LLC v. Town of Weston et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (155.00)

I. Background

The complaint in this case, as amended in 2010, alleges a number of claims by the plaintiff Stones Trail, LLC against the Town of Weston, Connecticut (“Town”) ¹ essentially reciting a litany of actions taken by the Town and its agents which prevented Stones Trail from developing and selling what it claims were six legal residential lots in Weston.   The original complaint set forth four counts alleging violations of 42 U.S.C. § 1983 ² for deprivation of procedural and substantive due process, denial of equal protection of the laws and inverse condemnation or regulatory taking (counts one through four).   The fifth and sixth counts alleged inverse condemnation as a violation of the Fifth Amendment to the United States Constitution and a violation of Article First, Section 11 of the Connecticut Constitution.   The seventh count sought a declaratory judgment and the eighth count claimed municipal estoppel.   In 2009 the second count alleging a claim under 42 U.S.C. § 1983 based allegations that the Town violated Stones Trail's substantial due process rights was stricken in a decision by the Honorable Robin Pavia.   Additional details regarding the allegations in the amended complaint will be discussed in the following portions of this memorandum.

In early 2006 the Town moved to dismiss the Stones Trail complaint on the ground that the court lacked subject matter jurisdiction because each of the claims asserted were not ripe for adjudication.   See Dkt. Entries 106.00 (motion), 105.10 (memorandum).   The Honorable Edward Karazin denied the motion in its entirety in a memorandum of decision dated June 25, 2007, and subsequently denied a motion to reargue.

The defendant Town has now filed a second motion to dismiss for lack of subject matter jurisdiction.   This second motion relies in substantial part on arguments made previously and rejected by Judge Karazin that the dispute was not ripe for adjudication.   The pending motion also relies on the argument that the case is moot because Stones Trail lost title to the real property at issue through foreclosure in 2006.

II Scope of Review

The issues of both ripeness and mootness involve the doctrine of justiciability.  Esposito v. Specyalski, 268 Conn 333, 341 (2004);  Wilcox v. Webster Insurance, Inc., 294 Conn. 206, 222 (2009).   The concept of justiciability, which arises out of the cases and controversies language of Article III of the United States Constitution, is an absolute requirement for subject matter jurisdiction.

Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant.

Dean–Moss Family Ltd. Partnership v. Five Mile River Works, 130 Conn.App. 363, 370 (2011) (citation omitted).

A motion to dismiss admits all facts well pleaded, but when there are affidavits containing undisputed facts the court may look to them to determine the jurisdictional issue.  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516 (2007).   In determining whether a court has subject matter jurisdiction every presumption favoring jurisdiction should be indulged.   Connor v. Statewide Grievance Committee, 260 Conn. 435, 443 (2002).

III. Facts

The facts as set forth in the amended complaint are not seriously disputed.   Stones Trail purchased real property on Ladder Hill Road in Weston in October 1998.   The purchased property consisted of six lots (Parcels A through F) shown on map 3449 filed in the Weston Land Records on September 24, 1998.   Walpuck Affidavit, February 9, 2011, ¶¶ 4–8.   Map 3449 was stamped and signed by the Town Engineer and Town Code Enforcement officer and the stamp read:  “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 Commission.”   According to the affidavit of Robert Walpuck the procedure in Weston since 1991 was to place the stamped language on a map when it was determined no subdivision approval was needed.   Walpuck Aff., ¶ 9.   This procedure apparently was instigated by the Town Counsel Harry Heffernan in 1991 who wrote, “In 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 Affidavit, Exhibit 2. The lots pre-existed the Weston Zoning law.   Id. ¶¶ 4–7.   In September 1998, it appears that an attorney for the Town, Christopher Jarboe, wrote the Town Zoning Enforcement officer (with a copy to Stones Trail's attorney) that after review of map 3449, the property thereon was not a subdivision or resubdivision and should be stamped accordingly and filed on the land records.  Id., Exhibit 3. According to the allegations of the amended complaint, which throughout are substantially supported by the Walpuck affidavit, in reliance on the review of lots by Town officials and the stamped notation on map 3449, Stones Trail purchased the six lots (about 17 acres) with the assistance of an approximately $1.1 million mortgage from Ridgefield Bank.

