Opinion
No. CV06-4006084-S
August 6, 2008
MEMORANDUM OF DECISION MOTION TO DISMISS NO. 138 AND MOTIONS FOR SUMMARY JUDGMENT NOS. 137, 140 141
I. BACKGROUND AND FACTS
This is an action for inverse condemnation, damages pursuant to 42 U.S.C. § 1983, and conspiracy. The plaintiff, Dibble Edge Partners, LLC, filed a three-count complaint on June 16, 2006, against the Town of Wallingford and the Wallingford Planning and Zoning Commission (Wallingford), and Dibble Edge Realty, LLC (DER). Dibble Edge Partners and Dibble Edge Realty own abutting parcels of land in the Town of Wallingford. When DER applied for a subdivision of its parcel, the plaintiff sought a right-of-way over DER's property from its landlocked parcel in order to gain access to an existing town road. Wallingford approved DER's subdivision without the plaintiff's requested right-of-way pursuant to local subdivision regulations.
The first count of the complaint alleges that Wallingford's actions inversely condemned the plaintiff's real property in violation of Article I, Section 11 of the Connecticut Constitution, General Statutes § 48-17b, and the Fifth and Fourteenth Amendments of the United States Constitution. The second count alleges that Wallingford's act of inverse condemnation constituted a violation of the plaintiff's federal rights under the Fifth and Fourteenth Amendments of the United States Constitution, as protected by 42 U.S.C. § 1983. Count three alleges a civil conspiracy between Wallingford and DER to deprive the plaintiff of the practical value of its land, to subvert the Wallingford subdivision regulations, and to render moot a pending appeal of an initial subdivision application granted by Wallingford to DER.
The Constitution of Connecticut Article I, Section 11 provides: "The property of no person shall be taken for public use, without just compensation therefor."
General Statutes § 48-17b provides: "The state court rendering a judgment for the plaintiff in an inverse condemnation proceeding brought against the state by the owner of real property, or the Attorney General effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff as a part of such judgment or settlement, such sum as will in the opinion of the court or the Attorney General reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceeding."
On May 29, 2008, and again on June 3, 2008, the court heard three motions for summary judgment, all filed on January 22, 2008. Motion #137 was filed by DER and contests its liability for conspiracy as alleged in count three, motion #140 was filed by the plaintiff as to all counts, and motion #141 was filed by Wallingford contesting its liability for inverse condemnation as alleged in count one. The court also heard Wallingford's motion to dismiss counts two and three, (#138) filed previously on January 18, 2008. At the hearing on these motions, the parties agreed to Wallingford's additional motion to strike count one (#139) from the jury trial list, as the action for inverse condemnation is equitable in nature and therefore not triable to a jury.
Pursuant to Practice Book § 17-44 et seq., the parties have provided the court with voluminous documentary evidence of the transactions leading to the plaintiff's complaint. Subsequent to the hearing on these motions, the parties also entered into an extensive written stipulation regarding many of the relevant facts in this case. For purposes of expedience, the court will summarize these facts before focusing on other facts asserted by the parties.
The parties filed the following "Joint Stipulation of Facts Not In Dispute" with the court on June 24, 2008: "The parties in the above captioned matter have submitted briefs regarding the Motions for Summary Judgment which include references to other facts upon which they rely. This stipulation of facts is not in place of those facts already presented to the court in briefs, exhibits and oral argument. The parties hereby stipulate to the following facts:
1. Map #1 from the Plaintiff's Motion for Summary Judgment and taken from the Town of Wallingford Assessor's maps, is an accurate representation of the land currently owned by Plaintiff, Dibble Edge Partners, LLC (Green — Podar [sic]), Defendant, Dibble Edge Realty, LLC (Orange — Warzeniak [sic]), and Defendant, Town of Wallingford (Yellow).
2. Map #2 from the Plaintiff's Motion for Summary Judgment is an accurate representation of the eight (8) lot subdivision of proposed by Defendant, Dibble Edge Realty, LLC and approved by Defendant, Planning Zoning Commission.
3. Map #3 from the Plaintiff's Motion for Summary Judgment is an accurate representation of the proposal from Defendant, Dibble Edge Realty to Defendant, Town for sale of Parcel "B," 11.86 acres to the Town along with a donated strip designated as "Wawrzeniak Trail" along the northerly border of land then owned by Heritage Hills, Inc.
4. Map #4 from the Plaintiff's Motion for Summary Judgment is an accurate representation of the parcel of land purchased by the Defendant, Town from Defendant, Dibble Edge Realty on March 31, 2006.
5. Map #5 from the Plaintiff's Motion for Summary Judgment is an accurate representation of the final approved five (5) lot subdivision of the remaining land of Defendant, Dibble Edge Realty, with the abutting land owned by Town of Wallingford, all along the northerly border of Plaintiff Dibble Edge Partners Premises. Received by Defendant, Planning Zoning Commission on 4/20/06.
6. The Plaintiff Dibble Edge Partners, LLC (hereinafter "Dibble Edge Partners") is a Connecticut limited liability company with an office and place of business at 475 South Main Street, Cheshire, Connecticut.
7. The Plaintiff Dibble Edge Partners, is the owner of a certain piece or parcel of land consisting of 35 acres and located in the Town of Wallingford, County of New Haven and State of Connecticut, being more particularly bounded on the north by property owned by the Defendant Dibble Edge Realty, LLC, on the east by the Wallingford Rod and Gun club, on the west by the railroad tracks and on the south by property owned by Malchiodi (hereinafter referred to as the "Premises"). Dibble Edge Partners, LLC acquired title to the subject premises by Quit Claim Deed from Heritage Hills, Inc., which deed is dated May 25, 2005. Heritage Hills, Inc. is a Connecticut Stock Corporation.
8. Joseph Poder is the sole member and manager of the Plaintiff Dibble Edge Partners, and was a principal stockholder of its predecessor in title, Heritage Hills, Inc.
9. On July 26, 1985 Heritage Hills, Inc. acquired title to the subject premises by Warranty Deed from Dwight Ketehut and Fennelly Realty Corporation for consideration of Three Hundred Thousand ($300,000) Dollars. The property was purchased together with two other tracts of land. The two other tracts of land had access to Williams Road.
10. The Premises owned by the Plaintiff is now and has been for a long period of time zoned RU-120, a Rural Residential District, as shown on the Zoning Map of the Town of Wallingford, for development as residential property pursuant to the requirements of the zoning and subdivision regulations enacted, in force and administrated by the Defendant Commission requiring, among other things, a minimum of 120,000 square foot building lots.
11. The Premises is rectangular in shape.
12. On July 26, 1869, Henry S. Morse conveyed a strip of land to the New Haven, Middletown and Willimantic Railroad Company, which deed is recorded in Volume 60 Page 32 of the Wallingford Land Records. The conveyance severed the land from other property then owned by Henry Morse and limited access to the subject premises. At the time of the conveyance, Henry Morse released the railroad from all claim to land damages which [Morse] may have had against said Company by reason of their building and maintaining their railroad over and upon the [within] described land. "It is hereby agreed between the parties to this deed that as part consideration of this deed said Company shall furnish for my use one crossing for my use for Cart, teams and cattle, at each end of the above described land at grade, with suitable cattle-guards." However, now the Premises of the Plaintiff is landlocked, having no access to an accepted town road.
13. Dibble Edge Road is an existing town road and is the closest existing town road to the Plaintiff's Premises.
14. The Defendant, Town of Wallingford, is a municipal corporation and political subdivision of the State of Connecticut operating and exercising municipal powers pursuant to a Charter and the General Statutes of the State of Connecticut.
15. The Defendant Wallingford Planning and Zoning Commission (hereinafter referred to as the "Commission") is a municipal commission which acts under the authority of Chapter 124 of the Connecticut General Statutes and which enacts, administers and enforces the zoning and subdivision regulations of the Defendant Town of Wallingford.
16. The Defendant, Dibble Edge Realty, LLC (hereinafter referred to as "Dibble Edge Realty") is a Connecticut limited liability company with an office and place of business at 55 Scrub Oak Road, North Haven, Connecticut.
17. The Defendant Dibble Edge Realty, at all relevant times herein, was the owner of a certain piece or parcel of land located in the Town of Wallingford, County of New Haven and State of Connecticut containing 27.63 acres the northern boundary of which property is a road which ends in a cul-de-sac named Dibble Edge Road; and the southern boundary of which property adjoins the northerly boundary of the Premises of the Plaintiff. Dibble Edge Partners, LLC does not have any deeded right, title or interest in or to the property of Dibble Edge Realty, LLC and does not have any deeded right to cross or re-cross the property of Dibble Edge Realty, LLC.
18. The Premises was identified by the Conservation Commission of the Town of Wallingford as being in an area of Open Space Interest as early as January 12, 2001.
19. In the fall of 2002, an attorney representing the Wawrzeniak family (predecessor of Defendant, Dibble Edge Realty, LLC) contacted the Town of Wallingford Conservation Commission and indicated that the Wawrzeniak family was interested in selling its property and describing the property as having excellent access to Dibble Edge Road and that the back lot owners might have an interest in acquiring the parcel. It was suggested that a bidding war could be avoided if the Town was able to make a good offer.
20. On October 11, 2002 the Conservation Commission sent a memo to Mayor William Dickinson that there may be a purchase opportunity regarding the Wawrzeniak Family Trust land (predecessor to Defendant, Dibble Edge Realty, LLC).
21. In November of 2002, the Town Attorney of the Town of Wallingford ordered an appraisal for the Property being offered by the Wawrzeniak family which appraisal valued the 27-acre parcel at that time, at $625,000.00.
22. On December 6, 2004, Joseph Poder, principal of Heritage Hills, LLC, the predecessor owner of the Plaintiff, Dibble Edge Partner's 35-acre parcel, wrote to Jerry Wawrzeniak expressing interest in purchasing a 50-foot right of way through the Defendant, Dibble Edge Realty property to its 35-acre parcel. He attached several maps developed from engineering plans produced by Defendant, Dibble Edge Realty, for a subdivision of its land, to be known as "Scenic Woods Subdivision."
23. The Defendant, Dibble Edge Realty, has also sought to develop its land in accordance with the zoning and subdivision regulations of the Defendant Town of Wallingford for property located in a RU-120 zone and on December 20, 2004 filed an application with the Defendant Commission for approval of a plan which divides its 27.63 acres into an eight (8) lot subdivision to be known as "Scenic Woods Subdivision."
24. The subdivision proposed by the Defendant, Dibble Edge Realty, showed all eight (8) lots either fronting on Dibble Edge Road or as rear lots with access on Dibble Edge Road. (See Map #2.) The proposed subdivision does not contain any new internal street layout and no new intersecting roadways were proposed.
25. The Defendant, Commission, received the subdivision application of Defendant, Dibble Edge Realty, at its meeting of January 10, 2005.
