STONES TRAIL, LLC v. TOWN OF WESTON

(AC 38078)

Sheldon, Mullins and Harper, Js.

Syllabus

The plaintiff developer brought an action seeking to recover damages from

the defendant town as a result of its alleged inverse condemnation or

regulatory taking of certain of the plaintiff’s real property. The plaintiff

also alleged various violations of its federal constitutional rights. The

plaintiff had purchased the property with the purpose of dividing it

into six buildable lots. Before the closing of the purchase, the plaintiff

submitted three maps of the property to the town. The town’s attorney

determined that the property depicted on one of the maps was not a

subdivision, and that map was stamped accordingly and filed in the

town land records. Thereafter, the other two maps, which altered the

lot lines of the property to depict six potentially developable lots, were

stamped with the identical language and filed in the land records. The

plaintiff completed the purchase of the property, in reliance on the

review of the lots by town officials and the stamped notation. The

plaintiff did not seek or obtain approval from the town’s Planning and

Zoning Commission for the subdivision of the lots, believing that such

approval was not necessary because the town’s prior procedure had

been to place the same stamped language on maps when it was determined that subdivision approval was not needed. Thereafter, the plaintiff

was informed by several town officials that it had to seek subdivision

approval from the commission prior to subdividing the properties. The

town’s attorneys rejected the plaintiff’s requests to reconsiderthat determination and urged the plaintiff to apply to the commission for subdivision approval. The town’s zoning enforcement officer also denied the

plaintiff’s request for a certificate of zoning compliance, which was

upheld by the town’s Zoning Board of Appeals. Prior to trial, the town

filed four motions to dismiss the plaintiff’s action on the ground that

its claims were not ripe and that the court therefore lacked subject

matter jurisdiction. Those motions were denied. The jury returned a

verdict in the plaintiff’s favor on its constitutional claims, after which

the trial court, sua sponte, set aside the verdict and dismissed the action

for lack of subject matter jurisdiction. In dismissing the action, the court

relied on facts that were developed throughout the proceedings and at

trial in determining that the plaintiff’s claims were not ripe because the

plaintiff had failed to obtain a final decision from the commission on

its subdivision proposal. The court issued a revised memorandum of

decision in which it deleted the references to the doctrine of exhaustion

of administrative remedies that had been included in the initial memorandum of decision. The court determined that those references were dicta

and removed them to avoid ambiguity or confusion as to the basis of

its initial decision. On appeal, the plaintiff claimed, inter alia, that the

principle of finality of judgments superseded the reconsideration of the

town’s claims of lack of subject matter jurisdiction, and that the trial

court was precluded by the law of the case doctrine from reconsidering

the four pretrial rulings that rejected the town’s ripeness claims. Held:

1. The principle of the finality of judgments did not bar the trial court from

reconsidering the ripeness of the plaintiff’s claims and whether it had

subject matter jurisdiction over those claims, as the court’s reconsideration of its jurisdiction was not a collateral attack on a judgment rendered

in another proceeding, reconsideration was necessary on the basis of

facts that were developed at trial and were unknown to the court when

it previously considered the issue of ripeness, and reconsideration was

important so as to prevent a miscarriage of justice to ensure that the

court had jurisdiction under the circumstances here, in which the plaintiff did not comply with the town’s zoning regulations, but, rather, sought

to circumvent those procedures.

2. Contrary to the plaintiff’s claim, the law of the case doctrine did not

bar the trial court from revisiting the issue of ripeness and, thus, its

jurisdiction; although the issue of ripeness had been considered four
times previously, the law of the case doctrine does not mandate that a

court adhere to all rulings made at prior stages in the proceedings, and

the trial court here explained that it reconsidered the issue of ripeness

on the basis of facts that were developed at trial.

3. The trial court properly determined that although the plaintiff had vested

rights in the property at issue, it did not have vested rights in the

configuration of the property as it sought to reconfigure it, nor could

it have acquired such vested rights without having sought approval of

its reconfiguration in accordance with the town’s established protocol

and procedures; the zoning enforcement officer’s denial of the plaintiff’s

application for a certificate of zoning compliance was a conditional

decision that did not vest the plaintiff with rights to the property at

issue, the zoning officer having refused to issue the certificate before

the plaintiff presented its application to and received subdivision

approval from the town’s commission, and having merely referred the

initial determination of the subdivision issue and the validity of the

property lots to the administrative body charged with deciding those

issues.

