United States District Court, D. Connecticut
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.
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