Opinion
CV166059588S
02-06-2018
SUCCESS, INC. v. TOWN OF STRATFORD
UNPUBLISHED OPINION
OPINION
RADCLIFFE, J.
FACTS
The Plaintiff, Success, Inc., is the owner of 175 Patricia Drive, Stratford. The property was acquired via a quitclaim deed from Frances Erica Lane, Inc. (Ex. 7). The deed was recorded on May 16, 2016, at Volume 3970, Pages 214-15 of the land records of the Town of Stratford.
The quitclaim deed recites consideration of " one ($1.00) Dollar." However, the Plaintiff, in response to Interrogatories posed by the Town of Stratford, claims that Frances Erica Lane, Inc. purchased the property for four hundred thousand ($400,000.) dollars (Ex. A, p. 3).
175 Patricia Drive consists of 12.13 acres, of which more than one-third, 4.8 acres, consists of wetlands. The irregularly shaped " flag lot" contains 58.67 feet of frontage along Patricia Drive (Ex. 3).
In 2009, Frances Erica Lane, Inc., envisioned a four (4) lot residential subdivision on the property. It sought a permit from the Stratford Inland Wetlands and Watercourses Commission, in order to construct a road and two (2) driveways as part of the subdivision. Three (3) of the four (4) proposed lots could only be accessed by crossing the wetlands (Ex. 3).
The Inland Wetlands and Watercourses Commission approved the permit (Ex. 2) on March 18, 2009. The proposed road and cul-de-sac, Frances Erica Lane, was approximately five hundred (500) feet long, and access to three (3) of the four (4) lots was provided by the driveways (Ex. 3).
However, even with the necessary wetlands permit secured (Ex. 2), no subdivision could be approved, without a variance of S. 3.14 of the Stratford Zoning Regulations. That provision, which predates the adoption of Inland Wetlands and Watercourses Regulations by the Town of Stratford, provides, in relevant part:
No new building construction increasing building area ... other impervious surfaces or alteration of existing contours shall be permitted within 50 feet of any freshwater inland wetland ...
Frances Erica Lane, Inc. applied to the Stratford Board of Zoning Appeals, seeking a waiver of S. 3.14. The Board, after hearing, denied the variance request. This action effectively eliminated the possibility of a four (4) lot subdivision, because three (3) of the proposed lots could not be accessed, absent the road and driveways (Ex. 3). Following the Board’s denial of the variance, (Ex. 4) the property owner appealed.
The trial court (Owens, JTR), dismissed the appeal, a decision which was affirmed by the Connecticut Appellate Court in 2014. Frances Erica Lane, Inc. v. Board of Zoning Appeals, 149 Conn.App. 115 (2014) (certification denied, 311 Conn. 956 (2014) ).
Within two months after the Connecticut Supreme Court denied certification, the Town of Stratford offered to purchase 175 Patricia Drive for two hundred thirty-six thousand five hundred ($236,500.) dollars (Ex. 5). The property abuts Roosevelt Forest, an area dedicated to open space.
Success, Inc., as the successor to Frances Erica Lane, Inc., instituted this action against the Town of Stratford. The Plaintiff maintains that the refusal of the Stratford Board of Zoning Appeals to grant a waiver of S. 3.14, has resulted in a taking of property without just compensation, in violation of Article First, Section 11 of the Constitution of the State of Connecticut and the Fifth Amendment to the Constitution of the United States.
Article First Section 11- " The property of no person shall be taken for public use without just compensation."
Success, Inc. claims that the actions of the Town of Stratford amount to a practical confiscation of its property, because the property cannot be used for any reasonable purpose. It further alleges that its reasonable investment-backed expectation for the use and enjoyment of the property as a four (4) lot subdivision has been eliminated, and that a taking of property has resulted.
The Plaintiff claims damages for the loss of the value of four (4) residential building lots, and lost profit on the sale of homes which would be constructed in the subdivision (Ex. A, p. 6).