4. The plaintiff’s claim that the trial court improperly relied on a prior

decision of this court in ruling that it lacked subject matter jurisdiction

was unavailing; the trial court’s jurisdictional inquiry was based on the

factual record developed throughout the proceedings up until the jury’s

verdict, and it was clear that in assessing whether it had subject matter

jurisdiction, the court considered factual differences between the claims

here and in the prior decision of this court.

5. The plaintiff could not prevail on its claim that the trial court improperly

rejected its assertion that it would have been futile to apply to the

commission for subdivision approval and, thus, that it should have been

excused from having to do so; the plaintiff’s obstacles to obtaining

subdivision approval were self-imposed, as the plaintiff had been

directed by every town representative with whom it spoke about the

matter to seek approval from the commission, but never did so, and

the plaintiff’s principal testified that he did not seek subdivision approval

because it was a time-consuming and expensive process, and because

his attorney told him that it might impair the collateral to his mortgage

loan or be viewed as an admission that the lot line adjustments were

invalid.

6. Notwithstanding the plaintiff’s claims to the contrary, the trial court’s

ripeness review applied to the plaintiff’s claims of alleged violations of

its constitutional rights, as those constitutional claims were inextricably

intertwined with the plaintiff’s takings and inverse condemnation claims,

the allegations in the complaint underlying the takings and inverse condemnation claims having mirrored those set forth in the constitutional claims.

7. The plaintiff could not prevail on its claim that the trial court materially

altered its decision when it filed a revised memorandum of decision

that omitted references in the original decision to the exhaustion of

administrative remedies doctrine; the court’s original decision mentioned that doctrine only in passing and without discussion of how it

would apply to the present case, that doctrine did not form the basis

of the court’s decision, and the lack of any reference to that doctrine

in the revised memorandum of decision served to dispel any ambiguity

or confusion concerning the basis of the court’s original decision.

Argued March 13—officially released July 18, 2017

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Hon. Taggart D. Adams, judge trial

referee [motion to dismiss]; Hon. Edward R. Karazin,

Jr., judge trial referee, [motions to dismiss]; Lee, J.)

Procedural History

Action to recover damages for, inter alia, the alleged

violation of certain of the plaintiff’s constitutional

rights, and for otherrelief, broughtto the SuperiorCourt

in the judicial district of Stamford-Norwalk, where the

court, Karazin, J., denied the defendant’s motion to

dismiss; thereafter, the court, Hon. Taggart D. Adams,
judge trial referee, denied the defendant’s motion to

dismiss; subsequently, the court, Hon. Edward R. Karazin, Jr., judge trial referee, denied the defendant’s

motions to dismiss; thereafter, the matter was tried to

the jury before Lee, J.; verdict for the plaintiff; subsequently, the court, Lee, J., denied the defendant’s

motion for judgment notwithstanding the verdict and

rendered judgment in accordance with the verdict;

thereafter, the court, Lee, J., set aside the verdict and

dismissed the action for lack of subject matter jurisdiction, and the plaintiff appealed to this court; subsequently, the court, Lee, J., issued an articulation of its

decision. Affirmed.

Robert A. Fuller, with whom was Paul J. Pacifico,

for the appellant (plaintiff).

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

SHELDON, J. The plaintiff, Stones Trail, LLC, brought

this action against the defendant, the town of Weston

(town), arising from its attempts to develop certain real

property located in Weston, alleging, inter alia, denial

of equal protection of the law in violation of 42 U.S.C.

