Stones Trail, LLC v. Town of Weston

 STONES TRAIL, LLC v. TOWN OF WESTON
(AC 38078)
Sheldon, Mullins and Harper, Js.
Syllabus
The plaintiff developer brought an action seeking to recover damages from
the defendant town as a result of its alleged inverse condemnation or
regulatory taking of certain of the plaintiff’s real property. The plaintiff
also alleged various violations of its federal constitutional rights. The
plaintiff had purchased the property with the purpose of dividing it
into six buildable lots. Before the closing of the purchase, the plaintiff
submitted three maps of the property to the town. The town’s attorney
determined that the property depicted on one of the maps was not a
subdivision, and that map was stamped accordingly and filed in the
town land records. Thereafter, the other two maps, which altered the
lot lines of the property to depict six potentially developable lots, were
stamped with the identical language and filed in the land records. The
plaintiff completed the purchase of the property, in reliance on the
review of the lots by town officials and the stamped notation. The
plaintiff did not seek or obtain approval from the town’s Planning and
Zoning Commission for the subdivision of the lots, believing that such
approval was not necessary because the town’s prior procedure had
been to place the same stamped language on maps when it was deter-
mined that subdivision approval was not needed. Thereafter, the plaintiff
was informed by several town officials that it had to seek subdivision
approval from the commission prior to subdividing the properties. The
town’s attorneys rejected the plaintiff’s requests to reconsider that deter-
mination and urged the plaintiff to apply to the commission for subdivi-
sion approval. The town’s zoning enforcement officer also denied the
plaintiff’s request for a certificate of zoning compliance, which was
upheld by the town’s Zoning Board of Appeals. Prior to trial, the town
filed four motions to dismiss the plaintiff’s action on the ground that
its claims were not ripe and that the court therefore lacked subject
matter jurisdiction. Those motions were denied. The jury returned a
verdict in the plaintiff’s favor on its constitutional claims, after which
the trial court, sua sponte, set aside the verdict and dismissed the action
for lack of subject matter jurisdiction. In dismissing the action, the court
relied on facts that were developed throughout the proceedings and at
trial in determining that the plaintiff’s claims were not ripe because the
plaintiff had failed to obtain a final decision from the commission on
its subdivision proposal. The court issued a revised memorandum of
decision in which it deleted the references to the doctrine of exhaustion
of administrative remedies that had been included in the initial memoran-
dum of decision. The court determined that those references were dicta
and removed them to avoid ambiguity or confusion as to the basis of
its initial decision. On appeal, the plaintiff claimed, inter alia, that the
principle of finality of judgments superseded the reconsideration of the
town’s claims of lack of subject matter jurisdiction, and that the trial
court was precluded by the law of the case doctrine from reconsidering
the four pretrial rulings that rejected the town’s ripeness claims. Held:
1. The principle of the finality of judgments did not bar the trial court from
reconsidering the ripeness of the plaintiff’s claims and whether it had
subject matter jurisdiction over those claims, as the court’s reconsidera-
tion of its jurisdiction was not a collateral attack on a judgment rendered
in another proceeding, reconsideration was necessary on the basis of
facts that were developed at trial and were unknown to the court when
it previously considered the issue of ripeness, and reconsideration was
important so as to prevent a miscarriage of justice to ensure that the
court had jurisdiction under the circumstances here, in which the plain-
tiff did not comply with the town’s zoning regulations, but, rather, sought
to circumvent those procedures.
2. Contrary to the plaintiff’s claim, the law of the case doctrine did not
bar the trial court from revisiting the issue of ripeness and, thus, its
jurisdiction; although the issue of ripeness had been considered four
times previously, the law of the case doctrine does not mandate that a
court adhere to all rulings made at prior stages in the proceedings, and
the trial court here explained that it reconsidered the issue of ripeness
on the basis of facts that were developed at trial.
3. The trial court properly determined that although the plaintiff had vested
rights in the property at issue, it did not have vested rights in the
configuration of the property as it sought to reconfigure it, nor could
it have acquired such vested rights without having sought approval of
its reconfiguration in accordance with the town’s established protocol
and procedures; the zoning enforcement officer’s denial of the plaintiff’s
application for a certificate of zoning compliance was a conditional
decision that did not vest the plaintiff with rights to the property at
issue, the zoning officer having refused to issue the certificate before
the plaintiff presented its application to and received subdivision
approval from the town’s commission, and having merely referred the
initial determination of the subdivision issue and the validity of the
property lots to the administrative body charged with deciding those
issues.
4. The plaintiff’s claim that the trial court improperly relied on a prior
decision of this court in ruling that it lacked subject matter jurisdiction
was unavailing; the trial court’s jurisdictional inquiry was based on the
factual record developed throughout the proceedings up until the jury’s
verdict, and it was clear that in assessing whether it had subject matter
jurisdiction, the court considered factual differences between the claims
here and in the prior decision of this court.
5. The plaintiff could not prevail on its claim that the trial court improperly
rejected its assertion that it would have been futile to apply to the
commission for subdivision approval and, thus, that it should have been
excused from having to do so; the plaintiff’s obstacles to obtaining
subdivision approval were self-imposed, as the plaintiff had been
directed by every town representative with whom it spoke about the
matter to seek approval from the commission, but never did so, and
the plaintiff’s principal testified that he did not seek subdivision approval
because it was a time-consuming and expensive process, and because
his attorney told him that it might impair the collateral to his mortgage
loan or be viewed as an admission that the lot line adjustments were
invalid.
6. Notwithstanding the plaintiff’s claims to the contrary, the trial court’s
ripeness review applied to the plaintiff’s claims of alleged violations of
its constitutional rights, as those constitutional claims were inextricably
intertwined with the plaintiff’s takings and inverse condemnation claims,
the allegations in the complaint underlying the takings and inverse con-
demnation claims having mirrored those set forth in the constitu-
tional claims.
7. The plaintiff could not prevail on its claim that the trial court materially
altered its decision when it filed a revised memorandum of decision
that omitted references in the original decision to the exhaustion of
administrative remedies doctrine; the court’s original decision men-
tioned that doctrine only in passing and without discussion of how it
would apply to the present case, that doctrine did not form the basis
of the court’s decision, and the lack of any reference to that doctrine
in the revised memorandum of decision served to dispel any ambiguity
or confusion concerning the basis of the court’s original decision.
Argued March 13—officially released July 18, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Taggart D. Adams, judge trial
referee [motion to dismiss]; Hon. Edward R. Karazin,
Jr., judge trial referee, [motions to dismiss]; Lee, J.)
Procedural History
Action to recover damages for, inter alia, the alleged
violation of certain of the plaintiff’s constitutional
rights, and for other relief, brought to the Superior Court
in the judicial district of Stamford-Norwalk, where the
court, Karazin, J., denied the defendant’s motion to
dismiss; thereafter, the court, Hon. Taggart D. Adams,
judge trial referee, denied the defendant’s motion to
dismiss; subsequently, the court, Hon. Edward R. Kara-
zin, Jr., judge trial referee, denied the defendant’s
motions to dismiss; thereafter, the matter was tried to
the jury before Lee, J.; verdict for the plaintiff; subse-
quently, the court, Lee, J., denied the defendant’s
motion for judgment notwithstanding the verdict and
rendered judgment in accordance with the verdict;
thereafter, the court, Lee, J., set aside the verdict and
dismissed the action for lack of subject matter jurisdic-
tion, and the plaintiff appealed to this court; subse-
quently, the court, Lee, J., issued an articulation of its
decision. Affirmed.
