Opinion
No. CV98 0265281-S
November 22, 2004
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION TO AMEND APPEAL #140 AND DEFENDANT'S OBJECTION TO MOTION TO AMEND #141
In 1995, the Connecticut legislature amended General Statutes § 8-2 to give municipal zoning commissions a limited right to regulate development and enact restrictions on construction on specified traprock or amphibolite ridges, located primarily in central Connecticut and running from southwestern Massachusetts to Long Island Sound. R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2000), § 4.46, p. 211. On July 7, 1997, the defendant, the City Council of Meriden, acting as the zoning commission, adopted an ordinance establishing a ridgeline protection zone. On October 5, 1998, the defendant voted to approve a petition to modify the Meriden zoning map, which revised the zoning classification of all or portions of designated properties such that each property was placed into the "Ridgeline Protection Zone as defined in § 213-26.6 of the Meriden zoning regulations."
Public Acts 1995, No. 95-239, § 2 amended General Statutes § 8-2 by adding section c, which provides: "In any municipality where a traprock ridge, as defined in section 8-1aa, or an amphibolite ridge, as defined in section 8-1aa, is located the regulations may provide for development restrictions in ridgeline setback areas, as defined in said section. The regulations may restrict quarrying and clear cutting, except that the following operations and uses shall be permitted in ridgeline setback areas, as of right: (1) Emergency work necessary to protect life and property; (2) any nonconforming uses that were in existence and that were approved on or before the effective date of regulations adopted under this section; and (3) selective timbering, grazing of domesticated animals and passive recreation." General Statutes § 8-2(c).
The ridgeline protection ordinance adopted on July 7, 1997 was incorporated into the Meriden zoning regulations as § 213.26.6.
On November 6, 1998, the plaintiffs, Caroline Mainville, Buckley Broadcasting Corporation of Connecticut, ERG Realty, Inc. and Joyce Furlong, appealed from the October 5, 1998 decision, alleging that they own interests in properties affected by the approval of the zone change petition and that they are aggrieved by the decision. Specifically, the plaintiffs allege, that "In approving the Ridgetop Protection Zone Change petition," the defendant acted arbitrarily illegally and in abuse of its discretion in that (a) the defendant exceeded its statutory powers, (b) the defendant failed to reach its decision within the time limits set by local and state laws, ordinances and regulations, (c) the zoning amendment is not in accordance with the comprehensive plan of the city and (d) the zoning amendment was granted without valid reason. On June 7, 2004, the plaintiffs filed a motion to amend their appeal to add the following allegations: "(e) The action of the Meriden City Council acting as the Zoning Authority of the City of Meriden violated Amendments V and XIV of the Constitution of the United States and Article I, Sections 11 and 20 of the Constitution of the State of Connecticut" and "(f) The City Council acting as the Zoning Authority attempted to classify plaintiff's properties as Ridgeline Protective zoned areas, a classification that did not exist due to the City Council's failure to properly enact the amendment to the zoning regulations on July 7, 1997." The defendant has objected to the requested amendments.
DISCUSSION
"Practice Book § 10-60 allows an amended complaint to be filed at any time with the consent of the judicial authority." Joshua's Tract Conservation and Historic Trust, Inc. v. Zoning Commission, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0069998 (December 8, 2003, Foley, J.) ( 36 Conn. L. Rptr. 239, 242). "Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment." (Citation omitted; internal quotation marks omitted.) Cabinet Realty, Inc. v. Planning Zoning Commission, 17 Conn.App. 344, 348, 552 A.2d 1218, cert. denied, 210 Conn. 813, 556 A.2d 610 (1989). "The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial." Joshua's Tract Conservation and Historic Trust, Inc. v. Zoning Commission, supra, 36 Conn. L. Rptr. 242, quoting Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583, 833 A.2d 908 (2003).
As to the proposed constitutional claims set forth above, the plaintiffs contend that the regulations as adopted by the defendant, including the ordinance enacted in July 1997, are confiscatory because the regulations prohibit any development in the areas designated by the defendant as being within the ridgeline protection zone. The plaintiffs contend also that the regulations violated the equal protection provisions of the Connecticut constitution and the United States constitution because the regulations excluded like properties without affording the same opportunity to the plaintiffs.
On June 1, 2004, the plaintiffs filed their pretrial brief. In addition to those claims alleged in their initial complaint, which relate to the defendant's October 5, 1998 approval of the petition to modify the Meriden zoning map, the plaintiffs in their pre-trial brief raise arguments pertaining to the fresh claims they wish to include in their amended complaint, which are presently before the court by way of their motion to amend filed on June 7, 2004. These new claims pertain to the July 7, 1997 enactment of the ridgeline protection ordinance.
