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APPENDIX
HAYES FAMILY LIMITED PARTNERSHIP ET AL.
v. TOWN OF GLASTONBURY*
Superior Court, Judicial District of Hartford
File No. LND-CV-09-5033344-S
Memorandum filed February 6, 2015
Proceedings
Opinion
BERGER, J.
I
The plaintiffs, Hayes Family Limited Partnership,
Richard P. Hayes, Jr., and Manchester/Hebron Avenue,
LLC,1 seek damages from the defendant, the town of
Glastonbury, under a legal theory of inverse condemnation involving the plaintiffs property at 1199 Manchester Road in Glastonbury. On November 29, 2005, the
towns Plan and Zoning Commission denied the plaintiffs application for a special permit to construct a CVS
pharmacy on the property. The plaintiffs argue that this
constituted a taking without just compensation under
article first, 11, of the constitution of Connecticut and
the fourteenth amendment to the constitution of the
United States.
The present case is another chapter in the continuing
litigation between the parties. The plaintiffs appealed
from the commissions denial of their special permit
application to the Superior Court in Hayes Family Ltd.
Partnership v. Town Plan & Zoning Commission,
Superior Court, judicial district of Hartford, Docket No.
CV-06-4019700-S, 2007 WL 2245790. The court, Miller,
J., dismissed the appeal on July 19, 2007. The plaintiffs
petitioned for certification to appeal, arguing that the
trial court improperly concluded that substantial evidence in the record supported the denial and that the
commission lacked discretion to deny an application
for a special permit when the applicant complied with
all applicable zoning regulations. Those arguments
were rejected, and the trial courts decision was
affirmed on July 14, 2009. 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).
The focus now before this court concerns only the
inverse condemnation claim based upon the commissions November 29, 2005 denial of the plaintiffs special
permit application. An inverse condemnation action
does not concern itself with the propriety of the boards
action. The only inquiry is whether a taking has, in
fact, occurred. Cumberland Farms, Inc. v. Groton,
247 Conn. 196, 208, 719 A.2d 465 (1998). An inverse
condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially
equivalent to an eminent domain proceeding. . . .
[W]hether a claim that a particular governmental regulation or action taken thereon has deprived a claimant
of his property without just compensation is an essentially ad hoc factual inquir[y]. . . . Short of regulation
which finally restricts the use of property for any reasonable purpose resulting in a practical confiscation,
the determination of whether a taking has occurred
must be made on the facts of each case with consideration being given not only to the degree of diminution
in the value of the land but also to the nature and degree
of public harm to be prevented and to the alternatives
available to the landowner. (Internal quotation marks
omitted.) Lost Trail, LLC v. Weston, 140 Conn. App.
136, 146, 57 A.3d 905, cert. denied, 308 Conn. 915, 61
A.3d 1102 (2013). Connecticut law on inverse condemnation requires total destruction of a propertys economic value or substantial destruction of an owners
ability to use or enjoy the property. Bristol v. Tilcon
Minerals, Inc., 284 Conn. 55, 85, 931 A.2d 237 (2007).
The plaintiffs filed their first suit alleging inverse
condemnation on January 30, 2006, but withdrew it on
September 9, 2009.2 Hayes Family Ltd. Partnership v.
Town Plan & Zoning Commission, Superior Court,
judicial district of Hartford, Docket No. CV-06-4020760S. On October 1, 2009, the plaintiffs commenced the
present action. The court, Aurigemma, J., granted the
defendants motion to dismiss on August 4, 2010. On
appeal, the Appellate Court reversed the trial courts
decision because it failed to hold an evidentiary hearing
on whether the plaintiffs established the finality of the
commissions determination, thereby providing the trial
court with subject matter jurisdiction. Hayes Family
Ltd. Partnership v. Glastonbury, 132 Conn. App. 218,
224, 31 A.3d 429 (2011). The case was remanded to
this court for consideration of this directive. Id. By
agreement of the parties, evidence was also received,
and the matter was heard as a trial on the merits, albeit
in a bifurcated manner, addressing issues of liability
only. Hence, if this court were to conclude that the
plaintiffs have proven finality, the court would deny
the motion to dismiss and then consider whether the
plaintiffs were successful in proving their allegation of
inverse condemnation.
