Lost Trail, LLC
v.
Town of Weston

This case is not covered by Casetext's citator
Connecticut Superior Court Judicial District of Stamford-Norwalk at StamfordJun 9, 2011
2011 Ct. Sup. 13301 (Conn. Super. Ct. 2011)

No. FSTCV05-5000500S

June 9, 2011


Memorandum of Decision on Motion to Dismiss (No. 130)


ALFRED J. JENNINGS, JR., Judge Trial Referee.

I PROCEDURAL AND FACTUAL BACKGROUND

This is an action by Lost Trail, LLC (the plaintiff) against the town of Weston (the defendant). The plaintiff commenced this action on December 8, 2005 by filing an eight-count complaint, with five of those counts arising out of federal law. The defendant removed the action to the United States District Court for the District of Connecticut. On September 21, 2006, the plaintiff filed an amended eight-count complaint dated September 15, 2006 (the amended complaint) in federal court, which is the operative complaint for the purposes of this motion to dismiss. On April 19, 2007, the federal court (Arterton, J.) granted the defendant's motion to dismiss counts one through five and remanded counts six through eight to the Superior Court, judicial district of Stamford-Norwalk at Stamford. Lost Trail, LLC v. Weston, 485 F.Sup.2d 59 (D.Conn. 2007), aff'd, 289 Fed. Appx. 443 (2d Cir. 2008).

On May 8, 2009, Judge Pavia of this court granted the defendant's motion to dismiss counts six and seven; Lost Trail, LLC v. Weston, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 5000500 (May 8, 2009, Pavia, J.) ( 2009 Ct.Sup. 7880); and thus, only count eight remains in the amended complaint. In count eight, which pleads a cause of action in municipal estoppel, the plaintiff alleges as follows. The plaintiff owns a private road and four lots on Georgetown Road in Weston. The property consisted of two separate parcels with different chains of title that the plaintiff bought in November 1997. The northern parcel contained 5.79 acres and appears on "Map #515 dated April 14, 1947," while the southern parcel contained 3.31 acres and appears on "Map #475 dated March 26, 1946," with both maps filed in the Weston Land Records (land records). On July 17, 1998, a map was recorded in the land records, revising the boundary line between the two parcels and thus causing 2.117 acres to shift to the southern parcel and 0.588 acres to shift to the northern parcel. The northern parcel was then divided into two lots, resulting in Parcel 515A (2.03 acres) and Parcel 515B (2.12 acres), and the southern parcel was also divided into two lots, resulting in Parcel 475A (2.54 acres) and Parcel 475B (2.26 acres). Further property line adjustments caused Parcel 515A to grow to 2.036 acres, Parcel 515B to be reduced to 2.114 acres, Parcel 475A to be reduced to 2.31 acres and Parcel 475B to grow to 2.491 acres. The parcels are in a zone with a two-acre minimum lot size, and the maps that divided the two parcels into four lots were neither subdivisions nor resubdivisions as defined by statute.

The plaintiff further alleges that prior to recording each of the maps that caused the property to be transformed from the initial 1940s boundaries to the four readjusted lots described above, "the maps were presented to" the zoning enforcement officer, the town engineer and the assistant town attorney, "who reviewed them and authorized the maps to be filed in the . . . [l]and [r]ecords." Further, "[t]he zoning enforcement officer and town engineer signed the map with a notation which states: `The Town Engineer and Code Enforcement Officer hereby attest to the fact that this plan is neither a subdivision nor a resubdivision as defined by the General Statutes of Connecticut and the Town of Weston and may be recorded without prior approval of the Weston Planning and Zoning Commission.'" Accordingly, "[i]n reliance upon the review, approval and the note placed by town officials on the map, the plaintiff mortgaged the property to Wilton Bank on or about December 28, 1999 for $742,500."