It appears from a review of the plaintiffs' pretrial brief that their constitutional equal protection claims stem from the exclusion of an area of land called Chauncey Peak from the ridgeline protection zone, which exclusion, the plaintiffs claim, was explicitly made part of the 1997 ordinance at the request of the owner of that land. The plaintiffs argue in their brief that the defendant did not give other land landowners, including the plaintiffs, the same opportunity to exclude their land and that this action violated the equal protection clauses of the Connecticut constitution and the United States constitution.
As to the proposed amendment regarding irregularities in the enactment of the ordinance in 1997 that created the ridgeline protection zone, the plaintiffs argue that it is proper to raise that claim in this appeal because the ridgeline protection zone is a "floating zone." A "floating zone" is defined as "a special detailed use district of undetermined location in which the proposed kind, size and form of structures must be preapproved. It is legislatively predeemed compatible with the area in which it eventually locates if specified standards are met and the particular application is not unreasonable . . . It differs from the traditional Euclidean zone in that it has no defined boundaries and is said to float over the entire area where it may eventually be established." (Citations omitted; internal quotation marks omitted.) Schwartz v. Town Plan Zoning Commission, 168 Conn. 20, 22, 357 A.2d 495 (1975). "Before the floating zone can `descend,' an application must be made for a change of zone and a public hearing must be held." Id., 24. The plaintiffs assert that an aggrieved person may raise issues regarding irregularities in the amendment or the adoption of the zoning regulations that create the floating zone in an appeal from the change of zone if and when such change of zone occurs. See id., 25-26. The plaintiffs argue that the defendant violated local ordinances and state statutes at the time of the adoption of the zoning ordinance in 1997 and that the ordinance "descended" onto the plaintiffs' properties in 1998 when the defendant approved the petition to modify the Meriden zoning map and reclassify their properties. It is not necessary to decide whether the 1997 enactment establishing the ridgeline protection area created a "floating zone" subject to attack in this appeal, because even if it did, the relevant question is whether allowing the plaintiffs' proposed amendments to the complaint will cause undue delay and result in unfairness or prejudice to the defendant. The plaintiffs contend that there would be no delay in the proceedings in this action because all of the information will be presented to the court by way of affidavits of the officials of the city who had the responsibility of filing the applications, publishing the required notices, erecting notice signs and meeting time constraints of the zoning regulations.
The essence of the floating zone concept as it applies to a party's right to appeal, that no particular property is affected by the mere establishment of such a zone, may not be present here because the property within the zone was in esse and was readily ascertainable. See Schwartz v. Town Plan Zoning Commission, supra, 168 Conn. 22. This is consistent with the claims which the plaintiffs are attempting to assert with respect to the exclusion of Chauncey Peak from the regulations.
The court notes that even if the plaintiffs' claim regarding irregularities in the enactment of the ridgeline protection ordinance did not arise until the ordinance "descended" on the plaintiffs' properties in 1998, the plaintiffs have set forth no compelling reason why they failed to bring their claim until June 7, 2004, over five and a half years after the "descent."
The defendant counters in its objection to the motion to amend that the court should not allow the amendments because this action has been pending since 1998 and the defendant would be prejudiced if the amendments are allowed. The defendant argues that the plaintiffs' pretrial brief filed on June 1, 2004, raises issues that they seek to add by the proposed amended appeal and that the defendant had no notice that the plaintiffs intended to raise these issues until receipt of the brief. The defendant contends that a continuance would be required of all pending dates in this action in order to supplement the record regarding the proceedings related to the enactment of the ordinance in 1997 and to permit the defendant the opportunity to prepare a well-researched defense on the new issues raised by the plaintiffs. The defendant also argues that the plaintiffs' proposed amendments constitute new causes of action that are barred by the time limitation contained in General Statutes § 8-8(b).
General Statutes § 8-8(b) provides: "Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3, may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court."
Section 8-8(b) provides for an appeal period of fifteen days from the date that the notice of the decision is published. In this case, the fifteen-day appeal period expired long ago. The proposed amendments may only be allowed, therefore, if they relate back to the date of the original appeal.
"Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001). The issue in this case becomes whether the proposed amendments are barred by the legislatively prescribed time provisions of § 8-8(b) because they set forth a new factual situation, or, rather, whether they merely amplify or expand what was alleged in the original appeal. See Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002).
