Opinion
FBTCV146044600S
08-05-2016
MTM Family Limited Partnership v. City of Bridgeport et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND ON DEFENDANT'S OBJECTION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Alfred J. Jennings, Jr., Judge
Procedural/Factual Background
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.
Approximately 0.7 acre of the 3 acre parcel is located in the Town of Trumbull.
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 315924 . The City had obtained a copy of Judge Melville's Iwanicki decision in or about December 5, 2011 from a neighbor of the Property. In that decision, Judge Melville held that the petition of the then-owner of the Property, Mr. Joseph Nardzus, for a variance to permit a business use, a shopping center, in a residential zone constituted, in effect, a petition for a zone change, which was beyond the authority of the Zoning Board of Appeals. " For the foregoing reasons this court concludes that the defendant Bridgeport Zoning Board of Appeals in granting the defendant Nardzus' petition exceeded its legal authority and thereby usurped the function of the zoning commission and thereby acted illegally and in abuse of its discretion." [WL] *4. The Iwanicki decision was not appealed. The whole controversy of this case came about because nothing was put on the Bridgeport Land Records confirming the judicial overruling of the recorded Variance, because the Zoning Department of the City of Bridgeport and the City Attorney's office apparently failed to retain a copy of Judge Melville's decision or other record of his ruling, or, if retained, could not locate it in 2011, and because a clerk of the Superior Court twenty-nine years later was not able to find any record of the decision.
Counsel for the Plaintiff suggests that, because he and his client did not know the name(s) of any aggrieved party or parties who may have filed the appeal, but only knew the date of the variance and the address of the property, and the Superior Court indexes cases by names of the parties, and not by property address, the Clerk could not find any record of an appeal.
Discussion
A. Summary Judgment Standards
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). " The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." Viola v. O'Dell, 108 Conn.App. 760, 763-64, 950 A.2d 539 (2008). " In order for a motion for summary judgment to be granted properly, the moving party must demonstrate that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Farrell v. Twenty-First Century Insurance Co., 301 Conn. 657, 661-62, 21 A.3d 816 (2011). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). " The test is whether a party would be entitled to a directed verdict on the same facts . . . A [defendant's] motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Emphasis in original; internal quotation marks omitted.) Byrne v. Burke, 112 Conn.App. 262, 268, 962 A.2d 825 (2009).
Plaintiff MTM has submitted the January 23, 2015 affidavit of its General Partner Manuel Moutinho which mirrors the foregoing factual background allegations of the complaint and states additionally that:
5. Absent the Variance, MTM would not have purchased the Property. Indeed the only reason why we purchased the Property was to develop it for commercial use.
22. Despite the rescission of the approved Application for Certificate of Zoning Compliance and of the Foundation Building Permit, MTM continued to complete the site work at the Property, claiming it would be dangerous to leave the Property in the condition it was in at that time.
23. On or about December 19, 2011 and February 13, 2012, the City served Orders to Comply upon MTM, asserting, inter alia, that the continued site work required a current and valid application for Certificate of Zoning Compliance. MTM filed appeals of the Orders to Comply with the Bridgeport Zoning Board of Appeals. (ZBA) Those appeals were denied. The ZBA, in addition to denying the appeal ordered MTM to file a site remediation plan with the Zoning Department. MTM subsequently appealed to the Superior Court in one consolidated administrative appeal titled MTM Family Limited Partnership v. Zoning Board of Appeals, City of Bridgeport, Docket No.: FBT-CV 12-6026208-S and Docket No.: FBT-CV12-6027352-S (the " Administrative Appeals"). During the pendency of the Administrative Appeals, the City filed an application for permanent injunction seeking, inter alia, 1) to enjoin MTM " from allowing excavating/filling and rock crushing operations on" the Property; and 2) to " cease and desist from bringing rock or other debris to" the Property (the " Injunction Action").
24. After a three-day trial, the Injunction Action titled Neil Bonney, Bridgeport Zoning Enforcement Officer v. MTM Family Limited Partnership, Docket No.: FBTCV 12-6026479-S. was decided in favor of MTM. Because nearly all of the above-described events were essential to MTM's defense in the Injunction Action, the Court had reason to make findings regarding municipal estoppel in its Memorandum of Decision dated January 28, 2013. In fact, the Court determined that under the doctrine of municipal estoppel, the City of Bridgeport was " estopped from enforcing its cease and desist orders."