At a meeting in December 1999 attended by various Town officials and Walpuck and his attorney, it is alleged that the Town's First Selectman said the Town would “shutdown” Stones Trail and other Walpuck entities although there was no claim that the six lots were illegal.   In February 2000 a special counsel for the Town Planning and Zoning Commission, Barry Hawkins, advised Stones Trail's attorney that it needed to obtain subdivision approval for the six lots.   This communication was made despite another attorney for the Town having previously communicated in 1998 that no such approval was required.   It is further alleged that in March 2000 the special counsel advised the Town Planning and Zoning Commission, Zoning Enforcement officer and Building official not to issue building permits to the plaintiff until subdivision approval had been obtained.

In May 2000 Town counsel instructed the Town Tax Assessor to erase the lot lines on the tax assessment map and convert the six lots to one lot.   While this resulted in lower property taxes, the Town commenced tax foreclosure proceedings and initially refused to accept payment of the taxes due.

It is alleged, on information and belief, that Town officials advised the Ridgefield Bank that the plaintiff's property was illegally subdivided and as a result the bank commenced foreclosure proceedings against the plaintiff's property on Ladder Hill Road in 2002.

The amended complaint goes on to allege that the actions by the Town and its officials in (1) revoking the prior determination by another attorney for the Town that the plaintiff's property consisted of six lots, (2) refusing to recognize boundary line adjustments between adjacent lots, and (3) combining the lots on the Tax Assessor's map all occurred even though the plaintiff and its representatives had not applied for building permits for any of the six lots.   The six lots complied with the zoning regulations as to lot size, shape, frontage and other relevant requirements, and did not need subdivision approval from the Planning and Zoning Commission.   It is alleged that then Town Attorney Kenneth Bernhard and Zoning Enforcement Officer Turner wrongfully took the position that the lot line adjustments and the increase of the five original lots on an earlier map to six lots on Map # 3449 by the division of one of the lots into two lots were illegal and required subdivision approval from the Planning and Zoning Commission.   As a result of the Town's position acting through those officials, the plaintiff could not obtain and did not apply for zoning permits for the separate lots, which is alleged to have been a futile act.   In spite of the position and policy of the Town and its officials concerning the plaintiff's six lots, it was and has continued to be the practice and policy of the defendant to allow similar lot line adjustments and divisions of one parcel into two parcels to occur on other properties in Weston, both before and after the dates when they refused to allow and recognize the lot line adjustments on the plaintiff's property.   Bernhard and Turner and their agents authorized or granted zoning permits to those other lots without requiring the owner or applicant to apply for subdivision approval.

In 2004 and 2005 Bernhard was requested to but refused to change the policy and position that the six lots were not valid lots for which zoning permits could be issued, even though he knew of a decision from the Connecticut Appellate Court that lot line adjustments between two parcels, and the division of one parcel which existed prior to the enactment of subdivision regulations by the town was not a subdivision as defined in General Statutes § 8–18.   It is alleged that other properties in Weston where zoning permits were issued for lots after allowing lot line adjustments between adjacent parcels without requiring subdivision approval for the revised lots include properties on Martin Road, Tubbs Spring Road and Steep Hill Road in the Town of Weston.

The plaintiff conceded it made no application for subdivision or resubdivision approval from the Zoning Commission.   In 2006, however, Stones Trail applied to the Zoning Enforcement Officer Turner for a certificate of zoning compliance for one of the lots shown on map 3449.   The certificate was denied for the reason that subdivision approval was required.   On appeal the Town Zoning Board of Appeals upheld Turner's decision.   The plaintiff appealed to the Superior Court, but while the appeal was pending it lost ownership of the property in August 2006 through foreclosure, and the appeal was dismissed in 2008 because of lack of aggrievement.   Stones Trail, LLC v. ZBA of Town of Weston, Superior Court, judicial district of Stamford–Norwalk at Stamford, CV 06 4010003 (June 6, 2008, Downey, J.) (Dkt. Entry 121.00).

