Farmington-Girard, LLC v. Planning & Zoning Commission of The City of Hartford

          RULING ON MOTION TO DISMISS

          MICHAEL P. SHEA, U.S.D.J.

         Plaintiff Farmington-Girard, LLC (“Farmington-Girard”) brings this action against Defendants City of Hartford (“Hartford”) and the Planning & Zoning Commission of the City of Hartford (“PZC” and together, the “Municipal Defendants”), alleging that PZC has unlawfully blocked the development of Farmington-Girard's property at 510 Farmington Avenue in Hartford, Connecticut as a drive-through fast food restaurant. Farmington-Girard asserts claims under 42 U.S.C. § 1983 for defendants' alleged violation of its rights under the U.S. constitution, a declaratory judgment claim, and state law claims for inverse condemnation and municipal estoppel. After Farmington-Girard initially filed suit in state court, Hartford removed the case to this Court. The Municipal Defendants now move under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) to dismiss the Amended Complaint (ECF No. 37, “Am. Compl.”), arguing that Farmington-Girard's claims are not ripe, that the Amended Complaint fails to allege any constitutional violations, and that it does not adequately plead the state law claims. Because I find that Farmington-Girard's claims are ripe but that some of them fail as a matter of law, I GRANT in part and DENY in part the motion to dismiss. (ECF No. 42.)

         I. Factual Background

         The facts below are drawn from the Amended Complaint and, where relevant, documents referenced therein or of which the Court may take judicial notice.^[1]

         A. 510 Farmington Avenue

         Farmington-Girard acquired the property at 510 Farmington Avenue from Shell Oil Company in 2005. (Am. Compl. ¶ 22.) Due to the property's previous use as a gas station, the structures had to be razed for environmental remediation efforts, and the property is currently an empty lot. (Am. Compl. ¶ 23.) A Burger King restaurant with drive-through window service immediately abuts the property to the west and a residential zone abuts it to the north. (Am. Compl. ¶ 24.) Between its acquisition in 2005 and December 2012, 510 Farmington Avenue was located in a B-3 (Linear Business) zoning district, which, under Hartford's zoning regulations then in effect, permitted the property to be used as a fast food restaurant with a drive-through window. (Am. Compl. ¶ 25.)

         Since its acquisition of 510 Farmington Avenue, Farmington-Girard has actively tried to market the property for use as a fast food restaurant with a drive-through window. (Am. Compl. ¶ 26.) According to Farmington-Girard, “[a]ny other use renders the property highly unmarketable for purposes of generating sufficient cash flow to recoup the purchase, remediation and carrying costs of the property, because, inter alia, the property is competitively disadvantaged because it is bordered by a fast food restaurant with drive-thru window service (Burger King), the market price at the time of purchase factored in allowance for a restaurant with drive-thru window service, ” and because the zoning changes discussed below affected the property. (Id.)

         B. The McDonald's Ground Lease

         On September 12, 2012, Farmington-Girard and McDonald's USA, LLC (“McDonald's”) executed a letter of intent to enter into a ground lease^[2] for 510 Farmington Avenue, subject to a zoning contingency to allow for the construction of a McDonald's restaurant on the property. (Am. Compl. ¶ 28.) Despite various zoning changes discussed below, Farmington-Girard and McDonald's continued to negotiate and executed a final ground lease for the development of a McDonald's restaurant with drive-through window service at 510 Farmington Avenue on August 21, 2013. (Am. Compl. ¶¶ 29, 36, 37.) The ground lease was subject to a contingency that McDonald's secure land use approvals to allow the construction of a McDonald's restaurant with drive-thru window service. (Am. Compl. ¶ 37.) The ground lease had a limited period for satisfaction of the contingency, which the parties later extended through November 15, 2013, and ultimately, through February 20, 2015. (Am. Compl. ¶¶ 38, 43.)

         On February 20, 2015, the ground lease expired, and because of the PZC's efforts to block the development described below, McDonald's halted its pursuit of 510 Farmington Avenue. (Am. Compl. ¶ 78.)

