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HAYES FAMILY LIMITED PARTNERSHIP ET AL.

v. TOWN OF GLASTONBURY

(AC 37827)

Beach, Alvord and West, Js.

Argued April 5—officially released June 28, 2016

(Appeal from Superior Court, judicial district of

Hartford, Land Use Litigation Docket, Aurigemma, J.

[motion to dismiss, judgment]; Berger, J. [motion to

dismiss, judgment].)

Richard P. Weinstein, with whom, on the brief, was

Sarah Black Lingenheld, for the appellants (plaintiffs).

Matthew Ranelli, with whom was Andrea L. Gomes,

for the appellee (defendant).
Opinion

ALVORD, J. The plaintiffs, Hayes Family Limited Partnership, Richard P. Hayes, Jr., and Manchester/Hebron

Avenue, LLC, appeal from the judgment of the trial

court granting the motion to dismiss their action filed

by the defendant, the town of Glastonbury. The court

dismissed the plaintiffs’ inverse condemnation action

on the ground that they failed to meet the finality

requirement for a claim of a regulatory taking of property without just compensation in violation of article

first, § 11, of the Connecticut constitution and the fourteenth amendment to the United States constitution.

Specifically, the plaintiffs claim that the court improperly (1) failed to consider the prior application rule and

its preclusive effect on future applications for a special

permit, (2) failed to conclude that this court’s decision

in Hayes Family Ltd. Partnership v. Town Plan &

Zoning Commission, 115 Conn. App. 655, 974 A.2d 61,

cert. denied, 293 Conn. 919, 979 A.2d 489 (2009), contains ‘‘findings [that] doom any alternative commercial

development at the subject site,’’ (3) concluded that

the plaintiffs’ single application for a special permit was

not sufficient to establish finality, (4) failed to consider

whether the plaintiffs’ property could be used for any

economically viable use,1 and (5) dismissed their claims

where the application of the town zoning regulations

resulted in at least a partial taking of their property.2

We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs’ claims. On June

27, 2005, the plaintiffs filed an application for a special

permit to construct a CVS pharmacy located on 2.4

acres of land located at the corner of Hebron Avenue

and Manchester Road in Glastonbury. The subject property is zoned for commercial development, but all uses

require a special permit with design review approval.

The property is abutted by an established single-family

neighborhood in a rural residential zone. Following an

extended public hearing, the town’s Plan and Zoning

Commission (commission) denied the application

because of its scale and intensity in relation to the size

and topography of the parcel, its impact on and lack

of compatibility with the existing neighborhood, and

the inadequacy of the proposed landscaping.

The plaintiffs appealed from the commission’s decision to the Superior Court, which dismissed their appeal

on the ground that the decision was supported by substantial evidence in the record. Following this court’s

granting of the plaintiffs’ petition for certification to

appeal, they filed their appeal challenging the trial

court’s determination. This court affirmed the judgment

of the trial court. Hayes Family Ltd. Partnership v.

Town Plan & Zoning Commission, supra, 115 Conn.

App. 655.
On October 1, 2009, the plaintiffs commenced the

present action against the defendant, claiming that the

denial of their application for a special permit ‘‘preclude[d] any reasonable economical development of

the site and constitute[d] a[n] [unconstitutional] taking

without just compensation . . . .’’ The defendant filed

a motion to dismiss the complaint, arguing that the facts

as pleaded were insufficient to establish the finality

required for an unconstitutional taking claim. The court,

Aurigemma, J., concluded that the plaintiffs had failed

to establish that the commission would not allow any

reasonable alternative use of the property and dismissed the action. On appeal, this court concluded that

the trial court should have held an evidentiary hearing

before deciding the motion to dismiss and, therefore,

reversed the judgment and remanded the case for further proceedings. Hayes Family Ltd. Partnership v.

Glastonbury, 132 Conn. App. 218, 219, 31 A.3d 429

(2011).

On remand, the court, Berger, J., by agreement of

the parties, conducted a trial on the merits, but in a

bifurcated manner. The parties agreed that if the court

concluded that the plaintiffs had established finality,

the court would deny the motion to dismiss and then

determine whether they had proved their claim of

inverse condemnation. After several days of evidence,

the parties filed posttrial briefs for the court’s consideration. On February 6, 2015, the court issued its memorandum of decision granting the defendant’s motion to

dismiss and rendering judgment of dismissal.

In its decision, the courtrecited the factual and procedural background of the case, the case law applicable

to regulatory taking actions, the case law applicable to

the finality requirement, and a summary of the testimony and exhibits presented to the court with respect

to proposed alternatives for development at the site.

The court, in a comprehensive and well reasoned decision, addressed the plaintiffs’ claims as set forth during

the trial and in their posttrial brief, and concluded that

they ‘‘failed to meet their burden to prove finality.’’ In

reaching that conclusion, the court stated: ‘‘The rejection of the 13,000 square foot CVS prototype, without

examining whether an alternative might pass muster,

does not establish finality. Moreover, this court does

not agree with the plaintiffs that a revised application

for a different development with presumably a different

impact might not be acceptable under the reasons for

denial in the first application.’’