The Defendant, Town of Stratford argues that no taking of property has occurred, in light of the Appellate Court decision. The opinion of the Court quotes the Plaintiff’s predecessor in title as admitting that without a variance of S. 3.14, a single-family dwelling can be built on the property. Frances Erica Lane, Inc. v. Board of Zoning Appeals, supra, 129-30. As of 2014, 175 Patricia Drive carried an assessment for tax purposes of one hundred twenty thousand eight hundred ($120,800) dollars, which translates into a fair market value of one hundred seventy-two thousand six hundred ($172,600) dollars.
The Defendant also points to the language of S. 13.1, in support of its claim that no taking has occurred. The section provides:
" The provisions of this section, as they relate to inland wetlands and watercourses ... shall not apply to any property which is the subject of an application for a Special Case under Section 20 of these Regulations, provided that an application for said proposed use has been submitted to the Stratford Inland Wetlands and Watercourses Commission, and provided further that a public hearing has been held ... on any such application."
Special Case uses permitted in an RS-1 Zone, include public schools, firehouses, police stations or similar public buildings (S. 4.1.6.1), churches, parish halls or other religious uses (S. 4.1.6.3), a not for profit school or institution of higher learning (S. 4.1.6.4), a not for profit club or community house (S. 4.1.6.6), libraries, museums and auditoriums (S. 4.1.6.8), and hospitals, sanitariums, asylums or similar not for profit charitable or philanthropic institutions (S. 4.1.6.9).
The regulations also exempt from S. 3.14, affordable housing developments which are " subject to the requirements of Sections 5.4 and 20 of the Zoning Regulations." (S. 4.1.6.11.1)
Barry Knott, a practicing attorney who specializes in zoning and land use planning in the Town of Stratford, testified at trial. Attorney Knott, who has practiced law in Stratford for forty-three (43) years, testified concerning his experiences before Stratford land use agencies, confronted with an application impacted by S. 3.14 of the Regulations.
He pointed out that the language of S. 3.14 acts as an absolute bar to development within fifty (50) feet of an inland wetland. The Regulation was adopted prior to 1965, and was conceived as a flood control measure, according to Attorney Knott. It predates the adoption of the Inland Wetlands and Watercourses Act, in 1972, S. 22a-37, et seq. of the General Statutes. Wetlands regulations were adopted by the Town of Stratford in 1978, and the Stratford Inland Wetlands and Watercourses Commission was formed in 1988, according to Attorney Knott.
Attorney Knott testified that the application for a variance of S. 3.14 submitted by Frances Erica Lane, Inc., was the first time, in his many years of experience, that a variance had been denied, in a situation in which the Stratford Inland Wetlands and Watercourses Commission had issued a permit sanctioning a regulated activity within fifty (50) feet of a wetland.
The Plaintiff also presented testimony from Manny Silva, a partner in the engineering firm of Rose Tiso, who regularly appears and offers expert testimony before land use boards and commissions. Silva opined that a conforming four (4) lot subdivision could not be achieved on the property, if it was necessary to comply with S. 3.14. Without a variance, he testified, a road could not be constructed, thus eliminating at least three (3) of the proposed lots. He further explained that it was " unlikely" that the property could be utilized as a single building lot, because without the proposed road, lot frontage would be measured from Patricia Drive.
Silva claimed that using the parcel as a single residential lot would be " difficulty," in light of setback and topography factors. He acknowledged, however, that no attempt had been made by Success, Inc. or its predecessor in title, to gain approval of the site as a single residential building lot. Silva had not attempted, within existing regulations, to site a conforming single-family dwelling on the parcel.
Success, Inc. claims, based upon the assumption that the property cannot be used for residential development, that its damages total six hundred twenty five thousand ($625,000) dollars. The claim consists of four hundred thousand ($400,000) dollars as the value of the land, after construction.