Furthermore, according to the amended complaint, "[o]n February 14, 2000 Barry Hawkins, an attorney acting at the direction and with the approval of [Weston town attorney G. Kenneth] Bernhard, instructed [Robert] Turner as the Zoning Enforcement Officer, the chairman of the Planning and Zoning Commission and the Building Official that the four lots required subdivision approval and not to issue permits for the lots." The plaintiff further alleges that "Bernhard has been requested several times between 2000 and 2005 to revoke that instruction but has failed and refused to do so." As a result of Bernhard's instructions, "Turner will not issue a zoning permit for any of the four lots." The plaintiff alleges that it purchased the property based on the belief that it could be changed to contain four lots and that it mortgaged the property based on the belief "that it could obtain zoning and building permits for four lots and in reliance upon the stamp placed by authorized town officials . . . that the lots shown on those maps were not a subdivision or resubdivision, and the ruling of the prior [t]own attorney in September 1998 that subdivision approval was not required for the four lots." The plaintiff further alleges that it "has sustained and will sustain a substantial economic loss if the [defendant] is allowed to continue to negate the acts of its agents in approving the map and declaring in September 1998 that it is not a subdivision or resubdivision and that it does not require subdivision approval." Thus, according to the amended complaint, "the [d]efendant and its officials are estopped from requiring subdivision approval for the four lots and refusing to issue zoning and building permits for the lots." Under count eight, the plaintiff seeks monetary damages and "[a]n order that zoning and building permits should be issued for the four lots . . . if they comply with the zoning regulations and that the lots do not have to be reviewed by the Planning and Zoning Commission."

On July 22, 2010, the defendant filed its answer and special defenses. In its answer, the defendant admitted that it is a municipal corporation in Fairfield County and that the plaintiff owns a private road and four lots on Georgetown Road as shown on two maps recorded in the land records in August 1998. The defendant answered that it had insufficient knowledge as to any of the other allegations in the amended complaint. The defendant's nine special defenses to count eight are that it fails to state a claim upon which relief may be granted, that it is barred by governmental immunity pursuant to common law and General Statutes § 52-557n, that it is barred by the doctrines of laches, unclean hands, waiver, res judicata, collateral estoppel and equitable estoppel and that "[t]o the extent that a court interprets the Eighth Count as alleging a claim of promissory estoppel, the Eighth Count is barred by the statute of limitations set forth in . . . General Statutes [§] 52-581(a)."

On August 4, 2010, the plaintiff requested that the defendant revise its special defenses, and on August 9, 2010, the defendant objected to this request to revise. No action has been taken regarding this request and the objection thereto.

On July 30, 2010, the defendant moved to dismiss count eight on the grounds of lack of ripeness, mootness and lack of standing. Attached to the motion are a memorandum of law and the following uncertified exhibits: partial release of mortgage by Wilton Bank (Exhibit A); statutory form quitclaim deed from the plaintiff to John J. Walpuck, Jr. of revised parcel 515A signed November 30, 2001 (Exhibit B); open-end mortgage deed from borrower John J. Walpuck, Jr. to lender Sovereign Bank dated November 30, 2001 (Exhibit C); docket sheets for Sovereign Bank v. Walpuck, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0197024, and Harris v. Clinton, Superior Court, judicial district of Middlesex, Docket No. CV 09 6000519 (Exhibit D); foreclosure by sale committee deed pertaining to 96 Georgetown Road in Weston showing parcel 515A sold to Sovereign Bank for $428,468.97 on October 10, 2003 (Exhibit E); and a signed and notarized "affidavit of facts relating to real property" by Robert Walpuck dated April 3, 2008 (Exhibit F).

On August 19, 2010, the plaintiff filed its objection to the motion to dismiss. Attached to the objection are the following uncertified exhibits: June 20, 1991 letter from Harry H. Hefferan, Jr. to Weston acting town administrator Rosemary Cashman (Exhibit 1); maps (Exhibits 2-7); and a March 8, 2007 letter of approval from the Weston planning and zoning commission stating that the commission approved a certificate of zoning compliance for property at 96 Georgetown Road pursuant to an application by Sovereign Bank (Exhibit 8).

On September 22, 2010, the defendant filed a reply memorandum, attaching an uncertified docket sheet for Lost Trail LLC v. Weston Planning and Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4011288 (Exhibit D). The following day, the defendant filed a supplemental reply, attaching an uncertified letter from Atty. Robert A. Fuller to the Weston Planning and Zoning Commission, dated September 13, 2010 (Exhibit A). On October 18, 2010, the plaintiff filed a response to the defendant's briefs. On November 16, 2010, the defendant filed a reply to the plaintiff's response. The matter was heard on the short calendar on November 22, 2010.

