Argued
March 12, 2019
Procedural
History
Appeals
from the decisions of the defendant adopting certain
amendments to the zoning regulations and changes to the
zoning map of the city of Hartford, brought to the Superior
Court in the judicial district of Hartford and transferred to
the Land Use Litigation Docket, where the appeals were
consolidated; thereafter, the court, Berger, J.,
granted the motions to withdraw filed by the plaintiff The
Pamela Corporation; judgments dismissing the appeals, from
which the plaintiff Farmington-Girard, LLC, on the granting
of certification, appealed to this court. Affirmed.
David
F. Sherwood, for the appellant (plaintiff Farmington-Girard,
LLC).
Daniel
J. Krisch, with whom was Matthew J. Willis, for the appellee
(defendant).
Lavine, Bright and Alexander, Js.
OPINION
LAVINE, J.
The
plaintiff Farmington-Girard, LLC, [1]appeals from the judgments of
the trial court, rendered after a trial to the court,
dismissing the plaintiff's four consolidated appeals that
challenged text amendments to the Hartford Zoning Regulations
(regulations) and zoning map changes made by the defendant,
the Planning and Zoning Commission of the City of Hartford
(commission), for failure to exhaust its administrative
remedies. In this appeal, the plaintiff claims that (1) the
trial court improperly concluded that it was required to
appeal to the city's Zoning Board of Appeals (board) and,
thus, failed to exhaust its administrative remedies, and (2)
the defendant is estopped from applying the current
regulations to the plaintiffs property.[2] We affirm the
judgments of the trial court.
The
following facts, as found by the trial court, and procedural
history are relevant to this appeal. The plaintiff owns
property at 510 Farmington Avenue in Hartford. On December
10, 2012, the plaintiff submitted a special permit
application, which the plaintiff describes as a "hastily
submitted" placeholder application "in order to
preserve its rights," proposing the construction of a
small fast food restaurant with a drive-through. On December
11, 2012, the defendant made changes to the city zoning map
causing the classification of the plaintiffs property to
change from a B-3 zone that allows drive-through operations
to a B-4 that does not. In response to the plaintiffs
application, Kim Holden, the city's chief staff planner,
sent a letter dated December 19, 2012, to the plaintiff,
stating in relevant part: "A site plan with minimal
information was attached to the application which is not
sufficient to review with respect to the zoning regulations.
. . . The application is considered incomplete and as such,
the time clock on the application has been
stopped."[3]
The
plaintiff appealed the defendant's zoning map change to
the Superior Court, Peck, J., which invalidated the
commission's December 11, 2012 zoning map change because
the commission failed to comply with prehearing and
posthearing statutory notice requirements.[4]
Farmington-Girard, LLC v. Planning & Zoning
Commission, Superior Court, judicial district of
Hartford, Docket No. CV-13-6038698-S (August 19, 2014).
On
September 23, 2014, the defendant amended the text of the
regulations, resulting in the plaintiffs inability to use its
property for a fast food restaurant with a drive-through. The
plaintiff appealed this amendment to the Superior Court in a
complaint dated February 18, 2015, on the ground that the
defendant failed to comply with procedural notice
requirements.
In
response to Holden's letter, stating that the plaintiffs
December 10, 2012 application was incomplete, Michelle
Carlson wrote a letter dated October 20, 2014, on behalf of
the plaintiff to Khara L. Dodds, the director of the
city's planning division. According to the plaintiff, it
had waited until after the court invalidated the 2012 zoning
map change to complete its application. Carlson's letter
purportedly supplied all of the required information outlined
by Holden and requested that the time clock on the
application run and that a public hearing for the application
be set. In an affidavit, Carlson attested that she verbally
was informed by the city that a new application was required
and that the supplemental materials would not be accepted.
Dodds responded to Carlson in a letter dated October 28,
2014, stating: "We are contacting you with regard to a
site plan review application submitted December 10, 2012 and
your desire to re-activate this application with your current
plan submittal. After our initial review, it was clear that
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 elevation plans: as a result the application is
void. A new site plan application with the required materials
must be submitted. Please note several changes to the City of
Hartford Zoning Regulations have occurred since your last
submittal. Please review these changes to ensure that all
required materials are submitted with your new
application."
Dodds'
October 28, 2014 letter coincided with the defendant's
adoption of another zoning map change that blocked the
plaintiffs plan to build a drive-through fast food
restaurant. The plaintiff appealed the October 28, 2014
zoning map change to the Superior Court in a complaint dated
November 14, 2014, on the ground that the defendant failed to
comply with procedural notice requirements. The plaintiff
filed a variance application on October 28, 2014, as well.
The
plaintiff additionally appealed to the Superior Court, in
complaints dated December 15, 2014 and April 28, 2015,
respectively, from the defendant's December 9, 2014
zoning map change and its April 14, 2015 text amendment to
the regulations. The defendant amended its December 9, 2014
zoning map and its April 14, 2015 text in the same manner as
it had on September 23, 2014 and October 28, 2014,
respectively. In its appeals, the plaintiff again asserted
that the defendant failed to comply with procedural notice
requirements.
On
January 20, 2015, the board denied the plaintiffs variance
application. The plaintiff's appeals challenging the
defendant's October 28 and December 9, 2014 zoning map
changes were filed before the board denied the plaintiffs
variance application.
After
the plaintiff filed the four appeals that constitute the
present matter, the defendant adopted new regulations on
January 12, 2016, that place the plaintiffs property in a
MS-1 zone. The plaintiff has not appealed from the new zoning
scheme or designation of its property.
On May
4, 2016, the defendant moved to dismiss the plaintiffs
appeals as moot due to the passage of the new zoning scheme.
The trial court, however, concluded that "if the
plaintiffs particular application was complete on October 20,
2014, and the zone change was improper because of the failure
to provide proper notice, then [the plaintiff] may have had a
viable complete application that was in conformance with the
applicable zoning regulations at that time." (Internal
quotation marks omitted.)
After
the parties filed briefs, including additional briefing on
the exhaustion issue as requested by the court, and the court
heard the appeals, the court made various findings. First,
the court found that the defendant failed to comply with the
procedural requirements for the September 23, October 28 and
December 9, 2014, and April 14, 2015 zoning map changes and
text amendments to the regulations. The court, therefore,
concluded that the zoning map changes and text amendments
were void. Second, the court concluded that the plaintiff had
an application pending on or about October 20, 2014, as it
found that "[w]hile the December 19, 2012 letter from
the planning division informs [the plaintiff] that the
application is incomplete, there is no evidence that [the]
application was rejected or deemed void until 2014. The
language of the December 19, 2012 letter was less than
unequivocal." (Internal quotation marks omitted). Third,
the court found that, contrary to the plaintiffs arguments,
Dodds had the authority to declare the application void and
that she had articulated "a clear and definite
interpretation of the zoning regulations in her letter
declaring the plaintiffs application void . . . ."
...