26. The Subdivision Regulations of the Defendant, Commission, contain a regulation, Section VI.A.4 entitled "Streets to Be Constructed in the Future" which reads:
a. The Commission shall require, at places where it deems it appropriate, that provision be made in the street layout of a subdivision for the reservation of title for streets to connect with future streets in adjoining properties susceptible to being subdivided. A Warranty Deed for the area of these future streets shall be given to the Town prior to filing of the subdivision map. Slope rights, fifteen (15) feet outside of the street right-of-way for grading of such future streets shall be reserved for future streets. Reservation of slope rights shall also be shown on the subdivision map.
b. When the adjoining property is subdivided, the developer of said adjoining property shall be required to connect to and build the street and other improvements over the reserved right-of-way at his own expense. The developer extending a street from a cul-de-sac shall be required to remove the existing pavement outside of a standard traveled way, loam and seed said area to which pavement has been removed and install curbs and sidewalks in the original cul-de-sac area in accordance with Town requirements, all at his own expense.
c. When the proposed subdivision covers only a part of an existing tract or only a part of the subdivider's holding, a sketch of the prospective future street system of the remainder of the holding or tract shall be submitted. The arrangement of streets shall provide for necessary fire protection, movement of traffic and the construction of needed utilities.
d. Where the subdivision adjoining unsubdivided land susceptible to being subdivided, the Commission may require new streets to be carried to the boundaries of the proposed subdivision. Reservations of title in any land controlling access to streets is prohibited.
CT Page 12866
27. The proposed building lots shown on the subdivision plan each had frontage on an existing town road. The proposed subdivision did not contain a new internal street layout. The proposed subdivision did not provide "for the reservation of title for streets to connect with future streets in adjoining properties susceptible to being subdivided" as set forth in Section VI.A.4.a of the subdivision regulations; in particular, a reserved right of way to the Plaintiff's Premises as requested by the Plaintiff.
28. On February 7, 2005, the Town Planner, Linda Bush, sent a letter to the subdivision applicant, Defendant, Dibble Edge Realty, which listed comments about the proposed subdivision application, including a question which stated, "A 50 ft. R.O.W. from Dibble Edge Road to the Heritage Hills property per Section VI.A.4a of the subdivision regulations is not shown. Why?"
29. On February 18, 2005, the Town Planner, Linda Bush, sent a memo to the Town Attorney, Janis Small, citing the Section VI.A.4.a of the Subdivision regulations and asking the question: "The Commission often requires this 50 ft. ROW . . . Can the Commission legally require that Warzeniak (sic) provide a 50ft ROW to the Heritage Hills property?"
30. On February 23, 2005, the Town Attorney, Janis Small, sent a memo to Linda Bush responding to the memo dated February 18th. The memo states, "If the lots abut the existing road, there is no `street layout' for future connections. Where and how could this right of way be located?"
31. On March 2, 2005, the Town Planner, Linda Bush, provided additional details to Janis Small in a memorandum stating, "The ROW would be at a location as determined by the PZC. We have never required this 50-foot ROW where there was no proposed road in the subdivision. I told this to the neighboring property owner and his attorney [the Plaintiff] and also told them I did not feel our regulations allowed us to require it. They feel differently, which is why I have asked the question."
32. On March 4, 2005, the Attorney for the Defendant Dibble Edge Realty, Robert E. Ghent, sent a letter of intent to attorneys for Heritage Hills, Inc. and Malcolm Malchiodi, the abutting and/or neighboring property owners to the south of the Defendant, Dibble Edge Realty, referring to conferences of the parties which discussed amending the subdivision plan in a fashion which would provide for the layout of two Fifty (50) foot rights of way designed to provide public access in connection with the future development of property owned by Heritage Hills, Inc. and Malcolm Malchiodi. The purchase price for the two rights of way is $650,000 plus payment of $250,000 at the time of the application for re-subdivision; for a total purchase price for two rights of way of $900,000.
33. On March 7, 2005 Town Attorney Janis Small provided her legal opinion to Town Planner Linda Bush with regard to the subdivision regulation stating, "There is no `street layout' and there are no new streets for a `reservation of title.' I agree with your position. The Planning and Zoning Commission cannot require a right of way under Section VI.4.a." The reason for her opinion that the right-of-way was not required was because there was no new interior subdivision road layout proposed by the Defendant, Dibble Edge Realty.
34. By letter dated March 8, 2005, Attorney Molloy rejected the offer of Dibble Edge Realty for the sale of two rights of way for $900,000.
35. By letter dated March 8, 2005, Attorney Molloy made a formal request to the Chairman of the Defendant Commission, on behalf of the Plaintiff, to provide for a 50-foot right of way from Dibble Edge Road though the Defendant, Dibble Edge Realty property to the Premises of the Plaintiff arguing that it was required by Section VI.A.4.a.
36. On March 14, 2005 the Defendant Commission heard the subdivision application of Defendant, Dibble Edge Realty. The Plaintiff was represented by its counsel, Attorney Joan Molloy, and the Plaintiff's request for provision of a 50-foot right of way was presented.
37. On April 6, 2005, the Plaintiff's counsel, Attorney Molloy, wrote to the Chair of the Defendant Commission requesting that it provide a 50-foot Right of Way through the proposed subdivision of Defendant, Dibble Edge Realty, LLC to the property of the Plaintiff.
38. On April 7, 2005, the Town Planner, Linda Bush, forwarded documentation to Attorney Janis Small which had been provided by the Plaintiff's counsel Joan Molloy with regard to its request that the Defendant Commission provide a 50-foot right of way to adjacent property of the Plaintiff.
39. On April 11, 2005, Attorney Small wrote a memorandum to Town Planner Linda Bush stating she had reviewed the materials submitted by Attorney Molloy regarding the Right of Way and she is still of the opinion that the Subdivision Regulations do not provide a means to require the right of way.
40. On April 14, 2005, Attorney Molloy wrote to Attorney Robert Ghent with a new proposal for consideration for the Right of Way and suggesting that they come to an agreement before the May 9, 2005 public hearing.
41. On April 26, 2005 at an Executive Session of the Wallingford Town Council with Mayor Dickinson and others in attendance; the participants discussed the potential development of four parcels into 54 houses and the potential purchase by the Town of the Ferguson parcel and the Wawrzeniak parcel, with values of $2,125,000 for Wawrzeniak and $2,506,000 for Ferguson.
42. On May 4, 2005, Attorney Molloy wrote to Attorney Robert Ghent with a proposal for a land swap which would provide a 50-foot Right of Way though the proposed subdivision of Dibble Edge Realty to the Plaintiff's adjoining parcel.
43. On May 9, 2005, the subdivision application of Defendant, Dibble Edge Realty, for an eight (8) lot subdivision was approved by the Defendant Commission.
44. On May 28, 2005, the Plaintiff, Dibble Edge Partners et al. commenced an administrative appeal of the decision of the Defendant Commission to the Superior Court for the Judicial District of New Haven at New Haven, which case bore the docket number CV-05-4011385.
45. On May 31, 2005, appraiser Casper Amodio of Amodio Associates provides its appraisal of 90 Dibble Edge Road (the Defendant, Dibble Edge Realty parcel), valuing the parcel at $1,450,000.00 following approval of the subdivision application.
46. While the appeal was pending, on July 5, 2005, a meeting was held between Mayor Dickinson, Jerry Wawrzeniak, Lucille Treziuski (Dibble Edge Realty, LLC's real estate broker), Janis Small regarding the potential for the Town's purchase of the Wawrzeniak parcel.
47. On July 28, 2005 Attorney Joan Molloy wrote to Attorney Robert Ghent to request that the appeal be submitted to mediation.
48. On or about September 9, 2005 the Defendant, Dibble Edge Realty, listed a 9-acre parcel of land for sale at $749,900.00 through MainLine Real Estate which sent the listing to the multiple listing service.
49. On September 9, 2005 Heritage Hills, Inc. inquired with regard to 9 acres offered for sale though MainLine Real Estate.
50. On September 12, 2005 Attorney Ghent responded to Mr. Poder's inquiries by letter to Attorney Molloy stating that the property offered for sale did not extend to property owned by Dibble Edge Partners and acknowledging that Mr. Poder offered $750,000 for purchase of the 9 acres listed. Dibble Edge Realty, LLC, through its Attorney, proposed to sell lots 6, 7 and 8 of the Scenic Woods Subdivision for $900,000 so that Plaintiff, Dibble Edge Partners, LLC could re-subdivide the parcels to obtain highway access and then convey two lots to Defendant, Dibble Edge Realty that would result from the subdivision of Plaintiff Dibble Edge Partner's Premises.
51. On September 15, 2005 Attorney Molloy advised the parties to the Appeal that a mediator was selected.
52. On September 22, 2005 Attorney Molloy responded to Attorney Ghent's September 12, 2005 offer stating reasons why the "proposal as presently framed is not feasible."
53. On September 22, 2005 Attorney Ghent responded to Attorney Molloy that any counter proposal would have to substantially meet the terms outlined in his September 12, 2005 letter.
54. On September 22, 2005 Heritage Hills, Inc. made a written offer to purchase the 9-acre parcel being offered for sale by Defendant, Dibble Edge Realty, for $750,000.00.
55. On or about September 30, 2005, Cappy Amodio, the appraiser engaged by the Town of Wallingford to appraise the land of Defendant Dibble Edge Realty, LLC and the land of Ferguson, left a message for Janis Small stating that he needed a legal description of the property to be acquired and that he wanted to discuss the trail to be donated because Linda Bush indicated it looks like a "spite strip" and she indicated that the Defendant Commission would look down on it.
56. The term "spite strip" was actually coined by the Town Planner, Linda Bush.
57. The property, as shown on Map #3 was configured by Jerry Wawrzeniak and runs along the entire northerly border of Plaintiff's Premises and terminates at its intersection with the railroad property.
58. On October 3, 2005 Amodio Associates submitted an appraisal, expressing an opinion that the property to be acquired by the Town of Wallingford from Defendant, Dibble Edge Realty, LLC (Map #3), (11.86 acres not including the strip to be donated) had a fair market value of $1,095,000.00, not including the strip to be donated.
59. On October 6, 2005 Attorney Molloy contacted Attorney Janis Small and Attorney Robert Ghent with regard to their available dates for mediation of the pending subdivision appeal with Attorney John Parese.
60. On October 17, 2005 Attorney Molloy proposed that Plaintiff, Dibble Edge Partners, LLC would be willing to terminate its appeal of the subdivision approval on the condition that Defendant, Dibble Edge Realty, LLC convey a 50-foot right of way and other appurtenant rights in exchange for $250,000.00.
61. On October 18, 2005 Attorney Molloy advised the mediator, Attorney John Parese, that she had not yet received available dates from counsel for the proposed mediation of the appeal from the subdivision application.
62. On October 27, 2005 Attorney John Parese confirmed that the mediation would go forward in his office on November 15, 2005.
63. On November 3, 2005 a meeting was held, attended by Mayor Dickinson, Jerry Wawrzeniak, Janis Small, and Lucille Trzcinski to discuss the Town's purchase of certain property from Defendant, Dibble Edge Realty, LLC including a strip along the entire northerly border of Plaintiff's Premises which widened to fifty (50') feet.
64. On November 7, 2005 Jerry Wawrzeniak submitted a proposal to Mayor Dickinson for the sale of 10.83 acres inclusive of the fifty (50') foot strip for use as a trail to the Defendant, Town of Wallingford for $1 million.
65. On November 15, 2005 the parties met for mediation with Attorney John Parese.
66. On November 21, 2005 Attorney Molloy wrote to Attorney Robert Ghent with a proposal for purchase of lot 8 from Defendant, Dibble Edge Realty, and other terms which would result in a settlement of the pending appeal.
67. On November 21, 2005 a Special Town Council meeting was held for the purpose of holding an Executive Session for the purpose of discussing the sale or leasing of property as required by Connecticut Statute. Thereafter the Town Council voted to set a public hearing on November 29, 2005 for the purpose of appropriating funds for the purchase of 10.83 acres from Defendant, Dibble Edge Realty, as well as 69.84 acres to be purchased from the Ferguson interests.