The parties submitted additional memoranda after oral argument was complete. On February 8, 2011, the defendant submitted a supplemental memorandum of law in support of its motion to dismiss. Attached to that memorandum are the following exhibits: an uncertified copy of the September 13, 2010 letter from Atty. Robert A. Fuller to the Weston Planning and Zoning Commission (Exhibit A); the affidavit of Tracy D. Kulikowski, the Weston land use director (Exhibit B); and a copy of a January 24, 2011 decision of the Weston planning and zoning commission (exhibit B-1). On February 18, 2011, the plaintiff submitted a brief in opposition to the defendant's supplemental memorandum. Attached to the plaintiff's brief is an uncertified copy of a Weston planning and zoning commission legal notice that was to be published in The Hour on February 9, 2011.

II DISCUSSION

"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.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Association Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).

"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 225, 994 A.2d 106 (2010). "When . . . a motion to dismiss is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., supra, 294 Conn. 209.

A Mootness and Standing

The court will first discuss the grounds of mootness and standing. The defendant argues that the plaintiff's claims are moot and that the plaintiff lacks standing because it no longer owns each of the four lots that are the subject of this dispute. According to the defendant, Sovereign Bank acquired title to Parcel 515A as a result of foreclosure proceedings in June 2004 and the plaintiff now owns only three of the four lots on Georgetown Road. In the amended complaint, however, the plaintiff claims it owns each of the four lots, and the defendant deems this to be a material misrepresentation. In its opposition papers, the plaintiff claims that "[i]t originally owned all four lots, but there was an inadvertent mistake in the amended complaint which overlooked the fact that the foreclosure was final."

In its latest brief, the defendant raises an additional argument to support its ground of mootness. In its January 24, 2011 decision pertaining to the property that is the subject of this action, the Weston Planning and Zoning Commission ruled: "As the lot line adjustments did not result in any increase in the number of parts or lots, the lot line adjustments are therefore neither subdivisions nor resubdivisions and do not require prior approval." The defendant argues that this decision renders the plaintiff's claim moot because: (1) the municipal estoppel count as pled in the amended complaint is predicated on the claim that "the [defendant] and its officials are estopped from requiring subdivision approval for the four lots and refusing to issue zoning and building permits for the lots" and; (2) part of the prayer for relief is "[a]n order . . . that the lots do not have to be reviewed by the [p]lanning and [z]oning [c]ommission." In its reply brief, the plaintiff argues that its "economic loss does not go away merely because the [c]ommission recently determined that the lots do not require subdivision approval" and that "[t]here are extensive damages resulting from the revocation in 2000 of the determination that the lots did not require subdivision approval despite the change of position in 2011 that no such approval was required." The plaintiff also invokes the collateral consequences doctrine; see, e.g., Wallingford v. Dept. of Public Health, 262 Conn. 758, 767-69, 817 A.2d 644 (2003); arguing that "there is a reasonable probability that prejudicial collateral consequences will occur without a decision."

"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Internal quotation marks omitted.) Valvo v. Freedom of Information Commission, 294 Conn. 534, 540, 985 A.2d 1052 (2010). "The test for determining mootness is whether a judgment, if rendered, would have any practical legal effect upon an existing controversy. Thus, the central question in a mootness analysis is whether a change in the circumstances that prevailed at the beginning of the litigation has forestalled the prospect for meaningful, practical, or effective relief. The mere fact that there are difficulties in formulating a remedy in an otherwise living case does not evidence the absence of a case or controversy, nor will a case be considered moot where, although the court cannot grant the specific relief originally requested by the plaintiff, the plaintiff still has a stake in the outcome of the proceedings for which effective relief can be provided." (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 13-14, 917 A.2d 966 (2007).

"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Association Resources, Inc. v. Wall, supra, 298 Conn. 164. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Bysiewicz v. Dinardo, 298 Conn. 748, 758, 6 A.3d 726 (2010). "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Internal quotation marks omitted). Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).

