Hayes Family Ltd. P'ship v. Town of Glastonbury , 166 Conn. App. 585 ( 2016 )

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APPENDIX
HAYES FAMILY LIMITED PARTNERSHIP ET AL.
v. TOWN OF GLASTONBURY*
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,1 seek damages from the defendant, the town of
Glastonbury, under a legal theory of inverse condemna-
tion involving the plaintiffs’ property at 1199 Manches-
ter Road in Glastonbury. On November 29, 2005, the
town’s Plan and Zoning Commission denied the plain-
tiffs’ 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 & Zoning Commission,
Superior Court, judicial district of Hartford, Docket No.
CV-06-4019700-S, 2007 WL 2245790. 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 evi-
dence 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. Partner-
ship 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 commis-
sion’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 gov-
ernment regulation and its economic effect on the prop-
erty owner render the regulation substantially
equivalent to an eminent domain proceeding. . . .
[W]hether a claim that a particular governmental regula-
tion or action taken thereon has deprived a claimant
of his property without just compensation is an essen-
tially ad hoc factual inquir[y]. . . . Short of regulation
which finally restricts the use of property for any rea-
sonable purpose resulting in a practical confiscation,
the determination of whether a taking has occurred
must be made on the facts of each case with consider-
ation 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 condem-
nation requires total destruction of a property’s eco-
nomic 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, 2009.2 Hayes Family Ltd. Partnership v.
Town Plan & Zoning Commission, Superior Court,
judicial district of Hartford, Docket No. CV-06-4020760-
S. 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.
Trial occurred on November 5, 2013, through Novem-
ber 8, 2013,3 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 § 15-8,4 alleging that the plaintiffs failed to make
a prima facie case that the defendant’s actions in deny-
ing 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, 2014.5 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.
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 south-
westerly corner of the intersection of Hebron Avenue
and Manchester Road to a heavily wooded plateau abut-
ting an established single-family neighborhood in a rural
residential zone. On June 27, 2005, the plaintiffs filed
a special permit application with the Glastonbury plan-
ning and zoning commission (commission). The plain-
tiffs 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’ applica-
tion, 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 neighbor-
hood and the inadequacy of the proposed landscaping.’’
Id., 219–20.
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 neigh-
borhood.
‘‘(3) Landscaping proposed will not adequately
replace existing vegetation nor provide adequate buff-
ering to residential properties.’’6 (Internal quotation
marks omitted.) Hayes Family Ltd. Partnership v.
Town Plan & Zoning Commission, supra, 115 Conn.
App. 658 n.3.
B
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 sub-
stantive law concerning land use takings and the issue
of finality or alternative use. Notwithstanding the Appel-
late Court’s remand, the trial court’s review of the sub-
stantive 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
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 plain-
tiff is not entitled to judicial review of the merits of his
regulatory takings claim until he has met the require-
ment of establishing the finality of the agency determi-
nation. . . . To demonstrate the requisite finality, a
property owner asserting a regulatory takings claim
bears the burden of proving that the relevant govern-
ment 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 devel-
oping the property for residential purposes, the wet-
lands status of a portion of the property should also
have warned the plaintiff that development would be
difficult and that repeated applications might be neces-
sary before the agency would approve an application
for a building permit.’ [Id., 416].
‘‘ ‘Furthermore, although the plaintiff’s final applica-
tion reduced the footprint of the proposed house to 1800
square feet from the 2100 square feet of the preceding
application, the final application nonetheless repre-
sented 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 deci-
sion 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.] 416–17. (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 applica-
tion 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 permit-
ted 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 inten-
sive, but still valuable development. Accordingly, the
complaint fails to state a cause of action.’ McDonald,
Sommer & Frates v. Yolo County, supra, [477 U.S.
347]. . . .
‘‘The plaintiffs have cited Cumberland Farms, Inc.
v. Groton, [supra, 247 Conn. 196], to support their argu-
ment 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 applica-
tions for special permits. It is clear from Gil v. Inland
Wetlands & Watercourses Agency, supra, [219 Conn.
417] that [r]ejection of exceedingly grandiose develop-
ment plans does not logically imply that less ambitious
plans will receive similarly unfavorable reviews. In addi-
tion, [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. Glaston-
bury, 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 opin-
ion in Lost Trail, LLC v. Weston, supra, 140 Conn. App.
136. The court in Lost Trail, LLC, affirmed the judgment
of the trial court that had rejected an inverse condemna-
tion claim based upon a municipal decision requiring
the petitioner to obtain subdivision approval for a pro-
posed development. Id., 148–50. ‘‘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 prop-
erty 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., 147.