Robert A. Fuller, with whom was Paul J. Pacifico,
for the appellant (plaintiff).
Thomas R. Gerarde, with whom was Patricia C. Sul-
livan, for the appellee (defendant).
Opinion
SHELDON, J. The plaintiff, Stones Trail, LLC, brought
this action against the defendant, the town of Weston
(town), arising from its attempts to develop certain real
property located in Weston, alleging, inter alia, denial
of equal protection of the law in violation of 42 U.S.C.
§ 1983; denial of procedural due process in violation of
42 U.S.C. § 1983; inverse condemnation or regulatory
taking of land in violation of 42 U.S.C. § 1983; and
inverse condemnation or regulatory taking of land in
violation of the fifth amendment to the United States
constitution1 and article first, § 11, of the state constitu-
tion.2 The plaintiff appeals from the trial court’s dis-
missal of its claims on the basis of its determination
that the lack of a final decision from the town’s Planning
and Zoning Commission (commission) rendered them
unripe for adjudication. We affirm the judgment of the
trial court.3
The trial court set forth the following relevant facts
and procedural history. ‘‘[Robert] Walpuck, [doing busi-
ness as the plaintiff], Stones Trail, LLC, entered into a
contract to purchase the property on Ladder Hill Road
in Weston . . . (the property) on March 18, 1998. The
property was composed of four smaller lots varying
from one to two acres in size and one large lot (the Great
Gate lot), with the total property aggregating about
seventeen acres. The property was located in a two
acre zone. Prior to closing the purchase, [the plaintiff]
commissioned a title report, which was forwarded to
the town. [The plaintiff] submitted three maps of the
property to the town. Map #3447 depicted the property
as it had appeared since 1937, consisting of four small
lots and one large lot. On September 18, 1998, Town
Attorney Christopher Jarboe wrote to the code enforce-
ment officer that the property depicted on map #3447
was not a subdivision and should be stamped accord-
ingly and filed on the land records. On the same day,
the town engineer and [the] town code enforcement
officer stamped and signed map #3447 with a stamp
reading as follows: ‘The Town Engineer and Code
Enforcement Office hereby attest to the fact that this
plan is neither a subdivision nor a resubdivision as
defined by the General Statutes of Connecticut and the
Town of Weston and may be recorded without prior
approval of the Weston Planning and Zoning Commis-
sion.’ Approximately a week later, on September 24,
1998, map #3448, which altered the property in that the
Great Gate lot on map #3447 was divided into two,
yielding a total of six lots, was filed and stamped with
the same language. Map #3449 was also filed and
stamped with the same language on September 24, 1998.
Map #3449 substantially altered the lots so that the four
smaller lots each slightly exceeded two acres, giving
the developer six potentially developable lots. Map
#3448 and map #3449 were not stamped and filed on
the Weston Land Records until roughly a week after
the date of . . . Jarboe’s letter. . . .
‘‘Walpuck testified that he felt he did not need subdivi-
sion approval and that he could achieve his objective
of six buildable lots by lot line adjustments. According
to . . . Walpuck, the procedure in Weston since 1991
was to place the aforementioned stamped language on
a map when it was determined that no subdivision
approval was needed. This procedure apparently was
recommended by Town Counsel Harry Hefferan in 1991,
who wrote, ‘[i]n the event a map is requested to be
filed without subdivision or resubdivision action by the
Planning and Zoning Commission acting in its planning
function, the same shall be presented by its proposed
filer to the town engineer and to the code enforcement
officer for their examination. If those officers determine
that it is unnecessary to appear before the Planning
and Zoning Commission because there is no subdivision
or resubdivision as so defined, they shall so indicate
on the face of the map and the town clerk may accept
for filing such map.’ . . .
‘‘Walpuck testified that, in reliance on the review of
the lots by town officials and the stamped notation on
map #3449, in October, 1998, the plaintiff completed
the purchase of the property, having obtained a $1.1
million mortgage from Ridgefield Bank. The mortgage
agreement included a provision allowing for the sever-
ance or release of individual lots upon payment of an
allocated amount. . . .
‘‘Subsequently, on February 14, 2000, special counsel
for the commission, Attorney Barry Hawkins, advised
the plaintiff’s attorney by letter that he had ‘determined
that under applicable Connecticut law and the Weston
Planning and Zoning Regulations and Subdivision By-
Laws . . . Walpuck must seek subdivision approval
from the Weston Planning and Zoning Commission prior
to dividing his properties situated at 10 Ladder Hill
Road and 96 Georgetown Road in Weston . . . .’
Hawkins explained that the plaintiff’s ‘extensive and
aggressive lot line adjustments’ appeared to be an
attempt to ‘circumvent compliance with [the town’s]
Subdivision By-Laws.’ Hawkins also notified the plain-
tiff that he had advised the town’s zoning enforcement
and building officials not to issue zoning or building
permits to the plaintiff, should it attempt to develop
the lots. Hawkins advised the plaintiff that it should
apply to the commission for subdivision approval, and
that ‘[t]he Planning and Zoning Commission is willing
to work with . . . Walpuck to accomplish reasonably
the safe and proper development of his properties in
accordance with applicable subdivision statutes and
regulations.’
‘‘On March 22, 2000, Hawkins wrote to the town’s
tax assessor, advising that the lot line adjustments
reflected on the recorded maps did not create additional
building lots, and that, therefore, the plaintiff’s property
should be taxed as one parcel of land. In May, 2000,
the tax assessor revised the tax assessment map so that
the plaintiff’s property was taxed as a single lot. This
did not affect the existing lot lines, however.
‘‘In 2002, [the plaintiff] was in default on its mortgage.
The bank threatened foreclosure, and . . . Walpuck
sought permission to sell one of the reconfigured lots
to generate cash to cure the default. However, the
Ridgefield Bank refused to release any of the six lots
from the plaintiff’s mortgage because of, among other
things, uncertainty about the legitimacy of the six lot
configuration shown on map #3449. Subsequently, the
bank commenced a mortgage foreclosure action against
the plaintiff in February, 2002.
‘‘Upon receiving Hawkins’ letter, the plaintiff did not
seek subdivision approval from the commission or
appeal the position of the letter to the Zoning Board of
Appeals. Instead, in 2004 and 2005, the plaintiff made
requests to town attorneys Kenneth Bernhard and Patri-
cia C. Sullivan to reconsider the town’s position, based
on the plaintiff’s contention that the parcels did not
constitute a subdivision under General Statutes § 8-18.
The town attorneys rejected these requests and urged
[the] plaintiff to apply for subdivision approval. Instead,
[the] plaintiff commenced the present action in [Novem-
ber], 2005. . . . Walpuck testified that he did not apply
for subdivision approval because it was a time-consum-
ing and expensive process, and because his lawyer told
him that it might impair the collateral to his loan, or,
‘since it could be viewed’ as a possible admission that
the lot line adjustments were invalid.