Based on the allegations in the complaint and the admission by the plaintiff, the court will not grant the motion to dismiss on the ground of lack of standing. It is true that "[s]tanding can be lost if a party is divested of the property which is the subject of the action after the action has begun." (Internal quotation marks omitted.) Nygren v. Steier, Superior Court, judicial district of Waterbury, Docket No. CV 00 0156706 (January 10, 2001, Doherty, J.) ( 28 Conn. L. Rptr. 699, 700). The defendant, however, has not presented the court with any authority suggesting that a party may lose standing or have its claims rendered moot as a result of losing title to only part of the property that is the subject of the action. Accordingly, the plaintiff does have an interest in the cause of action as to the three parcels it owns without question and a judgment in this matter would have legal effect upon the controversy.

The court will not grant the motion to dismiss on the ground of mootness. The defendant argues that the January 24, 2011 decision by the Weston planning and zoning commission renders the plaintiff's claim moot. The plaintiff's municipal estoppel count and prayer for relief, however, are based on two separate but related claims: (1) the alleged instruction to a town official that the lots require subdivision approval, and (2) the alleged instruction to a town official not to issue building permits for the lots. The January 24, 2011 decision only addresses the first of those two claims. According to the exhibits submitted by the parties with their post-argument briefs, the Weston planning and zoning commission neither considered building permits nor issued any decision pertaining to building permits. Accordingly, at least part of the claim and prayer for relief is not moot, and while "the court cannot grant the specific relief originally requested by the plaintiff, the plaintiff still has a stake in the outcome of the proceedings for which effective relief can be provided." (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, supra, 282 Conn. 14.

Because the court rules against the defendant on the ground of mootness, there is no need to decide whether the collateral consequences doctrine would save the plaintiff's claims from being moot.

B Ripeness

In addition to raising the issues of standing and mootness, the defendant moves to dismiss on the ground of ripeness. The defendant argues that the plaintiff's claim for municipal estoppel is not ripe for adjudication because the defendant has not taken any enforcement action, and therefore, there is nothing to estop. Accordingly, the defendant argues that any alleged injuries to the plaintiff are hypothetical and that the claim is contingent on an event that has not occurred and may never occur. The defendant also argues that municipal estoppel cannot be an affirmative cause of action and can only be pleaded in defense.

In response, the plaintiff asserts that the ripeness argument amounts to an attack on the merits of the amended complaint that should have been brought under a motion to strike and not a motion to dismiss. Furthermore, the plaintiff challenges the defendant's contention that an existing enforcement action is necessary for one to bring a municipal estoppel claim. Specifically, the plaintiff claims that case law does not support this conclusion and refers to the defendant's alleged revocation of the 1998 maps in 2000 as a municipal action that can trigger a municipal estoppel claim. The plaintiff also argues that its claim ought to survive the motion to dismiss under the concept of vested rights.

The parties have raised numerous other issues in subsequent briefs filed with this court. In its reply of September 22, 2010, the defendant argues that the three previous decisions in this case (those of Arterton, J., the Second Circuit and Pavia, J.) establish that the municipal estoppel claim is not ripe for adjudication because the defendant has not made a final decision regarding the property, and hence, there is no action that can be estopped. In its supplemental reply filed September 23, 2010, the defendant attaches a copy of a letter from the plaintiff's counsel to the Weston planning and zoning commission. Dated September 13, 2010, this letter asks for a determination by the commission that the properties that are the subject of this lawsuit "were not a subdivision or resubdivision, and . . . do not require subdivision approval." The defendant argues that the letter constitutes the plaintiff's acknowledgment that it needs the commission to make a decision before it can maintain this suit. This, according to the defendant, undercuts the plaintiff's claim that a current enforcement action need not exist in order for the municipal estoppel action to be ripe.

In its October 18, 2010 response to the defendant's follow-up briefs, the plaintiff raises the issue of whether this court should consider the motion to dismiss in light of the fact that it could have been raised in the previous motion to dismiss heard by Judge Pavia in 2009. The plaintiff argues that the defendant cannot pursue its motion to dismiss when it "had a full opportunity to litigate the question of jurisdiction" in the prior motion. The plaintiff further argues that the defendant's argument regarding the lack of an enforcement action misconstrues the plaintiff's claim, which is based on the defendant's "prior illegal action" of revoking its approval of maps. The plaintiff claims that it uses municipal estoppel as "a shield from revocation of a prior approval." The plaintiff also raises the futility exception to the ripeness doctrine and argues that previous decisions in this case did not address municipal estoppel and have no relevance to the present motion to dismiss. The plaintiff further claims that its attorney's letter to the Weston planning and zoning commission was written for reasons relating to mortgage foreclosure proceedings against the three lots and does not affect its claim that it does not need the commission to review and approve the lots before bringing a municipal estoppel claim.