IV. Discussion

The Town's pending motion seeks dismissal of the First, Third, Fourth and Fifth counts alleging, pursuant to 42 U.S.C. § 1983, that the plaintiff's rights to equal protection of the laws, and procedural due process were violated, and a taking of property without just compensation in violation of the Fifth Amendment occurred.³  The Town contends that the court lacks subject matter jurisdiction of these claims because they are not ripe and therefore not justiciable.   For this contention the Town relies on Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985).   According to the Town, that case, involving a claim of taking private property without just compensation, required the plaintiff in this case to obtain a “final decision” regarding the application of zoning ordinances and subdivision regulations to its property and without such a final decision the controversy was premature and “not ripe.”  Id. 186.⁴  The Williamson court found that since the respondent Hamilton Bank had not applied for variances of subdivision regulations, many of which variances had been recommended by a Zoning Commission committee, the decision of the local authority on the bank's subdivision proposal was not “final.”  Id., 188.   The “final decision” requirement was based on the rationale that the economic consequences of an alleged taking could not be evaluated until a final decision by the local authority had been made.

The Town contends that the failure of Stones Trail to make and pursue an application for approval of its property as a subdivision and failure to have the Commission determine whether the six lots were a subdivision results in no final decision being made and therefore the claims are premature and unripe, and the court has no jurisdiction over them.

The plaintiff responds that there was no decision for the Planning and Zoning Commission to make because five of the lots legally existed prior to the zoning law and the boundary changes did not change that situation and the creation of one new lot did not require subdivision approval, citing Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 765 (2000) (a boundary line adjustment between two lots is not subdivision) and General Statutes 8–18 (a subdivision is the division of a parcel of land into three or more lots).   In essence, Stones Trail asserts its six lots were legal with or without the approval or the determination of the Planning and Zoning Commission, and there was no necessity to make an application.

The plaintiff also contends, and pleads, that any effort to apply for subdivision approval, besides being unnecessary, was “futile.”   There is some attractiveness to the plaintiff's arguments.   If the allegations are proven to be true, one could find that the Town acted unilaterally, arbitrarily and inconsistently in connection with plaintiff's property.   On the issue of what is finality Williamson says that “requirement is concerned with whether the initial decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury ․” Id. 193.   The Town argues that the finality doctrine requires the filing of “at least one, meaningful application” quoting Celentano v. City of West Haven, 815 F.Sup. 561, 569 (D.Conn.1993).   The courts, however, have also recognized an exception to the finality requirement when an application would be futile.   Judge Karazin, in denying the Town's first motion to dismiss applied that exception.   In Murphy v New Milford Zoning Commission, 402 F.3d 342 (2d Cir., 2005) the Second Circuit Court of Appeals the court stated “the finality requirement is not mechanically applied” and that a property owner need not pursue an application when a zoning agency “has dug in its heels and made clear that all such applications will be denied.”  Id. 349;  see also Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir., 1987) (noting existence of a futility exception to the threshold requirement of a final decision when an application would be “an idle and futile act”).

The court notes as well that the Second Circuit has stated quite clearly that “land use disputes are uniquely matters of local concern more aptly suited for local resolution.”  Murphy v. New Milford Zoning Commission, supra, 402 F.3d 348.   The opinion goes on to cite numerous cases wherein the federal courts have evinced an aversion to such cases based on federalism principles (e.g. “we are concerned that federal courts not sit as zoning boards of appeal”).   Id., 348–49.   This policy reason for abstaining from such cases does not apply to state courts which regularly are required to review local land use decisions.