We conclude that the record supports the court’s

factual and legal bases for its conclusion that the plaintiffs failed to satisfy the finality requirement for judicial

review of an inverse condemnation claim. It would

serve no useful purpose for this court to repeat the

analysis contained in the trial court’s decision. See Norfolk & Dedham Mutual Fire Ins. Co. v. Wysocki, 243
Conn. 239, 241, 702 A.2d 638 (1997). We therefore adopt

that decision as the proper statement of the relevant

facts, issues, and applicable law. See Hayes Family

Ltd. Partnership v. Glastonbury, 166 Conn. App. ,

A.3d (2015) (appendix).

We do believe, however, that it would be helpful to

provide additional analysis with respect to two of the

plaintiffs’ arguments that they claim were not addressed

or were inadequately addressed by the trial court in its

decision. Those particular claims relate to the alleged

preclusive effect of the prior application rule and this

court’s decision in Hayes Family Ltd. Partnership v.

Town Plan & Zoning Commission, supra, 115 Conn.

App. 655, on any future applications for a special permit.3 Although the trial court concluded that the commission’s denial of the first application did not logically

require the denial of a less ambitious revised plan, the

court did not provide a detailed explanation for its

rejection of those claims.

I

PRIOR APPLICATION RULE

‘‘When a party files successive applications for the

same property, a trial court’s inquiries may vary

depending on whetherthe application before the zoning

agency is an application for a variance or an application

for a permit. In considering a subsequent variance application where it has already denied a similar prior one,

[a] zoning board of appeals is generally precluded from

reversing a prior decision unless there has been a material change of conditions, or other considerations have

intervened affecting the merits, and no vested rights

have arisen. . . . The board is disallowed from revisiting its prior determination that the requirements for

a variance are not present because, if a reversal of that

determination was allowed, there would be no finality

to the proceeding [and] the result would be subject to

change at the whim of members or due to the effect

of influence exerted upon them, or other undesirable

elements tending to uncertainty and impermanence.

. . .

‘‘Finality of decision is just as desirable in the case of

an exception [or permit] as in one involving a variance.

Because of the nature of an exception [or permit], however, the power of a zoning board to review a prior

decision denying the exception [or permit] is not limited, as it is when a variance is sought, to the two

situations mentioned above. An additional situation

arises when the owner requesting an exception [or permit] files a subsequent application altering the plan

under which he previously sought the exception [or

permit], in order to meet the reasons for which the

board denied the prior one. . . . To justify a special

exception [or permit] . . . it must appear that the manner in which the owner proposes to use his property
will satisfy the conditions imposed by the regulations.

If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the

manner of use planned by the owner, the board is faced

with an application materially different from the one

previously denied. It may well be that the new plan, by

reason ofthe changes made therein, will succeed, where

the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the

board is not precluded from granting the second application merely because it has denied the first. . . .

‘‘A subsequent [permit] application made in order to

bring a prior application into compliance with applicable regulations, no matter how minor the work involved

may be, is clearly not minor in regard to its significance

and effect. . . . The board may grant the exception [or

permit] once it finds that all the requirements of the

ordinance have been satisfied . . . .’’ (Emphasis omitted; internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 244–46, 794

A.2d 1016 (2002); see also Richardson v. Zoning Commission, 107 Conn. App. 36, 43–44, 944 A.2d 360 (2008).

In the present case, the plaintiffs argue that the ‘‘commission will be bound under the prior application rule

from allowing any reasonable commercial use of the

property’’ because ‘‘[d]ue to the size, location, and

topography of the subject property, any viable commercial development will present at least one of the issues

that caused the denial of the CVS application.’’ During

the trial, as noted by the trial court, alternative proposals were offered to demonstrate uses that could be

made of the property. Although the plaintiffs contended

that they would not be accepted by the commission

because any commercial development would result in

an adverse impact to the neighborhood, it is sheer speculation to assume that a less intensive proposal than

the one originally submitted would be denied by the

commission. It is true that, under the prior application

rule, the plaintiffs could not submit the same proposal

for approval; however, changes made to bring a future

application into compliance with the regulations may

or may not be acceptable to the commission.’’[B]y refusing to engage the commission in the zoning approval

process, [the applicant] eliminated the possibility that

this matter could be resolved by local political choices

and settlements.’’ Lost Trail, LLC v. Weston, 140 Conn.

App. 136, 149, 57 A.3d 905, cert. denied, 308 Conn. 915,

61 A.3d 1102 (2013). Accordingly, this claim fails.

II

PRIOR APPELLATE COURT DECISION

Additionally, the plaintiffs argue that this court’s previous decision in Hayes Family Ltd. Partnership v.

Town Plan & Zoning Commission, supra, 115 Conn.