‘‘In April, 2006, subsequent to the commencement of
this action, the plaintiff filed an informal, handwritten
application with town Zoning Enforcement Officer
Robert Turner for a certificate of zoning compliance for
parcel D on map #3449. Turner denied the application,
noting that he lacked authority to grant a certificate of
zoning compliance for anything other than the smaller,
preexisting lot called the ‘Honor Leeming Lot’ on an
older map of the property in its previous, nonconform-
ing configuration. Turner further stated that the pro-
posed lot line arrangements shown on map #3449
‘would have to be reviewed before permission can be
given.’ Turner continued, ‘[a]s has been explained to you
on a number of prior occasions, the way to legitimately
divide the property purported to be owned by [the plain-
tiff] adjacent to the Honor Leeming parcel, is by filing
a subdivision application with the Planning and Zon-
ing Commission.’
‘‘The plaintiff appealed Turner’s decision to the Zon-
ing Board of Appeals, which upheld Turner’s decision.
The plaintiff then appealed to the Superior Court, which
dismissed the action for lack of aggrievement because
the plaintiff had lost the property to foreclosure in
August, 2006. See Stones Trail, LLC v. Weston, Superior
Court, judicial district of Stamford-Norwalk, Docket
No. CV-06-4010003-S, 2008 WL 2168967 (May 6, 2008)
(J. Downey, J.).
‘‘Walpuck also testified that the subsequent owner
of the property in question successfully applied to the
commission for subdivision approval. The subsequent
owner received formal subdivision approval for four
lots, which were larger than those proposed by . . .
Walpuck, and which allowed the construction of consid-
erably larger houses.’’
The plaintiff commenced this action in November,
2005, by way of an eight count complaint. Of those eight
counts, the following proceeded to trial: denial of equal
protection of the law in violation of 42 U.S.C. § 1983;
denial of procedural due process in violation of 42
U.S.C. § 1983; inverse condemnation or regulatory tak-
ing of land in violation of 42 U.S.C. § 1983; and inverse
condemnation or regulatory taking of land in violation
of the fifth amendment to the United States constitution
and article first, § 11, of the state constitution.4 The
plaintiff’s three § 1983 claims were tried to the jury,
and its federal and state constitutional claims were
simultaneously tried to the court. The jury returned a
verdict in favor of the plaintiff on all three § 1983 counts
and awarded damages to the plaintiff in the amount
of $5,000,000.
Following trial, the court, sua sponte, raised the issue
of whether the plaintiff’s claims were ripe for adjudica-
tion, and thus whether it had jurisdiction over them. In
so doing, it explained: ‘‘Over the course of nine and
one-half years, this case has amassed an extensive pro-
cedural history. Of relevance to the present discussion
are the defendant town’s motions, on four separate
occasions before trial, to dismiss the plaintiff’s claims
for lack of subject matter jurisdiction, arguing that [the]
plaintiff had failed to apply to the commission for subdi-
vision approval, that its claims were unripe for adjudica-
tion, and any appealed act of the town lacked finality.
On each occasion, the [town’s] motion was denied. See
Stones Trail, LLC v. Weston, Superior Court, judicial
district of Stamford-Norwalk, Docket No. CV-05-
4007138-S, 2014 WL 6765409 (October 23, 2014) (Hon.
Edward R. Karazin, Jr., judge trial referee); Stones
Trail, LLC v. Weston, Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV-05-4007138-S,
2013 WL 4046688 (July 19, 2013) (Hon. Edward R. Kara-
zin, Jr., judge trial referee); Stones Trail, LLC v. Wes-
ton, Superior Court, judicial district of Stamford-
Norwalk, Docket No. CV-05-4007138-S, 2011 WL
6976565 (December 16, 2011) (Hon. Taggart D. Adams,
judge trial referee); Stones Trail, LLC v. Weston, Supe-
rior Court, judicial district of Stamford-Norwalk,
Docket No. CV-05-4007138-S, 2007 WL 2039086 (June
25, 2007) (Hon. Edward R. Karazin, Jr., judge trial
referee). Among the parties’ posttrial motions is the
town’s fifth motion to dismiss, this time premised on
its argument that the plaintiff’s § 1983 taking[s] claims
were unripe when the jury rendered its verdict because
the court had yet to render a decision on the plaintiff’s
state law takings claim.
‘‘[The town’s] first and second motions to dismiss
were decided prior to the Appellate Court’s decision
on January 15, 2013, in Lost Trail, LLC v. Weston, [140
Conn. App. 136, 57 A.3d 905, cert. denied, 308 Conn. 915,
61 A.3d 1102 (2013)]. That case, as more fully explained
[herein], was essentially a companion case to the pre-
sent action, involving the identical stamps by Weston
officials and correspondence with attorneys acting on
behalf of the town. . . . Walpuck, the principal in both
Stones Trail, LLC, and Lost Trail, LLC, filed both law-
suits in December, 2005, and subsequently lost both
properties to foreclosure. In the Lost Trail, LLC litiga-
tion, the Appellate Court and federal courts agreed with
the jurisdictional challenges of the defendant town and
dismissed each of [the] plaintiff’s claims due to its fail-
ure to apply to the commission for subdivision approval.
See id.; Lost Trail, LLC v. Weston, 485 F. Supp. 2d 59
(D. Conn. 2007), aff’d, Lost Trail, LLC v. Weston, 289
Fed. Appx. 443 (2d Cir. 2008).
‘‘The town based its third and fourth pretrial motions
to dismiss on the Appellate Court and federal court
decisions in Lost Trail, LLC, but the [trial] court, with-
out the benefit of the full factual record which has
been developed at trial, noted differences between Lost
Trail, LLC, and the facts as then presented to it in the
instant case, and denied both motions. See Stones Trail,
LLC v. Weston, supra, 2014 WL 6765409; Stones Trail,
LLC v. Weston, supra, 2013 WL 4046688.
‘‘As explained [previously], in its posttrial motion to
dismiss, the [town] did not reassert the arguments
raised in its previous motions to dismiss. The court,
however, in light of the facts developed at trial, and the
Appellate Court and federal court decisions in Lost
Trail, LLC, elected to raise and reconsider, sua sponte,
the issue of the court’s subject matter jurisdiction.’’
On June 9, 2015, the court issued a memorandum of
decision, in which it set aside the jury’s verdict and
dismissed all of the plaintiff’s claims for lack of subject
matter jurisdiction on the ground that its claims were
not ripe because it had failed to obtain a final decision
from the commission on its subdivision proposal. In its
decision, the court specifically discussed Connecticut’s
law requiring that a plaintiff must establish the finality
of the determination made in his case before he is
entitled to judicial review of his regulatory takings
claim. The court then proceeded in its memorandum
of decision to separately discuss the federal law require-
ment of ripeness, as set forth in Williamson County
Regional Planning Commission v. Hamilton Bank, 473
U.S. 172, 186, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985),
which provides that a takings claim ‘‘is not ripe until
the government entity charged with implementing the
regulations has reached a final decision regarding the
application of the regulations to the property at issue.’’
The court further noted in its discussion of the federal
ripeness requirement that (1) a plaintiff is excused from
obtaining a final decision if it would have been futile
to pursue such a course, and (2) although the ripeness
requirement discussed in Williamson was announced
in a takings context, the requirement had been extended
to equal protection and due process claims asserted in
land use cases. Finally, the court discussed Lost Trail,
LLC, and concluded that, ‘‘[g]iven the substantial con-
formity of the facts between the present case and Lost
Trail, LLC . . . the legal outcome should conform as
well.’’ The court ultimately determined that, because
the plaintiff had both ‘‘failed to prove that a final deci-
sion was rendered by any administrative body charged
with allegedly depriving [the] plaintiff of its rights,’’
or ‘‘that it would have been futile to pursue available
administrative remedies,’’ it was necessary to dismiss
the plaintiff’s claims for lack of subject matter jurisdic-
tion. Judgment entered in accordance with the trial
court’s June 9, 2015 memorandum of decision on that
same date. On June 19, 2015, the plaintiff timely filed
this appeal.