In its reply filed on November 16, 2010, the defendant argues that the pleadings are not closed and that a challenge to subject matter jurisdiction can be raised at any time, that there has been no "revocation" of the purported prior approval of the division of the property and that the impetus for the plaintiff's attorney's letter to the Weston planning and zoning commission was the filing of this motion to dismiss. In its post-argument memorandum, the defendant argues that any denial of building permits is conjectural and speculative in light of the Weston planning and zoning commission's ruling that the lot line adjustments are neither subdivisions nor resubdivisions. The plaintiff argues in response that regardless of whether the permits are applied for and issued, the plaintiff still has a claim for existing monetary losses.

"Ripeness is a justiciability doctrine, which implicates the court's subject matter jurisdiction." (Internal quotation marks omitted.) Lee v. Harlow, Adams Friedman, P.C., 116 Conn.App. 289, 296, 975 A.2d 715 (2009). "[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Citation omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86-87, 952 A.2d 1 (2008). "In deciding whether the plaintiff's complaint presents a justiciable claim, we make no determination regarding its merits." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 813, 967 A.2d 1 (2009).

It is inappropriate at this stage of the proceedings to decide whether a cause of action can be stated in municipal estoppel, as the defendant would like this court to do. That is a determination for a motion to strike. "By operation of Practice Book § [10-7], the filing of the answer to the amended complaint acts as a waiver of the right to file a motion to strike the amended complaint." Wilson v. Hryniewicz, 38 Conn.App. 715, 719, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). Therefore, the defendant, having moved to dismiss eight days after filing its answer and special defenses, is precluded from arguing that the plaintiff has failed to state a cause of action.

"A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Mercer v. Rodriquez, 83 Conn.App. 251, 255, 849 A.2d 886 (2004). See, e.g., Golden v. Hamer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5008396 (Pavia, J., August 25, 2009) (denying a motion to dismiss brought on the grounds that the plaintiffs "invent[ed] a claim that does not exist" because a motion to strike was the proper vehicle to explore whether Connecticut courts would recognize a new cause of action). As a matter of fact, courts in Connecticut have allowed actions alleging municipal estoppel to reach trial. See, e.g., Munch v. Sherman, Superior Court, judicial district of Danbury, Docket No. CV 05 4002878 (July 10, 2006, Schuman, J.) (denying summary judgment as to a claim against a municipality for "detrimental reliance-promissory estoppel," which the municipal defendants characterized as municipal estoppel); see also CT Page 13317 Levine v. Sterling, Superior Court, judicial district of Windham, Docket No. CV 07 4005295 (July 14, 2009, Riley, J.) ( 48 Conn. L. Rptr. 258, 264-66) (deciding on a municipal estoppel claim after trial). The leading treatise on Connecticut land-use law, however, does not discuss the affirmative use of equitable estoppel in the section titled "Estoppel From Enforcement of Zoning Regulations; Laches." R. Fuller, 9A Conn. Practice Series, Land Use Law and Practice (1999), § 53.1, p. 569.

The defendant wishes this court to consider the letter written by the plaintiff's counsel to the Weston planning and zoning commission. There appears to be no dispute as to the authenticity or contents of the letter. Rather, the parties disagree as to the motivation behind the letter, and there is no evidence to support either party's assertion as to the reasons the letter was written. The Supreme Court has explained that, "[l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 347, 977 A.2d 636 (2009). The letter of September 13, 2010 was attached as an exhibit to the defendant's supplemental reply brief (No. 140). Both parties declined the opportunity for an evidentiary hearing. The court will not speculate in the absence of any evidence as to Atty. Fuller's motivation in writing the letter.