The court recognizes that the case law in this area supports a relatively rigorous application of the finality requirement.   Nevertheless the allegations of the amended complaint, the affidavit of Walpuck and the exhibits, when viewed in the light most favorable to the plaintiff, compel this court to conclude that it would have been futile for Stones Trail to apply for subdivision approval between 2000 and 2006 in Weston.   The Town emphasizes what the Second Circuit said in its summary opinion in Lost Trail, LLC v. Town of Weston, 289 Fed.App. 443 (2d Cir.2008) to the effect that the Zoning Commission makes the decision on subdivisions, not the Town attorneys.   Based on the record in this case, this court finds differently.   Indeed, the land use bodies and other personnel in Weston have appeared to follow very carefully the various advices of their attorneys beginning with Attorney Heffernan's suggested procedure for filing maps stating no subdivision action needed, to Attorney Jarboe's confirmation of that position in 1998 to a new position espoused by Attorneys Hawkins and Bernhard beginning in 2000 and continuing to 2006.   The court determines that the record supports a finding that the futility exception should apply in this case.   The court also notes that at least one application by Stones Trail, for a zoning permit for one lot was turned down.   Therefore, the court adheres to the decision of Judge Karazin and declines to dismiss Counts, One, Three, Four and Five on lack of finality grounds.

In addition, the court finds unpersuasive the Town's contention that the finality requirement bars jurisdiction over Counts One and Three which assert claims of violation of equal protection of the law and procedural due process.   The Williamson decision involved claims under the taking clause of the Fifth Amendment, but was quite specific that due process and equal protection claims were not before the United States Supreme Court.  Williamson, supra, 473 U.S. 82, n.4.

The Town cites to Murphy v. New Milford Zoning Commission, supra, 402 F.3d 349 which notes that the Second Circuit and other Circuits have applied the Williamson finality requirement to procedural due process and lack of equal protection claims, and recognizing that a “relaxed” version of the ripeness doctrine may be used in First Amendment claims.   However, there is precedent to the contrary.   In Nasierowski Bros. v. City of Sterling Heights, 949 F.2d 890 (6th Cir.1991) (a case also cited by Murphy ) the Sixth Circuit held that the Williamson finality rule did not apply to a Section 1983 claim alleging lack of procedural due process.  Nasierowski Bros appears to remain good law in the Sixth Circuit.  Wedgewood L.P. v. Township of Liberty, 610 F.3d 340 (6th Cir.2010).   In Harris v. County of Riverside, 904 F.2d 497 (9th Cir.1990) it was held that the ripeness inquiry involved whether the local decision maker arrived at a definite “position on the issue that inflicts an actual, concrete injury.”  Id., 500–01 (quoting Williamson supra 473 U.S. 193).   In reviewing a procedural due process claim Harris held that it was not required that the local authority issue a final authoritative decision as to the development allowed on the plaintiff's land.   The Ninth Circuit held that a decision to rezone the plaintiff's property without notice to the plaintiff was a decision with its own consequences, even though it might not result in a taking.  Id., 50.

The court determines that the less rigorous ripeness standard for constitutional claims other than a full-fledged “taking” of property without just compensation is appropriate in this case.   The allegations of the amended complaint and Walpuck affidavit are not controverted by any evidentiary submission.⁵  The allegations are that contrary to prior Town policy and contrary to what happened to other land owners in Town, Town officials unilaterally without a hearing or even prior notice revoked a recorded map showing six lots and directed that the plaintiff's property be considered one undivided parcel.   This action had an immediate and concrete adverse effect on Stones Trail regardless of whether it ultimately resulted in a cognizable taking.   If these allegations are proven the plaintiff suffered an injury, and the court rules that it has the subject matter jurisdiction to hear the claims in the First and Third Counts.

The Sixth count is a claim of regulatory taking without just compensation in violation of the Article First, Section 11 of the Connecticut Constitution which states:  “[t]he property of no person shall be taken for public use, without just compensation therefore.”   The Town appears to argue that the Connecticut Supreme Court has held that a court lacks jurisdiction to hear such a claim if the property owner has not obtained a final decision from the local land use agency, citing Port Clinton Associates v. Board of Selectmen, 217 Conn. 518 (1991).   In Port Clinton Associates, however, the applying the law developed under the Fifth Amendment to the U.S. Constitution (e.g. Williamson ) and explicitly did not address the Connecticut Constitution's provision in Article First, Section 11.   Id. 596, n.12. Nevertheless, subsequently in Gil v. Inland Wetlands and Watercourses Agency, 219 Conn. 404 (1991) the Connecticut Supreme Court adopted the finality requirement in a case where an Article I, Section 11 takings claim was made noting that the federal Fifth Amendment taking clause and the Connecticut constitutional provisions were similar.   Id., 405, n.2. The court finds, for the reasons stated above, that the futility exception applies to Article First, Section 11 claims and that there is jurisdiction to hear and decide Count Six.