Subsequently, the town filed a motion for articulation,
seeking clarification of the basis for the court’s June
9, 2015 decision. Specifically, the town argued that clari-
fication was necessary because, in the court’s June 9,
2015 memorandum of decision, the court had made
several references to the exhaustion of administrative
remedies doctrine, which need not be satisfied before
bringing a § 1983 claim, thereby creating an ambiguity
as to whether the trial court had applied that doctrine.
In particular, the town noted that the trial court had
included a reference to the exhaustion of administrative
remedies doctrine in the conclusion of its memorandum
of decision, stating that it was dismissing the plaintiff’s
federal takings and § 1983 claims ‘‘for lack of ripeness
due to the plaintiff’s failure to exhaust administrative
remedies.’’ The town therefore sought in its motion for
articulation to have the trial court clarify that (1) the
sole basis for its dismissal of the plaintiff’s federal tak-
ings and § 1983 claims was lack of ripeness under Wil-
liamson, (2) the futility exception is the exception to
the Williamson ripeness test and not the futility excep-
tion to the exhaustion of administrative remedies doc-
trine, and (3) the plaintiff did not satisfy the futility
exception with respect to its § 1983 claims.
The court granted the town’s motion over the plain-
tiff’s objection, and noted that ‘‘it is clear that the court
rendered its decision on the § 1983 claims based on its
finding that the lack of a final (or any) decision from
the [commission] rendered the appeal unripe. Any refer-
ences to exhaustion of administrative remedies were
unnecessary dicta and will be removed to avoid any
ambiguity or confusion as to the basis of the court’s
decision.’’ On October 19, 2015, the court issued a
revised memorandum of decision consistent with its
articulation.
On appeal, the plaintiff claims that (1) ‘‘the concept
of finality of judgments supersedes reconsideration of
claims of lack of subject matter jurisdiction based on
ripeness for review under the facts of this case after
four pretrial motions denied that claim’’; (2) the four
pretrial rulings rejecting the town’s ripeness claims con-
stituted the law of the case by which the court was
bound, and thus it was precluded from reconsidering
those rulings after the jury returned its verdict; (3) it
had vested property rights to the six lots at issue in
this case, and thus it was not required to apply to, nor
was a decision on its application required from, the
commission, to establish finality; (4) this court’s deci-
sion in Lost Trail, LLC v. Weston, supra, 140 Conn.
App. 136, is distinguishable from the present case, and
thus the trial court improperly relied upon it; (5) the
futility exception to ripeness applies to this case; (6)
ripeness does not apply to its § 1983 claims alleging
equal protection and procedural due process violations;
and (7) the court’s articulation improperly altered the
basis for its decision.5 The first two of the plaintiff’s
claims concern the propriety of the trial court’s deci-
sion, sua sponte, to reconsider the issue of subject
matter jurisdiction. The remaining claims go to the mer-
its of the trial court’s decision that the plaintiff’s claims
were unripe, and thus that it lacked subject matter
jurisdiction over them.
Because the trial court devoted a great deal of atten-
tion to, and relied in large part upon, Lost Trail, LLC
v. Weston, supra, 140 Conn. App. 136, we set forth the
trial court’s general description of the pertinent factual
and procedural history, and legal rulings, in that case.
The trial court recounted: ‘‘Lost Trail, LLC v. Weston,
supra, 136, was essentially a companion case to the
present case, and involved nearly identical facts, includ-
ing, inter alia, the purchase of land on Georgetown
Road in Weston in 1997 intended for development by
[a limited liability company] controlled by . . . Wal-
puck; the attempt to create additional buildable lots
through the adjustment of lot lines; and the filing of
maps showing the existing and proposed configuration
in the summer of 1998. The Lost Trail maps received
the same stamped language from town officials one
month before the Stones Trail maps. The letter of Febru-
ary 14, 2000, from special counsel Hawkins, advising
that an application to the commission for subdivision
approval was required, referred to both the Lost Trail
and Stones Trail properties in its ‘re’ line, and the letter
made no distinction between them. As in the present
case, rather than pursue subdivision approval from the
commission, counsel for Lost Trail argued with the
town attorneys, the property went into default and ulti-
mately foreclosure. Lost Trail, LLC, commenced an
action against the town in the same month as did Stones
Trail, LLC, for the same alleged violations, i.e., denial of
equal protection, denial of due process, and a regulatory
taking, all in violation of 42 U.S.C. § 1983, and regulatory
takings claims premised on the United States and Con-
necticut constitutions.
‘‘The legal action proceeded somewhat more quickly
in Lost Trail, LLC, than in Stones Trail, LLC. Upon
removal to federal court, the . . . town . . . success-
fully moved to dismiss Lost Trail’s § 1983 claims for
lack of ripeness. The District Court’s summary of Lost
Trail, LLC’s, arguments, namely, that it was exempt
from the subdivision approval process and that it would
have been futile to submit permit applications under
the circumstances, underscores Lost Trail, LLC,’s simi-
larity to the present case. The court noted that Lost
Trail relies heavily on the alleged 1998 decision of the
former Town Attorney and Zoning Enforcement Officer,
as noted on [the stamps on] map #3443 and map #3444,
that changes to Lost Trail’s property converting two
lots . . . to four lots did not require subdivision
approval. . . . Lost Trail asserts that in 2000 [by way
of special counsel Hawkins’ letter] the Town reversed
this decision and now considers the four lots invalid
because they lack subdivision approval from the Plan-
ning and Zoning Commission. Lost Trail argues that this
reversal, coupled with specific instructions to various
town officials not to issue permits until a proper subdivi-
sion application is processed, sufficiently meets the
finality test in the first part of the Williamson decision
and places this case squarely under the futility excep-
tion to the finality rule. . . . Lost Trail, LLC v. Weston,
supra, 485 F. Supp. 2d 65.
‘‘The court disagreed, holding that Lost Trail has
failed to demonstrate that the Town has rendered a
final decision as to how subdivision or zoning regula-
tions will be applied to Lost Trail’s property and
whether the Town will prohibit all economically benefi-
cial uses. That the Town refuses to recognize maps,
recorded by Lost Trail and depicting four lots, without
formal consideration by the Planning and Zoning Com-
mission through the subdivision approval process does
not constitute a final decision as to the outcome of
that process. [Id., 65]. Nor does the Town’s alleged
prospective refusal to issue zoning or building permits
until subdivision approval is obtained for the four lots
demonstrate either a final decision or futility exempting
Lost Trail from the final decision requirement. Lost
Trail’s futility argument hinges largely on what it deems
a purely legal question, namely whether the [George-
town] lots exist as a matter of law as [four] separate
parcels under Connecticut statutory law and case law.
. . . Regardless of the merit to Lost Trail’s legal argu-
ment, it has never been presented to the Planning and
Zoning Commission for its formal consideration and
thus Lost Trail has not obtained a final decision regard-
ing the application of the zoning ordinance and subdivi-
sion regulations to its property. . . . Id., 66. The
District Court dismissed the plaintiff’s equal protection
and due process claims along with its takings claim,
having noted that ‘[the plaintiff’s claims] asserting
denial of equal protection, denial of substantive and
procedural due process, and inverse condemnation or
regulatory taking of plaintiff’s land in violation of the
Fifth Amendment are . . . all tested under the first
prong of the Williamson test for ripeness.’ [Id., 64].