III
In Hayes Family Ltd. Partnership v. Town Plan &
Zoning Commission, supra, 115 Conn. App. 661–62,
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 compris-
ing 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 dumps-
ters, 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 con-
struction 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 plain-
tiffs 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 affida-
vits. 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 con-
struction of a single-story commercial building that
might, for example, be used for . . . a bank branch
building, and the construction of a two-story commer-
cial 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 Phar-
macy proposal that was rejected by the Commission.
‘‘8. I believe that, based on the topography and loca-
tion of the Property, none of those hypothetical alterna-
tive 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 hypo-
thetical 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 con-
struction 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 excava-
tion 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 defen-
dant that the denial of the special permit application
was beyond challenge, much of the proffer of this testi-
mony could easily be interpreted to be further argument
on the first CVS proposal. For instance, the extent of
the massive excavation necessitated an extensive dis-
cussion 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 previ-
ous zoning appeal found that ‘‘there was adequate evi-
dence to support the commission’s reasons for denying
the special permit.’’ Hayes Family Ltd. Partnership v.
Glastonbury, supra, 115 Conn. App. 662. 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 land-
owner. . . . [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 Envi-
ronmental Protection, 168 Conn. 349, 354–55, 362 A.2d
948 (1975). A denial of one application does not neces-
sarily constitute a fifth amendment taking. First, a plain-
tiff 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 estab-
lishing the finality of the agency determination.’’ Gil v.
Inland Wetlands & Watercourses Agency, supra, 219
Conn. 415; see also Lost Trail, LLC v. Weston, supra, 140
Conn. App. 147 (‘‘[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] expecta-
tion interests ha[ve] been destroyed’’ [internal quotation
marks omitted]); Hayes Family Ltd. Partnership v.
Glastonbury, supra, 132 Conn. App. 223 (‘‘[t]o demon-
strate 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, defini-
tive position from zoning authorities evinces the judicia-
ry’s appreciation that land use disputes are uniquely
matters of local concern more aptly suited for local res-
olution’’).
Hayes testified about two other hypothetical propos-
als cast within the framework of the denial to develop
the CVS. They were presented to this court as alterna-
tives 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;7 nor were any others. While the plain-
tiffs believe they need not present another application,
‘‘[s]trength of unilateral conviction is not, however, a
substitute for a final administrative decision.’’8 Lost
Trail, LLC v. Weston, supra, 140 Conn. App. 148–49.
‘‘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 Wet-
lands & Watercourses Agency, supra, 219 Conn. 415. 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 Glaston-
bury.’’ (Transcript [tr.], November [Nov.] 8, 2013, pp.
34–35.) The plaintiffs argue that Cumberland Farms,
Inc. v. Groton, supra, 247 Conn. 196, allows an inverse
condemnation case based upon one denial. As pre-
viously set forth, the court in Cumberland Farms, Inc.,
concluded that a zoning board of appeals’ denial of a
variance constituted a final decision; id., 197; 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 2005.9 (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 driveway10 or other uses requiring
less excavation. (Pls. exhs. 7-14.) The town introduced
at least three concept plans reflecting a smaller foot-
print and a smaller impact.11 (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 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. Part-
nership v. Town Plan & Zoning Commission, supra,
115 Conn. App. 658 n.3, 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 appli-
cation for a building permit.’’ Gil v. Inland Wetlands &
Watercourses Agency, supra, 219 Conn. 416. Indeed, ‘‘in
most cases, a property owner must do more than submit
one plan12 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., 417.
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 applica-
tion for a different development with presumably a
different impact might not be acceptable under the rea-
sons 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 settle-
ments.’’ Lost Trail, LLC v. Weston, supra, 140 Conn.
App. 149. ‘‘[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. South-
bury, supra, 188 Conn. 353–54.
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.
* Affirmed. Hayes Family Ltd. Partnership v. Glastonbury, 166 Conn.
App. 585, A.3d (2016).
1
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.
2
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 deter-
mine 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
(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.
3
On November 6, 2013, the court, with counsel and representatives of
the parties, viewed the subject premises.
4
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.’’
5
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 submit-
ted one special permit application for a particularly intensive development.’’
(Citations omitted.) Hayes Family Ltd. Partnership v. Glastonbury, supra,
132 Conn. App. 223. As previously noted, the Appellate Court found that in
light of our motion practice, an evidentiary hearing was required on factual
disputes. Id., 223–24. 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 applica-
tion 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).
6
(See also plaintiffs’ [pls.] exhibit [exh.] 25.)
7
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.
8
To the extent the plaintiffs argue that no plan would satisfy the commis-
sion 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, supra, 140 Conn. App. 151–52.
9
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.
10
O’Leary testified that some CVS stores had just one entrance and exit.
(Tr., Nov. 8, 2013, p. 27.)
11
Indeed, at the November 29, 2005 meeting, commission members indi-
cated that the plaintiffs might develop the property in a less intensive manner
than that proposed in the original and only special permit application. (Defen-
dant’s [def.] exh. 521, p. 18.)
12
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. 416–17.