In the alternative, it seeks compensation for the loss of three (3) building lots, which are inaccessible due to S. 3.14 of the Regulations. The loss claimed in this scenario, is three hundred thousand ($300,000) dollars for the land, and one hundred ninety-one thousand two hundred fifty ($191,250) dollars in lost profits.
The claims are based upon the testimony at trial of real estate appraiser Charles Liberti, and the written report compiled by Liberti (Ex. 8).
INVERSE CONDEMNATION CLAIMED
Inverse condemnation is a cause of action instituted by a property owner against a governmental defendant, to recover the value of property claimed to have been taken in fact by the governmental defendant, even though no formal use of the power of eminent domain has been exercised. Barton v. City of Norwalk 326 Conn. 139, 146-47 (2017). An inverse condemnation claim accrues, when the purpose of the governmental action, and its impact on the property owner, is the substantial equivalent of an eminent domain proceeding. Gold v. Rowland, 96 Conn. 186, 201 n.14 (2010); City of Bristol v. Tilcon Materials, Inc., 284 Conn. 55, 83 (2007).
An inverse condemnation takes place, when either 1) the application of a regulation to the property amounts to a practical confiscation, because the property cannot be used for any reasonable purpose, or 2) utilizing a balancing test, the regulation’s application impermissibly has infringed upon the property owner’s reasonable investment back expectations, of the use and enjoyment of the property, so as to constitute a taking. Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 257-58 (1995); Santos v. Zoning Board of Appeals, 174 Conn.App. 531, 534 (2017).
The effect of the government action must be such that a substantial destruction or interference with the use of the property, amounting to confiscation, has occurred. This represents a fact intensive issue, which is, by definition, case specific. Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 287 (2008). In a situation involving a zoning variance, when a reasonable use of the property exists, there can be no practical confiscation. Caruso v. Zoning Board of Appeals, 320 Conn. 315, 323 (2016).
In order to successfully prosecute a claim for inverse condemnation, a final decision must be rendered by the initial decision maker, in the case, the Stratford Board of Zoning Appeals. Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 600 (1991). An administrative appeal, and an inverse condemnation claim, are distinct actions, and seek distinct remedies. Cumberland Farms, Inc. v. Town of Groton, 247 Conn. 196, 216 (1998).
EVIDENCE DOES NOT SHOW THAT PROPERTY CANNOT BE USED FOR ANY REASONABLE PURPOSE
Manny Silver, an expert witness, testified concerning the challenges faced by a property owner seeking to develop 175 Patricia Drive. He declared, convincingly, that a four (4) lot subdivision cannot be approved for the property, in the absence of a variance of S. 3.14 of the Zoning Regulations.
Access to three (3) of the lots is foreclosed, in light of the zoning regulation, notwithstanding the approval granted by the Stratford Inland Wetlands and Watercourses Commission.
However, Silva was less definitive, when asked about the possibility of placing a single, conforming residential building lot on the parcel.
While he claimed it is " unlikely" that a building lot would be permitted, based upon setback and topography considerations, he did not offer the opinion that a single building lot cannot, consistent with existing regulations, be situated on 175 Patricia Drive.
Furthermore, no proposal for a single lot has been prepared for submission to the appropriate Stratford land use and zoning bodies.
The Plaintiff is compelled to acknowledge, that the Appellate Court opinion in Frances Erica Lane, Inc. v. Board of Zoning Appeals, supra, 129-30, claims that the Plaintiff conceded its ability to build a single-family home on the property, even without a variance of S. 3.14 of the Regulations.
Due to Silva’s equivocal testimony, and the admission cited by the Appellate Court, the court is unable to find that 175 Patricia Drive has been rendered valueless, due to the failure of the Board of Zoning Appeals to grant a variance of S. 3.14.
Although this finding might be revisited, should an attempt to construct a single-family residence be denied by the Town of Stratford, the evidence at trial does not establish the claim that 175 Patricia Drive is without value, in the absence of a variance.