On appeal, the United States Court of Appeals for the
Second Circuit affirmed, by summary order, the District
Court’s dismissal of all of the plaintiff’s federal claims.
Lost Trail, LLC v. Weston, 289 Fed. Appx. 443 (2d
Cir. 2008).
‘‘The District Court remanded the state law counts
to the Superior Court. [The] [d]efendant town filed
motions to dismiss the plaintiff’s three remaining state
law claims, which were granted on the ground that the
plaintiff had failed to obtain a final decision from the
commission and to exhaust available administrative
remedies prior to seeking declaratory relief. See Lost
Trail, LLC v. Weston, Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV-05-5000500-S,
2009 WL 1532642 (May 8, 2009) (Pavia, J.); Lost Trail,
LLC v. Weston, Superior Court, judicial district of Stam-
ford-Norwalk, Docket No. CV-05-5000500-S, 2011 WL
2739436 (June 9, 2011) (Hon. Alfred J. Jennings, Jr.,
judge trial referee).
‘‘On appeal, the Appellate Court first noted Lost
Trail’s argument that its division of the . . . property
plainly did not constitute a subdivision under § 8-18;
thus, as a matter of law, the commission had no jurisdic-
tion over the matter. In Lost Trail’s view, [t]here was
nothing for the . . . [c]ommission to decide as to
either (1) whether subdivision approval was necessary
for the property . . . or (2) to review and approve (or
deny) a subdivision application. Because this issue was
beyond the commission’s purview, Lost Trail asserts
that the finality requirement is simply beside the point.
Lost Trail additionally argues that, even if it was
required to seek the commission’s consent, the town
effectively approved the division of the two preexisting
parcels into four separate lots in August, 1998, when
the final maps were stamped and signed by town offi-
cials and recorded in the town land records. Lost Trail
characterizes the town’s subsequent actions as a revo-
cation of this apparent approval, which revocation
inflicted an immediate injury ripe for adjudication. . . .
Lost Trail, LLC v. Weston, supra, 140 Conn. App.
144–45.
‘‘The Appellate Court disagreed, holding that [t]he
rationale for requiring a final and authoritative determi-
nation from local administrators as a prerequisite to
asserting a regulatory takings claim is well illustrated
here. Although Hawkins suggested that, in his opinion,
Lost Trail’s division of the Georgetown Road property
created a subdivision, he did not have the authority
to speak for or to bind the commission. Indeed, he
recommended that Lost Trail apply for subdivision
approval and stated that the commission was willing
to work with Lost Trail to ensure the safe and proper
development of the Georgetown Road property. This
correspondence cannot be considered a definitive posi-
tion on the issue from an authoritative initial decision-
maker. . . . Lost Trail tries to circumvent the finality
requirement by arguing that its use of the subject prop-
erty so obviously did not constitute a subdivision that
the commission’s involvement was gratuitous. Strength
of unilateral conviction is not, however, a substitute
for a final administrative decision. As the town correctly
points out, property owners cannot be their own arbi-
ters of whether the commission has the authority to
act. . . . Furthermore, by refusing to engage the com-
mission in the zoning approval process, Lost Trail elimi-
nated the possibility that this matter could be resolved
by local political choices and settlements. . . . Lost
Trail’s prediction of futility turned out to be wrong—
in January, 2011, the commission agreed with Lost Trail
and disavowed Hawkins’ position. . . . Id., 148–49. If
Lost Trail had sought the opinion of the commission
when Hawkins first suggested that Lost Trail’s use of
its property created a subdivision, these issues could
have been settled—that is, the commission would have
been given the opportunity to adopt or to correct
Hawkins’ position. If the commission, as constituted
twelve years ago, had decided these issues favorably
to Lost Trail, Lost Trail could have then sought building
permits and zoning certification. Had it decided the
issue adverse to Lost Trail, Lost Trail presumably could
have appealed years ago. Having failed to do so, it
cannot now challenge the town’s actions in court as an
unconstitutional taking. Id., 150–51.
‘‘Finally, the Appellate Court addressed Lost Trail’s
argument that it was exempted from applying to the
commission for subdivision approval by the futility
exception, specifically, that once Hawkins informed
zoning and building officials that, in his opinion, Lost
Trail had illegally subdivided its property, it was point-
less to apply for zoning certificates and building permits
from those officials because § 8-3 (f) precludes a build-
ing official from issuing a building permit in the absence
of a zoning permit or certificate in writing from the
zoning enforcement official that the proposal is consis-
tent with zoning regulations. Lost Trail additionally con-
tends that an application for zoning permits, without
first engaging the commission in the zoning approval
process, would have been futile because the town did
not recognize the attempted division of its property into
four lots. Id., 151.
‘‘The court rejected these arguments, holding that
[h]aving already rejected Lost Trail’s reasons for opting
out of the planning and zoning review process, we hold
that its futility argument must also fail. Although a prop-
erty owner need not pursue patently fruitless measures
to satisfy the finality doctrine . . . it cannot claim futil-
ity by setting up its own obstacles. Put simply, Lost
Trail claims that it would have been futile to pursue
step two of an administrative process, applying for zon-
ing and building permits, because it refused to engage
in step one, pursuing the opinion of the commission as
to whether a subdivision had been created. . . . Id.,
151–52. Moreover, [i]t is futile to seek a[n] [administra-
tive] remedy only when such action could not result in
a favorable decision and invariably would result in
further judicial proceedings. . . . It is clear that the
commission could have determined that Lost Trail had
not created a subdivision—as it later did—or approved
an application to subdivide its property, clearing the
way for zoning and building permits to be issued. Thus,
we reject Lost Trail’s attempt to bootstrap its way to
futility. . . . Id., 152. In rejecting Lost Trail’s futility
argument, the court also noted that ‘[i]n its reply brief,
Lost Trail advances its futility argument by delineating
its interactions with several town officials regarding
the status of its . . . property: the town attorney, the
zoning enforcement officer, and the tax assessor. None
of these officials was a substitute for the commission.’
Id., 152 n.11; see also Murphy v. New Milford Zoning
Commission, 402 F.3d 342, 352–54 (2d Cir. 2005) (hold-
ing that a plaintiff’s land use claims were not ripened
by the town zoning enforcement officer’s issuance of
a cease and desist order where the plaintiff could have
pursued a variance application to the Zoning Board
of Appeals).’’ (Emphasis in original; internal quotation
marks omitted.)
Against this backdrop, the trial court stated: ‘‘Given
the substantial conformity of the facts between the
present case and Lost Trail, LLC, supra, 140 Conn. App.
136, the court believes that the legal outcome should
conform as well. Of course, the court is bound to follow
the Appellate Court’s decision in Lost Trail, LLC, and
it is persuaded by the District Court’s decision.’’ The
court further noted that the doctrine of collateral estop-
pel might have precluded some of the claims that had
been decided in Lost Trail, LLC, but did not engage in
an estoppel analysis, since neither of the parties had
argued or briefed it. The court then went on to consider
its jurisdiction in the present case, which is the issue
before us on appeal.