68. A public hearing was held on November 29, 2005 at which hearing the Plaintiff attended, through counsel, to oppose the purchase claiming, inter alia, that the fifty (50') foot strip along the northerly boundary of the Plaintiff's property (the southerly boundary of the Defendant, Dibble Edge Realty's property) was a "spite" strip intended to cut off the possibility of development of the Plaintiff's property.
69. On November 29, 2005 an ordinance authorizing the appropriation of funds for the purchase of open space on Dibble Edge Road which appropriation of funds was adopted by a voice vote.
70. The town council of the Defendant Town of Wallingford voted to proceed with said purchase and to expend $1,085,000.00 of public monies to complete said purchase.
71. On December 12, 2005 the Defendant Commission reviewed the proposal for the purchase by the Defendant, Town, of the parcel of land owned by Defendant, Dibble Edge Realty, consisting of 10.83 acres, and approved it, pursuant to Section 8-24 of the Connecticut General Statutes.
72. On December 28, 2005 a fully executed contract for the sale of the 10.83-acre parcel from Defendant, Dibble Edge Realty to the Defendant, Town was delivered to Attorney Robert Ghent.
73. On March 31, 2006, the Defendant Town of Wallingford closed on the purchase of the 10.83 acres of the Defendant Dibble Edge Realty's property expending from public monies the sum of $1,000,000.00.
74. On March 31, 2006 the closing for the Defendant, Town's purchase of the 10.83-acre parcel took place and a Warranty Deed from Defendant, Dibble Edge Realty, to the Town of Wallingford was recorded on the land records for the Town of Wallingford in Volume 1247 at Page 415.
75. On April 19, 2006 Defendant, Dibble Edge Realty, submitted an application to the Wallingford Planning Zoning Commission for approval to subdivide its remaining land into a five (5) lot subdivision.
76. Since the Defendant, Town now owned the 10.83-acre parcel which included the fifty (50') foot strip along the entire northerly border of the Plaintiff's Premises, the Plaintiff was no longer an abutter to the remaining land of the Defendant, Dibble Edge Realty.
77. On July 10, 2006 the Defendant Commission approved the five-lot subdivision application submitted by Defendant, Dibble Edge Realty.
78. On July 13, 2006 the Defendant, Dibble Edge Realty, LLC filed a Motion to Dismiss the administrative appeal pending in New Haven Superior Court on the grounds that the July 10, 2006 subdivision approval controlled the use of the property and that issues raised in the appeal were rendered moot and that no practicable relief could be obtained.
79. On July 17, 2006 the Hon. Howard F. Zoarski granted the Defendant's Motion to Dismiss stating that," . . . subsequent to the May 9, 2005 approval the defendant Dibble Edge Realty, LLC transferred title to the Town of Wallingford of a portion of the subject property on March 31, 2006. After the transfer of title the defendant Planning and Zoning Commission approved a five-lot subdivision for the remaining portion of the land retained by the defendant [Dibble Edge Realty, LLC] on July 10, 2006 . . . The approval of the five-lot subdivision and the changes to the property on July 10, 2006 now precludes this court from granting the relief requested in this appeal."
The plaintiff alleges that Wallingford unlawfully took its state and federally protected property rights by denying it access to a town road, when it failed to grant a right of way through DER's subdivision in contravention of a Wallingford subdivision regulation. The plaintiff further alleges that the defendants conspired to deny the plaintiff its rightful access to this town road. DER's alleged purpose in the conspiracy was to enhance the value of its real property, and Wallingford's alleged purpose was to further its interest in larger open space holdings in the region without consideration.
The plaintiff is a Connecticut limited liability partnership and is the owner of a thirty-five acre parcel of real property located in the Town of Wallingford (Poder Parcel). Mr. Joseph Poder is the sole member and manager of the plaintiff, Dibble Edge Partners, and was a principal stock holder of its predecessor in title to the Poder Parcel. Mr. Poder is an experienced builder and developer of single-family homes.
Mr. Joseph Poder is the principal owner of the plaintiff, Dibble Edge Partners, LLC, as well as the predecessor in title to the plaintiff's property. In maps provided to the court, the plaintiff's property is identified as Mr. Poder's and under other names, including "Podar." For simplicity and continuity, the court refers to the plaintiff's property as the Poder Parcel.
The Poder Parcel was purchased in 1985 by the plaintiff's predecessor in title, Heritage Hills, Inc., of which Mr. Poder was also an officer and major stockholder. It is located in an RU-120 zone in the Town of Wallingford, which is a single-family residential zone with a minimum lot size requirement of 120,000 square feet. The parcel is rectangular in shape, wooded with no known wetlands or watercourses, and has a gradually sloping topography. Although the Poder Parcel was purchased with the intention of residential development at some future date in accordance with the zoning and subdivision regulations of Wallingford, it has been landlocked for well over one hundred years, having no access to an accepted town road.
In 1869, Henry S. Morse owned the Poder Parcel, as well as other real property in Wallingford. At that time, he conveyed a strip of land to the New Haven, Middletown and Willimantic Railroad Company, which severed the Poder Parcel from other property owned by Morse and thereby limited access to this land. At the time of the conveyance, Morse released the railroad from all claims for land damages which he may have had against the railroad company by reason of their building and maintaining the railroad. As part of the consideration for the deed, Morse reserved a limited right of access to the Poder Parcel through "one crossing for my use for Cart, teams and cattle, at each end of the above described land at grade, with suitable cattle-guards." Joint Stipulation, #12.
The Poder Parcel is now bounded on the west by railroad tracks owned by Conrail, on the south by undeveloped property owned by Malcolm Malchiodi, which similarly does not abut a town road, and on the east by property owned by the Wallingford Rod and Gun Club, which the plaintiff claims has severe topographical limitations. The remaining north side of the Poder Parcel abuts property formerly owned by DER (DER's Property).
DER's Property consisted of approximately 26 acres and is bordered on the north by Dibble Edge Road, a public road in Wallingford which runs the length of DER's northern property line. Mr. Poder's plan was to develop the Poder Parcel in coordination with the development of DER's Property to the north, or to purchase a right-of-way or some part or parcel of DER's Property, to obtain access to Dibble Edge Road.
Wallingford, however, has manifested a continuing interest in acquiring land for open space purposes in this neighborhood, including the DER Property and Poder Parcel, as evidenced in January 2001, when Wallingford sent a letter to several property owners in the neighborhood, including Mr. Poder, inquiring about the availability of land for purchase by Wallingford for open space.
In late 2004 and 2005, Mr. Poder solicited a member of the Wawrzeniak family, the owner of the membership interest in DER, in an effort to either negotiate the purchase of a portion of that property or to obtain a right-of-way to provide access to Dibble Edge Road or, in the alternative, to suggest a joint development effort between the Wawrzeniak family and Mr. Poder. However, Mr. Poder was unable to negotiate an agreement or an arrangement with any member of DER or anyone associated with the Wawrzeniak family.
In February of 2005, Mr. Poder became aware of an application for the subdivision of DER's Property into single-family residential building lots. The regulatory scheme under which DER had applied for subdivision approval contains a specific provision at section VI.A.4 entitled, "Streets to be constructed in the future." Paragraph (a) of the regulation reads as follows: "The Commission shall require, at places where it deems appropriate, that provision be made in the street layout of a subdivision for the reservation of title for streets to connect with future streets in adjoining properties susceptible of being subdivided. A Warranty Deed for the area of these future streets shall be given to the Town prior to the filing of the subdivision map. Slope rights fifteen (15) feet outside of the street right-of-way for grading of such future streets shall be reserved for future streets. Reservation of slope rights shall also be shown on the subdivision map.
The subdivision plan filed by DER proposed the division of its property into eight lots; however, it did not provide for a right-of-way from Dibble Edge Road through its property to the Poder Parcel. Attorney Joan Molloy appeared with Mr. Poder, on behalf of the plaintiff and its predecessor in title, Heritage Hills, Inc., at the Commission proceedings regarding DER's subdivision application. They advocated for the inclusion of a fifty (50) foot right-of-way from Dibble Edge Road through DER's Property to the Poder Parcel and that the right-of-way be shown on the subdivision map, pursuant to section VI.A.4.a. of the subdivision regulations.
The Town Planner and the Town Attorney held the contrary opinion that the subdivision regulations did not require the inclusion of a right-of-way over DER's Property for access to the Poder Parcel. The rationale for this opinion was that no new interior subdivision road layout had been proposed by DER. Instead, the subdivision proposal utilized Dibble Edge Road for access, which is an existing public road.
Notwithstanding the continuing municipal proceedings on the subdivision, negotiations continued between the private parties for the purchase of a right-of-way or a portion of the DER Property that would allow the plaintiff to obtain access to Dibble Edge Road, which was necessary to support the development of the Poder Parcel. These negotiations, however, were not successful.
On May 9, 2005, the Wallingford Planning and Zoning Commission approved a revised subdivision map for the eight-lot subdivision proposed by DER. This subdivision map did not include a right-of-way from Dibble Edge Road through DER's Property to the Poder Parcel. As an abutting land owner, the plaintiff appealed the Commission's approval to the Superior Court.
During the pendency of the plaintiff's appeal, DER listed a nine-acre portion of its property for sale. The asking price of the land was $749,900, which appeared to allow access to Dibble Edge Road from the Poder Parcel through lots 1 and 3 on the approved subdivision map. Through Heritage Hills, Inc. (the plaintiff's predecessor in title), a written offer was submitted to purchase the nine listed acres from DER for $750,000, an amount slightly in excess of the asking price, contingent only upon a title search and an environmental site assessment. In response, the plaintiff received a counter-offer through DER's attorney for the sale of different lots, numbers 6, 7 and 8, for a price of $900,000. Although this counter-offer involved one additional lot at the other end of the subdivision, the total square footage of land within lots 6, 7, and 8 was approximately 22,000 square feet less than lots 1 and 2.
In addition to DER's counter-offer of more lots with less land for more money, DER also proposed the transfer of two lots back to DER from any subdivision of the Poder Parcel that the plaintiff might ultimately have approved by the Wallingford Planning and Zoning Commission. The value of this transaction, including the transfer of two lots from an anticipated Poder Parcel subdivision, was estimated by the plaintiff to be between $1,400,000 and $1,450,000. The plaintiff rejected the counter-offer as unreasonable. There is also evidence in the record indicating that DER did not want to sell any property to the plaintiff for fear that development of the Poder Parcel would reduce the marketable value of its neighboring development.
The same lots 6, 7 and 8 were subsequently purchased by Wallingford for $1,000,000.00. This price, however, did not include the prospective value of two lots from a future Poder Parcel subdivision.
Notwithstanding Mr. Poder's refusal of the counter-offer, he continued his efforts to obtain a right-of-way through the DER Property. On October 17, 2005, the plaintiff offered to purchase a fifty (50) foot right-of-way between lots 6 and 7 on the approved subdivision plan for $250,000, plus a guarantee of additional land if necessary for DER to subdivide its property into eight lots.
While the appeal of the subdivision approval was pending, the parties agreed to a mediation of their dispute, and a mediator was selected. A mediation session was held on November 15, 2005, resulting in the mediator's recommendation that the plaintiff purchase one lot from DER at fair market value, which would provide it with access to Dibble Edge Road. The plaintiff made an offer consistent with this recommendation to which DER did not respond.