         C. PZC's Zoning Changes & Denial of Farmington-Girard's Application

         Beginning in 2012, PZC purported to make extensive changes to the zoning and use rules affecting 510 Farmington Avenue and took other actions to prevent the development of a fast food restaurant with a drive-though window.

         1. Farmington-Girard's December 10, 2012 Application & Response

         In late 2012, while negotiating the terms of the ground lease with McDonald's, Farmington-Girard learned of a proposal to change the zoning of 510 Farmington Avenue to prohibit fast-food restaurants with drive-through windows. (Am. Compl. ¶ 29.) To preserve its rights, Farmington-Girard hired a professional engineer to submit a site plan for a fast food restaurant with drive-through window service at 510 Farmington Avenue. (Am. Compl. ¶ 30.) On December 10, 2012, the engineer submitted a “site plan/special permit application” for a fast food restaurant and paid the $300 required fee (hereinafter the “December 10, 2012 application”), which the Planning Division of the Hartford Department of Development Services (“DDS”)^[3] accepted and assigned an application number. (Am. Compl. ¶ 30.)

         Following the application, Kim Holden, the Chief Staff Planner of the Planning Division of DDS, informed Farmington-Girard by letter dated December 19, 2012 that its application was “considered incomplete and as such, the time clock on the application has been stopped, ” and further that, “[i]f you wish to proceed with your submittal, please submit the required information” (hereinafter the “Holden letter”). (Am. Compl. ¶ 34.)

         2. The December 11, 2012 Rezoning Decision

         On December 11, 2012, the PZC held a public hearing on and approved the rezoning of 510 Farmington Avenue and five other non-contiguous properties on Farmington Avenue from the B-3 (Linear Business) zoning district to the B-4 (Neighborhood Business) zoning district (the “December 11, 2012 rezoning decision”). (Am. Compl. ¶ 31.) Due to grandfathering rules, 510 Farmington Avenue was the only property actually affected by the change. (Am. Compl. ¶ 32.) The new B-4 zoning prohibited use of 510 Farmington Avenue as a fast food restaurant with drive-through window service. (Am. Compl. ¶¶ 33, 39.)

         Farmington-Girard timely appealed the December 11, 2012 rezoning decision to Hartford Superior Court.^[4] (Am. Compl. ¶ 35.) On August 19, 2014, the Superior Court upheld Farmington-Girard's appeal of the 2012 zone change on the basis of defective pre- and post-hearing notice. (Am. Compl. ¶ 40.) As a result of this decision, 510 Farmington Avenue was “restored to the B-3 (Linear Business) zoning district and the Hartford Zoning Regulations then in effect allowed the property to be used as a fast food restaurant with drive-thru window service by special permit.” (Am. Compl. ¶ 41.) At that point, Farmington-Girard “could have submitted a new site plan/special permit application for a fast food restaurant with drive-thru window service which would have been a permitted use under and been processed pursuant to the zoning regulations then in effect, the restored B-3 (Linear Business) zoning district.” (Id.) However, “in reliance on defendants' actions and statements . . . including defendants' acceptance of plaintiff's December 10, 2012 application, defendants' retention of plaintiff's $300 application fee, and defendants' December 19, 2012 letter stating that plaintiff could proceed with the December 10, 2012 application upon submission of further information, [Farmington-Girard] did not submit a new site plan/special permit application.” (Id.) Rather, in October 2014, Farmington-Girard “provided further information supplementing and in support of its December 10, 2012 application, ” as discussed below. (Id.; Am. Compl. ¶ 51.)

         3. The Fall 2014 Text Amendments

         On September 23, 2014, PZC, “without notice to [Farmington-Girard], ” held a public hearing on proposed text amendments to the Hartford Zoning Regulations and approved the amendments (the “Text Amendments”). (Am. Compl. ¶ 45.) One of the text amendments prohibited “fast food restaurants with drive-thru window service abutting residential districts or being located with 300 feet of another such establishment.” (Id.) Because 510 Farmington Avenue abutted both the Burger King with a drive-through window and a residentially-zoned property, the text amendments effectively prohibited the use of 510 Farmington Avenue as a fast food restaurant with a drive through-window. (Am. Compl. ¶ 46.) The text amendments were set to become effective a month later, on October 18, 2014. (Id.)