Generally, ‘‘[t]he standard of review of a challenge
to a court’s granting of a motion to dismiss is well
established. In an appeal from the granting of a motion
to dismiss on the ground of subject matter jurisdiction,
this court’s review is plenary. A determination regarding
a trial court’s subject matter jurisdiction is a question
of law. When . . . the trial court draws conclusions of
law, our review is plenary and we must decide whether
its conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Bloom v. Miklovich, 111
Conn. App. 323, 335–36, 958 A.2d 1283 (2008). With the
foregoing in mind, we address each of the plaintiff’s
claims in turn.
I
The plaintiff first claims that the principle of finality
of judgments barred the trial court’s reconsideration
of whether it had subject matter jurisdiction over the
plaintiff’s claims under the circumstances of this case
because the issue of ripeness had been determined four
times prior to trial and the case had gone to verdict.
We are not persuaded.
‘‘[I]t is a fundamental rule that a court may raise and
review the issue of subject matter jurisdiction at any
time. . . . Subject matter jurisdiction involves the
authority of the court to adjudicate the type of contro-
versy presented by the action before it. . . . [A] court
lacks discretion to consider the merits of a case over
which it is without jurisdiction . . . . The subject mat-
ter jurisdiction requirement may not be waived by any
party, and also may be raised by a party, or by the court
sua sponte, at any stage of the proceedings, including
on appeal.’’ (Internal quotation marks omitted.) Fer-
nandez v. Commissioner of Correction, 139 Conn. App.
173, 177–78, 55 A.3d 588 (2012), cert. granted on other
grounds, 307 Conn. 947, 60 A.3d 960 (2013) (appeal
withdrawn May 28, 2013).
Nevertheless, ‘‘even litigation about subject matter
jurisdiction should take into account the importance
of the principle of the finality of judgments, particularly
when the parties have had a full opportunity originally
to contest the jurisdiction of the adjudicatory tribunal.
. . . Under this rationale, at least where the lack of
jurisdiction is not entirely obvious, the critical consider-
ations are whether the complaining party had the oppor-
tunity to litigate the question of jurisdiction in the
original action, and, if he did have such an opportunity,
whether there are strong policy reasons for giving him a
second opportunity to do so.’’ (Internal quotation marks
omitted.) Investment Associates v. Summit Associates,
Inc., 309 Conn. 840, 855, 74 A.3d 1192 (2013).
‘‘Litigation about whether subject matter jurisdiction
exists should take into account whether the litigation
is a collateral or direct attack on the judgment, whether
the parties consented to the jurisdiction originally, the
age of the original judgment, whether the parties had
an opportunity originally to contest jurisdiction, the
prevention of a miscarriage of justice, whether the sub-
ject matter is so far beyond the jurisdiction of the court
as to constitute an abuse of authority, and the desirabil-
ity of the finality of judgments. Connecticut Pharma-
ceutical Assn., Inc. v. Milano, 191 Conn. 555, 468 A.2d
1230 (1983); Vogel v. Vogel, [178 Conn. 358, 362–63, 422
A.2d 271 (1979)]; Monroe v. Monroe, 177 Conn. 173, 413
A.2d 819, [cert. denied], 444 U.S. 801, 100 S. Ct. 20, 62
L. Ed. 2d 14 (1979); 1 Restatement (Second), Judgments
§ 12 [(2012)].’’ (Internal quotation marks omitted.) Mor-
ris v. Irwin, 4 Conn. App. 431, 434, 494 A.2d 626 (1985).
‘‘We have strongly disfavored collateral attacks upon
judgments because such belated litigation undermines
the important principle of finality. . . . The law aims to
invest judicial transactions with the utmost permanency
consistent with justice . . . . Public policy requests
that a term be put to litigation and that judgments, as
solemn records upon which valuable rights rest, should
not lightly be disturbed or overthrown.’’ (Citations omit-
ted; internal quotation marks omitted.) Gennarini Con-
struction Co. v. Messina Painting & Decorating Co.,
15 Conn. App. 504, 512, 545 A.2d 579 (1988). ‘‘A collateral
attack is an attack upon a judgment, decree or order
offered in an action or proceeding other than that in
which it was obtained, in support of the contentions
of an adversary in the action or proceeding . . . .’’
Id., 511–12.
Here, the court’s reconsideration of its jurisdiction
was not a collateral attack on a judgment rendered in
another proceeding. Although the parties had opportu-
nities to argue the issue of ripeness prior to trial, and
the court considered it four previous times, and the
case had been tried and the jury’s verdict accepted, the
court determined that reconsideration was necessary
based upon facts that were developed at trial and were
unknown to the court when previously considering the
issue of ripeness. Although it may seem unfair for the
trial court to have revisited the issue again, after trial
and after the jury returned a sizeable verdict in the
plaintiff’s favor, it is, as noted, important to prevent a
miscarriage of justice, to ensure that the court did, in
fact, have jurisdiction over the plaintiff’s claims, partic-
ularly under these circumstances, where the plaintiff
did not comply with municipal procedures to ensure
compliance with local zoning regulations, but, instead,
sought to circumvent those procedures. We thus con-
clude that the principle of the finality of judgments did
not bar the trial court from reconsidering the ripeness
of the plaintiff’s claims and its jurisdiction over them.
II
The plaintiff next claims that the trial court was
barred by the law of the case doctrine from reconsid-
ering the issue of ripeness when it had already been
considered four times previously during the proceed-
ings. We disagree.
‘‘The law of the case doctrine provides that [w]here
a matter has previously been ruled upon interlocutorily,
the court in a subsequent proceeding in the case may
treat that decision as the law of the case, if it is of the
opinion that the issue was correctly decided, in the
absence of some new or overriding circumstance. . . .
A judge is not bound to follow the decisions of another
judge made at an earlier stage of the proceedings, and
if the same point is again raised he has the same right
to reconsider the question as if he had himself made
the original decision. . . . [O]ne judge may, in a proper
case, vacate, modify, or depart from an interlocutory
order or ruling of another judge in the same case, upon
a question of law.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Olson v. Moham-
madu, 169 Conn. App. 243, 263, 149 A.3d 198, cert.
denied, 324 Conn. 903, 151 A.3d 1289 (2016). ‘‘[T]he
application of the law of the case doctrine involves a
question of law, over which our review is plenary.’’
(Internal quotation marks omitted.) Glastonbury v.
Sakon, 172 Conn. App. 646, 657, A.3d (2017).
Here, the trial court explained that it was reconsid-
ering the issue of ripeness, and, thus, its jurisdiction,
based upon facts that were developed at trial. In light
of that development, and because the law of the case
doctrine does not mandate that a court adhere to all
rulings made at earlier stages in the proceedings, we
cannot conclude that it was improper for the court to
revisit the issue of ripeness in this case.
III
The plaintiff next claims that its rights in the lots at
issue in this case were vested, and thus that it was not
required to apply to, nor was a decision required from,
the commission, to establish finality for the purposes
of establishing the ripeness of its claims. The plaintiff
claims that because it had ‘‘vested property rights’’ in
the six lots at issue in this action, Turner, as the zoning
enforcement officer, was the initial decision maker
whose decision was required to establish the ripeness of
the plaintiff’s claims. The plaintiff claims that Turner’s
decision denying the plaintiff’s application on the basis
that the plaintiff was required to seek subdivision
approval from the commission constituted a final deci-
sion revoking the plaintiff’s vested rights in the six lots
at issue herein. We are not persuaded.