25. On February 14, 2014, a decision was rendered by the Superior Court in the Administrative Appeals. In its Memorandum of Decision, the Superior Court (Radcliffe, J.) Cited to the Bonney Decision and concurred that municipal estoppel had been established.
The Moutinho affidavit incorporates as Exhibits: A) the 1991 Variance granted by the ZBA; B) the Notice of Grant of Variance recorded in the Bridgeport Land Records on January 22, 1992; C) the July 6, 2011 Conte Email to Buckley; D) the October 6, 2011 email from Neil Bonney to Joseph Kubic; E) The approved Application for Certificate of Zoning Compliance dated November 3, 2011; F) Judge Gilardi's January 28, 2013 Memorandum of Decision in the Injunction Action; and G) Judge Radcliffe's February 14, 2014 Memorandum of Decision in the Administrative Appeals cases.
Plaintiff also submits the January 22, 2015 affidavit of Joseph Micelli, Jr., Construction Manager for MTM which repeats and confirms the statements made in the Moutinho affidavit.
Defendants have submitted no counter affidavits but rely on their Memorandum in Opposition to Plaintiff's Motion for Summary Judgment which incorporates judicial decisions and other matters of public record.
TB. First Count--Municipal Estoppel
The First Count alleges, in addition to the foregoing Factual Background allegations, that:
23. Authorized agents of the City have made statements and acted in a manner calculated or intended to induce the Plaintiff to believe that Plaintiff was entitled to develop a retail shopping center at the Property in accordance with the Variance and the plans submitted to the City.
24. The Plaintiff exercised due diligence to ascertain the true status of the Variance and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge.
25. The Plaintiff has changed its position in reliance on the statements and actions of the City's agents.
26. The plaintiff would be subjected to a substantial loss if the City were permitted to negate the acts of its agents.
27. The plaintiff has acquired a vested right to complete the work at the property in accordance with the plans submitted to the City and the City is estopped from denying any permits necessary to complete the retail shopping center.
Defendants in their Answer deny paragraphs 22-27.
The Connecticut Supreme Court has determined that the doctrine of estoppel is applicable to municipalities in the enforcement of zoning laws
Three are two essential elements to an estoppel-the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done . . . In order for the court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to substantial loss if the municipality were permitted to negate the acts of its agents . . . The party claiming estoppel has the burden of proof. Levine v. Town of Sterling, 300 Conn. 521, 535, 16 A.3d 664 (2011), quoting O'Connor v. City of Waterbury . 286 Conn. 732, 758, 945 A.2d 936 (2008).
The Supreme Court has also held, " Furthermore, because municipal estoppel should be invoked with great caution, our case law clearly imposes a substantial burden of proof on the party who seeks to do so." Cortese v. Planning and Zoning Board of Appeals, 274 Conn. 411, 419-20, 876 A.2d 540 (2005).
In this case, there is no issue of fact as to the first element. From the defendant's admissions to paragraphs 4, 5, and 8 of the Complaint and the uncontroverted statements in paragraphs 4, 8, 11, and 12 of the Moutinho affidavit, as confirmed by the Micelli affidavit, it is clear that representations were made on and after the meeting of June 13, 2011 by authorized representatives of the City of Bridgeport including defendant Buckley and Land Use Director Minor, that, due to the existence of the Variance, permits could be issued for the construction of a retail shopping center on the Property without any need for further land use approvals. It is also uncontroverted that Associate City Attorney Conte, through defendant Buckley, represented to the Plaintiff that a court appeal had been filed by a neighbor from the 1991 granting of the Variance but the appeal was " later abandoned."
There is also no material issue of fact as to the second element, due diligence to obtain the truth, and no convenient means of acquiring that knowledge. It is uncontroverted from his affidavit and the Moutinho affidavit that Plaintiff's Construction Manager Joseph Miceli, upon learning from John Guedes, who had prepared the plans for Variance in 1991, that a court appeal had been filed but the result of that appeal was unknown, brought that statement promptly to defendant Buckley who continued to advise that he did not believe that an appeal had been taken, but that he would consult with the Office of the City Attorney regarding the same. Mr. Milici nonetheless continued his own investigation by going that same day to the Clerk's Office of the Superior Court at Bridgeport where a clerk, after searching the court's files, advised that no appeal had been filed from the granting of the Variance.