         4. The October 20, 2014 Meeting

         Following McDonald and Farmington-Girard's second extension of the contingency conditions in the ground lease, McDonald's hired a land use lawyer, Daniel E. Kleinman, as well as a civil engineering firm and a traffic engineering firm, to process the land use applications for 510 Farmington Avenue. (Am. Compl. ¶ 44.) On October 10, 2014, Kleinman, unaware of the text amendments due to go into effect a week later, scheduled a meeting with two individuals from DDS, Thomas Deller and Khara Dodds, to discuss the proposed plans for 510 Farmington Avenue. (Am. Compl. ¶ 47.) At Deller's behest, Dodds twice postponed the meeting with Kleinman until October 20, 2014, two days after the amendments were due to go into effect. (Am. Compl. ¶¶ 48- 49.) Although no reason for the postponements were given, Farmington-Girard alleges that “[d]efendants intentionally delayed the . . . meeting until after the October 18, 2014 effective date of the text amendments in order to preclude and prohibit [Farmington-Girard] from filing a new site plan/special permit application for a fast food restaurant with drive-thru window service which would have been a permitted use under the zoning regulations in effect prior to October 18, 2014, the restored B-3 (Linear Business) zoning district.” (Am. Compl. ¶¶ 48-49, 56.)

         Ultimately, Kleinman, as well as a representative of the retained engineering firm, met with Dodds and other staff at DDS on October 20, 2014. (Am. Compl. ¶ 51.) At the meeting, they delivered on Farmington-Girard's behalf “a set of materials completing the site plan/special permit” application submitted by Farmington-Girard in December 2012. (Id.)

         According to the complaint, because “the site plan/special permit application was complete and complied with the applicable regulations in effect on December 10, 2012, the restored B-3 (Linear Business) zoning district, ” there was a “certainty or at least a very strong likelihood that if the [PZC] processed the application in accordance with the applicable zoning regulations, ” the December 10, 2012 application “would and should have been approved.” (Id.; Am. Compl. ¶ 54.)^[5] In other words, Farmington-Girard alleges, it “was clearly entitled to processing and approval by defendants of the application.” (Am. Compl. ¶¶ 51, 54.) However, Dodds informed Kleinman and the engineering firm representative that because of the Text Amendments, which became effective two days earlier, McDonald's could not proceed with the December 10, 2012 site plan and special permit application. (Am. Compl. ¶ 55.)

         5. Dodds' October 28, 2014 letter

         Following the meeting, Dodds wrote a letter to Kleinman dated October 28, 2014 advising Kleinman that “[a]fter our initial review, it was clear the original site plan application #2012-6263 filed in December 2012 lacked the required materials to be considered valid. The application was submitted without site and architectural plans; as a result the application is void” (hereinafter the “Dodds letter”). (Am. Compl. ¶ 57.) “Dodds' letter also stated that if [Farmington-Girard] submitted a new application it must comply with the zoning regulations then in effect, as opposed to the regulations in effect on December 10, 2012.” (Id.) Dodds' letter did not refer to the December 19, 2012 Holden letter stating that Farmington-Girard's application was merely “considered incomplete.” (Id.; Am. Compl. ¶ 34.) Farmington-Girard was not sent the October 28, 2014 Letter, nor was the original $300 fee or application returned to it. (Am. Compl. ¶¶ 57, 59.)

         6. The October 28, 2014 Rezoning to a ‘B-4' District

         On October 28, 2014, the date of Dodds' letter, PZC held a public hearing without notice to Farmington-Girard and “voted to change the zone of 510 Farmington Avenue from the B-3 (Linear Business) zoning district to the B-4 (Neighborhood Business) zoning district.” (Am. Compl. ¶ 62.) This would again prohibit use of 510 Farmington Avenue as a fast food restaurant with drive-through window service, and once again 510 Farmington Avenue was the only property affected by the change. (Id.) Farmington-Girard alleges that defendants “intentionally delayed sending” the October 28, 2014 letter purporting to void Farmington-Girard's application “to insure [sic] that it would not be received until after the October 28, 2014 zone change” and thus “preclude” Farmington-Girard “from filing a new site plan/special permit application” under zoning regulations that permitted a drive-through window. (Am. Compl. ¶ 63.)

