Stones Trail, LLC v. Town of Weston

174 Conn.App. 715

166 A.3d 832

STONES TRAIL, LLC

v.TOWN OF WESTON

AC 38078

Appellate Court of Connecticut.

Argued March 13, 2017

Officially released July 18, 2017

Robert A. Fuller, Wilton, with whom was Paul J. Pacifico, Darien, for the appellant (plaintiff).

Thomas R. Gerarde, Hartford, with whom was Patricia C. Sullivan, Bridgeport, for the appellee (defendant).

Sheldon, Mullins and Harper, Js.

SHELDON, J.

The plaintiff, Stones Trail, LLC, brought this action against the defendant, the town of Weston (town), arising from its attempts to develop certain real property located in Weston, alleging, inter alia, denial of equal protection of the law in violation of 42 U.S.C. § 1983 ; denial of procedural due process in violation of 42 U.S.C. § 1983 ; inverse condemnation or regulatory taking of land in violation of 42 U.S.C. § 1983 ; and inverse condemnation or regulatory taking of land in violation of the fifth amendment to the United States constitution¹ and article first, § 11, of the state constitution.² The plaintiff appeals from the trial court's dismissal of its claims on the basis of its determination that the lack of a final decision from the town's Planning and Zoning Commission (commission) rendered them

unripe for adjudication. We affirm the judgment of the trial court.³

The trial court set forth the following relevant facts and procedural history. "[Robert] Walpuck, [doing business as the plaintiff], Stones Trail, LLC, entered into a contract to purchase the property on Ladder Hill Road in Weston ... (the property) on March 18, 1998. The property was composed of four smaller lots varying from one to two acres in size and one large lot (the Great Gate lot), with the total property aggregating about seventeen acres. The property was located in a two acre zone. Prior to closing the purchase, [the plaintiff] commissioned a title report, which was forwarded to the town. [The plaintiff] submitted three maps of the property to the town. Map # 3447 depicted the property as it had appeared since 1937, consisting of four small lots and one large lot. On September 18, 1998, Town Attorney Christopher Jarboe wrote to the code enforcement officer that the property depicted on map # 3447 was not a subdivision and should be stamped accordingly and filed on the land records. On the same day, the town engineer and [the] town code enforcement officer stamped and signed map # 3447 with a stamp reading as follows: ‘The Town Engineer and Code Enforcement Office hereby attest to the fact that this plan is neither a subdivision nor a resubdivision as defined by the General Statutes of Connecticut and the Town of Weston and may be recorded without prior approval of the Weston Planning and Zoning Commission.’ Approximately a week later, on September 24, 1998, map # 3448, which altered the property in that the Great Gate lot on map # 3447 was divided into two, yielding a total of six lots, was filed and stamped with the same language. Map # 3449 was also filed and

stamped with the same language on September 24, 1998. Map # 3449 substantially altered the lots so that the four smaller lots each slightly exceeded two acres, giving the developer six potentially developable lots. Map # 3448 and map # 3449 were not stamped and filed on the Weston Land Records until roughly a week after the date of ... Jarboe's letter....

"Walpuck testified that he felt he did not need subdivision approval and that he could achieve his objective of six buildable lots by lot line adjustments. According to ... Walpuck, the procedure in Weston since 1991 was to place the aforementioned stamped language on a map when it was determined that no subdivision approval was needed. This procedure apparently was recommended by Town Counsel Harry Hefferan in 1991, who wrote, ‘[i]n the event a map is requested to be filed without subdivision or resubdivision action by the Planning and Zoning Commission acting in its planning function, the same shall be presented by its proposed filer to the town engineer and to the code enforcement officer for their examination. If those officers determine that it is unnecessary to appear before the Planning and Zoning Commission because there is no subdivision or resubdivision as so defined, they shall so indicate on the face of the map and the town clerk may accept for filing such map.’ ...

"Walpuck testified that, in reliance on the review of the lots by town officials and the stamped notation on map # 3449, in October, 1998, the plaintiff completed the purchase of the property, having obtained a $1.1 million mortgage from Ridgefield Bank. The mortgage agreement included a provision allowing for the severance or release of individual lots upon payment of an allocated amount....

