rejected a more modest proposal if one had been offered by the plaintiff.
“ ‘Our conclusion is not inconsistent with our decision in Port Clinton Associates v. Board of Selectmen, [217 Conn. 588, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S.Ct. 64, 116 L.Ed.2d 39 (1991) ]. We there stated that although repeated applications and denials are not necessary to show finality, in most cases, a property owner must do more than submit one plan to an agency in order to establish that the agency's decision is final for the purposes of the takings clause.... We further noted that the [r ]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews. ’ ... Gil v. Inland Wetlands & Watercourses Agency, supra [219 Conn.] at 416–17 [593 A.2d 1368 ]. (Citation omitted; emphasis altered.)
“In MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348–49, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986), cited by the Court in Gil, the plaintiff's application to develop a 159–unit residential subdivision in California was rejected for a number of reasons. As the plaintiffs here, the plaintiff in MacDonald argued that any use of the property in question would not be permitted for the same reasons as those given by the County Planning Commission when it rejected the plaintiff's application. The County Commission demurred to the plaintiff's complaint alleging a taking of its property for failure to state a cause of action and the California Supreme Court, the California Court of Appeal and the United States Supreme Court all held that the plaintiffs had failed to allege facts which would establish an unconstitutional taking of private property:
“ ‘Here plaintiff applied for approval of a particular and relatively intensive residential development and the application was denied. The denial of that particular plan cannot be equated with a refusal to permit any development, and plaintiff concedes that the property is zoned for residential purposes in the County general plan and zoning ordinance. Land use planning is not an all-or-nothing proposition. A governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property.’
“ ‘Here, as in Agins [v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) ], the refusal of the defendants to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development. Accordingly, the complaint fails to state a cause of action.’ McDonald, Sommer & Frates v. Yolo County, supra, [477 U.S. at 347, 106 S.Ct. 2561 ].
“The plaintiffs have cited Cumberland Farms, Inc. v. Groton, [supra, 247 Conn. at 196, 719 A.2d 465 ], to support their argument that the denial of a single application is sufficient to establish a taking. However, that case was brought after the denial of a use variance by the zoning board of appeals based on a finding of the lack of a hardship. Crucial to the Court's finding of finality was the ‘prior application rule,’ which prohibits a zoning board of appeals from reversing a previous decision with respect to the issue of hardship absent a material change in circumstances.
“There is no similar doctrine with respect to applications for special permits. It is clear from Gil v. Inland Wetlands & Watercourses Agency, supra, [219 Conn. at 417, 593 A.2d 1368 ] that [r]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews. In addition, [a] governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property.” (Citations omitted; emphasis in original.) Hayes Family Ltd. Partnership v. Glastonbury, Superior Court, judicial district of Hartford, Docket No. CV–09–5033344–S, 2010 WL 3447792, *3–*5 (August 4, 2010) (Aurigemma, J. ), rev'd on other grounds, 132 Conn.App. 218, 31 A.3d 429 (2011).
Since the Appellate Court's reversal and remand of the trial court's decision to grant the motion to dismiss in this case, the Appellate Court has rendered its opinion in Lost Trail, LLC v. Weston, supra, 140 Conn.App. at 136, 57 A.3d 905. The court in Lost Trail, LLC, affirmed the judgment of the trial court that had rejected an inverse condemnation claim based upon a municipal decision requiring the petitioner to obtain subdivision approval for a proposed development. Id., at 148–50, 57 A.3d 905. “A final decision has been rendered when the initial decision-maker [has] arrived at a definitive position on the issue that inflict[ed] an actual, concrete injury .... If a property owner has not obtained a final decision from the administrative agency applying the regulation, the reviewing court lacks jurisdiction to rule on a taking claim. The jurisdictional nature of finality derives from its similarity to ripeness.” (Citation omitted; internal quotation marks omitted.) Id., at 147, 57 A.3d 905. III
In Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 661–62, 974 A.2d 61, the Appellate Court noted that “[t]he commission heard evidence that to build the largest CVS possible, the plaintiffs sought to remove the existing hillside comprising the subject property, excavating to within twenty-five feet of the property lines of abutting residential properties, more than 80,000 cubic yards of material, and build a steep-sloped 225 foot long, fourteen foot high retaining wall to accommodate a 13,013 square foot building with a drive-through window, surrounded on three sides by six foot wide sidewalks, two dumpsters, loading docks and seventy parking spaces. The record reflects that the proposed retaining wall was among the largest that the commission had ever reviewed and that it was atypical in that such steep slopes are generally found in connection with road construction projects, not residential neighborhoods. The evidence revealed that the removal of the excavated material from the site would require more than 5700 dump truck loads and more than 11,000 round trips, with a truck leaving the site every two minutes. All existing vegetation would be stripped, and the newly formed slope would be so steep as to render it unlikely to sustain the sparse vegetation proposed by the plaintiffs as a buffer to nearby homes.”