During the mediation process, however, representatives of Wallingford were negotiating with Gerald Wawrzeniak, a representative of the Wawrzeniak family and the owners of DER, to purchase a portion of DER's Property for the purpose of increasing Wallingford's open space inventory. During those negotiations, Wallingford was offered the opportunity to purchase DER's approved subdivision lots 6, 7 and 8, together with a thirty (30) foot strip running along the entire southern border of DER's Property which abuts the northerly border of the Poder Parcel. Wallingford's alleged purpose for acquiring this strip of land was to provide access to the existing Conrail tracks, with the hope that it would someday provide a loop to other open space owned by the town. Representatives of Wallingford, however, indicated that a thirty (30) foot strip along the northerly border of the Poder Parcel was too narrow to maintain a "rails-to trails" thoroughfare to other open space. In addition to this concern, the Town Planner considered this proposal to transfer a narrow strip of land along the Poder Parcel's entire border to be a "spite" strip. In response to Wallingford's concerns, a representative of DER formally proposed to convey 10.83 acres to Wallingford, consisting of lots six, seven and eight and, in addition, a wider, fifty (50) foot strip along the northern border of the Poder Parcel, for a purchase price of $1,000,000.
Unaware that these negotiations to purchase a portion of DER's property were underway with Wallingford, on November 21, 2005, the plaintiff offered to buy lot 8 from DER for $350,000, indicating it would pay $300,000 for lot 8 plus $50,000 toward the improvements to Dibble Edge Road that were required to be made by DER pursuant to the conditions of the subdivision approval. On the same day that the plaintiff made its offer, however, a special Town Council meeting was held to set a public hearing for the purchase of DER's Property by Wallingford. The hearing was scheduled for November 29, 2005. At the public hearing held on that day, Mr. Poder and his attorney opposed the purchase of the 10.83 acres, asserting that the fifty (50) foot strip was a "spite" strip intended to block the development of the Poder Parcel, and that it served no other rational purpose. The Town Council nonetheless voted to approve the purchase of DER's Property for a purchase price of $1,000,000. On March 31, 2006, Wallingford closed on the purchase of the 10.83 acres of property from DER.
The initial eight-lot subdivision, previously approved by Wallingford, was subsequently withdrawn by DER while the plaintiff's subdivision appeal was pending. On April 19, 2006, DER submitted a new application for a five-lot subdivision of its remaining property. On July 10, 2006, the new five-lot subdivision application was approved.
The practical result of the transfer of the fifty (50) foot strip to Wallingford was that the plaintiff was no longer an abutter of DER's Property. Because it was no longer an abutter, the plaintiff no longer had a right to request that a right-of-way be reserved through DER's Property under the Wallingford subdivision regulations. Therefore, on July 13, 2006, DER filed a motion to dismiss the appeal at a hearing before the court on the merits of the original subdivision approval. The plaintiff's appeal was subsequently dismissed on July 17, 2006, "because of events which rendered the appeal null and void." Dibble Edge Partners, LLC v. Wallingford Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 05 4011385 (July 17, 2006, Zoarski, J.T.R.). Thus, the legal issues raised by the plaintiff in its appeal were never adjudicated.
II. DISCUSSION
Voluminous documentary evidence has been presented to the court in support of the parties' three motions for summary judgment and Wallingford's motion to dismiss. The court will very briefly summarize the extensive evidence in this case. The plaintiff and DER initially owned adjoining parcels of land in Wallingford. The plaintiff's 35-acre parcel of undeveloped land, the Poder Parcel, is located in a RU-120 zone, which is a single-family residential zone with a minimum lot size of 120,000 square feet. The Poder Parcel has been "landlocked" since 1869, when it was divided from other holdings of the grantor by a grant of land to a railroad company for railroad tracks now owned by Conrail.
Although the plaintiff was fully aware of the historically landlocked nature of this real property, it claims it had the right to develop the Poder Parcel by way of access to Dibble Edge Road. Specifically, the plaintiff claims it was unlawfully denied a right-of-way though DER's Property to Dibble Edge Road under Wallingford subdivision regulations, when DER applied for and was granted a subdivision of its property. The plaintiff further alleges that when DER publicly listed a portion of the subdivided land for sale, it made a full price offer to purchase the property which was refused. Further negotiations between DER and the plaintiff were fruitless.
After Wallingford denied access to the Poder Parcel though DER's Property in DER's subdivision plan, the plaintiff appealed the decision. While the plaintiff's appeal of DER's subdivision was pending, and during ongoing negotiations between the parties, Wallingford purchased a portion of DER's Property for open space in a configuration that prevents the plaintiff from accessing Dibble Edge Road. This land configuration includes a strip of property referred to at times by representatives of both parties as a "spite" strip. The plaintiff alleges that the defendants thus intentionally and successfully conspired to deny the plaintiff the reasonable value of its property for the defendants' own purposes and to thereby render the plaintiff's subdivision appeal moot.
A. Motion to Dismiss
A. decision of the Wallingford Planning and Zoning Commission would ordinarily involve an appeal to the Superior Court. However, because this is an action for just compensation and damages, specifically for inverse condemation, and for an alleged violation of state and federal rights pursuant to 42 U.S.C. § 1983, an exemption to exhaustion of administrative remedies has been recognized in light of the constitutional claims and damages sought in such actions. In Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 211, 719 A.2d 465 (1998), the Supreme Court held that "a party asserting a pure taking claim should be exempt from the obligation to pursue an appeal pursuant to § 8-8 to the same extent as a party asserting a taking claim pursuant to § 1983. The plaintiff, therefore, [is] not required to pursue its administrative appeal pursuant to § 8-8 prior to instituting this inverse condemnation action."
Inverse condemnation is a cause of action for taking property without just compensation pursuant to Article I, Section 11 of the Connecticut Constitution, General Statutes § 48-17b, and the Fifth and Fourteenth Amendments of the United States Constitution. See Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 808 A.2d 1107 (2002); see also Lingle v. Chevron U.S.A, Inc., 544 U.S. 528, 540, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). Taking may also result from inaction, especially when colored by the misrepresentations of governmental agencies. Citino v. Redevelopment Agency of City of Hartford, 51 Conn.App. 262, 282, 721 A.2d 1197 (1998) ("[F]ailing to implement its redevelopment plan for the area in a reasonable amount of time amounts to a taking of the plaintiff's property without just compensation").
Wallingford does not contest the court's jurisdiction over count one for inverse condemnation. It does, however, assert that the court lacks subject matter jurisdiction over count two for a violation of 42 U.S.C. § 1983 and count three for conspiracy, in that these claims are premature and not yet ripe for adjudication. The court agrees.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "If an issue is not yet ripe for adjudication, this court lacks subject matter jurisdiction to afford it consideration." State v. Campbell, 84 Conn.App. 648, 650, 854 A.2d 813, cert. denied, 271 Conn. 940, 861 A.2d 515 (2004); see Esposito v. Specyalski, 268 Conn. 336, 346-48, 844 A.2d 211 (2004). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Daimler Chrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007).
1. Count Two Brought Pursuant To 42 U.S.C. § 1983
Wallingford claims that a cause of action does not arise under 42 U.S.C. § 1983 until there is an adverse determination of the plaintiff's inverse condemnation claim. The plaintiff counters that an inverse condemnation claim may be pursued in conjunction with a § 1983 claim brought under the facts of this case because it has alleged tortious conduct beyond the pure taking of property without compensation. The court agrees with Wallingford.
If there is an adequate procedure available to provide just compensation for taking property under color of the state, a cause of action does not arise until there is a denial of just compensation pursuant to state procedures. In Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the United States Supreme Court held that, "the State's action is not `complete' in the sense of causing a constitutional injury unless or until the State fails to provide an adequate postdeprivation remedy for the property loss . . . Likewise, because the Constitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provision for obtaining compensation after the taking, the State's action here is not `complete' until the State fails to provide adequate compensation for the taking." (Citation omitted; internal quotation marks omitted.); see Cumberland Farms, Inc. v. Groton, supra, 262 Conn. 79-80.
Connecticut has recognized a cause of action against the state for inverse condemnation of property by means of a regulatory taking for many years, as provided in General Statutes § 48-17b. In Cumberland Farms, Inc. v. Groton, supra, 262 Conn. 45, the court recognized this cause of action as applied to a municipality and determined it to be an adequate remedy for inverse condemnation. Therefore, "if the plaintiff is successful in establishing the elements of its claim of a regulatory taking, it will be awarded just compensation for that taking in accordance with constitutional requirements. In other words, the taking, if it occurred, could not be deemed tortious or otherwise wrongful because the plaintiff has an adequate postdeprivation remedy to obtain just compensation for the taking . . . To the contrary, an inverse condemnation action is analogous to an eminent domain proceeding, which is equitable in nature, and not to any action at law." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 81-82.
The plaintiff suggests that Cumberland Farms is inapplicable because, although the case involved a regulatory taking, it did not involve an unlawful or tortious act in addition to the taking itself, as alleged in this case. In a "pure" regulatory taking case, the remedy is just compensation. The plaintiff asserts that where tortious conduct is alleged in addition to the act of inverse condemnation, just compensation as well as compensatory damages should simultaneously be allowed. Essentially, the plaintiff claims that the postdeprivation remedy of just compensation permitted in a "pure" inverse condemnation case would provide inadequate compensatory damages resulting from the defendants' tortious conduct under the facts and allegations in this case.
The tortious conduct alleged in the present case concerns Wallingford's interference with the plaintiff's property rights for an unlawful purpose, namely Wallingford's knowingly obtaining open space for its own purposes without compensation. It is also alleged that Wallingford conspired with DER to retain the undeveloped character of the Poder Parcel as open space which, for DER, resulted in the enhanced marketable value of it's own subdivided property. Although the plaintiff concedes that a private party such as DER is free to attempt to enhance the market value of its property, it claims that Wallingford, as a governmental entity, may not interfere with the plaintiff's property rights for the purpose of enhancing its open space holdings. By purchasing DER's property in the configuration that it did, the plaintiff claims that Wallingford knowingly rendered the Poder Parcel unusable for any purpose other than open space adjoining its own holdings. The plaintiff views this as especially egregious because Wallingford had previously sought to purchase this and other property in the area as open space.
The plaintiff asserts that the inverse condemnation claim should coexist with the § 1983 claim because they are different causes of action with different remedies. The U.S. Supreme Court in Williamson, however, decided that a case may be "premature, whether it is analyzed as a deprivation of property without due process under the Fourteenth Amendment, or as a taking under the Just Compensation Clause of the Fifth Amendment." Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, supra, 473 U.S. 200. The practical significance of the distinction between Fourteenth Amendment due process analysis and Fifth Amendment takings analysis is in the remedy associated with the cause of action. "The remedy . . . under the due process theory, is not `just compensation,' but invalidation of the regulation, and if authorized and appropriate, actual damages." Id., 197.
In Williamson, the court declined to decide whether a just compensation or a due process analysis was the more appropriate analysis to apply to a regulatory taking. Instead, the court decided that the case was premature regardless of the nature of the cause of action, and regardless of the remedies available pursuant to these differing causes of action. Id., 199-200. The court determined that, however characterized, a cause of action arising under 42 U.S.C. § 1983 is premature where just compensation is provided as a remedy for inverse condemnation under state law. Id.