Trial occurred on November 5, 2013, through November 8, 2013,3 and on December 17, 2013. At the close of
the plaintiffs case on December 17, 2013, the defendant
orally moved for judgment of dismissal under Practice
Book 15-8,4 alleging that the plaintiffs failed to make
a prima facie case that the defendants actions in denying the special permit constituted the finality required
to make a regulatory takings claim. The defendant filed
its motion on December 23, 2013, the plaintiffs filed a
memorandum of law in opposition on January 15, 2014,
and this court heard oral argument and denied the
motion on March 31, 2014.5 Trial continued on June
24, 2014, through June 26, 2014. The plaintiffs filed a
supplemental brief on July 30, 2014, and the defendant
its supplemental brief on September 5, 2014. Posttrial
oral argument was heard on November 6, 2014.
II
A
offered similar conclusions to those stated in the affidavits. Indeed, OLearys conclusions, seven through nine,
reported by Judge Aurigemma, are essentially the same:
7. In undertaking that review, I have considered
several hypothetical alternative uses, including the construction of a single-story commercial building that
might, for example, be used for . . . a bank branch
building, and the construction of a two-story commercial building of anywhere between 13,000 and 18,000
square feet (with about half such amount allocated to
each story) that might be used as an office building.
Such uses would be smaller in scale than the CVS Pharmacy proposal that was rejected by the Commission.
8. I believe that, based on the topography and location of the Property, none of those hypothetical alternative proposals will avoid the reasons previously
identified by the Commission as a basis for denying the
Special Permit application for the Property.
9. Specifically, the construction of any such hypothetical alternative use buildings will require significant
excavation of the Property and the removal of materials
from the Property. The impacts to the existing grade
of the site and landscape would be similar to those of
the CVS Pharmacy proposal due to the topographical
relief associated with the site. The disturbance to the
Property for grading and vegetation removal is likely
to be similar for such commercial buildings as it was
for the CVS Pharmacy proposal. Furthermore, the construction of buildings for such alternative commercial
uses at the Property will likely have a similar impact
on neighboring properties, in terms of noise and visual
intrusions, when compared to that of the proposed CVS
Pharmacy. Landscaping and buffering associated with
such alternative commercial uses would be similar to
those for the CVS Pharmacy proposal due to the excavation sideslopes that would be required to address the
topographic relief at the Property. (Internal quotation
marks omitted.) Hayes Family Ltd. Partnership v.
Glastonbury, supra, 2010 WL 3447792, *2*3.
Although reminded by both the court and the defendant that the denial of the special permit application
was beyond challenge, much of the proffer of this testimony could easily be interpreted to be further argument
on the first CVS proposal. For instance, the extent of
the massive excavation necessitated an extensive discussion of the proposed slope, ingress and egress
grades, and buffers. Both OLeary and Hayes testified
that a two-to-one slope was compliant, the 8 percent
grade was compliant, and the landscape buffering was
generous, extensive, and appropriate. Nevertheless,
both Judge Miller and the Appellate Court in the previous zoning appeal found that there was adequate evidence to support the commissions reasons for denying
the special permit. Hayes Family Ltd. Partnership v.
Glastonbury, supra, 115 Conn. App. 662. The plaintiffs
civil matter tried to the court, the plaintiff has produced evidence and rested,
a defendant may move for judgment of dismissal, and the judicial authority
may grant such motion if the plaintiff has failed to make out a prima facie
case. The defendant may offer evidence in the event the motion is not
granted, without having reserved the right to do so and to the same extent
as if the motion had not been made.
5
The motion was denied based upon Charter Oak Lending Group, LLC
v. August, 127 Conn. App. 428, 434, 14 A.3d 449, cert. denied, 302 Conn.