In the present case, the trial court, Aurigemma, J., was provided with affidavits, attached to the plaintiffs' memorandum of law in opposition to the motion to dismiss (pleading # 107.00), from Patrick N. O'Leary, an engineer with Vanasse, Hangen, Brustlin, Inc., as well as from Arthur B. Estrada, an appraiser. Both also testified before this court, and their affidavits were offered into evidence. (Pls. exhs. 33 and 36.) Their oral testimony offered similar conclusions to those stated in the affidavits. Indeed, O'Leary's conclusions, seven through nine, reported by Judge Aurigemma, are essentially the same:
“7. In undertaking that review, I have considered several hypothetical alternative uses, including the construction of a single-story commercial building that might, for example, be used for ... a bank branch building, and the construction of a two-story commercial building of anywhere between 13,000 and 18,000 square feet (with about half such amount allocated to each story) that might be used as an office building. Such uses would be smaller in scale than the CVS Pharmacy proposal that was rejected by the Commission.
“8. I believe that, based on the topography and location of the Property, none of those hypothetical alternative proposals will avoid the reasons previously identified by the Commission as a basis for denying the Special Permit application for the Property.
“9. Specifically, the construction of any such hypothetical alternative use buildings will require significant excavation of the Property and the removal of materials from the Property. The impacts to the existing grade of the site and landscape would be similar to those of the CVS Pharmacy proposal due to the topographical relief associated with the site. The disturbance to the Property for grading and vegetation removal is likely to be similar for such commercial buildings as it was for the CVS Pharmacy proposal. Furthermore, the construction of buildings for such alternative commercial uses at the Property will likely have a similar impact on neighboring properties, in terms of noise and visual intrusions, when compared to that of the proposed CVS Pharmacy. Landscaping and buffering associated with such alternative commercial uses would be similar to those for the CVS Pharmacy proposal due to the excavation sideslopes that would be required to address the topographic relief at the Property.” (Internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Glastonbury, supra, 2010 WL 3447792, *2–*3. Although reminded by both the court and the defendant that the denial of the special permit application was beyond challenge, much of the proffer of this testimony could easily be interpreted to be further argument on the first CVS proposal. For instance, the extent of the massive excavation necessitated an extensive discussion of the proposed slope, ingress and egress grades, and buffers. Both O'Leary and Hayes testified that a two-to-one slope was compliant, the 8 percent grade was compliant, and the landscape buffering was generous, extensive, and appropriate. Nevertheless, both Judge Miller and the Appellate Court in the previous zoning appeal found that “there was adequate evidence to support the commission's reasons for denying the special permit.” Hayes Family Ltd. Partnership v. Glastonbury, supra, 115 Conn.App. at 662, 974 A.2d 61. The plaintiffs appear to accept—albeit reluctantly—our courts' refusal to set aside the commission decision, but only if it means that they are compensated for that decision.
The plaintiffs misunderstand the nature of the police power as it applies to land use development. “Public regulation of land use and development pursuant to the exercise of the police power often results in some diminution of the property rights of a particular landowner .... [I]t has often been noted that the police power, which regulates for the public good the uses to which private property may be put and requires no compensation, must be distinguished from the power of eminent domain, which takes private property for a public use and requires compensation to the owner.” (Citations omitted; internal quotation marks omitted.) Luf v. Southbury, 188 Conn. 336, 349, 449 A.2d 1001 (1982) ; see also Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 354–55, 362 A.2d 948 (1975). A denial of one application does not necessarily constitute a fifth amendment taking. First, a plaintiff must prove, as discussed previously, that he or she has been denied all reasonable use of the property. This is known as the finality doctrine. “[T]he plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination.” Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. at 415, 593 A.2d 1368 ; see also Lost Trail, LLC v. Weston, supra, 140 Conn.App. at 147, 57 A.3d 905 (“[u]ntil a property owner has obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed” [internal quotation marks omitted] ); Hayes Family Ltd. Partnership v. Glastonbury, supra, 132 Conn.App. at 223, 31 A.3d 429 (“[t]o demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property” [internal quotation marks omitted] ); Murphy v. New Milford Zoning Commission, 402 F.3d 342, 348 (2d Cir.2005) (“[r]equiring a property owner to obtain a final, definitive position from zoning authorities evinces the judiciary's appreciation that land use disputes are uniquely matters of local concern more aptly suited for local resolution”).
Hayes testified about two other hypothetical proposals cast within the framework of the denial to develop the CVS. They were presented to this court as alternatives that the plaintiffs argue would also have failed to be approved under the reasoning of the denial of the first application. Nevertheless, these alternatives were never presented and never reviewed or considered by the commission; nor were any others. While the plaintiffs believe they need not present another application, “[s]trength of unilateral conviction is not, however, a substitute for a final administrative decision.” Lost Trail, LLC v. Weston, supra, 140 Conn.App. at 148–49, 57 A.3d 905.