The plaintiff claims that the nature and character of the remedy afforded by a cause of action should distinguish its claim from other cases involving the issue of ripeness of § 1983 claims. Militating in favor of the plaintiff's view is that the United States Supreme Court differs from the Connecticut Supreme Court in its characterization of just compensation's remedial nature in takings cases. In considering the nature of just compensation, the United States Supreme Court considers it to be monetary relief and therefore legal as opposed to equitable relief. "We have recognized the `general rule' that monetary relief is legal . . . Just compensation, moreover, differs from equitable restitution and other monetary remedies available in equity, for in determining just compensation, the question is what has the owner lost, not what has the taker gained . . . As its name suggests, then, just compensation is, like ordinary money damages, a compensatory remedy. The Court has recognized that compensation is a purpose traditionally associated with legal relief." Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710-11, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999).
The Connecticut Supreme Court has reached a contrary conclusion regarding the nature of just compensation. "[T]he question of what is just compensation is an equitable one rather than a strictly legal or technical one." (Emphasis added; internal quotation marks omitted.) Alemany v. Commissioner of Transportation, 215 Conn. 437, 444, 576 A.2d 503, 507 (1990). Our Appellate Court has explained this differing view as follows: "The loss to the owner, in the usual case, is fair market value, but such is not always the case because the question of what is just compensation is equitable not legal . . . The proper measure of damages is that amount of money that will put the landowner in as good a position in a pecuniary sense as he would have been in had the property not been taken . . . That measure of damages may require differing methods of valuation . . . For example, just compensation might be based on comparable sales, capitalization of income or replacement cost less depreciation or on any formula that puts the plaintiff in the position he would have enjoyed had the taking not occurred. A trier may select the method of valuation most appropriate to the facts of the case in valuing a land interest." (Citations omitted; emphasis added; internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn.App. 262, 283, 721 A.2d 1197 (1998).
Therefore, in the context of federal takings litigation, inverse condemnation and § 1983 claims appear to be less distinguishable from one another in that the remedy for each is legal damages. In Connecticut, the calculation of just compensation and legal damages are different and may justify a different analysis. The view that inverse condemnation proceedings are equitable in nature did not, however, affect the outcome of Cumberland Farms, Inc. v. Groton, supra, 262 Conn. 45, wherein our Supreme Court held that a § 1983 action is premature when there is an adequate postdeprivation remedy to obtain just compensation in equity for the taking, regardless of the legal nature and remedy of the § 1983 cause of action. Id., 81. Perhaps this is because just compensation is viewed as the adequate remedy for initially resolving any claim involving a governmental taking. Although compensatory damages may be the appropriate remedy in a § 1983 case, as distinguished from the remedy of just compensation, this distinction is not recognized in our state or federal case law on the question of whether a § 1983 cause of action is ripe for adjudication.
The court has previously cited Cumberland Farms as follows: "[I]f the plaintiff is successful in establishing the elements of its claim of a regulatory taking, it will be awarded just compensation for that taking in accordance with constitutional requirements. In other words, the taking, if it occurred, could not be deemed tortious or otherwise wrongful because the plaintiff has an adequate postdeprivation remedy to obtain just compensation for the taking . . . To the contrary, an inverse condemnation action is analogous to an eminent domain proceeding, which is equitable in nature, and not to any action at law." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, supra, 262 Conn. 81-82.
The plaintiff also claims that the nature and character of the cause of action, apart from the remedy, should distinguish its claim from other § 1983 cases involving the issue of ripeness. In Williamson, upon which the court relies, the plaintiff brought a "pure" inverse condemnation action. It was a "pure" inverse condemnation case in that the claim was for taking property without compensation alone, and did not involve an additional allegation of self-interested and tortious conduct by the government. The plaintiff claims this distinction should lead the court to conclude that its inverse condemnation and § 1983 counts should coexist and, essentially, immunize the § 1983 count from the claim that it is premature.
The court finds no merit in this distinction. In the case of Monterey v. Del Monte Dunes at Monterey, Ltd., supra, 526 U.S. 687, the plaintiff provided evidence suggesting that repeated and irrational refusals by local officials to permit development was related to their unsuccessful plan to purchase the land for a public purpose. The court nonetheless concluded that the case was premature, even though the plaintiff's claim was similar to the allegation in this case; namely, that the plaintiff's interest in denying the right to develop property was somehow intertwined with the government's interest in preserving the land for its own purposes without compensation. Although the court did not specifically analyze the question posed by the plaintiff, its conclusion left no room for exceptions: "Simply put, there is no constitutional or tortious injury until the landowner is denied just compensation." Id., 718.
"Del Monte Dunes also submitted evidence designed to undermine the validity of the asserted factual premises for the city's denial of the final proposal and to suggest that the city had considered buying, or inducing the State to buy, the property for public use as early as 1979, reserving some money for this purpose but delaying or abandoning its plans for financial reasons." Monterey v. Del Monte Dunes at Monterey, Ltd., supra, 526 U.S. 699-700.
Moreover, in a concurring opinion authored by Justice Scalia, and approvingly referred to by Justice Kennedy in his majority opinion, the court considered the claim of inverse condemnation to be inconsequential to the analysis of whether an exception was to be made to the Seventh Amendment's requirement of a jury trial. Justice Scalia's rationale appears to be equally applicable to the question before this court. "The only `statutory action' here is a § 1983 suit . . . The fact that the breach of duty which underlies the particular § 1983 claim at issue here — a Fifth Amendment takings violation — may give rise to another cause of action besides a § 1983 claim, namely, a so-called inverse condemnation suit . . . seems to me irrelevant . . . The fortuitous existence of an inverse-condemnation cause of action is surely not essential to the existence of the § 1983 claim. Indeed, for almost all § 1983 claims arising out of constitutional violations, no alternative private cause of action does exist . . ." (Emphasis in original.) Id., 724 (Scalia, J., concurring).
These opinions lead to the conclusion that the violation of a constitutional right, giving rise to a remedy under § 1983, is to be viewed monolithically as a statutory tort that is not to be graded or differentiated. This court sees no precedent or basis upon which to grade or differentiate § 1983 torts for the purpose of determining their ripeness for adjudication.
The essence of the distinction between Williamson and the present case is that, in Williamson, the cause of action was apparently for just compensation or due process damages. In the present case, the plaintiff's cause of action is for just compensation and, in addition, compensatory damages pursuant to § 1983. Although Williamson may also be distinguished on other grounds, these distinctions do not lead the court to a different conclusion. In Williamson, for example, the plaintiff did not exercise its right to further proceedings before the local zoning board, and thus the court determined that there was no final decision rendered under the facts of the case. By contrast, in the present case, the regulatory proceedings have concluded and access though the DER Property is foreclosed by Wallingford's purchase of the "spite" strip. The Williamson court, however, found this to be a second and independent reason for determining the case to be premature. Id., 194. The court therefore finds count two of the plaintiff's complaint, brought pursuant to § 1983, to be premature because "the State's action is not complete in the sense of causing a constitutional injury . . ." (Internal quotation marks omitted.) Williamson Planning Commission v. Hamilton Bank, supra, 473 U.S. 195; see Cumberland Farms, Inc. v. Groton, supra, 262 Conn. 81-82.
Whether the matter is not justiciable and should be dismissed is a more difficult question to answer. "Justiciability and ripeness have been referred to as related doctrines . . . The courts, however, have left the precise relationship between ripeness and justiciability unanswered. Whether ripeness is a requirement of justiciability or vice versa seems to puzzle both courts and scholars." (Citations omitted.) American Premier Underwriters, Inc. v. National Railroad Passenger Corp., 47 Conn.App. 384, 390-91 n. 12, 704 A.2d 243 (1997), cert. denied, 244 Conn. 901, 710 A.2d 174 (1998). Our Appellate Court has, however, since concluded that "[r]ipeness is a justiciability doctrine . . . [which] implicates the court's subject matter jurisdiction . . ." George v. Watertown, 85 Conn.App. 606, 612, 858 A.2d 800, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004). And the Supreme Court has also concluded that it "agree[s] with the Appellate Court that ripeness is a sine qua non of justiciability . . ." Esposito v. Specyalski, supra, 268 Conn. 347.
As a matter brought pursuant to the court's equitable jurisdiction, the plaintiff's claim of inverse condemnation under the first count will be tried to the court and not to a jury. See Cumberland Farms, Inc. v. Groton, supra, 262 Conn. 71. Damage claims for constitutional violations, and conspiracies to do so, are allegations sounding in tort and may instead be tried to a jury which, in this case, the plaintiff has elected. Therefore, a trial of the inverse condemnation claim to the court and the tort claims would be bifurcated. On the other hand, although the plaintiff's § 1983 claim in count two is premature, it will immediately ripen upon the court's determination of the inverse condemnation claim. If the court finds after trial that there is no just compensation due to the plaintiff, under the law and facts presented in the case, an immediate appeal appears to be the logical right to exercise, as opposed to going on to or continuing a trial on the merits of the § 1983 and conspiracy claims. It also appears that it would be especially inappropriate, if not subject to estoppel, for the same case to continue before the same judge on additional counts, tried to the jury for the determination of tortious conduct, based upon the presiding judge's determination that no just compensation was due to the plaintiff. For these reasons, the court concludes that the § 1983 claim is neither ripe for adjudication at this time nor is it justiciable within the context of this case. Therefore, Wallingford's motion to dismiss count two is granted.
2. Count Three Alleging Conspiracy
Count three of the complaint seeks damages for an alleged civil conspiracy between Wallingford and DER to deprive the plaintiff of the practical value of its land, to subvert the Wallingford subdivision regulations and to render moot a pending appeal of an initial DER subdivision granted by Wallingford.
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff . . . There is, however, no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citation omitted; emphasis added; internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 277 Conn. 617, 635-36, 894 A.2d 240 (2006).
"[T]here can be no doubt that claims brought pursuant to § 1983 sound in tort." City of Monterey v. Del Monte Dunes at Monterey, Ltd., supra, 526 U.S. 709. The allegations in count two brought pursuant to § 1983, therefore, involve tortious conduct and the court finds that the allegations in counts two and three all stem from facts alleged in count one, which must be adjudicated before a claim sounding in tort may arise.
Wallingford is alleged to be a primary actor in the conspiracy with DER and, logically, if it cannot yet be held liable for the tortious conduct alleged in count two, it should not yet be held liable for its acts of conspiracy alleged in count three because count three is dependent upon count two for there to be a conspiracy and an award of damages. Therefore, if count two is not ripe, neither is count three. For these reasons, the court grants Wallingford's motion to dismiss count three.
B. Summary Judgment
The parties have filed three motions for summary judgment. However, the court need only address these motions as they relate to count one; the court having granted Wallingford's motions to dismiss counts two and three of the complaint. Motion for summary judgment #137 was filed by DER and contests liability for conspiracy as alleged in count three. The court need not address this motion in view of the fact that count three has been dismissed. Motion #140, filed by the plaintiff as to all counts, must be addressed by the court, but only as it applies to the count one. Motion #141, a cross-motion for summary judgment filed by Wallingford, contests liability for inverse condemnation as alleged in count one.
The court will note, however, that there are material facts disputed by the parties concerning the existence of the alleged conspiracy. The court will also note that factual issues concerning causation of damages resulting from the conspiracy are typically left to a jury, "precluding the granting of summary judgment CT Page 12876 Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 54 (1st Cir. 1997) (Campbell, J., concurring).
"Practice Book [ § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008). "A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 450, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007).