901, 23 A.3d 1241 (2011). The standard for determining whether the plaintiff
has made out a prima facie case, under Practice Book 15-8, is whether
the plaintiff put forth sufficient evidence that, if believed, would establish
a prima facie case, not whether the trier of fact believes it. . . . For the
court to grant the motion [for judgment of dismissal pursuant to Practice
Book 15-8], it must be of the opinion that the plaintiff has failed to make
out a prima facie case. In testing the sufficiency of the evidence, the court
compares the evidence with the allegations of the complaint. . . . In order
to establish a prima facie case, the proponent must submit evidence which,
if credited, is sufficient to establish the fact or facts which it is adduced to
prove. . . . [T]he evidence offered by the plaintiff is to be taken as true
and interpreted in the light most favorable to [the plaintiff], and every
reasonable inference is to be drawn in [the plaintiffs] favor. (Emphasis in
original; internal quotation marks omitted.) Id.
In the present case, the Appellate Court acknowledged that the plaintiffs
were required to establish the finality of the commissions determination
to confer subject matter jurisdiction on the court. . . . On the basis of the
complaint and the affidavits submitted by both parties, the court determined
that the plaintiffs could not prove finality because the plaintiffs only submitted one special permit application for a particularly intensive development.
(Citations omitted.) Hayes Family Ltd. Partnership v. Glastonbury, supra,
132 Conn. App. 223. As previously noted, the Appellate Court found that in
light of our motion practice, an evidentiary hearing was required on factual
disputes. Id., 22324. The motion for judgment of dismissal, taking the
plaintiffs evidence as true, cannot really address the fundamental issue of
the finality of the agency decision with only one application, i.e., if there
are other uses for the property, and, more importantly, if any other application would be rejected. The finality issue is addressed in this decision
notwithstanding the denial of the motion for judgment of dismissal. Of
course, a plaintiffs initial success in establishing a prima facie case does
not equate to success on the merits; the plaintiffs testimony can be rebutted.
See, e.g., Fisher v. Big Y Foods, Inc., 298 Conn. 414, 419 n.10, 3 A.3d 919
(2010); Eagen v. Commission on Human Rights & Opportunities, 135 Conn.
App. 563, 577 n.5, 42 A.3d 478 (2012).
6
(See also plaintiffs [pls.] exhibit [exh.] 25.)
7
The plaintiffs introduced evidence at trial that after the commission
denied their application, they attempted to seek a variance from the Zoning
Board of Appeals allowing them to construct the building closer to the front
yard line on both Manchester Road and Hebron Avenue. After a public
hearing and discussion on December 4, 2006, the board denied the request
by a vote of two to three. (Pls. exhs. 26-27.) The plaintiffs did not appeal from
that decision, nor is that denial a basis for the present case. Furthermore, a
request for a variance is different from an application for a special permit.
8
To the extent the plaintiffs argue that no plan would satisfy the commission and that submitting further applications would be futile, [a]lthough a
property owner need not pursue patently fruitless measures to satisfy the
finality doctrine . . . it cannot claim futility by setting up its own obstacles.
(Citation omitted.) Lost Trail, LLC v. Weston, supra, 140 Conn. App. 15152.
9
At posttrial oral argument on November 16, 2014, it was noted that the
variance request involved a CVS that was smaller than the one proposed
to the commission.
10
OLeary testified that some CVS stores had just one entrance and exit.
(Tr., Nov. 8, 2013, p. 27.)
11
Indeed, at the November 29, 2005 meeting, commission members indicated that the plaintiffs might develop the property in a less intensive manner
than that proposed in the original and only special permit application. (Defendants [def.] exh. 521, p. 18.)
12
At oral argument on the motion for judgment of dismissal on March 31,
2014, the plaintiffs counsel questioned whether the issue being debated
was indeed the number of submitted applications. Gil reminds us that it is
the substantive difference in the applications that is of concern. Gil v. Inland
Wetlands & Watercourses Agency, supra, 219 Conn. 41617.