The amended complaint's eighth count alleges that the Town is estopped from requiring subdivision for approval the six lots and refusing to issue zoning and building permits despite its past practice.   As amended, the Eighth Count seeks money damages.   In its motion to dismiss the Town urges the court to find lack of jurisdiction on the grounds of mootness and lack of standing because the plaintiff no longer owns the Ladder Hill Road property in question.   In its reply papers the Town raises the additional issue that money damages are not a proper remedy for a claim of estoppel.

The court will not resolve the issue of whether a claim of municipal estoppel can support a claim for money damages.   Even though that issue would ordinarily be properly the subject of a motion to strike, given the slow progress of this case toward resolution, this court might have attempted to resolve the issue in the context of this motion to dismiss, because the availability of a money remedy might affect the mootness and standing issues.   However, the briefing on the issue by both parties is confusing, inconclusive and not of the high quality otherwise evident in the papers, and the court declines to decide the issue in this context.

The loss of ownership would not moot the claim for money damages arising before the foreclosure sale that occurred in 2006.   The issue of ripeness does not deprive this court of jurisdiction because the plaintiff's allegations do not set forth a takings claim where the finality requirement is deemed necessary to quantify the claim.

In its seventh count, a claim for a declaratory judgment, Stones Trail seeks a declaration that (1) transfers between lots and boundary line adjustments are not subdivisions, (2) a lot which preexisted subdivision regulations could be divided into two lots without subdivision approval, and (3) zoning and building permits should be issued.   The Town contends the issues raised in the seventh count are mooted.   An essential component of justiciablity is that the determination of the controversy will result in practical relief to the complainant.  Dean–Moss Family Ltd. Partnership v. Five Mile River Works, supra;  see also Lyon v. Jones, 291 Conn. 384, 393 (2009).

The plaintiff's claims for relief have definitely been mooted by its loss of ownership of the subject lots.   There is simply no meaningful or practical relief that can be granted by the court in these circumstances, and the seventh count is dismissed.

V. Conclusion

The motion to dismiss is granted as to Count Seven, and in all other respects is denied.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Although the caption in the original complaint identified the defendants as “Town of Weston, et al” only the Town is named as a defendant in the body of the complaint, and only the Town was named in the summons and was served..  FN1. Although the caption in the original complaint identified the defendants as “Town of Weston, et al” only the Town is named as a defendant in the body of the complaint, and only the Town was named in the summons and was served.

FN2. Title 42, Section 1983 of the United States Codes provides a right of action for damages to any person who has been deprived of any constitutional or legal right by another person acting under color of any law, ordinance or requirement of any state..  FN2. Title 42, Section 1983 of the United States Codes provides a right of action for damages to any person who has been deprived of any constitutional or legal right by another person acting under color of any law, ordinance or requirement of any state.

FN3. The Fifth Amendment to the United States Constitution prohibits “private property be[ing] taken for public use without just compensation.”.  FN3. The Fifth Amendment to the United States Constitution prohibits “private property be[ing] taken for public use without just compensation.”

FN4. The United States Supreme Court in Williamson also held that the claim would still not be ripe until the claimant filed a claim for compensation in state court.   Because of the existence of this suit the Town concedes this so-called “second prong” of the Williamson ripeness test is not applicable..  FN4. The United States Supreme Court in Williamson also held that the claim would still not be ripe until the claimant filed a claim for compensation in state court.   Because of the existence of this suit the Town concedes this so-called “second prong” of the Williamson ripeness test is not applicable.

FN5. The affidavit submitted in support of the Town's motion only focuses on the lack of an application by the plaintiff for subdivision approval..  FN5. The affidavit submitted in support of the Town's motion only focuses on the lack of an application by the plaintiff for subdivision approval.

Adams, Taggart D., J.T.R.