Hayes Family Ltd. Partnership v. Glastonbury

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HAYES FAMILY LIMITED PARTNERSHIP ET AL.
v. TOWN OF GLASTONBURY
(AC 37827)
Beach, Alvord and West, Js.
Argued April 5—officially released June 28, 2016
(Appeal from Superior Court, judicial district of
Hartford, Land Use Litigation Docket, Aurigemma, J.
[motion to dismiss, judgment]; Berger, J. [motion to
dismiss, judgment].)
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellants (plaintiffs).
Matthew Ranelli, with whom was Andrea L. Gomes,
for the appellee (defendant).
Opinion
ALVORD, J. The plaintiffs, Hayes Family Limited Part-
nership, Richard P. Hayes, Jr., and Manchester/Hebron
Avenue, LLC, appeal from the judgment of the trial
court granting the motion to dismiss their action filed
by the defendant, the town of Glastonbury. The court
dismissed the plaintiffs’ inverse condemnation action
on the ground that they failed to meet the finality
requirement for a claim of a regulatory taking of prop-
erty without just compensation in violation of article
first, § 11, of the Connecticut constitution and the four-
teenth amendment to the United States constitution.
Specifically, the plaintiffs claim that the court improp-
erly (1) failed to consider the prior application rule and
its preclusive effect on future applications for a special
permit, (2) failed to conclude that this court’s decision
in Hayes Family Ltd. Partnership v. Town Plan &
Zoning Commission, 115 Conn. App. 655, 974 A.2d 61,
cert. denied, 293 Conn. 919, 979 A.2d 489 (2009), con-
tains ‘‘findings [that] doom any alternative commercial
development at the subject site,’’ (3) concluded that
the plaintiffs’ single application for a special permit was
not sufficient to establish finality, (4) failed to consider
whether the plaintiffs’ property could be used for any
economically viable use,1 and (5) dismissed their claims
where the application of the town zoning regulations
resulted in at least a partial taking of their property.2
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of the plaintiffs’ claims. On June
27, 2005, the plaintiffs filed an application for a special
permit to construct a CVS pharmacy located on 2.4
acres of land located at the corner of Hebron Avenue
and Manchester Road in Glastonbury. The subject prop-
erty is zoned for commercial development, but all uses
require a special permit with design review approval.
The property is abutted by an established single-family
neighborhood in a rural residential zone. Following an
extended public hearing, the town’s Plan and Zoning
Commission (commission) denied the application
because of its scale and intensity in relation to the size
and topography of the parcel, its impact on and lack
of compatibility with the existing neighborhood, and
the inadequacy of the proposed landscaping.
The plaintiffs appealed from the commission’s deci-
sion to the Superior Court, which dismissed their appeal
on the ground that the decision was supported by sub-
stantial evidence in the record. Following this court’s
granting of the plaintiffs’ petition for certification to
appeal, they filed their appeal challenging the trial
court’s determination. This court affirmed the judgment
of the trial court. Hayes Family Ltd. Partnership v.
Town Plan & Zoning Commission, supra, 115 Conn.
App. 655.
On October 1, 2009, the plaintiffs commenced the
present action against the defendant, claiming that the
denial of their application for a special permit ‘‘pre-
clude[d] any reasonable economical development of
the site and constitute[d] a[n] [unconstitutional] taking
without just compensation . . . .’’ The defendant filed
a motion to dismiss the complaint, arguing that the facts
as pleaded were insufficient to establish the finality
required for an unconstitutional taking claim. The court,
Aurigemma, J., concluded that the plaintiffs had failed
to establish that the commission would not allow any
reasonable alternative use of the property and dis-
missed the action. On appeal, this court concluded that
the trial court should have held an evidentiary hearing
before deciding the motion to dismiss and, therefore,
reversed the judgment and remanded the case for fur-
ther proceedings. Hayes Family Ltd. Partnership v.
Glastonbury, 132 Conn. App. 218, 219, 31 A.3d 429
(2011).
On remand, the court, Berger, J., by agreement of
the parties, conducted a trial on the merits, but in a
bifurcated manner. The parties agreed that if the court
concluded that the plaintiffs had established finality,
the court would deny the motion to dismiss and then
determine whether they had proved their claim of
inverse condemnation. After several days of evidence,
the parties filed posttrial briefs for the court’s consider-
ation. On February 6, 2015, the court issued its memo-
randum of decision granting the defendant’s motion to
dismiss and rendering judgment of dismissal.
In its decision, the court recited the factual and proce-
dural background of the case, the case law applicable
to regulatory taking actions, the case law applicable to
the finality requirement, and a summary of the testi-
mony and exhibits presented to the court with respect
to proposed alternatives for development at the site.
The court, in a comprehensive and well reasoned deci-
sion, addressed the plaintiffs’ claims as set forth during
the trial and in their posttrial brief, and concluded that
they ‘‘failed to meet their burden to prove finality.’’ In
reaching that conclusion, the court stated: ‘‘The rejec-
tion 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 application
for a different development with presumably a different
impact might not be acceptable under the reasons for
denial in the first application.’’