         7. McDonald's Variance Application

         Also on October 28, 2018, the same day as the hearing, Kleinman applied for a variance from the newly effective Text Amendments at McDonald's direction. (Am. Compl. ¶¶ 60-62.) The hearing on McDonald's variance application before the Zoning Board of Appeals (“ZBA”) was initially scheduled for November 18, 2014, but was postponed three times-once unilaterally by DDS for lack of a quorum, once at Kleinman's election for a similar reason, and once by the ZBA. (Am. Compl. ¶¶ 64, 66, 67, 70.) On January 20, 2015, the ZBA held the hearing and denied the variance application for lack of hardship. (Am. Compl. ¶ 70.)

         D. The Consolidated Appeals

         Following the PZC's October 28, 2014 rezoning of 510 Farmington Avenue to a B-4 district, Farmington-Girard appealed the decision to the Hartford Superior Court on November 20, 2014, claiming defective notice. (Am. Compl. ¶ 65.) While this appeal was pending (and as the ZBA postponed a hearing on McDonald's variance on the property), PZC held a December 9, 2014 public hearing, without notice to Farmington-Girard, where it “re-approved” the same rezoning change (the “December 9, 2014 re-approval”). (Am. Compl. ¶ 68.) Farmington-Girard also appealed this “reapproval.” (Am. Compl. ¶ 69.)

         On February 23, 2015, Farmington-Girard appealed the Text Amendments adopted in September 2014, again citing defective notice. (Am. Compl. ¶ 71.) Similarly, while that appeal was pending, on April 14, 2015, PZC held a public hearing without notice, and purportedly “re-approved” the Text Amendments in identical form (the “April 14, 2015 reapproval”). (Am. Compl. ¶ 72.). Farmington-Girard appealed this reapproval too. (Am. Compl. ¶ 73.)

         These four appeals were consolidated, and the Superior Court dismissed all of them in a decision dated September 11, 2017. (Am. Compl. ¶¶ 65-73.) See Farmington-Girard, LLC v. Planning & Zoning Comm'n of City of Hartford, No. LNDCV146055443S, 2017 WL 6888851, at *1 (Conn. Super. Ct. Sept. 11, 2017) (“Farmington-Girard II”).^[6] Specifically, the Superior Court found that PZC gave inadequate (1) pre-hearing notice of the hearing at which the Text Amendments were adopted, (2) pre- and post-hearing notice for the October 28, 2014 rezoning to a ‘B-4' district, (3) pre- and post-hearing notice of the December 9, 2014 re-approval of the ‘B-4' rezoning, and (4) pre- and post-hearing notice for its April 14, 2015 reapproval of the Text Amendments. Id. at *4-5. As these decisions were void, and because the Superior Court had previously determined that the Holden letter was “less than unequivocal, ” the court concluded that Farmington-Girard's application was still pending as of the October 20, 2014 Meeting with DDS. Id. at *7. (See also Am. Compl. ¶ 75.) Finally, the Superior Court concluded that Dodds was authorized by the applicable regulatory authority to declare the application “void” in her October 28, 2014 Letter, but also that Farmington-Girard failure to appeal her determination meant that it had failed to exhaust its administrative remedies. Id. at *7-9. Accordingly, the Superior Court dismissed the appeals “for failure to exhaust administrative remedies.” Id. at *9.

         E. The 2016 Form-Based Regulations

         On January 12, 2016, while the consolidated appeals were pending, PZC adopted superseding form-based regulations that prohibited fast food restaurants with drive-through window service abutting residential districts or located with 300 feet of another such establishment. (Am. Compl. ¶ 77.)^[7] Because these zone changes remain in effect, they preclude “preclude plaintiff from marketing and developing its property for use as a fast food restaurant with drive-thru window service.” (Id.)

         F. ...