The defendant also wishes to have this court consider the previous decisions in this action by other judges in support of its claim that no final decision has been reached regarding the plaintiff's property and that the enforcement action being challenged through municipal estoppel must be a current one, and that therefore, the plaintiff's claims are not ripe. The prior decisions do not constitute evidence, and any attempt to argue that they should bind the plaintiff now is necessarily an invocation of the doctrine of the law of the case. This ground was raised neither in the motion to dismiss nor in the defendant's initial brief in support of the motion. Furthermore, in its November 16 brief, the defendant admits that "[t]here has been no other case in which a final judgment was rendered on the issue of subject matter jurisdiction as to the state law claims (including the municipal estoppel claim) such as to invoke collateral estoppel." The court will not defer to previous rulings in this matter to determine the issue of subject matter jurisdiction. See Pinchbeck v. Dept. of Public Health, 65 Conn.App. 201, 207-08, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001) ("when the jurisdiction of the trial court is implicated, an adjudicator is not bound by the law of the case doctrine, but should consider independently the issue of jurisdiction"). Moreover, the prior decisions in this action did not address subject matter jurisdiction for municipal estoppel, the legal theory of this count eight.

Although the plaintiff also suggests that its municipal estoppel claim ought to survive this motion to dismiss due to the futility exception to the ripeness doctrine, the plaintiff fails to explain why this exception would apply. In its October 18, 2010 brief, the plaintiff says that this exception "is supported by the factual allegations in paragraphs 35 and 37 of the amended complaint," yet the municipal estoppel count only goes up to paragraph 18. Moreover, if the plaintiff claims that the action is ripe because it would be futile to seek review from the Weston planning and zoning commission, this argument fails as a matter of law.

An administrative remedy is futile or inadequate if an agency is without authority to issue the requested relief . . . It is futile to seek a remedy only when such action could not result is a favorable decision and invariably would result in further judicial proceedings . . . We have held that utilizing administrative remedies is not futile for purposes of the futility exception even when the decision maker has indicated that it will rule against the grievant. (Citations and internal quotation marks omitted. Emphasis in original.) Neiman v. Yale University, 270 Conn. 244, 259, 851 A.2d 1165 (2004).

Plaintiff has not satisfied this test of futility. In fact, the January 24, 2011 decision of the Planning and Zoning Commission opens the door to more than a hypothetical possibility that an application for a building permit on one or more of the three parcels owned by plaintiff might actually be approved.

In its October 18, 2010 brief, the plaintiff, citing Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992), among other cases, argues that the defendant could have raised the municipal estoppel count in its prior motion to dismiss and that in the interest of the finality of judgments, the defendant should not be allowed to raise jurisdiction when it already had a full opportunity to do so. As the defendant correctly argues in its brief, this argument has no merit. The Upjohn court noted "that there are limits to the notion that subject matter jurisdictional defects may be raised at any time" and that "litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal." (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 103-04. The facts of Upjohn, however, suggest that the Supreme Court would not extend this concept to the present case, where there are two motions to dismiss within the same action. In Upjohn, the plaintiff received zoning approval from a municipal commission in 1983, subject to a condition. Id., 98. Three years later, the zoning enforcement officer issued a cease and desist order due to an alleged violation of the condition, and the plaintiff appealed, arguing that the commission lacked subject matter jurisdiction to attach the condition. Id., 99-100. In ruling that there is an element of finality to claims raising the lack of subject matter jurisdiction, the Supreme Court set forth the following standard for trial courts to apply: "at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so." (Emphasis added; internal quotation marks omitted.) Id., 104. Thus, this principle is limited to situations where a party is alleged to have had the opportunity to raise the lack of subject matter jurisdiction in a previous action, and not, as the plaintiff seems to suggest, in a previous motion within the same action.

Another case cited by the plaintiff, Connecticut Pharmaceutical Ass'n., Inc. v. Milano, 191 Conn. 555, 468 A.2d 1230 (1983), stands for the same legal proposition as Upjohn. In Connecticut Pharmaceutical, the trial court entered a consent decree in the original action and, in a subsequent action, entered a judgment of noncompliance with the decree, from which the defendant appealed, arguing, as it did in the original action, that the court lacked jurisdiction to enter the decree. Id., 557. The Supreme Court ruled that because subject matter jurisdiction was litigated in the original action and could have been the basis for an appeal from the original action, the defendant's collateral attack on the consent decree on an appeal from a subsequent enforcement action was a belated attempt to contest subject matter jurisdiction. Id., 559-60. Thus, like Upjohn, Connecticut Pharmaceutical involved two separate actions with jurisdiction over the original action being collaterally attacked in the subsequent enforcement action. Likewise, Monroe v. Monroe, 177 Conn; 173, 175, 413 A.2d 819, cert. denied, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979), another case cited by the plaintiff, involved an attack on jurisdiction over a judgment that was raised in a motion to open the judgment, wholly separate from the situation in the present case which involves two motions to dismiss within the same pending action.