We conclude that the record supports the court’s
factual and legal bases for its conclusion that the plain-
tiffs failed to satisfy the finality requirement for judicial
review of an inverse condemnation claim. It would
serve no useful purpose for this court to repeat the
analysis contained in the trial court’s decision. See Nor-
folk & Dedham Mutual Fire Ins. Co. v. Wysocki, 243
Conn. 239, 241, 702 A.2d 638 (1997). We therefore adopt
that decision as the proper statement of the relevant
facts, issues, and applicable law. See Hayes Family
Ltd. Partnership v. Glastonbury, 166 Conn. App. ,
A.3d (2015) (appendix).
We do believe, however, that it would be helpful to
provide additional analysis with respect to two of the
plaintiffs’ arguments that they claim were not addressed
or were inadequately addressed by the trial court in its
decision. Those particular claims relate to the alleged
preclusive effect of the prior application rule and this
court’s decision in Hayes Family Ltd. Partnership v.
Town Plan & Zoning Commission, supra, 115 Conn.
App. 655, on any future applications for a special per-
mit.3 Although the trial court concluded that the com-
mission’s denial of the first application did not logically
require the denial of a less ambitious revised plan, the
court did not provide a detailed explanation for its
rejection of those claims.
I
PRIOR APPLICATION RULE
‘‘When a party files successive applications for the
same property, a trial court’s inquiries may vary
depending on whether the application before the zoning
agency is an application for a variance or an application
for a permit. In considering a subsequent variance appli-
cation where it has already denied a similar prior one,
[a] zoning board of appeals is generally precluded from
reversing a prior decision unless there has been a mate-
rial change of conditions, or other considerations have
intervened affecting the merits, and no vested rights
have arisen. . . . The board is disallowed from revis-
iting its prior determination that the requirements for
a variance are not present because, if a reversal of that
determination was allowed, there would be no finality
to the proceeding [and] the result would be subject to
change at the whim of members or due to the effect
of influence exerted upon them, or other undesirable
elements tending to uncertainty and impermanence.
. . .
‘‘Finality of decision is just as desirable in the case of
an exception [or permit] as in one involving a variance.
Because of the nature of an exception [or permit], how-
ever, the power of a zoning board to review a prior
decision denying the exception [or permit] is not lim-
ited, as it is when a variance is sought, to the two
situations mentioned above. An additional situation
arises when the owner requesting an exception [or per-
mit] files a subsequent application altering the plan
under which he previously sought the exception [or
permit], in order to meet the reasons for which the
board denied the prior one. . . . To justify a special
exception [or permit] . . . it must appear that the man-
ner in which the owner proposes to use his property
will satisfy the conditions imposed by the regulations.
If, therefore, upon a second request for a special excep-
tion [or permit], there is a substantial change in the
manner of use planned by the owner, the board is faced
with an application materially different from the one
previously denied. It may well be that the new plan, by
reason of the changes made therein, will succeed, where
the former failed, in satisfying the conditions enumer-
ated in the regulations. Under such circumstances, the
board is not precluded from granting the second appli-
cation merely because it has denied the first. . . .
‘‘A subsequent [permit] application made in order to
bring a prior application into compliance with applica-
ble regulations, no matter how minor the work involved
may be, is clearly not minor in regard to its significance
and effect. . . . The board may grant the exception [or
permit] once it finds that all the requirements of the
ordinance have been satisfied . . . .’’ (Emphasis omit-
ted; internal quotation marks omitted.) Grasso v. Zon-
ing Board of Appeals, 69 Conn. App. 230, 244–46, 794
A.2d 1016 (2002); see also Richardson v. Zoning Com-
mission, 107 Conn. App. 36, 43–44, 944 A.2d 360 (2008).
In the present case, the plaintiffs argue that the ‘‘com-
mission will be bound under the prior application rule
from allowing any reasonable commercial use of the
property’’ because ‘‘[d]ue to the size, location, and
topography of the subject property, any viable commer-
cial development will present at least one of the issues
that caused the denial of the CVS application.’’ During
the trial, as noted by the trial court, alternative propos-
als were offered to demonstrate uses that could be
made of the property. Although the plaintiffs contended
that they would not be accepted by the commission
because any commercial development would result in
an adverse impact to the neighborhood, it is sheer spec-
ulation to assume that a less intensive proposal than
the one originally submitted would be denied by the
commission. It is true that, under the prior application
rule, the plaintiffs could not submit the same proposal
for approval; however, changes made to bring a future
application into compliance with the regulations may
or may not be acceptable to the commission.’’[B]y refus-
ing 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 settlements.’’ Lost Trail, LLC v. Weston, 140 Conn.
App. 136, 149, 57 A.3d 905, cert. denied, 308 Conn. 915,
61 A.3d 1102 (2013). Accordingly, this claim fails.
II
PRIOR APPELLATE COURT DECISION
Additionally, the plaintiffs argue that this court’s pre-
vious decision in Hayes Family Ltd. Partnership v.
