Farmington-Girard, LLC v. Planning & Zoning Comm'n of Hartford

339 Conn. 268

260 A.3d 428

FARMINGTON-GIRARD, LLC

v.PLANNING AND ZONING COMMISSION OF the CITY OF HARTFORD

The Pamela Corporation et al.

v.Planning and Zoning Commission of the City of Hartford

SC 20374

Supreme Court of Connecticut.

Argued May 1, 2020

Officially released June 7, 2021^*

David F. Sherwood, Glastonbury, for the appellant (plaintiff Farmington-Girard, LLC).

Daniel J. Krisch, with whom, on the brief, was Matthew J. Willis, Hartford, for the appellee (defendant).

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.^**

McDONALD, J.

The primary issues that are before us in this appeal are (1) whether a zoning administrator has the authority to take conclusive action on an application for a special permit, and (2) whether an applicant whose special permit application is rejected as void by a zoning administrator on the ground that it was incomplete must exhaust its administrative remedies by appealing that action to a zoning board of appeals.

After the plaintiff Farmington-Girard, LLC,¹ applied for a special permit to construct a fast-food restaurant on property that it owns in the city of Hartford (city), it filed four separate appeals challenging various text amendments to the Hartford Zoning Regulations and zoning map changes made by the defendant, the city's Planning and Zoning Commission (commission), which, if properly adopted, would effectively preclude the plaintiff from obtaining the special permit. The trial court subsequently dismissed the appeals on the ground that the plaintiff had failed to exhaust its administrative remedies when it did not appeal to the city's Zoning Board of Appeals (board) the decision of the city's zoning administrator to reject, as void, the plaintiff's special permit application on the ground that it was incomplete. The plaintiff appealed to the Appellate Court, which affirmed the judgments of the trial court. Farmington-Girard, LLC v. Planning & Zoning Commission , 190 Conn. App. 743, 760, 212 A.3d 776 (2019). We conclude that the Appellate Court incorrectly determined that the city's zoning administrator had the authority to void the plaintiff's application for a special permit. We further conclude that the plaintiff could not have appealed to the board from the action of the zoning administrator because it was not a legal decision for purposes of General Statutes § 8-6, which governs such appeals. Accordingly, we reverse the judgment of the Appellate Court.

The record reveals the following facts, which were either found by the trial court or are undisputed, and procedural history. The plaintiff owns property located at 510 Farmington Avenue in Hartford, which it has marketed as a location for a fast-food restaurant with a drive-through window. In late 2012, the plaintiff became aware that the commission was proposing to rezone the property from the B-3 zoning district, linear business, to the B-4 zoning district, neighborhood business, a change that would effectively prohibit the use of the property as a fast-food restaurant with a drive-through. On December 10, 2012, the plaintiff submitted a special permit application to the commission to construct a fast-food restaurant on the property.

The next day, December 11, 2012, the commission approved the zone change that placed the property in a B-4 zoning district. On December 19, 2012, Kim Holden, the city's chief staff planner, wrote a letter to the plaintiff advising it that the special permit application filed by the plaintiff was "considered incomplete and, as such, the time clock on the application has been stopped." Holden told the plaintiff that, if it wished to proceed with the application, it should submit certain additional required information.

Meanwhile, the plaintiff appealed to the Superior Court from the commission's December 11, 2012 adoption of the zone change. While that appeal was pending, the plaintiff negotiated a ground lease with McDonald's USA, LLC, which lapsed before the appeal was resolved. When the court sustained the plaintiff's appeal on August 19, 2014,² McDonald's reinstated the lease, began to prepare the materials required to complete the special permit application and attempted to schedule a meeting to review the application with Khara Dodds, the director of the city's planning division and its zoning administrator.

On September 23, 2014, the commission adopted certain text amendments to the zoning regulations that, among other things, prohibited fast-food restaurants with drive-through window service adjacent to residential zones. The text amendments, which were to become effective on October 18, 2014, would have prohibited the proposed restaurant on the plaintiff's property.

After Dodds postponed the meeting several times, a meeting between Dodds and the representatives of McDonald's, Daniel E. Kleinman, an attorney, and Michelle Carlson, a professional engineer, finally took place on October 20, 2014. At that meeting, Kleinman and Carlson delivered a set of materials that, according to their understanding, completed the application for a special permit that the plaintiff had first submitted on December 10, 2012. Dodds informed them that, as the result of the text amendments that took effect two days previously, the proposed use of the property had become prohibited.

On October 28, 2014, Dodds wrote a letter to Kleinman, stating that, "[a]fter our initial review, it was clear [that] the original site plan application ... 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 [that] several changes to the [city's] [z]oning [r]egulations have occurred since your last submittal. Please review these changes to ensure [that] all required materials are submitted with your new application."³ That same day, the commission readopted the change rezoning the plaintiff's property from the B-3 to the B-4 district.⁴

The plaintiff separately appealed from the commission's adoption of both the September 23, 2014 text amendments and the October 28, 2014 zone change. Thereafter, on December 9, 2014, the commission readopted the zone change, and, on April 14, 2015, the commission readopted the September 23, 2014 text amendments. The plaintiff also filed separate appeals from those two actions. The four administrative appeals, which are the subject of the appeal before us now, were consolidated for trial. More zoning changes were yet to come. In 2016, the city adopted "form based" zoning regulations that superseded all prior amendments. As a result, the plaintiff's property was placed in the MS-1 zone, in which restaurants with drive-through windows are prohibited.

Thereafter, the commission filed a motion to dismiss the consolidated appeals on the ground that they had become moot in light of the new form based zoning scheme. In its opposition to the motion, the plaintiff contended that, although the form based zoning regulations were legally adopted, the commission was estopped from applying them to the plaintiff's property because of its ongoing efforts to block the development of the property. The plaintiff also contended that the commission could and should consider the application for a special permit that it had submitted years before the adoption of the form based zoning regulations.

The trial court denied the motion to dismiss without prejudice because it concluded that it required more information before it could decide the mootness issue. The court reasoned that the appeals would not be moot if the plaintiff's application for a special permit was complete when it submitted the supplemental materials to Dodds on October 20, 2014, which, in turn, depended on whether the application complied with all valid zoning regulations at that time. See General Statutes § 8-2h (a) ("[a]n application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application"). Because the court was unable to determine at that time whether the application was compliant as of October 20, 2014, it denied the motion to dismiss without prejudice to raising the claim again at trial.

Before trial, the court ordered the parties to submit briefs on the following issue: "Was the plaintiff required to appeal [Dodds’] decision concerning the completeness of its October, 2014 application in order to preserve its rights under that application?" In its brief responding to that question, the plaintiff contended that it was not required to appeal from the decision because Dodds had no authority to void the application and the plaintiff had no avenue of appeal from the decision. The commission contended that, to the contrary, the plaintiff was required to appeal from Dodds’ decision to the board pursuant to § 8-6 (a) (1). In addition, the commission contended that it was unfair to allow the plaintiff to claim for the first time at that late date in the proceedings that the commission could consider on remand the application that the plaintiff had already filed on the ground that Dodds had no authority to void it.

At trial, the commission did not contest the merits of the plaintiff's claims in the consolidated appeals but contended only that the appeals were moot as the result of the commission's adoption of the form based zoning regulations in 2016. The court asserted that the mootness question turned on a separate matter—whether the plaintiff was required...