‘‘A final decision has been rendered when the initial
decision-maker [has] arrived at a definitive position on
the issue that inflict[ed] an actual, concrete injury
. . . . If a property owner has not obtained a final deci-
sion from the administrative agency applying the regula-
tion, the reviewing court lacks jurisdiction to rule on a
taking claim. The jurisdictional nature of finality derives
from its similarity to ripeness.’’ (Internal quotation
marks omitted.) Lost Trail, LLC v. Weston, supra, 140
Conn. App. 147. Our Supreme Court has made it clear
that ‘‘[a] plaintiff is not entitled to judicial review of
the merits of his regulatory takings claim until he has
met the requirement of establishing the finality of the
agency determination.’’ Gil v. Inland Wetlands & Water-
courses Agency, 219 Conn. 404, 415, 593 A.2d 1368
(1991).
The plaintiff asserted this same claim to the trial
court in opposing dismissal of its claims for lack of
ripeness. The trial court rejected the claim, explaining:
‘‘The plaintiff’s argument is unavailing for two reasons.
. . . First, a vested property right is simply a term used
to describe a constitutionally protectable property
interest, which must be demonstrated in order to assert
a takings claim. See Brady v. Colchester, 863 F.2d 205,
212 (2d Cir. 1988) (in the context of fourteenth amend-
ment due process claim, employing the term vested
property right interchangeably with property interest
. . . that was protectable under the fourteenth amend-
ment . . . .). The court’s research has failed to disclose
any authority for the proposition that the existence of
a vested property right excuses the plaintiff from the
separate requirements of subject matter jurisdiction for
its § 1983 challenges.
‘‘Second, the court is persuaded by the District
Court’s holding in Lost Trail, LLC, that the town’s
alleged prospective refusal to issue zoning or building
permits until subdivision approval is obtained for the
four lots [does not] demonstrate either a final decision
or futility exempting Lost Trail from the final decision
requirement. Lost Trail’s futility argument hinges
largely on what it deems a purely legal question, namely
whether the [Georgetown] lots exist as a matter of law
as [four] separate parcels under Connecticut statutory
law and case law. . . . Regardless of the merit to Lost
Trail’s legal argument, it has never been presented to
the Planning and Zoning Commission for its formal
consideration and thus Lost Trail has not obtained a
final decision regarding the application of the zoning
ordinance and subdivision regulations to its property
. . . . Lost Trail, LLC v. Weston, supra, 485 F. Supp.
2d 66]. The court also notes that the Appellate Court
plainly held, albeit while addressing Lost Trail’s munici-
pal estoppel claim, that Lost Trail . . . cannot demon-
strate that the town ever actually repudiated [the]
apparent approval [in the form of stamping the maps
of Lost Trail’s property] because Lost Trail did not
engage in the zoning approval process. Lost Trail, LLC
v. Weston, supra, 140 Conn. App. 154–55.
‘‘Thus, even if the court were to accept the plaintiff’s
characterization of Turner as the initial decision maker,
his decision rejecting the plaintiff’s application for a
certificate of zoning compliance was not a final one.
Instead, it was conditional, with Turner refusing to issue
the certificate before the plaintiff had presented its
application to the commission and received subdivision
approval. Turner merely referred the initial determina-
tion of the subdivision issue and the validity of the
plaintiff’s lots to the administrative body charged with
deciding those issues. See General Statutes § 8-26 (a)
(All plans for subdivisions and resubdivisions, including
subdivisions and resubdivisions in existence but which
were not submitted to the commission for required
approval, whether or not shown on an existing map or
plan or whether or not conveyances have been made
of any of the property included in such subdivisions or
resubdivisions, shall be submitted to the [planning and
zoning] commission with an application in the form to
be prescribed by it. The commission shall have the
authority to determine whether the existing division
of any land constitutes a subdivision or resubdivision
under the provisions of this chapter, provided nothing
in this section shall be deemed to authorize the commis-
sion to approve any such subdivision or resubdivision
which conflicts with the applicable zoning regulations
. . . .).’’ (Internal quotation marks omitted.)
We agree with the trial court that although the plain-
tiff had vested rights in the property at issue in this
case, it did not have vested rights in the configuration
of that property as it sought to reconfigure it, nor could
it have acquired such vested rights without seeking
approval of its proposed reconfiguration in accordance
with established protocol and procedures. Indeed, none
of the case law cited by the plaintiff in its brief to this
court supports the plaintiff’s claim. We thus agree with
the trial court’s thorough and well reasoned analysis
of this claim. It would serve no useful purpose to discuss
it further.
IV
The plaintiff next claims that this court’s decision in
Lost Trail, LLC, supra, 140 Conn. App. 136, was factu-
ally distinguishable from the present case, and thus
that the trial court improperly relied upon it as binding
precedent in this case. Although the trial court relied
heavily upon Lost Trail, LLC, its jurisdictional inquiry
was based upon the factual record developed through-
out the proceedings, up to the jury’s verdict, in this
case. The court relied upon Lost Trail, LLC, for its legal
analysis and factual similarities. To the extent that Lost
Trail, LLC, differed factually from the case at hand,
it is clear that the trial court considered any factual
differences in assessing its jurisdiction over the plain-
tiff’s claims in this case. The court properly bore in
mind the prior rulings in Lost Trail, LLC, with an eye
to the consistent application of the relevant legal princi-
ples as they applied to the facts before it here. We
cannot conclude that the court’s reliance on Lost Trail,
LLC, for that purpose was in error.
V
The plaintiff next claims that the court erred in
rejecting its claim that it would have been futile to apply
to the commission for subdivision approval, and thus
that it should have been excused from applying to the
commission for that approval. We disagree.
‘‘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.
Thus, ‘‘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. . . . [R]ejection
of exceedingly grandiose development plans does not
logically imply that less ambitious plans will receive
similarly unfavorable reviews.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 417.
‘‘A property owner, for example, will be excused from
obtaining a final decision if pursuing an appeal to a
zoning board of appeals or seeking a variance would
be futile. That is, a property owner need not pursue such
applications when a zoning agency lacks discretion to
grant variances or has dug in its heels and made clear
that all such applications will be denied.’’ Murphy v.
New Milford Zoning Commission, supra, 402 F.3d 349.
In considering the plaintiff’s claim of futility, the trial
court noted with approval this court’s prior decision in
Lost Trail, LLC, in which the plaintiff also claimed that
it would have been futile to apply to the commission
for subdivision approval, and thus that it should not
have been required to do so in order to demonstrate
finality. The court explained, inter alia, the following
as it pertained to the plaintiff’s futility argument: ‘‘[W]ith
regard to the plaintiff’s futility argument, the Appellate
Court held that Lost Trail cannot claim futility by setting
up its own obstacles. Put simply, Lost Trail claims that
it would have been futile to pursue step two of an
administrative process, applying for zoning and building
permits, because it refused to engage in step one, pursu-
ing the opinion of the commission as to whether a
subdivision had been created. . . . Lost Trail, LLC v.
Weston, supra, 140 Conn. App. 152. Moreover, [i]t is
futile to seek a[n] [administrative] remedy only when
such action could not result in a favorable decision and
invariably would result in further judicial proceedings.
