Opinion
No. CV 05-4008669
January 10, 2006
MEMORANDUM OF DECISION
The plaintiff moves for reargument and reconsideration of this court's decision of October 14, 2005 for the reasons stated below:
1. The plaintiff claims the zone change of plaintiff's rear land to PDIP results in plaintiff being denied access to it from South Street across plaintiff's front lot on South Street which remained zoned residential. This consequence reduces the value of the subject property to a nominal amount and, thus, enhances plaintiff's claim of inverse condemnation.
Plaintiff's claim has a semblance of validity. Generally, under zoning law residentially zoned land cannot be devoted to the accessory use of providing access to industrially zoned land. However, plaintiff neglects to take into account that he can apply for a variance to obtain access across his residentially zoned land to the industrially zoned land. Defendant cites previous instances where the Suffield Zoning Board of Appeals has granted such a variance.
In Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 605 (1991), the court held that a final administrative decision was a prerequisite to an inverse condemnation claim. The reason for the rule of finality is, "Until a property owner has `obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed.'" Id., 600. It noted that when an application to a zoning commission has been denied, plaintiff does not have to take the remedial step of appealing that decision to a zoning board of appeals or to the courts before making a claim of inverse compensation. As the court said, "Thus a property owner need not pursue remedial procedures that merely review the propriety of the initial decision maker's action." But, "A property owner must, however, pursue all available procedures that could result in a decision favorable to some reasonable use of the property." Id., 606. The court then cited Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 193-95 (1985) for the proposition that "in order to show finality the development should have: (a) sought variances from the zoning commission . . ."
Here the plaintiff has not applied for a variance. As a consequence, his claim for inverse condemnation on the basis of lack of access to the subject property is premature because plaintiff has not proven he has yet been harmed by the Commission's decision.
2. Plaintiff points out that the court's memorandum of decision indicated that the purchase price of the sale of the land to Landquest had not been revealed so the court could not determine plaintiff's actual monetary loss. That was a mistake. The purchase price was listed in plaintiff's expert's appraisal report as $1,000,000.00, reduced to $750,000.00.
Nevertheless, plaintiff's own real estate expert testified at the Commission hearing that industrial land in Suffield has a value of $20-22,000.00 per acre, and at $21,000.00 per acre plaintiff's 29 acres has a value of $609,000.00. A difference of $141,000.00 is significant, but it must be balanced against the benefits of protecting the health and providing tax diversification for the entire community. The court finds that those benefits outweigh the loss to the plaintiff.
3. Plaintiff challenged this court's statement in its decision that the first time the chairman of the Commission had heard of the intended use of plaintiff's property for adult housing was at the hearing itself. Plaintiff presented evidence that the chairman was at prior meetings of the Commission when plaintiff's intended use of the subject property was discussed. The court, however, reaffirms its decision that the Commission did not vote for the zone change on the pretext of precluding development of plaintiff's property for adult housing.
4. Plaintiff challenges this court's acceptance of the Commission's finding that increased odors were likely to emanate from the expansion of the sewage plant. There was a conflict of testimony on this issue. The Commission was entitled to weigh that testimony and the court will not disturb the Commission's findings on that issue.
The court has granted the plaintiff's motion to reargue, but, on reconsideration, it reaffirms its determination that the appeal is dismissed.