Town Plan & Zoning Commission, supra, 115 Conn.
App. 655, will have a preclusive effect on any future
applications for a special permit. According to the plain-
tiffs, the preclusive effect is certain because of ‘‘the
Appellate Court’s finding that a commercial develop-
ment on the subject property would have an adverse
impact on neighboring residences.’’ (Emphasis added.)
The plaintiffs also claim that ‘‘[t]he Appellate Court
found that the proposed development would adversely
impact the neighboring residences with regard to noise,
traffic, and property values.’’ (Emphasis added.) The
plaintiffs contend that ‘‘[t]he Appellate Court’s findings
were not based upon any particular characteristics of
[the] plaintiffs’ proposal but, rather, were based upon
it being a commercial development adjacent to resi-
dences. Such findings doom any alternative commer-
cial development at the subject site because any
commercial development will have an adverse impact
on the neighboring residences under the Appellate
Court’s reasoning upholding the commission’s denial.’’
(Emphasis added.)
The plaintiffs have mischaracterized the holding in
that decision. This court reviewed the evidence in the
record to determine if it was sufficient to support the
commission’s denial of a particular application for a
special permit. We concluded: ‘‘On the basis of the
foregoing and our thorough examination of the record,
we conclude that there was adequate evidence to sup-
port the commission’s reasons for denying the special
permit.’’ Hayes Family Ltd. Partnership v. Town
Plan & Zoning Commission, supra, 115 Conn. App.
662. No mention was made of any possible future appli-
cations. Most importantly, no findings were made as
to traffic, noise, property values or adverse impacts
upon the neighborhood because this court is not a fact
finder. ‘‘It is well settled that we do not find facts.’’
Bria v. Ventana Corp., 58 Conn. App. 461, 466, 755 A.2d
239 (2000); see also Multilingual Consultant Associ-
ates, LLC v. Ngoh, 163 Conn. App. 725, 737, A.3d
(2016). Accordingly, this claim of the plaintiffs has
no merit.4
The judgment is affirmed.
In this opinion the other judges concurred.
1
We summarily dispose of this claim. Although the plaintiffs contend
that they demonstrated that ‘‘no economically viable use of the property is
possible,’’ they have provided no references to the transcript or other por-
tions of the record that support this statement. ‘‘We are not required to
review issues that have been improperly presented to this court through an
inadequate brief.’’ (Internal quotation marks omitted.) Burns v. Quinnipiac
University, 120 Conn. App. 311, 323–24 n.12, 991 A.2d 666, cert. denied, 297
Conn. 906, 995 A.2d 634 (2010).
2
Because the plaintiffs’ claims are interrelated, we necessarily address
them together in this opinion.
3
In their appellate brief, the plaintiffs also included the following issues:
(1) ‘‘Did the trial court err in holding that plaintiffs had not met the finality
requirement where alternative uses would be subject to denial based upon
traffic concerns?,’’ and (2) ‘‘Did the trial court err in holding that plaintiffs
had not met the finality requirement where alternative uses would be subject
to denial based upon noncompliance with the plan of development?’’
The commission provided a collective statement that gave the reasons
for its denial of the plaintiffs’ application for a special permit. Those reasons
did not include traffic concerns or noncompliance with the plan of develop-
ment. ‘‘In zoning cases, we have held that, when a zoning commission has
formally stated the reasons for its decision, the court should not go behind
that official collective statement . . . [and] attempt to search out and specu-
late [on] other reasons which might have influenced some or all of the
members of the commission to reach the commission’s final collective deci-
sion.’’ (Internal quotation marks omitted.) Gibbons v. Historic District Com-
mission, 285 Conn. 755, 769, 941 A.2d 917 (2008). ‘‘To go beyond those
stated reasons invades the factfinding mission of the agency by allowing
the court to cull out reasons that the agency may not have found to be
credible or proven.’’ (Internal quotation marks omitted.) Id., 771. Accord-
ingly, we decline to address these claims.
4
The plaintiffs also claim on appeal that the trial court improperly dis-
missed their action where the application of the zoning regulations resulted
in at least a partial taking of their property. The court did not rule on a
partial taking claim because it was never expressly raised. In their posttrial
brief, the term ‘‘partial taking’’ is mentioned twice in twenty-six pages; the
plaintiffs provided no case law or other authority with respect to this con-
cept. No mention of ‘‘partial taking’’ is made in the plaintiffs’ posttrial reply
brief. The trial court did not rule on a claim of a partial taking because it
had not been presented to the court. ‘‘For this court to . . . consider [a]
claim on the basis of a specific legal ground not raised during trial would
amount to trial by ambuscade, unfair both to the [court] and to the opposing
party.’’ (Internal quotation marks omitted.) Dauti Construction, LLC v.
Planning & Zoning Commission, 125 Conn. App. 665, 674–75, 10 A.3d 92
(2010), cert. denied, 300 Conn. 924, 15 A.3d 630 (2011).
Moreover, the plaintiffs’ failure to demonstrate that they met the finality
requirement for a regulatory taking claim likewise is dispositive of this issue.