. . . It is clear that the commission could have deter-
mined that Lost Trail had not created a subdivision—
as it later did—or approved an application to subdivide
its property, clearing the way for zoning and building
permits to be issued. Thus, we reject Lost Trail’s attempt
to bootstrap its way to futility. . . . Id.’’ (Emphasis in
original; internal quotation marks omitted.) The court
thus rejected the plaintiff’s argument that it would have
been futile to engage in the zoning process, noting that,
as in Lost Trail, LLC, the commission granted a subdivi-
sion application relating to the property in question, in
which a subsequent owner of the property was permit-
ted to subdivide the property.
Here, not only did the commission not dig in its heels
and refuse to grant any subdivision proposals submitted
by the plaintiff, but the plaintiff was directed at every
turn, by every town representative with whom it spoke
about the matter, to seek approval from the commis-
sion. It never did so. The plaintiff’s futility argument is
further belied by Walpuck’s testimony that he did not
apply for subdivision approval because it was a time-
consuming and expensive process and because his
attorney told him that it might impair the collateral to
his loan or it could be viewed as a possible admission
that the lot line adjustments were invalid. As aptly noted
by the trial court, if the plaintiff had applied to the
commission seventeen years ago, when Hawkins
advised it of the invalidity of its attempt to obtain a
reconfiguration of the lots on its property by filing a
map showing the lot line adjustments, it might have
obtained approval from the commission, and would
have avoided wasting many years and significant
amounts of state and municipal resources. If the com-
mission had denied its application, it could have estab-
lished the jurisdictional basis for its judicial challenge
that it now lacks. As in Lost Trail, LLC, the plaintiff
put up its own obstacles. It cannot now hide behind
those self-imposed obstacles and avail itself of the futil-
ity exception.
VI
The plaintiff next claims that the concept of ripeness
for review does not apply to § 1983 claims for violations
of equal protection and procedural due process. We
disagree.
‘‘The ripeness requirement of Williamson [County
Regional Planning Commission v. Hamilton Bank,
supra, 473 U.S. 172], although announced in a taking[s]
context, has been extended to equal protection and
due process claims asserted in the context of land use
challenges. Dougherty v. [North Hempstead Board] of
Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002); see also
Murphy [v. New Milford Zoning Commission, supra,
402 F.3d 349] (discussing application of the Williamson
finality rule to substantive due process, procedural due
process, and equal protection challenges to zoning deci-
sions).’’ (Internal quotation marks omitted.) Lost Trail,
LLC v. Weston, supra, 485 F. Supp. 2d 64.
The plaintiff argues that its claims are not subject to
ripeness analysis because they are not directly related
to its takings or inverse condemnation claims. This
argument is belied by the plaintiff’s complaint, in which
the allegations underlying its takings or inverse con-
demnation claims mirror those set forth in its § 1983
claims, with the exception of a conclusory allegation
at the end of each separate count that the facts therein
pleaded gave rise to the legal cause of action claimed
therein. Because the plaintiff’s takings claims are inex-
tricably intertwined with its § 1983 claims, this argu-
ment must fail.
VII
The plaintiff finally claims that the trial court’s deci-
sion to grant the town’s motion for articulation and to
file a revised memorandum of decision, omitting any
reference to the inapplicable exhaustion of administra-
tive remedies doctrine, materially changed its June 9,
2015 decision in this case. We are unpersuaded.
As noted, the town moved for articulation of the trial
court’s June 9, 2015 memorandum of decision, seeking
clarification of the basis for the dismissal of the plain-
tiff’s claims. Specifically, the town sought clarification
of any ambiguity as to the legal basis for the court’s
determination that the plaintiff’s claims were not ripe
for adjudication. In granting the town’s motion for artic-
ulation, the trial court first stated its belief that the
basis for its June 9, 2015 decision was clear. The court,
nevertheless, issued a revised memorandum of decision
to eliminate any references to the exhaustion of admin-
istrative remedies doctrine to avoid any ambiguity or
confusion as to the basis of its decision. The plaintiff
claims that in so doing, the court materially altered
its decision.
It is well established that ‘‘[a]n articulation is appro-
priate where the trial court’s decision contains some
ambiguity or deficiency reasonably susceptible of clari-
fication. . . . [P]roper utilization of the motion for
articulation serves to dispel any . . . ambiguity by clar-
ifying the factual and legal basis upon which the trial
court rendered its decision, thereby sharpening the
issues on appeal. . . . In the absence of an articulation,
we are unable to determine the basis for the court’s
decision, and we therefore decline to review this claim.’’
(Internal quotation marks omitted.) Priest v. Edmonds,
295 Conn. 132, 140, 989 A.2d 588 (2010).
At the outset of the trial court’s June 9, 2015 memo-
randum of decision, the court specifically stated that,
because the plaintiff had ‘‘failed to prove that a final
decision was rendered by any administrative body
charged with allegedly depriving [the] plaintiff of its
rights,’’ or ‘‘that it would have been futile to pursue
available administrative remedies,’’ the plaintiff’s
claims were not ripe for adjudication, and thus the
court lacked jurisdiction over them. A review of the
trial court’s June 9, 2015 memorandum of decision in
its entirety reveals that the court’s decision focused on
(1) the requirement of finality for the plaintiff’s state
takings claim, (2) the requirement of ripeness (and the
futility exception thereto) with respect to the plaintiff’s
federal claims and (3) the fact that the present case
was similar to Lost Trail, LLC, which was essentially
decided by this court and the federal courts on grounds
of finality and ripeness. Although the court’s June 9,
2015 memorandum of decision at times mentioned the
exhaustion of administrative remedies, it did so only
in passing without any discussion of that doctrine or
how it would apply to the present case. Thus, a fair
reading of the court’s June 9, 2015 memorandum of
decision does not indicate that the exhaustion of admin-
istrative remedies doctrine formed the basis for the trial
court’s decision in this case. Including no reference to
that doctrine in the court’s October 19, 2015 memoran-
dum of decision thus served only to dispel any confu-
sion concerning the basis of the court’s original
decision, which is an appropriate use of the articula-
tion process.
The judgment is affirmed.
In this opinion the other judges concurred.
1
As a claim against a subdivision of the state, this claim was treated as
a claim under the fifth and fourteenth amendments to the United States
constitution. Even so, we will refer to it, as did the parties and the trial
court, as a claim under the fifth amendment.
2
Prior to trial, the plaintiff’s claim for violation of substantive due process
was stricken as legally insufficient. The plaintiff’s additional claims, one for
a declaratory judgment and another asserting municipal estoppel, were
dismissed prior to trial. Those rulings have not been challenged on appeal.
3
Because we reject all of the plaintiff’s claims on appeal, we need not
address the town’s proposed alternative ground to affirm, which is that the
plaintiff failed to seek any variances.
4
See footnote 1 of this opinion.
5
The plaintiff also claims that ‘‘[t]he regulatory takings claim based on
the Connecticut constitution was incorrectly dismissed for lack of finality,
and the state constitution does not apply to the equal protection and proce-
dural due process claims.’’ In support of this claim, the plaintiff claims to
be challenging a ruling that the trial court purportedly made regarding its
‘‘regulatory takings claim under the Connecticut constitution’’ in response
to the fifth motion to dismiss, which was filed by the town after the jury
returned its verdict. Because the court dismissed the plaintiff’s regulatory
takings claim ‘‘for lack of finality’’ upon its sua sponte raising of the issue
of subject matter jurisdiction, the plaintiff’s claim in this regard is unfounded.