Indeed, the plaintiff has not cited to any decisions that support its claim that a subsequent motion to dismiss is improper if it involves an attack on jurisdiction that could have been raised in a prior motion to dismiss within the same action. Connecticut cases that apply the finality language of Upjohn necessarily involve at least two different actions. See, e.g., In re Shamika F., 256 Conn. 383, 407-08, 773 A.2d 347 (2001). Accordingly, there is no merit to the plaintiff's argument that this motion to dismiss is belatedly brought.

Having disposed of the additional arguments raised in the parties' follow-up papers, the court now decides the issue of ripeness addressed in the initial briefs as well as those briefs filed after the parties were heard at short calendar. For the purposes of this motion to dismiss, the court assumes, without deciding, that municipal estoppel exists as an affirmative cause of action in Connecticut. There is no dispute that the plaintiff has not received a decision from a municipal board denying a building permit and that there is no current enforcement action pending against the plaintiff. The parties disagree over whether the alleged instruction from Hawkins to Turner ordering him not to issue permits for the lots is a revocation that can serve as the basis for an estoppel claim or whether any injury allegedly suffered by the plaintiff is hypothetical and speculative. The cases cited by the plaintiff in its brief do not expressly allow municipal estoppel claims to be brought when there is no existing enforcement action. Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 417, 876 A.2d 540 (2005) (enforcement of a cease and desist order); West Hartford v. Rechel, 190 Conn. 114, 115, 459 A.2d 1015 (1983) (municipal estoppel used as a defense against a municipal body seeking an injunction); Zoning Commission v. Lescynski, CT Page 13314 188 Conn. 724, 728-29, 453 A.2d 1144 (1982) (same as Rechel).

The court has also examined those Connecticut Superior Court decisions that have addressed affirmative claims for municipal estoppel. All involved claims brought in reaction to a final decision by a municipal body. In Levine v. Sterling, Superior Court, judicial district of Windham, Docket No. CV 07 4005295 (July 14, 2009, Riley, J.) ( 48 Conn. L. Rptr. 258, 258), a town's "board of selectmen held that the land use ordinance as amended would not apply to [the plaintiff's] project," but seven months later, "held that it did not have the authority to waive the application of the land use ordinance and that contrary to its prior statement the land use ordinance as amended would apply to the plaintiff's project." In Savvidis v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4004143 (August 8, 2007, Karazin, J.), the court found that the plaintiff had proven municipal estoppel where the municipal officials approved a zoning application and numerous permits pertaining to a property but later denied a certificate of occupancy. In Munch v. Sherman, Superior Court, judicial district of Danbury, Docket No. CV 05 4002878 (July 10, 2006, Schuman, J.), a municipal board issued a permit to the plaintiff to conduct logging operations, but after several neighbors appealed, "the board upheld the appeal, effectively rendering the plaintiff's operations an invalid use of the property." The lawsuit followed. Thus, Connecticut courts have yet to entertain a municipal estoppel action that is not premised on a subsequent final decision by a municipality or that does not involve municipal estoppel being invoked as a defense to an enforcement action.