And there is no material issue of fact but that Plaintiff satisfies the fourth element, that the Plaintiff would be subjected to substantial loss if the if the municipality were permitted to negate the acts of its agents. In Levine v. Town of Sterling, supra, the court held, following Illinois precedent, that " . . . the primary consideration in determining whether a party will suffer a substantial loss is whether a party has made significant expenditures in reliance upon the representation of a municipal officer." (Expenditure of $49,897.20 held sufficient.) 300 Conn. at 538. Here, Mr. Moutinho in his affidavit has attested to the expenditure of $1,492,688.99 on the purchase and development and planning of the Property. Defendant has submitted no evidence to the contrary.
The key issue then becomes the third element--whether Plaintiff has met its burden of showing beyond an issue of material fact that it had changed its position in reliance on the represented facts. Any such action in reliance would have to have occurred prior to December 5, 2011 when the City advised Plaintiff of Judge Melville's 1992 judgment voiding the Variance. Plaintiff claims that the act of purchasing the Property in 2005 was an act in reliance upon the representations that the Variance would permit the construction of the Shopping Center without any further land use approvals. There is no evidence, however, of any affirmative representations in 2005 by any agent of the City regarding the Variance or Plaintiff's ability to get the necessary permits to construct the shopping center. With regard to 2005 the Moutinho affidavit states only that that MTM searched the Bridgeport and Trumbull Land Records and " zoning office records, " finding the Variance.
Defendants point out that Judge Radcliffe in his Memorandum of Decision on the Administrative Appeals, found that " In November of 2005, the current owner [Plaintiff MTM Family Limited Partnership] submitted a proposal, seeking approval of a 16, 380 square foot building, dedicated to both retail and residential use. A change of zoning classification was sought, from R-A to Office Retail OR-R Special Permit and site plan approval were also requested ." (Emphasis added.) MTM Family Limited Partnership v. Zoning Board of Appeals, City of Bridgeport, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FBT CV12-6026208S, (February 14, 2014, Radcliffe, J.), 2014 WL 1013357 at *1 . That finding by Judge Radcliffe is binding on the parties Although that 2005 application " did not go forward to a public hearing" the mere fact that it was filed shortly after Plaintiff's purchase of the Property is enough to call into question Plaintiff's professed reliance on the 1991 Variance to build a retail shopping center in a residential zone and Mr. Moutinho's statement that Plaintiff would not have purchased the Property absent the Variance. This creates a material issue of fact as to acts in reliance on the Variance and representations of the defendants in 2005.
There were no further efforts to develop the Property until June 2011, but Plaintiff's own actions at that time also call into question its reliance on the Variance Defendant's 2011 representations that the Property could be developed as a retail shopping center without further land use approvals, because, as Judge Radcliffe noted and the Moutinho affidavit confirms, " In May 2011 a similar application was the subject of a petition to the Bridgeport Planning and Zoning Commission. A building consisting of 17, 600 square feet was contemplated. Approvals were sought for a change in zoning classification from Residence R-A to Office Retail (OR-R) along with a special permit and site plan review." MTM v. ZBA, supra, Id. at *1, Moutinho affidavit, ¶ 7. Instead of just proceeding without further approvals as the Defendants had represented, Plaintiff had continued with its efforts to get approval for more than the Variance allowed, creating an issue of fact as to action in reliance on the Variance and the City's representations. Although the May 2011 application was withdrawn on June 27, 2011, there is no evidence of any action prior to December 5, 2011 to construct the Shopping Center as approved by the ZBA in 1991. Plaintiff did get a permit for site work and clearance, which is now completed, and did on November 3, 2011 get a Certificate of Zoning Compliance for a foundation building permit, but there is no evidence of the actual issuance of a foundation building permit or a building permit for construction of the Shopping Center, or any construction activity prior to December 5, 2011 to build the Shopping Center. There is therefore a triable issue of fact as to Plaintiff's alleged 2011 action in reliance on the Variance and the City's representations that permits could be obtained to build the shopping center allowed under the Variance.