INVESTMENT BACK EXPECTATION NOT PROVEN
The Plaintiff, Success, Inc., claims that its predecessor in title, Frances Erica Lane, Inc., had a reasonable investment-backed expectation that 175 Patricia Drive, Stratford would yield a four (4) lot subdivision, when the property was purchased.
This claim is not well taken. Attorney Knott testified creditably that S. 3.14 is routinely waived by the Stratford Board of Zoning Appeals, when a permit for development has been approved by Stratford’s wetlands authority. He also testified that S. 3.14 was first adopted as a flood control measure, and receded by many years the adoption of wetlands regulations by the Town of Stratford.
However, notwithstanding this testimony, given the legal requirements which must be met before a variance can be granted, the Plaintiff could not reasonably assume when it purchased the property, that a variance would be approved pro forma, in order to permit development of 175 Patricia Drive.
In order to grant a variance, a municipal zoning board of appeals must find that two (2) conditions have been satisfied: 1) the variance must be shown not to affect substantially the municipal comprehensive plan, and 2) adherence to the strict letter of the zoning ordinances must be shown to cause unusual hardship, unnecessary to the carrying out of the comprehensive plan. Moon v. Zoning Board of Appeals, 291 Conn. 16, 24 (2009); Francini v. Zoning Board of Appeals, 227 Conn. 785, 790 (1994).
Because the granting of a variance permits a property owner to use its property, even though a violation of the zoning regulations will result, it is reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07 (1995); Burlington v. Jencik, 168 Conn. 506, 508 (1978). Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. Tine v. Zoning Board of Appeals, 308 Conn. 300, 310 (2013).
The requirement that any applicant for a variance must demonstrate hardship, arising out of the application of the zoning regulations to the property in question, renders a variance more susceptible to attack on appeal to the Superior Court, than other land use approvals such as special permits, site plans, subdivision applications, and changes in zoning regulations.
Any claimed hardship, which is economic, is insufficient to justify the granting of a variance. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965). The potential for financial gain, or financial loss, cannot serve as the basis for a variance. Bloom v. Zoning Board of Appeals, supra, 208. Disappointment in the use of one’s property does not constitute exceptional difficulty or unusual hardship. Green Falls Associates, LLC v. Zoning Board of Appeals, 135 Conn.App. 481, 494 (2012). A regulation which prevents land from being used for its greatest economic potential, does not create exceptional difficulty or unusual hardship, and cannot provide the justification for a variance. Grillo v. Zoning Board of Appeals, 206 Conn. 262, 270 (1988).
Given the criteria which must be met by any property owner applying for a variance, and the fact that S. 3.14 of the Regulations existed at the time 175 Patricia Drive was purchased by Frances Erica Lane, Inc., no investment-backed expectation concerning the use of the property as a four (4) lot subdivision can be found.
Furthermore, given the Plaintiff’s failure to prove that 175 Patricia Drive cannot be used for a single-family residence, it cannot be found that the property is without value.
Therefore, it is found that neither the Plaintiff, Success, Inc., or its predecessor in title, had a reasonable investment-backed expectation of a four (4) lot residential subdivision at 175 Patricia Drive.
SECTION 3.14 FOUND ENFORCEABLE BY THE APPELLATE COURT
In Frances Erica Lane, Inc., the Appellate Court upheld the decision of the Stratford Board of Zoning Appeals, which denied a variance of S. 3.14. The variance had been requested, in the context of a four (4) lot subdivision.
The Plaintiff in that case claimed that the Stratford Inland Wetlands and Watercourses Commission had exclusive jurisdiction over activities within wetlands and watercourses, or within the " buffer" or upland review area around the wetland or watercourse. The court permitted the property owner to challenge the need for a variance of S. 3.14 in the appeal, despite the fact that a variance application had been submitted. This challenge was reviewed, notwithstanding the Plaintiff’s failure to file a writ of mandamus or a declaratory judgment, challenging the need to obtain a variance. Frances Erica Lane, Inc. v. Board of Zoning Appeals, supra, 120 n.3.