Looking to other jurisdictions for guidance, this court has located a Supreme Court of Alabama decision, Baldwin County v. Palmtree Penthouses, Ltd., 831 So.2d 603 (Ala. 2002), that has similar facts to the present action. In that decision, the plaintiff (Palmtree) recorded a map where it divided its 6.6 acres into a subdivision containing 98 lots, with "[t]he recorded plat containing `Certificates of Approval' signed by the county engineer, an officer from the county health department, and the chairman of the planning commission, indicating that Palmtree had received approval from those persons and agencies for the proposed division of the property into 98 lots. Id., 604. The plaintiff apparently intended the lots to contain townhouses. Id., 604 n. 1. Nine years later, in 1993, the county zoned the area containing the plats single-family residential, and upon application of the plaintiff, the county commission declined to rezone the property to allow multifamily housing but stated that the plaintiff's subdivision plat was within the grandfather clause of the 1993 zoning ordinance. Id., 604. The plaintiff alleged that in 1997, the county building official and the county zoning administrator "told an appraiser and potential purchasers of Palmtree's property that the property was subject to the 1993 zoning ordinance and that no building permits would be issued for the development of the property until the land was replatted in accordance with the 1993 zoning ordinance." Id. The zoning administrator denied saying this. Id. The plaintiff sued the county and county officials, "alleging that it was entitled to relief under the doctrines of promissory and equitable estoppel." Id., 605. On appeal, "the defendants contend[ed] that Palmtree's claims are not yet ripe for adjudication because Palmtree has not requested and been denied the right to build its proposed project on the land as it was platted in 1984" and, "[t]herefore, the defendants argue[d], there is no justiciable controversy in this case." Id. The Supreme Court of Alabama concluded that the plaintiff's claims were unripe. Id., 608. The Court reasoned as follows: "all of Palmtree's claims and the injuries it alleges it has suffered are based upon an assumption that it will not be allowed to build its project on its property in accordance with the plat as it was recorded in 1984. The record, however, does not demonstrate that Palmtree has ever received final or official notification that it cannot develop its property in accordance with the recorded plat." Id., 607. The Court added: "Palmtree's allegations do nothing more than demonstrate its anticipation that there may be a controversy in the future. As of the filing of this action, Palmtree has not in any way been denied the right to develop its property in accordance with the plat as it was recorded in 1984; because there has been no denial, Palmtree has not yet suffered an injury." Id., 608.

Some Connecticut trial courts have opined that claims premised on future events that are contingent, yet inevitable, are ripe and therefore justiciable. See, e.g., May v. Lantz, Superior Court, judicial district of Hartford, Docket No. CV 03 0829408 (May 10, 2004, Berger, J.) ( 37 Conn. L. Rptr. 7). In Lantz, an incarcerated plaintiff brought an action for a declaratory judgment against the commissioner of correction, claiming that he should not have to register as a sex offender. Id., 7. The court ruled that because representatives of the defendant "required him to sign a form stating that he will register as a sexual offender within three days after his release from his present sentence," "there is an actual present controversy because it is inevitable at this point in time that he will be required to register as a sexual offender." Id., 7-8. Therefore, in the court's words, the claim "is not merely theoretical or hypothetical, but, due to the Commissioner's actions, inevitable." Id., 8.

Such is not the situation in the present case. Unlike in Lantz, there is no official action that prohibits the plaintiff from seeking or receiving building permits from the office of the Building Official. It is not inevitable that Weston officials will decline to issue the permits. The plaintiff seeks "not to settle a present controversy, but rather to avoid one in the future." Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 629, 822 A.2d 196 (2003). This case is akin to Baldwin County v. Palmtree Penthouses, Ltd., supra, 831 So.2d 607-08. The injury is speculative and contingent on a future event, namely a final decision by a municipal body regarding the plaintiff's request for building permits or an enforcement action by the defendant against the plaintiff.

"Moreover the official who induces action by the property owner must be an agent of the town who has the duty to enforce the zoning regulations. Statements or actions by a town selectman not involved in the zoning enforcement function is not a basis for a claim of estoppel to enforce the zoning regulations." R. Fuller, 9A Conn. Practice Series, Land Use Law and Practice (1999), § 53.1, p. 571. Thus, only actions by officials who have the duty to enforce zoning regulations can be a basis for a defense of municipal estoppel. By analogy, official actions by municipal officials must take place before an affirmative claim for municipal estoppel ripens.

On page twenty of the plaintiff's August 17, 2010 brief, the plaintiff claims as follows: "Municipal estoppel here is being raised as a defense; the illegal action of the Town officials in revoking a lawful prior approval. A current zoning enforcement action by the municipality is not required in order for a property owner to raise a municipal estoppel defense." Were the plaintiff actually raising municipal estoppel as a defense, the analysis would be different. In the present action, however, the plaintiff is bringing forth municipal estoppel as an affirmative claim, and has so argued in opposition to the claim of mootness, and the court must determine justiciability without distorting the procedural posture in which the parties find themselves.

III CONCLUSION

For the foregoing reasons the motion to dismiss the Eighth Count is granted on the ground of lack of ripeness.

SO ORDERED: