Bellsite Dev., LLC v. Town of Monroe

155 Conn.App. 131

107 A.3d 1028

BELLSITE DEVELOPMENT, LLC

v.TOWN OF MONROE, et al.

No. 35433.

Appellate Court of Connecticut.

Argued Oct. 15, 2014.

Decided Jan. 27, 2015.

Richard C. Robinson, Hartford, with whom were John P. Fracassini, Monroe, Nathaniel J. Gentile, Hartford, and on the brief, Benjamin B. Manchak, for the appellants (defendants).

Jack G. Steigelfest, with whom was Thomas P. Cella, Hartford, for the appellee (plaintiff).

GRUENDEL, ALVORD and WEST, Js.

Opinion

GRUENDEL J.

The defendants, the Town of Monroe (town) and Andrew J. Nunn,¹ appeal from the judgment of the trial court denying their motion to set aside a jury verdict awarding the plaintiff, Bellsite Development, LLC, damages on claims of breach of contract and negligent misrepresentation. On appeal, the defendants claim that the court abused its discretion when it denied the motion to set aside the verdict because the jury's findings of a breach of contract and negligent misrepresentation were unsupported by the evidence. We agree and accordingly reverse the judgment of the trial court.

In reviewing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have found the following facts. In 2000, the town sought to improve the communications systems of its police department. Due to the topography of the town, the existing communication network suffered from “dead spots,” which were areas of town where the communication equipment could not receive a signal. In response to this problem, the town created an ad hoc committee tasked with the responsibility of evaluating potential sites for a new communications tower. The hope was that the new tower would improve the signal coverage and eliminate “dead spots” throughout the town. Sometime in early to mid–2001, the ad hoc committee presented the Monroe town council with a report, which included potential locations for a new tower, cost estimates, and height requirements.

After some discussion, the town officials determined that there were three potential locations for the new communications tower. Two of the potential sites were later eliminated from consideration, however, because they were located within the town's historic district. The remaining potential site was on property owned by the Monroe Volunteer Fire Department (fire department). The fire department was an independent organization and was not affiliated with the town.

In the spring of 2001, Karen Burnaska, the town's first selectman,² met several times with William Bellrock, the manager of the plaintiff. According to both parties, Burnaska was interested in having the tower built at the fire department location and the plaintiff was interested in working on the project. Both parties acknowledged that prior to the start of construction at the fire department location, a ground lease would need to be obtained, specific radio frequency tests would need to be conducted, and a zoning application would need to be approved.

After some discussion, Burnaska suggested to Bellrock that the plaintiff could construct and own the communications tower, while reserving space on the tower for the Monroe Police Department's communication equipment.³ Under such an arrangement, the plaintiff would derive revenue by renting tower space to various private communications companies. This meant that the plaintiff would need to submit the application and enter into the ground lease with the fire department on its own behalf, rather than as a representative of the town. The plaintiff needed the town to locate its equipment on the tower so that it could qualify as a municipal tower. According to Bellrock, plans to build municipal towers only required approval of a special permit application by the Monroe Planning and Zoning Commission (zoning commission).⁴ By contrast, non-municipal tower applications were required to be filed with the Connecticut Siting Council. Bellrock testified that siting council applications were “extremely expensive” and that he had no prior experience with the siting council's process. Bellrock believed he needed the town to locate its equipment on the tower; otherwise he would have abandoned the plan altogether. Ultimately, Bellrock told Burnaska that if the town would locate its equipment on the tower, then the plaintiff would not charge rent for the space. Bellrock testified that in the spring of 2001, Burnaska agreed.

After reaching an agreement with Burnaska, the plaintiff began pursuing the construction of the tower. It obtained a ground lease from the fire department, conducted surveys and tests on the property, and submitted an application to the Federal Aviation Administration. The plaintiff then completed the special permit application and submitted it to the zoning commission. The application was submitted on behalf of the fire department, as it was the owner of the property. In support of the application, Burnaska submitted a letter on behalf of the town that stated: “[p]lease be advised that the town would be willing to [locate] its public safety communications systems on the tower, provided the town's needs and requirements will be met.”

In the fall of 2001, the zoning commission held two public hearings to consider the special permit application. At the first meeting, Bellrock explained to the zoning commission that the plaintiff had only reserved space for the town and that “they may or may not choose to relocate on the tower.” Furthermore, John Fallon, an attorney representing the fire department, but who was hired by the plaintiff, told the zoning commission that “[t]here is no agreement in place with the Police Department. They've made no representation about actually using the height, but the height has been reserved for their use.” Finally, Daniel Tuba, the Monroe Town Planner, explained to the zoning commission that the town could not officially commit to locating on the tower because “whatever happens with the police communications at this point requires authorization through the Board of Finance, lease authorizations through the town council, and a number of other steps which have not been taken at this point.” Upon the conclusion of the second public hearing, the zoning commission voted to approve the application.

Shortly after the special permit application was approved, a contiguous landowner filed a timely appeal to the Superior Court, challenging the issuance of the special permit. The appeal process took more than two years, with the court denying the appeal in March, 2004. See Hurley v. Monroe Planning & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV–02–0389661, 2004 WL 574429 (March 8, 2004) (36 Conn. L. Rptr. 598 ).⁵

After the denial of the appeal, the plaintiff sought to begin construction of the communications tower. Bellrock sent an e-mail communication to Nunn, the town's first selectman at the time, requesting a meeting to “outline the town's position.” Nunn responded by e-mail, stating that “at this time, the town will not need this tower to accommodate our police communications needs. The long waiting period forced us to pursue other avenues.” Bellrock then sent a formal letter to Nunn requesting that the town “honor their commitment to locate on the tower.” By that point, however, the town had abandoned its plan to locate on the plaintiff's tower and had decided to pursue other alternatives.

On April 5, 2006, the plaintiff filed this civil action against the town and Nunn. In the operative complaint, the plaintiff alleged three counts: breach of contract, promissory estoppel, and negligent misrepresentation. Following a trial, the jury returned a verdict in favor of the plaintiff on the first (breach of contract) and third counts (negligent misrepresentation), and a verdict in favor of the defendants on the second count (promissory estoppel). The jury awarded the plaintiff $700,000 in damages for count one and no additional damages for count three.⁶ After receiving the jury verdict, the defendants filed a motion to set aside the verdict, which was denied by the court in February, 2013. This appeal followed. After the defendants filed a motion for articulation, the court issued a memorandum of decision on the motion to set aside the verdict in December, 2013.

On appeal, the defendants claim that the court erred in denying the motion to set aside the jury's verdict on the first and third counts. Specifically, the defendants claim that the jury's findings of a breach of contract and negligent misrepresentation were not supported by the evidence adduced at trial.

“The standard of review governing our review of a trial court's denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence.... [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles.... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ... that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 32–33, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

I

The defendants first claim that the jury's finding that they breached a contract was not supported by the evidence and was contrary to law. The plaintiff contends that the evidence reasonably supported the conclusion that the parties entered into an express or implied contract. The defendants, on the other hand, argue that the plaintiff failed to present evidence which could reasonably support the jury's finding that there was a contract between...