The plaintiffs introduced evidence at trial that after the commission denied their application, they attempted to seek a variance from the Zoning Board of Appeals allowing them to construct the building closer to the front yard line on both Manchester Road and Hebron Avenue. After a public hearing and discussion on December 4, 2006, the board denied the request by a vote of two to three. (Pls. exhs. 26–27.) The plaintiffs did not appeal from that decision, nor is that denial a basis for the present case. Furthermore, a request for a variance is different from an application for a special permit.
To the extent the plaintiffs argue that no plan would satisfy the commission and that submitting further applications would be futile, “[a]lthough a property owner need not pursue ‘patently fruitless measures' to satisfy the finality doctrine ... it cannot claim futility by setting up its own obstacles.” (Citation omitted.) Lost Trail, LLC v. Weston, 140 Conn.App. 136, 151–52, 57 A.3d 905 (2013).
“To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property.” (Emphasis in original.) Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. at 415, 593 A.2d 1368. It is difficult to meet this burden with one application, especially when even the developer's own engineer stated that “in my professional opinion, I think there is a reasonable possibility that a layout of this nature could be approved by a municipality, including Glastonbury.” (Transcript [tr.], November [Nov.] 8, 2013, pp. 34–35.) The plaintiffs argue that Cumberland Farms, Inc. v. Groton, supra, 247 Conn. at 196, 719 A.2d 465, allows an inverse condemnation case based upon one denial. As previously set forth, the court in Cumberland Farms, Inc., concluded that a zoning board of appeals' denial of a variance constituted a final decision; id., at 197, 719 A.2d 465 ; as opposed to the one initial special permit application in the present case. Cumberland Farms, Inc., is thus instructive but not controlling herein. This court heard testimony about the existence of smaller CVS store prototypes, and O'Leary was not sure which prototype was in use in 2005. (Tr., Nov. 8, 2013, pp. 18–20.) He indicated that the size of the project was determined on a site by site basis. (Tr., Nov. 8, 2013, pp. 23–25.) Constructing a smaller building and moving the top of the slope farther from the houses would also reduce other impacts of the project such as excavation, the retaining wall, vegetation loss, and parking. Perhaps more to the point, evidence was presented that there are other possible uses such as a CVS differently configured and with only one driveway or other uses requiring less excavation. (Pls. exhs. 7–14.) The town introduced at least three concept plans reflecting a smaller footprint and a smaller impact. (Defendant's [def.] exhs. 500, 501, and 517.) O'Leary noted that a smaller CVS might be approved on the site. (Tr., Nov. 8, 2013, pp. 32–36.)
At posttrial oral argument on November 16, 2014, it was noted that the variance request involved a CVS that was smaller than the one proposed to the commission.
O'Leary testified that some CVS stores had just one entrance and exit. (Tr., Nov. 8, 2013, p. 27.)
Indeed, at the November 29, 2005 meeting, commission members indicated that the plaintiffs might develop the property in a less intensive manner than that proposed in the original and only special permit application. (Defendant's [def.] exh. 521, p. 18.)
At the November 6, 2014 posttrial oral argument, the plaintiffs argued that the reasons for the commission's denial of the special permit application, which were upheld by Judge Miller and the Appellate Court, set the bar that any new application would need to meet. In other words, the plaintiffs asserted, based upon the Appellate Court's decision in Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, supra, 115 Conn.App. at 658 n. 3, 974 A.2d 61, that any proposed development would necessarily “result in an unacceptable level of impact on neighboring properties, in the form of both noise and visual intrusions, and on the environment, and [would] be therefore incompatible with the existing neighborhood.” (Internal quotation marks omitted.)
Nevertheless, while the plaintiffs' property does not contain wetlands like that in Gil, it requires extensive excavation and regrading. Thus, Gil is clearly applicable here. “[T]he ... status of a portion of the property should also have warned the plaintiff that development would be difficult and that repeated applications might be necessary before the agency would approve an application for a building permit.” Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. at 416, 593 A.2d 1368. Indeed, “in most cases, a property owner must do more than submit one plan to an agency in order to establish that the agency's decision is final for the purposes of the takings clause.... [T]he [r]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.” (Citation omitted; footnote added; internal quotation marks omitted.) Id., at 417, 593 A.2d 1368.
At oral argument on the motion for judgment of dismissal on March 31, 2014, the plaintiffs' counsel questioned whether the issue being debated was indeed the number of submitted applications. Gil reminds us that it is the substantive difference in the applications that is of concern. Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. 404, 416–17, 593 A.2d 1368 (1991).
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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. “[B]y refusing to engage the commission in the zoning approval process, [the applicant] eliminated the possibility that this matter could be resolved by local political choices and settlements.” Lost Trail, LLC v. Weston, supra, 140 Conn.App. at 149, 57 A.3d 905. “[A] court, in the proper circumstances, is well advised to stay its hand to allow for political choices and settlements that are outside of the judicial competence. It is for the town ... in the first instance to decide whether to exercise the police power in order to reach an accommodation with the plaintiffs.” Luf v. Southbury, supra, 188 Conn. at 353–54, 449 A.2d 1001.
In light of the evidence, the plaintiffs have failed to meet their burden to prove finality. Accordingly, the town's motion to dismiss is granted.