MTM's position on its municipal estoppel argument is further attenuated and a material issue of fact as to action in reliance on the Variance is indicated by MTM's reported admission during the trial of the Neil Bonney. Zoning Enforcement Officer v. MTM Limited Partnership injunction action that in December of 2011 it had decided to voluntarily cease any construction of the shopping center and were intending to complete the site plan and then further intended to apply for a special permit to build a shopping center or to request building permits to build authorized single-family residences. Judge Gilardi's judgment in the Neil Bonney v. MTM case provides:
The claim for a temporary injunction and plan of remediation is denied. While the present petition for a temporary injunction is denied, the present status of the property cannot remain indefinitely. The defendant indicated it would take 2 to 5 weeks to complete the site plan at which time they would seek a special case use variance to build a shopping center or a building permit to build the appropriate family residences. Allowing for delays, the court is ordering that implementation of the site plan as well as the application for a use variance or building permit be completed within seven months. (Memorandum of Decision, 1/28/13, p. 25.)
For all these reasons the Motion for Summary Judgment is denied as to the First Count.
C. Second Count-Municipal Estoppel by Collateral Estoppel
The Second Count, in addition to the allegations of the First Count, alleges that
28. In an action titled Neil Bonney, Bridgeport Zoning Enforcement Officer v. MTM Family Limited Partnership, Docket No. FBT CV 12-6026479, the issue of municipal estoppel was actually litigated between the parties and determined by the Court in favor of MTM Family Limited Partnership in its Memorandum of Decision dated January 28, 2013, a determination that was essential to the decision in that case.
29. Under the doctrine of collateral estoppel, the City may not again litigate the issue of municipal estoppel, which has already been determined in favor of the Plaintiff.
The defendants in their Answer have denied paragraphs 28 and 29.
Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action, Ashe v. Swenson 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990), cert. denied, 498 U.S. 1089, 111 S.Ct. 968, 112 L.Ed.2d 1054 (1991). For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It must also have been actually decided and the decision must have been necessary to the judgment. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1998). The doctrine of collateral estoppel is " based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate." In Re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). In order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concurring which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding. State v. Hope, supra, 215 Conn. at 584.
The Neil Bonney case relied upon by Plaintiff is the Injunction Action previously discussed. The case was brought by the Zoning Enforcement Officer against Plaintiff to restrain the site work at the Property which had continued after the City had served Orders to Comply on December 19, 2011 and February 13, 2012. The issue was limited to the issuance of a temporary injunction to stop that continued site work while the Administrative Appeals of those Orders to Comply remained pending. There was also an order of remediation of the work performed after the Orders to Comply were served and immediate restoration of the site to its original condition. The Court (Gilardi, J.), after a three-day hearing, issued his Memorandum of Decision on January 28, 2013. He denied the motion for temporary injunction on the ground that the plaintiff Zoning Enforcement Officer had not made the requisite showing of irreparable harm if the injunction were to be denied, and that the plaintiff had an adequate remedy at law in the form of the two pending Administrative Appeals. (Memorandum of Decision, p. 18.) Judge Gilardi also denied the request for order of remediation on the ground that implementation would be impossible. " If in fact, this court were inclined to order an immediate plan of remediation, the optimum plan would be completion of the site plan." (P. 19.)
Then, as an alternate ground of decision, the court also considered the defendant MTM's argument that the City was estopped by the doctrine of municipal estoppel from enforcing its cease and desist orders. In doing so, the court did discuss the very claims that Plaintiff is making in this case about the representations of City officials that the Property could be developed as a retail shopping center without further land use approvals, and did estop the City from enforcing those cease and desist orders. That order, however, was not necessary to the decision of the case because the court had already denied the injunction and the remedial order on other grounds. Furthermore, the issue decided in that case--the enforcement of cease and desist orders on site work pursuant to an approved Site Plan, was far from being " identical" to the issue in this case--an estoppel barring the City from failing to issue building permits for construction of a shopping center in a residential zone pursuant to a variance which had been overturned by an earlier final judgment of this court. The lack of identity of issues is highlighted by the final judgment of the court, quoted above at page 13 of this Memorandum.
On February 13, 2013 MTM filed a Motion for Articulation of the foregoing judgment by ordering specifically that the ZBA must approve an application to be submitted by MTM for a new zoning variance to waive the relevant residential zoning regulations. " Absent an articulation as requested, the ZBA or the PZC may very well deny MTM's applications for zoning variances or land use approvals . . ." (Motion for Articulation, p. 13.)