The Court, in an opinion which broadly interpreted the powers of municipal land use agencies, found that the Stratford Inland Wetlands and Watercourses Commission, and the zoning authorities, exercise concurrent jurisdiction regarding matter pertaining to inland wetlands. The Court therefore upheld the failure of the Board to approve the requested variance, and acknowledged the right of the Town of Stratford to enact S. 3.14 of its regulations. Frances Erica Lane, Inc. v. Board of Zoning Appeals, supra, 126.
Success, Inc. argues that the Town of Stratford has no rational basis, which justifies the enforcement of S. 3.14. Although this court finds the claim appealing, the argument will not avail Success, Inc. in this action.
It should be noted that S. 3.14 contains an absolute prohibition against " impervious surfaces" such as a road or a driveway, within fifty (50) feet of any freshwater inland wetland.
This power, as ratified by the Appellate Court, exceeds any authority possessed by an inland wetlands agency, regarding activities in the upland review or buffer area surrounding a wetland or watercourse.
In order for a municipal wetlands authority to deny an applicant a permit to conduct a regulated activity, it must determine that the proposed activity will have a likely adverse impact on a wetland or watercourse. River Bend Associates, Inc. v. Conservation and Inland Wetlands Commission, 269 Conn. 57, 71-72 (2004). Evidence of potential damage, based on a mere possibility or a worry are insufficient, when stated as a reason for denying a permit. Estate of Machowski v. Inland Wetlands Commission, 137 Conn.App. 830, 840 (2012); Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, 103 Conn.App. 354, 365 (2007).
Impacts on the upland review area, even if in close proximity to a wetland or watercourse, are insufficient to deny a permit to conduct a regulated activity, absent a finding that there is a likely impact on wetlands or watercourses. Cornaccia v. Environmental Protection Commission, 109 Conn.App. 346, 357-58 (2008).
Furthermore, S. 3.14 does not apply its prohibition uniformly. Uses permitted by special case in the RS-1 Zone, are not subject to the Draconian fifty (50) foot prohibition which is applicable to a single-family residence or a residential subdivision.
However, in Frances Erica Lane, Inc., the Appellate Court determined that S. 3.14 applies to the four (4) lot subdivision envisioned for 175 Patricia Drive, based upon concurrent jurisdiction with the Stratford Inland Wetlands and Watercourses Commission.
Furthermore, even if S. 3.14 was found to lack any rational basis, that determination would not support a finding of inverse condemnation, based upon an investment-backed expectation. Just as a purchaser would not be justified in assuming the granting of a variance, that same purchaser cannot assume that a zoning commission, or a court, would find a regulation void, because it lacks a rational basis.
In addition, Success, Inc. has failed to prove that 175 Patricia Drive cannot be dedicated to a single-family residence or uses permitted by special case. This prevents any finding that the property is without value, even in the absence of a variance.
It should be noted, that nothing in this decision precludes Success, Inc. from claiming that S. 3.14 lacks a rational basis, in an administrative proceeding in which it seeks approval of a four (4) lot subdivision. In any such proceeding before the Stratford Zoning Commission, it would not be necessary for Success, Inc. to prove that 175 Patricia Drive was without value, or that a reasonable investment-backed expectation existed, in order to claim that S. 3.14 lacks a rational basis.
The Appellate Court, in Frances Erica Lane, Inc. v. Board of Zoning Appeals, supra, did not address the claim that S. 3.14 lacks a rational basis, in light of the fact that it applies only to certain uses allowed in the underlying zone. Any such finding is not inconsistent with that Court’s determination that the ordinance was valid based upon concurrent jurisdiction.
Nor is Success, Inc. prevented from pursuing other available remedies.
CONCLUSION
Judgment may enter in favor of the Defendant, Town of Stratford.