The plaintiff's motion for summary judgment asserts: (1) Wallingford's purchase of land along the plaintiff's entire northern border for open space had the effect of precluding any possibility of access to Dibble Edge Road, and (2) it failed to avail the plaintiff of its right of access to Dibble Edge Road pursuant to section VI.A.4.a. of its subdivision regulations. Wallingford's motion for summary judgment asserts: (1) that the plaintiff had no property interest in the form of access through DER's Property, and (2) that the plaintiff's claim of inverse condemnation may not be established, as a matter of law, without a reasonable investment-backed expectation in the development of the property. DER joins in support of Wallingford's motion for summary judgment.
These remaining motions for summary judgment are cross-motions regarding count one from opposing parties, the plaintiff and Wallingford. "The mere filing of cross motions for summary judgment does not establish that there is no issue of material fact, or obligate the trial court to render summary judgment, but the trial court must independently determine whether there exists a genuine issue of material fact. 73 Am. Jur. 2d, Summary Judgment § 30 (1981). The courts in Connecticut have followed this procedure, denying both the motion and cross motion for summary judgment in the same case. Gagne v. Vaccaro, Superior Court, judicial district of New Haven, Docket No. 372611 (April 8, 1997, Licari, J.) (19 Conn. L. Rptr. 143)." (Internal quotation marks omitted.) Hackbarth v. Hackbarth, Superior Court, judicial district of New Haven, Docket No. CV 98 0409600 (November 3, 1998, Zoarski, J.T.R.).
The competing legal claims regarding count one depend upon the proper understanding of Wallingford's subdivision regulations. The plaintiff asserts that the proper interpretation of these regulations would have given it the right of access to Dibble Edge Road over land owned by DER. The plaintiff also claims that Wallingford's municipal act of purchasing the "spite" strip permanently prevents access to Dibble Edge Road. However, without the right of access derived from the subdivision regulations or other law, Wallingford's municipal act of purchasing land, in and of itself, is not an independent basis for a compensable taking.
Denying the right, if any, to access Dibble Edge Road, in combination with the purchase of the "spite" strip, has extinguished the plaintiff's right to appeal the rulings of the Wallingford Planning and Zoning Commission. It also prevents the plaintiff from gaining access though the purchase of land on DER's Property from a third party. These facts and circumstances serve to ripen this direct action for inverse condemnation, instead of affording the plaintiff an independent basis for its claims.
Wallingford and DER counter that, properly interpreted, the regulations do not provide for a right-of-way over DER's Property. DER contends that the Wallingford subdivision regulations cannot provide a substantive property right to a third party and are, instead, procedural. This view, however, belies the nature of an inverse condemnation claim which, in this case, is brought against Wallingford in count one and not DER. Although the court is mindful that the application of the plaintiff's interpretation of the regulation would have resulted in a right-of-way over DER's property, DER chose to apply for the subdivision of its land. "One who chooses to engage in subdividing land by that decision thus chooses also to be subject to the reasonable regulation of the local planning commission." Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 661, 427 A.2d 1346 (1980).
Furthermore, DER claims that the plaintiff's view would impermissibly take its property. "A land use regulation does not effect a taking if it substantially advance[s] legitimate state interests and does not den[y] an owner economically viable use of his land." (Internal quotation marks omitted.) Dolan v. Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). Even if the regulations impose a taking for the benefit of a third party, such a taking would not be inconsistent with the law. "Quite simply, the government's pursuit of a public purpose will often benefit individual private parties." Kelo v. New London, 545 U.S. 469, 485, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). Therefore, a regulation providing for the connection of roads between subdivisions for the purpose of a municipal transportation plan, utility development and reasonable access for public safety personnel are undoubtedly legitimate state interests furthered by the regulation under review in this case. This was the holding of the court in Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 442 A.2d 65 (1982). "Where reasonable and impartial, a commission's power to regulate the use of land does not constitute a taking without due process of law or just compensation." Id., 471.
Before focusing on the specific language of the regulation, it is important to recall the facts surrounding the origin of the plaintiff's legal title to the Poder Parcel, which has been landlocked for nearly one hundred and forty years. At the time of the grant of title from then-owner, Henry S. Morse, the grantee railroad was released from all claims for damages which Morse may have had against the railroad company by reason of their building and maintaining the railroad. Therefore, the chain of title in this case shows a clear intent to sever this parcel from general access, for which consideration was received.
When the plaintiff's predecessor in title purchased the Poder Parcel in 1985, it was, and has continued to be, a landlocked parcel with limited access. The plaintiff nonetheless intended to develop this land in accordance with Wallingford subdivision regulations, as applicable to its existing zoning for residential dwellings. According to the plaintiff, the best and most practical way to have qualified for the right to develop this parcel was by access through DER's Property to Dibble Edge Road.
The defendants assert that an easement of necessity that once existed was abandoned by the plaintiff's predecessor in title when it developed other parcels abutting Henry Morse's ancient and limited right of way over the railroad tracks.
Without the regulation, which the plaintiff interprets as requiring a right-of-way over DER's Property, the Poder Parcel would continue to be landlocked. Without the right-of-way, the Poder Parcel would be nothing more than open space, which is what the plaintiff originally purchased. Therefore, without the regulatory right of access to Dibble Edge Road, nothing could have been taken from the plaintiff by state action under the facts of this case, either by physical intrusion or by regulatory taking.
"When you got nothing, you got nothing to lose." Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S.Ct. 2531, 2550 (2008) (Roberts, C.J., dissenting) (quoting Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965)).
1. The Effect Of Municipal Regulations
The plaintiff claims that, by its interpretation of the regulation, they have a property interest in a right-of-way over DER's Property. The defendants claim they do not. The first question to be answered is whether land use laws and regulations can create property rights. The court can conceive of no general answer to this question other than yes because whatever enforceable rights real property owners may have exist by operation of law.
Where property rights are privately obtained by contract, their abridgement by the government is generally a taking for which compensation is constitutionally required. The bundle of rights and obligations attached to privately obtained property include the right to develop the property under certain circumstances and to defend it from intrusions, subject to the obligation to comply with a wide variety of land use procedures, restrictions and other applicable laws. These property rights may ebb and flow as changes to the law are enacted. Although these rights may be diminished by the government without compensation, their abrogation may be a compensable taking. Whether the abrogation of these rights is compensable may depend upon a deeply rooted theme in the law that holds that rights must be vested or substantially and reasonably relied upon to claim redress.
One analogy, for example, is the law of retroactivity. "The retroactive nature of clarifying legislation has limits, however, and must not operate in a manner that would unjustly abrogate vested rights . . . A vested right is one that equates to legal or equitable title to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exception from a demand made by another." (Citation omitted; internal quotation marks omitted.) State v. State Employees' Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997); see Bhinder v. Sun Co., Inc., 263 Conn. 358, 375, 819 A.2d 822 (2003). In other words, the government may change the law, but the effect of the law may be limited by vested rights.
Therefore, the court disagrees with Wallingford's first claim that the plaintiff had no property interest in access to Dibble Edge Road over DER's property by virtue of the Wallingford subdivision regulations. In Luf v. Southbury, 188 Conn. 336, 449 A.2d 1001 (1982), the Supreme Court found that General Statutes § 13a-55 preserved a right-of-way for access to private property over an abandoned road. "The effect of § 13a-55 is to alter the common law consequences of the discontinuance of a public highway. While, before the statute, discontinuance extinguished both the public easement of travel and the private easement of access . . .; after the statute, the public easement ceases but the private easement remains. The abutting owners now continue to have an easement of access over the discontinued highway. Their easement of necessity includes the right to travel over and to improve the existing roadbed of East Hill Road . . . On its face, therefore, the statute operates to preserve rather than to destroy the plaintiffs' right of access." (Citations omitted.) Id., 344. The Luf case stands for the proposition that land use laws may establish property rights.
Where property rights have been obtained by land use regulations, their abridgement may also result in a taking. This principle has been recognized in Connecticut inverse condemnation cases which "have held that zoning reclassifications can constitute an unconstitutional taking when they leave a property owner with no economically viable use of his land other than exploiting its natural state . . . Our cases that have found a taking by practical confiscation have involved situations that required a landowner to leave his property in essentially its natural state." (Citation omitted; emphasis in original; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 254-55, 662 A.2d 1179 (1995); see Gil v. Inland Wetlands Watercourses Agency, 219 Conn. 404, 413, 593 A.2d 1368 (1991); Bartlett v. Zoning Commission, 161 Conn. 24, 282 A.2d 907 (1971); Dooley v. Town Plan Zoning Commission, 151 Conn. 304, 197 A.2d 770 (1964).
The plaintiff claims that this line of reasoning is applicable not only to inverse condemnation cases where regulatory action results in leaving "property in essentially its natural state," but also in cases where there is regulatory inaction resulting in a loss of the reasonably anticipated value in developing property. This question was addressed by our Appellate Court in the case of Citino v. Redevelopment Agency, supra, 51 Conn.App. 262. "We conclude that inverse condemnation is not precluded where the property involved has not been stripped of all physical use for a purpose permitted by zoning." Id., 279. In Citino, however, the plaintiff had made a substantial investment in the property that was substantially diminished by the inaction of the government, as discussed infra.
When the plaintiff and its predecessors in title purchased the Poder Parcel in 1985, subdivision regulations existed and the Poder Parcel was located within a single-family residential zone. At that time, the right to access over adjacent subdivisions also existed under conditions set forth in the subdivision regulations. The court considers these rights and responsibilities to be incorporated into and to coexist with the title to the plaintiff's real property. In most cases of inverse condemnation, the government has affirmatively acted to restrict one of these rights and, where it has done so, it must pay just compensation. Here it is alleged that the government has not acted in a manner consistent with its duties, required by law. Therefore, the question is whether government inaction that is inconsistent with the mandatory requirements of its subdivision regulations results in a compensable taking.
2. Taking By Government Inaction
The plaintiff cites Citino v. Redevelopment Agency, supra, 51 Conn.App. 262 for the proposition that a compensable taking may result from government inaction. Wallingford counters that the holding in Citino rests upon a theory of estoppel rather than taking property without just compensation. In Citino, the court concluded that a redevelopment agency's failure "to implement its redevelopment plan for the area in a reasonable amount of time . . . amounts to a taking of the plaintiff's property without just compensation." Id., 281-82. Although the holding in Citino is based upon a taking without compensation, the case was originally decided upon a theory of unjust enrichment. Id., 263. In its decision on the merits, the trial court also rejected several of the plaintiff's claims involving negligent and fraudulent misrepresentation. Id., 264. So although Citino is a takings case, the factual and legal basis for the takings claim appears to be representations of a governmental agency upon which the plaintiff relied. In particular, the plaintiff in Citino rehabilitated a building within a redevelopment area after having been assured that the surrounding redevelopment project would move forward and, in addition, under the threat of fines and condemnation if he did not complete the rehabilitation of his property. After he acted in accordance with these representations and directives, the redevelopment authority abandoned surrounding properties resulting in the diminished value of the plaintiff's property. Id., 264-69.
The taking without compensation holding in Citino was based upon the inaction of the redevelopment authority. The reason this inaction provided the basis for a lawsuit was that the plaintiff had acted in reliance upon representations and directives of this governmental agency. In the present case, the inaction is founded upon an alleged governmental duty based upon a regulation, as opposed to the inaction founded upon the representations and actions of governmental officials as in Citino. The court sees no reason to distinguish, and thereby diminish, a municipal regulation from the representations of a governmental official. Moreover, the court finds a municipal regulation to be a more compelling basis upon which to bring a cause of action for a compensatory taking, so long as the inaction claimed is based upon a provision that is mandatory and so long as it has been sufficiently relied upon by the inversely condemned property owner.