Judge Gilardi responded to the Motion for Articulation by his Order of February 14, 2013, saying:
During the entire trial and included in the briefs for the defendants, the defendants testified that they had voluntarily ceased any construction of the shopping center and were intending to complete the site plan. They then further intended to apply for a special permit to build a shopping center or to request building permit to build authorized single-family residences. The only evidence submitted and requested with respect to the shopping center was the defendant seeking an opportunity to complete the site plan and apply for a special permit. (Order, 2/14/13, p. 1.)
For these reasons there is nothing in the Neil Bonney v. MTM litigation which establishes by collateral estoppel that MTM is entitled to the issuance of a building permit pursuant to the 1991 Variance to construct a shopping center at the Property without further proceedings before the Planning and Zoning Commission.
Plaintiff also points to Judge Radcliffe's citation to the Bonney case and references to municipal estoppel in his February 14, 2014 Memorandum of Decision in the Administrative Appeal cases. In that decision Judge Radcliffe sustained MTM's appeals of the cease and desist orders issued on December 19, 2011 and February 13, 2012 " except to the extent that the cease and desist order sought to prohibit the use of the property for any use which is not permitted in a Residence R-A Zone" as to which the appeals were denied. The court did invoke the doctrine of municipal estoppel, based on the representations made by City personnel at the June 13, 2011 Design Review Meeting, and thereafter, and MTM's action in reliance on those representations by investing substantial resources in the site work, to estop the City from interfering with the status quo of the Property. But, once again, the municipal estoppel issue in that case was much narrower than the municipal estoppel claim Plaintiff makes in this case, to estop the City form denying all required permits for building the shopping center approved in 1991 by the Variance. Judge Radcliffe specifically declined to take the doctrine of municipal estoppel that far: " However, although municipal estoppel requires that the status quo be maintained on the property, it cannot be employed to compel the future use of the property for any use which is not permitted in a Residence R-A Zone." (Memorandum of Decision, 16-17.) And, " It bears reiterating that any future use of the property for commercial or retail purposes must be submitted to the public hearing process, during which transparency is mandated, and the public's right to be heard in an open forum, on the record, is guaranteed." (Memorandum of Decision, 20.)
Because both the Injunction Action and the Administrative Appeals involved limited issues and limited applications of the doctrine of municipal estoppel as compared to the very broad application requested in this case, those decisions do not qualify for collateral estoppel application to the Plaintiff's prayers for relief in this case.
Accordingly, the Motion for Summary Judgment is denied as to the Second Count.
D. Third Count--Mandamus
The Third Count alleges, in addition to the Factual Background allegations that:
23. To the date of this action, Buckley and/or other City officials have refused to provide a Certificate of Zoning Compliance and the required building permits to allow the plaintiff to complete the retail shopping center in accordance with the Variance and the plans submitted to the City.
24. Buckley and other City officials have a mandatory and nondiscretionary duty to provide the Plaintiff with a Certificate of Zoning Compliance and the required building permits to allow the Plaintiff to complete the retail shopping center in accordance with the Variance and the plans submitted to the City (the " Duty").
25. The Plaintiff has a clear legal right to have the Duty performed.
26. There is no other specific, adequate remedy available to the Plaintiff.
27. The plaintiff claims a writ of mandamus ordering that Buckley and/or other City Officials provide a Certificate of Zoning Compliance and the required building permits to allow the Plaintiff to complete the retail shopping center in accordance with the Variance and the plans submitted to the City.
The Defendants in their Answer deny the allegations of paragraphs 23-27.
The requirements for the issuance of a writ of mandamus are as follows: " The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." Avalon Bay Communities, Inc. v. Sewer Comm'n of City of Milford, 270 Conn. 409, 416-17, 853 A.2d 497 (2004).
Plaintiff concedes in its Memorandum of Law that this claim is derivative of the municipal estoppel claims in the First Count or the Second Count, that is, the first two prongs of the Avalon Bay factors would be present for purposes of this motion for summary judgment only if the court were inclined to grant the motion for summary judgment as to the First Count and/or the Second Count. Since the Motion for Summary Judgment has not been granted as to either of those counts, and there is no other evidence that the City of Bridgeport has a mandatory and not discretionary duty to issue all necessary land use permits for the development on the Property of the shopping center contemplated by the 1991 Variance, the Motion for Summary Judgment is denied as to the Third Count.