Insofar as the proposed amendments assert claims relating to irregularities and to actions taken by the defendant in 1997 in enacting the ridgeline protection zone, they set forth new factual situations and are time barred. See General Statutes § 8-8(b). The plaintiffs' original appeal is based on the defendant's alleged abuse of discretion and arbitrary and illegal actions regarding the approval of the ridgeline protection zone change petition on October 5, 1998. The relevant allegation of the amended appeal addresses, however, the procedures followed at the time of the adoption of the ordinance that established the ridgeline protection zone in 1997. The amended appeal gives rise to a new and different factual situation that does not merely "amplify or expand"; Wagner v. Clark Equipment Co., supra, 259 Conn. 129; what has already been alleged. Accordingly, the plaintiffs' proposed amendments insofar as they relate to the 1997 enactment would be barred by the fifteen-day appeal period contained in § 8-8(b). Additionally, it is worth restating that "[a] trial court has wide discretion in granting or denying amendments to the pleadings . . ." (Internal quotation marks omitted.) Cabinet Realty, Inc. v. Planning Zoning Commission, supra, 17 Conn.App. 348. This action was commenced by service on October 27, 1998. The plaintiffs presumably knew of the 1997 amendment to the zoning regulations that created the ridgeline protection zone at the time of the approval of the zone change petition in 1998; however, the plaintiffs waited over five and a half years to amend the appeal to include an allegation that the ordinance that established the ridgeline protection zone in 1997 was not enacted properly. Allowing the amendment would engender delays in the proceedings and prejudice to the defendant in mounting a defense to claims concerning actions taken over seven years ago. The plaintiffs' assertion that there will be no undue delay "because all of the information will be presented to the court by way of affidavits of the officials of the city who had the responsibility of filing the applications, publishing the required notices, erecting notice signs and meeting time constraints of the zoning regulations" is belied by the history of the parties' attempts to complete the record regarding the claims as originally asserted.
To date, the parties to this case have filed approximately seven separate motions relating to the addition or exclusion of evidence from the record.
Additionally, the allegations of the original appeal and the position of the plaintiffs with respect to the contents of the record have not given the defendant "fair notice"; Alswanger v. Smego, supra, 257 Conn. 65; of the additional allegations set forth in the amended appeal. For instance, on June 14, 1999, the plaintiffs successfully moved the court (Levine, J.) to delete from the defendant's Return of Record dated February 4, 1999, the following items:
1. Resolution — Item #5, Dated April 7, 1997, presented by Stephen Zerio, Laura Gallo and Michael Rohde; and
2. Committee Report, and its attachments, from Economic Development, Housing and Zoning Committee — Item #24A, Dated July 7, 1997, re: Approval of Proposed Ordinance to City Code Section 213.26.6 — "Ridgeline Protection Zone."
The plaintiffs had argued to the court that the items "predate the actions of the Zoning Commission which are the subject of this appeal [namely, the commission's October 5, 1998 approval of the petition to modify the Meriden zoning map, which placed the plaintiffs' properties within the ridgeline protection zone]. Under the circumstances these items have no probative value as to the actions of the Zoning Commission and were not before the Commission in its deliberations." Thus, rather than providing the defendant with notice of its claims pertaining to the enactment of the 1997 ordinance, the plaintiffs' request to exclude this evidence most probably had the opposite effect, signaling that the plaintiffs did not intend to bring claims related to the enactment of the 1997 ordinance.
Insofar as the plaintiffs are attempting, in paragraph 10(e) of the amended complaint, to insert in this appeal constitutional claims of equal protection violations relating to the exclusion of Chauncey Peak from the ridgeline protection zone and of due process violations relating to the confiscation of their property as a result of the enactment of the ordinance on July 7, 1997, the amendment is disallowed for the reasons that such claims present new and different factual scenarios and are not an expansion of what was alleged in the original appeal. Additionally, the reasons set forth above for not allowing paragraph 10(f) to be added to this appeal are of equal force here: there was not fair notice to the defendant, there will be prejudice to the defendant, and there will be delay and continuance of this already overly-prolonged matter.
Conversely, insofar as the plaintiffs' attempt in subparagraph 10(e) of the amended complaint to assert takings claims in violation of the fifth amendment to the United States Constitution and article first, § 11, of the Connecticut constitution as a result of the defendant's October 5, 1998 approval of the modification of the Meriden zoning map which placed the plaintiffs' properties within the ridgeline protection zone, the amendment is allowed because, reading the allegations of the original complaint broadly, subparagraph 10(e) may be seen to amplify or expand the allegations in the original appeal and to relate back to the original appeal without causing undue delay.
CONCLUSION
For the foregoing reasons, the court enters the following orders:
1) The plaintiffs' motion to amend the appeal to add paragraph 10(f) is denied, and the defendant's objection to the motion to amend as to the addition of paragraph 10(f) is sustained.
2) The plaintiffs' motion to amend the appeal to add paragraph 10(e) is denied, and the defendant's objection thereto is sustained, EXCEPT that the amendment to paragraph 10(e) is allowed but only insofar as it alleges that the defendant violated the fifth amendment of the constitution of the United States and article first, § 11 of the constitution of the state of Connecticut in approving the Ridgetop Protection Zone Change petition to modify the Meriden zoning map.
3) The plaintiffs may file an amended complaint consistent with this decision on or before December 20, 2004.
4) Thereafter, if the defendant wishes to make a motion for additional evidence accompanied by brief and offer of proof, such a motion should be made not later than December 31, 2004.
BY THE COURT
Tanzer, Judge