3. The Construction Of Municipal Regulations
A careful reading of the applicable subdivision regulation is required to determine whether an actionable property right exists that could be taken by government inaction in this case. The relevant provision of the Wallingford subdivision regulations is section VI.A.4., entitled "Streets to Be Constructed in the Future." Although the entire regulation is printed at paragraph 12 of footnote 3, it is of critical importance to the court's consideration of this case and it is therefore reprinted, with emphasis added where appropriate, as follows: "(a) The Commission shall require, at places where it deems it appropriate, that provision be made in the street layout of a subdivision for the reservation of title for streets to connect with future streets in adjoining properties susceptible to being subdivided. A Warranty Deed for the area of these future streets shall be given to the Town prior to filing of the subdivision map. Slope rights, fifteen (15) feet outside of the street right-of-way for grading of such future streets shall be reserved for future streets. Reservation of slope rights shall also be shown on the subdivision map. (b) When the adjoining property is subdivided, the developer of said adjoining property shall be required to connect to and build the street and other improvements over the reserved right-of-way at his own expense. The developer extending a street from a cul-de-sac shall be required to remove the existing pavement outside of a standard traveled way, loam and seed said area to which pavement has been removed and install curbs and sidewalks in the original cul-de-sac area in accordance with Town requirements, all at his own expense. (c) When the proposed subdivision covers only a part of an existing tract or only a part of the subdivider's holding, a sketch of the prospective future street system of the remainder of the holding or tract shall be submitted. The arrangement of streets shall provide for necessary fire protection, movement of traffic and the construction of needed utilities. (d) Where the subdivision adjoining unsubdivided land susceptible to being subdivided, the Commission may require new streets to be carried to the boundaries of the proposed subdivision. Reservations of title in any land controlling access to streets is prohibited." (Emphasis added.)
Wallingford claims this regulation does not impose the restriction of a right-of-way upon the owner of land to be subdivided unless there is a "street layout of a subdivision." If a "street layout of a subdivision" is determined to exist, however, the reservation of a right-of-way is mandated by the regulation "to connect with future streets in adjoining properties susceptible to being subdivided."
In this case, DER has included no new roads within its proposed subdivision. Instead, it relies upon Dibble Edge Road, an existing town road, for access to the proposed subdivision lots. Since there are no new streets proposed within the subdivision, the defendants contend that, properly interpreted, there is no "street layout of a subdivision" to which the right-of-way requirement of the regulation would attach under the facts of the case.
The plaintiff claims that Wallingford has read this language incorrectly. It asserts that Wallingford's interpretation requires an additional word to be added to the actual language of the regulation. Specifically, the plaintiff claims that Wallingford's interpretation would clearly be accurate if a proposed "street layout [within] a subdivision" was the actual language used in the regulation, substituting the word "within" for the word "of" before the word "subdivision." Without the additional word "within" added to the language of the regulation, the right-of-way requirement to benefit adjoining, developable parcels of land would not be appropriately limited to subdivisions proposing new roads.
The plaintiff contends that the proper interpretation of the words "street layout of a subdivision" should include Dibble Edge Road for two reasons. First, Dibble Edge Road is essential to DER's subdivision plan, because the subdivision could not meet the requirement of access to a public road without its existence abutting DER's Property. Therefore, the plaintiff contends that this existing public road should be considered the "street layout of the subdivision" for purposes of requiring a right-of-way to an abutter's developable land pursuant to the regulation. Second, the plaintiff claimed at the hearing on these motions that the proposed subdivision included improvements to Dibble Edge Road on the property to be subdivided.
This issue is discussed, infra. This factual assertion, however, appears to be contrary to the stipulation of the parties at paragraph 17, which states that a cul-de-sac existed at the end of Dibble Edge Road "at all relevant times herein."
The issue before this court involves a question of interpreting subdivision regulations. "[Subdivision] regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Thus, in construing regulations, our function is to determine the expressed legislative intent . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . and the words employed therein are to be given their commonly approved meaning." (Citations omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001).
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Farmers Texas County Mutual v. Hertz Corp., 282 Conn. 535, 541, 923 A.2d 673 (2007). In addition, General Statutes § 1-1(a) provides in relevant part that "words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."
"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 698.
Based upon this reasoning, Wallingford's interpretation of section VI.A.4. of its subdivision regulations should not be afforded special weight in these proceedings. The court reaches this conclusion in light of the fact that this case is a direct action to the superior court and is therefore not before this court in the procedural posture of an administrative appeal of Wallingford's decision in this matter, in which interpretations of municipal legislation may be given deference. In addition, according to the parties, this regulation has not previously been the subject of judicial interpretation.
In applying these rules of interpretation and construction to the plaintiff's first argument concerning the applicability of section VI.A.4. of Wallingford's subdivision regulations, the court concludes that the right-of-way requirement does not apply to a subdivision plan that relies exclusively upon an existing town road on land that is not within the proposed subdivision. The court bases its conclusion upon the following analysis of section VI.A.4.
General Statutes § 8-25 authorizes local planning commissions to adopt regulations and exercise certain powers pursuant to the statute and land use regulations adopted thereunder. In enumerating the content and powers that may be exercised pursuant to these regulations, the statute applies them to "the land to be subdivided."
The disputed interpretation of the regulation centers upon the meaning of the words "street layout of a subdivision." The court begins its interpretation of this phase with particular focus on the word "of" because it functions to indicate the relationship between these two combinations of words; namely, "street layout" and "a subdivision." When a statute does not define a term, we look to the common understanding expressed in the law and in dictionaries." Czarzasty v. Czarzasty, 101 Conn.App. 583, 589, 922 A.2d 272, cert. denied, 284 Conn. 902, 931 A.2d 262 (2007). "The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms." (Internal quotation marks omitted.) Pelliccione v. Planning Zoning Commission, 64 Conn.App. 320, 335-36, 780 A.2d 185 (2001).
The word "of" is defined in a striking number of ways. Merriam Webster's Collegiate Dictionary generally refers to the word as a "function word." It may, for example, be used as a function word "to indicate origin or derivation" or "to indicate belonging or a possessive relationship." These definitions lend themselves to the defendant's interpretation that a subdivision street, triggering the right-of-way requirement, must be "within" the subdivision where the street belongs, is derived or originates. However, the court does not view the use of the word "of" in this regulation as functioning to exclude a street directly associated with and necessary for access to the subdivision, such as Dibble Edge Road.
The Merriam Webster's Collegiate Dictionary definition of the word "of" provides "1 — used as a function word to indicate a point of reckoning north of the lake 2 a — used as a function word to indicate origin or derivation a man of noble birth b — used as a function word to indicate the cause, motive, or reason died of flu C: BY plays of Shakespeare d: on the part of very kind of you e: occurring ina fish of the western Atlantic 3 — used as a function word to indicate the component material, parts, or elements or the contents throne of gold cup of water 4 a — used as a function word to indicate the whole that includes the part denoted by the preceding word most of the army b — used as a function word to indicate a whole or quantity from which a part is removed or expended gave of his time 5 a: relating to: ABOUT stories of her travels b: in respect to slow of speech 6 a — used as a function word to indicate belonging or a possessive relationship king of England b — used as a function word to indicate relationship between a result determined by a function or operation and a basic entity (as an independent variable) a function of x the product of two numbers 7 — used as a function word to indicate something from which a person or thing is delivered eased of her pain or with respect to which someone or something is made destitute robbed of all their belongings 8 a — used as a function word to indicate a particular example belonging to the class denoted by the preceding noun the city of Rome b — used as a function word to indicate apposition that fool of a husband 9 a — used as a function word to indicate the object of an action denoted or implied by the preceding noun love of nature b — used as a function word to indicate the application of a verb cheats him of a dollar or of an adjectivefond of candy 10 — used as a function word to indicate a characteristic or distinctive quality or possession a woman of courage 11 a — used as a function word to indicate the position in time of an action or occurrence died of a Monday b: BEFORE quarter of ten 12 archaic: ON a plague of all cowards — Shakespeare
Although the words "street layout of a subdivision" provide no clear answer to the question presented, the court is required to view these words in light of the language of the entire regulation. "A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation." (Internal quotations marks omitted.) Hall Manor Owner's Ass'n. v. West Haven, 212 Conn. 147, 154, 561 A.2d 1373 (1989).
Following this method of construction, the defendants contend that numerous references to "future streets" within the regulation show the legislative intent to exclude existing roads such as Dibble Edge Road. Subsection (a) of the regulation generally addresses the relationship between the "street layout of a subdivision" and "future streets" in adjoining properties susceptible to being subdivided. Where a "street layout of a subdivision" is determined to exist, it becomes a triggering determination requiring a plan for the connection of the street layout with other potential subdivisions. If it is determined that there is a "street layout of a subdivision" (the triggering determination) the owner of the proposed subdivision is required to grant title to the area of these proposed streets to the town.
The rationale for this regulatory requirement is clear. Without such a requirement, there would be no cohesive transportation plan for the municipality. Without cohesive transportation planning, the efficient movement of traffic and the construction of public utilities between subdivisions might otherwise be impeded, as might appropriate access to developed areas for public safety purposes. In fact, these purposes are specifically identified in subsection (c) of the regulation as some of the public purposes underlying the arrangement of streets in subdivisions.
The court finds that the term "future streets" is used for two purposes in the regulation, particularly in subsection (a). The resulting question presented is whether the regulation, by using the term "future streets," limits the regulation's requirement of a right-of-way to adjoining property only under circumstances where new roads are proposed within the subdivision, as opposed to existing roads necessary for access to the subdivision, such as Dibble Edge Road under the facts of the case.
The term "future streets" appears only once in the first sentence of subsection (a). The court notes that this first sentence also contains the so-called "triggering determination" of a proposed "street layout of a subdivision." In this context, the specific language used in the regulation does not distinguish between new streets and existing streets to trigger the right-of-way requirement. Instead, the "future streets" to be connected with the "street layout of the subdivision" refers only to those streets in a future subdivision of an adjoining property. It therefore does not clearly state that the right-of-way requirement is triggered by the use of a proposed new road as distinguished from an existing town road.
The term "future streets" is, however, used three times in the second and third sentences of subsection (a) when referring to land within the proposed subdivision itself. In the first instance, it is used to describe new streets within the subdivision to be deeded to the town by the owner of the proposed subdivision. The second and third times, it is used in reference to slope right requirements for these "future streets." The slope right requirements of the regulation, however, would only apply to a right-of-way necessary to connect with "future streets" in future adjoining subdivisions, and not to an existing street. Therefore, the reference to "future streets" in the context of subsection (a) does not operate to exclude existing streets from the meaning of the words "street layout of a subdivision."
Subsection (b) of the regulation imposes certain duties upon adjoining property owners to build a road over the right-of-way if an adjoining subdivision is approved. Subsection (c) of the regulation applies to partial subdivisions. Finally, subsection (d) specifies that where new roads are required in a proposed subdivision, they may be required to extend to the boundary of the subdivision. Although these provisions occasionally make reference to future or new streets, these references do not elucidate the specific question before the court.
Based upon this analysis, the court finds that the regulation does not clearly state whether the triggering determination for a right-of-way to a future subdivision is limited to the proposal of new streets within the subdivision or if it may properly be interpreted to include an existing town road necessary for access to proposed subdivision lots. The question before the court, therefore, is the proper construction and interpretation of a legislative enactment that legitimately may be read in two different ways.