"Subsequently, on February 14, 2000, special counsel for the commission, Attorney Barry Hawkins, advised

the plaintiff's attorney by letter that he had ‘determined that under applicable Connecticut law and the Weston Planning and Zoning Regulations and Subdivision By–Laws ... Walpuck must seek subdivision approval from the Weston Planning and Zoning Commission prior to dividing his properties situated at 10 Ladder Hill Road and 96 Georgetown Road in Weston ....’ Hawkins explained that the plaintiff's ‘extensive and aggressive lot line adjustments' appeared to be an attempt to ‘circumvent compliance with [the town's] Subdivision By–Laws.’ Hawkins also notified the plaintiff that he had advised the town's zoning enforcement and building officials not to issue zoning or building permits to the plaintiff, should it attempt to develop the lots. Hawkins advised the plaintiff that it should apply to the commission for subdivision approval, and that ‘[t]he Planning and Zoning Commission is willing to work with ... Walpuck to accomplish reasonably the safe and proper development of his properties in accordance with applicable subdivision statutes and regulations.’

"On March 22, 2000, Hawkins wrote to the town's tax assessor, advising that the lot line adjustments reflected on the recorded maps did not create additional building lots, and that, therefore, the plaintiff's property should be taxed as one parcel of land. In May, 2000, the tax assessor revised the tax assessment map so that the plaintiff's property was taxed as a single lot. This did not affect the existing lot lines, however.

"In 2002, [the plaintiff] was in default on its mortgage. The bank threatened foreclosure, and ... Walpuck sought permission to sell one of the reconfigured lots to generate cash to cure the default. However, the Ridgefield Bank refused to release any of the six lots from the plaintiff's mortgage because of, among other things, uncertainty about the legitimacy of the six lot configuration shown on map # 3449. Subsequently, the

bank commenced a mortgage foreclosure action against the plaintiff in February, 2002.

"Upon receiving Hawkins' letter, the plaintiff did not seek subdivision approval from the commission or appeal the position of the letter to the Zoning Board of Appeals. Instead, in 2004 and 2005, the plaintiff made requests to town attorneys Kenneth Bernhard and Patricia C. Sullivan to reconsider the town's position, based on the plaintiff's contention that the parcels did not constitute a subdivision under General Statutes § 8–18. The town attorneys rejected these requests and urged [the] plaintiff to apply for subdivision approval. Instead, [the] plaintiff commenced the present action in [November], 2005.... Walpuck testified that he did not apply for subdivision approval because it was a time- consuming and expensive process, and because his lawyer told him that it might impair the collateral to his loan, or, ‘since it could be viewed’ as a possible admission that the lot line adjustments were invalid.

"In April, 2006, subsequent to the commencement of this action, the plaintiff filed an informal, handwritten application with town Zoning Enforcement Officer Robert Turner for a certificate of zoning compliance for parcel D on map # 3449. Turner denied the application, noting that he lacked authority to grant a certificate of zoning compliance for anything other than the smaller, preexisting lot called the ‘Honor Leeming Lot’ on an older map of the property in its previous, nonconforming configuration. Turner further stated that the proposed lot line arrangements shown on map # 3449 ‘would have to be reviewed before permission can be given.’ Turner continued, ‘[a]s has been explained to you on a number of prior occasions, the way to legitimately divide the property purported to be owned by [the plaintiff] adjacent to the Honor Leeming parcel, is by filing a subdivision application with the Planning and Zoning Commission.’

"The plaintiff appealed Turner's decision to the Zoning Board of Appeals, which upheld Turner's decision. The plaintiff then appealed to the Superior Court, which dismissed the action for lack of aggrievement because the plaintiff had lost the property to foreclosure in August, 2006. See Stones Trail, LLC v. Weston , Superior Court, judicial district of Stamford–Norwalk, Docket No. CV-06-4010003-S, 2008 WL 2168967 (May 6, 2008) (J. Downey, J. ).

"Walpuck also testified that the subsequent owner of the property in question successfully applied to the commission for subdivision approval. The subsequent owner received formal subdivision approval for four lots, which were larger than those proposed by ... Walpuck, and which allowed the construction of considerably larger houses."

The plaintiff commenced this action in November, 2005, by way of an eight count complaint. Of those eight counts, the following proceeded to trial: denial of equal protection of the law in violation of 42 U.S.C. § 1983 ; denial of procedural due process in violation of 42 U.S.C. § 1983 ; inverse condemnation or regulatory taking of land in violation of 42 U.S.C. § 1983 ; and inverse condemnation or regulatory taking of land in violation of the fifth amendment to the United States constitution an...