App. 655, will have a preclusive effect on any future
applications for a special permit. According to the plaintiffs, the preclusive effect is certain because of ‘‘the

Appellate Court’s finding that a commercial development on the subject property would have an adverse

impact on neighboring residences.’’ (Emphasis added.)

The plaintiffs also claim that ‘‘[t]he Appellate Court

found that the proposed development would adversely

impact the neighboring residences with regard to noise,

traffic, and property values.’’ (Emphasis added.) The

plaintiffs contend that ‘‘[t]he Appellate Court’s findings

were not based upon any particular characteristics of

[the] plaintiffs’ proposal but, rather, were based upon

it being a commercial development adjacent to residences. Such findings doom any alternative commercial development at the subject site because any

commercial development will have an adverse impact

on the neighboring residences under the Appellate

Court’s reasoning upholding the commission’s denial.’’

(Emphasis added.)

The plaintiffs have mischaracterized the holding in

that decision. This court reviewed the evidence in the

record to determine if it was sufficient to support the

commission’s denial of a particular application for a

special permit. We concluded: ‘‘On the basis of the

foregoing and our thorough examination of the record,

we conclude that there was adequate evidence to support the commission’s reasons for denying the special

permit.’’ Hayes Family Ltd. Partnership v. Town

Plan & Zoning Commission, supra, 115 Conn. App.

662. No mention was made of any possible future applications. Most importantly, no findings were made as

to traffic, noise, property values or adverse impacts

upon the neighborhood because this court is not a fact

finder. ‘‘It is well settled that we do not find facts.’’

Bria v. Ventana Corp., 58 Conn. App. 461, 466, 755 A.2d

239 (2000); see also Multilingual Consultant Associates, LLC v. Ngoh, 163 Conn. App. 725, 737, A.3d

(2016). Accordingly, this claim of the plaintiffs has

no merit.4

The judgment is affirmed.

In this opinion the other judges concurred.

1 We summarily dispose of this claim. Although the plaintiffs contend

that they demonstrated that ‘‘no economically viable use of the property is

possible,’’ they have provided no references to the transcript or other portions of the record that support this statement. ‘‘We are not required to

review issues that have been improperly presented to this court through an

inadequate brief.’’ (Internal quotation marks omitted.) Burns v. Quinnipiac

University, 120 Conn. App. 311, 323–24 n.12, 991 A.2d 666, cert. denied, 297

Conn. 906, 995 A.2d 634 (2010).

2 Because the plaintiffs’ claims are interrelated, we necessarily address

them together in this opinion.

3

In their appellate brief, the plaintiffs also included the following issues:

(1) ‘‘Did the trial court err in holding that plaintiffs had not met the finality

requirement where alternative uses would be subject to denial based upon

traffic concerns?,’’ and (2) ‘‘Did the trial court err in holding that plaintiffs

had not met the finality requirement where alternative uses would be subject

to denial based upon noncompliance with the plan of development?’’

The commission provided a collective statement that gave the reasons

for its denial of the plaintiffs’ application for a special permit. Those reasons
did not include traffic concerns or noncompliance with the plan of development. ‘‘In zoning cases, we have held that, when a zoning commission has

formally stated the reasons for its decision, the court should not go behind

that official collective statement . . . [and] attempt to search out and speculate [on] other reasons which might have influenced some or all of the

members of the commission to reach the commission’s final collective decision.’’(Internal quotation marks omitted.) Gibbons v. Historic District Commission, 285 Conn. 755, 769, 941 A.2d 917 (2008). ‘‘To go beyond those

stated reasons invades the factfinding mission of the agency by allowing

the court to cull out reasons that the agency may not have found to be

credible or proven.’’ (Internal quotation marks omitted.) Id., 771. Accordingly, we decline to address these claims.

4 The plaintiffs also claim on appeal that the trial court improperly dismissed their action where the application of the zoning regulations resulted

in at least a partial taking of their property. The court did not rule on a

partial taking claim because it was never expressly raised. In their posttrial

brief, the term ‘‘partial taking’’ is mentioned twice in twenty-six pages; the

plaintiffs provided no case law or other authority with respect to this concept. No mention of ‘‘partial taking’’ is made in the plaintiffs’ posttrial reply

brief. The trial court did not rule on a claim of a partial taking because it

had not been presented to the court. ‘‘For this court to . . . consider [a]

claim on the basis of a specific legal ground not raised during trial would

amount to trial by ambuscade, unfair both to the [court] and to the opposing

party.’’ (Internal quotation marks omitted.) Dauti Construction, LLC v.

Planning & Zoning Commission, 125 Conn. App. 665, 674–75, 10 A.3d 92

(2010), cert. denied, 300 Conn. 924, 15 A.3d 630 (2011).

Moreover, the plaintiffs’ failure to demonstrate that they met the finality

requirement for a regulatory taking claim likewise is dispositive of this issue.