E. Fourth Count--Promissory Estoppel
The Complaint pleads the Fourth Count by incorporating paragraphs 1-26 of the First Count and adding paragraph 27: " The Plaintiff has suffered money damages." The Defendants deny paragraph 27.
" There are two essential elements to an estoppel--the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." Tradesmens National Bank v. Minor, 122 Conn. 419, 424, 190 A. 270 (1937); Blackwell v. Mahmood, 120 Conn.App. 690, 695, 992 A.2d 1219 (2010). " It is axiomatic that to maintain such a claim, it is not enough that a promise was made; reasonable reliance thereon, resulting in some detriment to the party claiming the estoppel, also is required." Ferrucci v. Town of Middlebury, 131 Conn.App. 289, 305, 25 A.3d 728, cert. denied, 302 Conn. 944, 31 A.3d 382 (2011). Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to know the truth, and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." Linahan v. Linahan, 131 Conn. 307, 39 A.2d 895 (1944).
In general, estoppel may not be invoked against the government or a public agency functioning in its governmental capacity. Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976) " A town cannot be estopped by the unauthorized acts of its agents from enforcing its zoning laws" Id., 352. " The general rule is qualified, however, in that one may invoke the doctrine where his action has been induced by the conduct of municipal officers and where he would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." Id. 353. The court finds that this case would fall within the exception to the general rule. There is no indication that Mr. Buckley, Mr. Minor or Associate City Atty. Conte or any of the other City personnel involved were acting outside the scope of their authority, and MTM would be subjected to a substantial loss if the City were permitted to negate their representations. The court has already held in conjunction with the First Count that MTM exercised due diligence to know the truth and had no convenient means of acquiring that knowledge.
The court finds as a matter of collateral estoppel that the representations made to MTM by City personnel at the June 13, 2011 Design Review Meeting that it could rely on the Variance and build the shopping center without further land use approvals, and the representation in Atty. Conte's July 6, 2011 email that the Variance had been appealed by a neighbor " and later abandoned, " coupled with the issuance to MTM on November 3, 2011 of an approved site plan and permission to perform site work as described therein for the proposed use of " a retail center as app. by ZBA 1/8/91" reasonably induced MTM to expend substantial funds on site clearance and other site work in accordance with the approved site plan. Judge Radcliffe held in MTM Family Limited Partnership v. Zoning Board of Appeals, City of Bridgeport, supra, that " MTM Family Limited Partnership justifiably relied upon the Bridgeport Land Records, a representation from the Bridgeport City Attorney, and the issuance of all necessary approvals by the Zoning and Building Departments, before proceeding with site work on the property. As the record of the hearing demonstrates, substantial resources were invested in the site work in the course of preparing the property for development." (2/14/14 Memorandum of Decision, p. 16.) Unlike the collateral estoppel claim of the Second Count, the issue on this Fourth Count is the same issue that Judge Radcliff ruled on in the Administrative Appeals cases, and his ruling is therefore binding here in this case under the doctrine of collateral estoppel.
The court therefore grants Plaintiff's Motion for Summary Judgment as to liability only on the Fourth Count. Plaintiff is entitled on a theory of promissory estoppel to recover the cost and expense associated with the site work performed on the Property after the site plan was approved. Damages shall be as determined at trial or on a separate Motion for Hearing in Damages to be filed by the Plaintiff.
F. Special Defenses
Defendant's two Special Defenses have no validity.
Judge Melville obviously could not have and did not decide the issues raised in this case when he ruled to invalidate the Variance in 1992. There is no way he could have known that his Memorandum of Decision would not be recorded in the Land Records, and would be misplaced or lost by the City Attorney's Office and the Zoning Department, or that future parties such as MTM would continue to rely on the Variance at the suggestion of the Zoning Department.
And this case is clearly not an appeal from a Zoning Board of Appeals decision calling for the filing of an administrative record. Plaintiff in this case fully supports and relies upon the Variance granted by the ZBA in 1991.
Order
For the foregoing reasons the Plaintiff's Motion for Summary Judgment is denied as to the First Count, the Second Count, and the Third Count. The Motion for Summary Judgment is granted as to liability only on the Fourth Count. The Defendant's Objection to Motion for Summary Judgment is sustained as to the First Count, the Second Count, and the Third Count and overruled as to the Fourth Count.