At common law, there has been a long history of interpreting restrictions on titles to property and doubtful language has been construed conservatively against, rather than in favor of a restriction. Over time, this common-law approach has been adopted by our courts in interpreting municipal regulations that would impose restrictions upon the property rights of landowners. "Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms." (Internal quotation marks omitted.) Balf Co. v. Planning Zoning Commission, 79 Conn.App. 626, 636, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003). Furthermore, "[w]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction] . . ." (Internal quotation marks omitted.) Id.
"In determining whether or not it was so used, it is necessary to bear in mind the accepted rules for the interpretation of restrictive covenants, set out at some length in Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 295, et seq., 82 Atl. 561 [1912]. Among these rules are the following: that where more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication; that doubtful language will be construed against rather than in favor of a restrictive covenant; that words are to be taken in their ordinary and popular sense, unless it appears from the context that the parties used them in a different sense; and that where the meaning of language is doubtful it, with its context, is to be read in the light of surrounding circumstances presumably considered by the parties in using them." Bassett v. Pepe, 94 Conn. 631, 637-38, 110 A. 56 (1920).
In the case before the court, there are two possible interpretations of the applicable Wallingford subdivision regulation. One interpretation would impose a right-of-way upon DER's Property because Dibble Edge Road is a part of the "street layout of the subdivision." The other would exclude Dibble Edge Road from the "street layout of the subdivision" because it is not a new road within the subdivision. Based upon the longstanding approach to interpreting language imposing restrictions on real property, the court is bound to construe this language against the establishment of a right-of-way in favor of the Poder Parcel, for to do so would include "by implication that which is not clearly within its express terms." Id. Therefore, the use of an existing road for access to a proposed subdivision is not a "street layout of a subdivision" triggering the regulation's right-of-way requirement benefitting adjoining parcels. Dibble Edge Road, as it existed, is simply not a part of the land to be subdivided.
4. Applicability to Improvements Proposed to Dibble Edge Road
However, this determination does not require the conclusion that Wallingford's motion for summary judgment must be granted. Instead, the court must consider the plaintiff's second argument: that DER's subdivision plan included essential improvements to Dibble Edge Road necessary for access to proposed subdivision lots. Based upon a review of subdivision maps, it appears that the subdivision proposal provided for a change to Dibble Edge Road involving the construction of a cul-de-sac within the subdivision, in order to provide access to lots proposed within the subdivision located at the end of the existing road.
In response, Wallingford and DER assert that the change to Dibble Edge Road involved an off-site improvement and that Wallingford could not have lawfully imposed an off-site improvement to Dibble Edge Road as a part of the subdivision approval process. Therefore, as an off-site improvement, it should not properly be considered part of the "street layout of a subdivision." The defendants cite Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 628 A.2d 1277 (1993), for the proposition that off-site improvements are outside the scope of a planning commission's authority. "There is nothing in § 8-25 that authorizes a planning commission to require a developer to improve an existing abutting public highway where no intersecting subdivision streets are being created." Id., 691. Therefore, in the Property Group case the commission had no authority to impose off-site improvements upon a subdivision plan and developer unless there was a finding of a "reasonable and necessary need for an off-site improvement or improvements . . . necessitated or required by the proposed development application . . ." Id., 692. The off-site improvement in Property Group involved a six-foot strip on a right-of-way along an existing road abutting the proposed subdivision. The defendants contend that since the cul-de-sac is an off-site improvement, it is not a part of the land to be subdivided.
On-site improvements, however, are generally within the powers of a planning commission, so long as they are reasonably related to legitimate state interests. This was the holding of the court in Raybestos-Manhattan, Inc. v. Planning Zoning Commission, supra, 186 Conn. 466.
Drawing specific attention to Map 2 of plaintiff's exhibit 60, DER proposed changes to Dibble Edge Road as a part of its subdivision plan, including the creation of a cul-de-sac at the end of the accepted portion of Dibble Edge Road. On Map 2, this proposed cul-de-sac is adjacent to proposed lot number 7, and 144 feet from the property line of lot number 8. On Map 4 of plaintiff's exhibit 60, the cul-de-sac appears to be proposed on land included within the subdivision that was approved by Wallingford. It is noted on Map 4 that this area is "subject to public R.O.W dedication for potential cul-de-sac." The proposed cul-de-sac appears on the map to be significantly wider than the existing roadway and paved turn-around.
The court notes that paragraph 17 of the stipulation of fact filed with the court and reprinted at footnote 3, states that: "at all relevant times herein" Dibble Edge Road ends in a cul-de-sac. A review of all the maps filed with the court at Plaintiff's Exhibit 60 leads the court to the conclusion that although Dibble Edge Road ends in an existing paved turn around within what appears to be the existing right-of-way, the proposed cul-de-sac shown on Map 2 and especially on Map 4 appears to be substantially wider than the existing turn around and on the land to be subdivided.
The court finds as a matter of law that the inclusion of a cul-de-sac on subdivision land to be within the definition of a "street layout of a subdivision," thereby potentially triggering the requirement of a right-of-way over DER's Property to the Poder Parcel. At the hearing on this matter, the parties disputed whether this cul-de-sac should be considered by the court as an on-site or off-site improvement. As a material fact in dispute, this issue must be resolved at trial. Furthermore, if the cul-de-sac was not materially necessary for the approval of the back lots of the proposed subdivision, the proposed subdivision may have been modified by DER without triggering the right-of-way requirement of the subdivision regulations. Without a finding that the cul-de-sac was materially necessary to the approval of the subdivision, the right-of-way might have been avoided, obviating the plaintiff's claim of a taking based upon inverse condemnation.
The court further finds that, once triggered, the right-of-way requirement is a mandatory provision of the regulation. "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Citations omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 19, 848 A.2d 418 (2004). The court finds that this right-of-way requirement is substantive and therefore a mandatory provision of the regulation.
5. Adjoining Property Susceptible To Subdivision
Wallingford further claims that the Poder Parcel is not an "adjoining propert[y] susceptible to being subdivided," pursuant to the Wallingford subdivision regulations and it is therefore not afforded the requirement of a right-of-way through the DER Property. The reason cited for this is another Wallingford subdivision regulation, VI.A.3.a., which limits the length of a road ending in a cul-de-sac to 1,250 feet. Wallingford asserts as a matter of fact that the Poder Parcel could not be reached by a cul-de-sac within this limited distance. This question, however, involves a factual determination that is not clearly demonstrated by the evidence.
DER's approved subdivision contained a cul-de-sac at the end of the paved portion of Dibble Edge Road. (See Map 2 of plaintiff's exhibit 60.) This approved cul-de-sac was located a substantial distance from the beginning of DER's Property line. The court observes that this distance is generally longer than the distance between Dibble Edge Road and the border of the Poder Parcel at other locations along this existing road. (See Maps 1-5 of plaintiff's exhibit 60.)
In the exercise of its discretion under subdivision regulation VI.A.4.a. for the location of the "street layout of a subdivision," Wallingford had the authority to identify the location of a right-of-way for access to the Poder Parcel. Furthermore, the plaintiff claims that an engineering plan provided to Mr. Poder in 1986 allows for the development of the Poder Parcel using a cul-de-sac within the applicable distance limitations of the Wallingford subdivision regulations. (See Map 6 attached to the plaintiff's supplemental memorandum of law dated April 1, 2008.) The parties therefore dispute whether a cul-de-sac could reach the Poder Parcel, as a matter of fact, within the length requirements of Wallingford subdivision regulation VI.A.3.a. The court concludes that whether the Poder Parcel was an "adjoining propert[y] susceptible to being subdivided," based upon whether access was possible within the 1,250-foot limitation of Wallingford subdivision regulation VI.A.3.a., is a material question of fact to be determined at trial.
6. Reasonable Investment-Backed Expectation
Wallingford's second general claim in its motion for summary judgment is that if the court concludes that a regulatory taking results from government inaction, inverse condemnation may not be established, as a matter of law, without a reasonable investment-backed expectation in the development of the property. The plaintiff counters that this analysis does not apply in cases where regulations completely deprive an owner of all economically beneficial use of their property. See Lingle v. Chevron USA, Inc., 544 U.S. 528, 540, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005).
In Lingle, the U.S. Supreme Court distinguished between two relatively narrow categories of per se regulatory takings, one of which the plaintiff would have the court apply here. Under the plaintiff's theory of this case, where "regulations . . . completely deprive an owner of all economically beneficial us[e] of . . . property . . . the government must pay just compensation for such total regulatory takings . . ." (Emphasis in original; internal quotation marks omitted.) Lingle v. Chevron US.A, Inc., supra, 544 U.S. 538, citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). "Outside these two relatively narrow categories . . . regulatory takings challenges are governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104, [ 98 S.Ct. 2646, 57 L.Ed.2d 631] (1978)." Id.
"The Court in Penn Central acknowledged that it had hitherto been unable to develop any set formula for evaluating regulatory takings claims, but identified several factors that have particular significance . . . Primary among those factors are [t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations . . . The Penn Central factors — though each has given rise to vexing subsidiary questions — have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules." (Citations omitted; internal quotation marls omitted.) Id., 538-39.
"In the Lucas context, of course, the complete elimination of a property's value is the determinative factor . . . And the Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests." (Citation omitted.) Id., 539-40.
Unaddressed in the Lingle analysis is the concept of regulatory takings resulting from inaction by the government. The plaintiff has cited and the court has followed the case of Citino v. Redevelopment Agency, supra, 51 Conn.App. 262, in which our Appellate Court held that a compensable taking may result from government inaction. The court has noted that although the holding in Citino is based upon a taking without compensation, the case was originally decided upon a theory of unjust enrichment, wherein the trial court rejected the plaintiff's claims of negligent and fraudulent misrepresentation. The taking without just compensation holding in Citino was based upon the inaction of the redevelopment authority. The reason the inaction provided the basis for the lawsuit was that the plaintiff had acted in reliance upon representations and directives of the governmental agency.
One important distinction between Citino and the present case is that, in Citino, the plaintiff's loss was based upon actual improvements made to the property and not upon a finding that the property had "been stripped of all physical use for a purpose permitted by zoning." Id., 279. In the present case, the property remains unimproved, yet the plaintiff claims that the actions of Wallingford have deprived it of all economically beneficial use of its property. The defendants claim that the property has no value other than as open space, which has been its unchanged condition for more than a century. Furthermore, the defendants claim that the Poder Parcel may have a greater beneficial use now that it is accessible through publicly owned open space.
The court finds that the question of whether the plaintiff has been deprived of all economically beneficial use of its property is a question of material fact to be determined at trial. If so, the case would involve a per se taking under the rule in the seminal regulatory taking case of Lucas. If not, the trier of fact would then be required to determine whether the plaintiff had a reasonable investment-backed expectation in the development of the property under the rule in Penn Central. Again, as a disputed material fact, it would be determined by the trier of fact.
"[S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
III. CONCLUSION
Wallingford's motion to dismiss counts two and three of the complaint (#138) is granted, and DER's motion for summary judgment #137 is denied because the allegation of conspiracy in count three has been dismissed.
The court denies motion for summary judgment #140, filed by the plaintiff as to all counts, and #141 filed by Wallingford contesting its liability for inverse condemnation as alleged in count one, having found there to be numerous material questions of fact to be determined at trial.
CT Page 12877