§ 1983; denial of procedural due process in violation of

42 U.S.C. § 1983; inverse condemnation or regulatory

taking of land in violation of 42 U.S.C. § 1983; and

inverse condemnation or regulatory taking of land in

violation of the fifth amendment to the United States

constitution1 and article first, § 11, of the state constitution.2 The plaintiff appeals from the trial court’s dismissal of its claims on the basis of its determination

that the lack of a final decision from the town’s Planning

and Zoning Commission (commission) rendered them

unripe for adjudication. We affirm the judgment of the

trial court.3

The trial court set forth the following relevant facts

and procedural history. ‘‘[Robert] Walpuck, [doing business as the plaintiff], Stones Trail, LLC, entered into a

contract to purchase the property on Ladder Hill Road

in Weston . . . (the property) on March 18, 1998. The

property was composed of four smaller lots varying

from one to two acres in size and one large lot(the Great

Gate lot), with the total property aggregating about

seventeen acres. The property was located in a two

acre zone. Prior to closing the purchase, [the plaintiff]

commissioned a title report, which was forwarded to

the town. [The plaintiff] submitted three maps of the

property to the town. Map #3447 depicted the property

as it had appeared since 1937, consisting of four small

lots and one large lot. On September 18, 1998, Town

Attorney Christopher Jarboe wrote to the code enforcement officer that the property depicted on map #3447

was not a subdivision and should be stamped accordingly and filed on the land records. On the same day,

the town engineer and [the] town code enforcement

officer stamped and signed map #3447 with a stamp

reading as follows: ‘The Town Engineer and Code

Enforcement Office hereby attest to the fact that this

plan is neither a subdivision nor a resubdivision as

defined by the General Statutes of Connecticut and the

Town of Weston and may be recorded without prior

approval of the Weston Planning and Zoning Commission.’ Approximately a week later, on September 24,

1998, map #3448, which altered the property in that the

Great Gate lot on map #3447 was divided into two,

yielding a total of six lots, was filed and stamped with

the same language. Map #3449 was also filed and

stamped with the same language on September 24, 1998.

Map #3449 substantially altered the lots so that the four

smaller lots each slightly exceeded two acres, giving

the developer six potentially developable lots. Map

#3448 and map #3449 were not stamped and filed on
the Weston Land Records until roughly a week after

the date of . . . Jarboe’s letter. . . .

‘‘Walpuck testified that he felt he did not need subdivision approval and that he could achieve his objective

of six buildable lots by lot line adjustments. According

to . . . Walpuck, the procedure in Weston since 1991

was to place the aforementioned stamped language on

a map when it was determined that no subdivision

approval was needed. This procedure apparently was

recommended by Town Counsel Harry Hefferan in 1991,

who wrote, ‘[i]n the event a map is requested to be

filed without subdivision or resubdivision action by the

Planning and Zoning Commission acting in its planning

function, the same shall be presented by its proposed

filer to the town engineer and to the code enforcement

officerfortheir examination. If those officers determine

that it is unnecessary to appear before the Planning

and Zoning Commission because there is no subdivision

or resubdivision as so defined, they shall so indicate

on the face of the map and the town clerk may accept

for filing such map.’ . . .

‘‘Walpuck testified that, in reliance on the review of

the lots by town officials and the stamped notation on

map #3449, in October, 1998, the plaintiff completed

the purchase of the property, having obtained a $1.1

million mortgage from Ridgefield Bank. The mortgage

agreement included a provision allowing for the severance or release of individual lots upon payment of an

allocated amount. . . .

‘‘Subsequently, on February 14, 2000, special counsel

for the commission, Attorney Barry Hawkins, advised

the plaintiff’s attorney by letter that he had ‘determined

that under applicable Connecticut law and the Weston

Planning and Zoning Regulations and Subdivision ByLaws . . . Walpuck must seek subdivision approval

from the Weston Planning and ZoningCommission prior

to dividing his properties situated at 10 Ladder Hill

Road and 96 Georgetown Road in Weston . . . .’

Hawkins explained that the plaintiff’s ‘extensive and

aggressive lot line adjustments’ appeared to be an

attempt to ‘circumvent compliance with [the town’s]

Subdivision By-Laws.’ Hawkins also notified the plaintiff that he had advised the town’s zoning enforcement

and building officials not to issue zoning or building

permits to the plaintiff, should it attempt to develop

the lots. Hawkins advised the plaintiff that it should

apply to the commission for subdivision approval, and

that ‘[t]he Planning and Zoning Commission is willing

to work with . . . Walpuck to accomplish reasonably

the safe and proper development of his properties in

accordance with applicable subdivision statutes and

regulations.’

‘‘On March 22, 2000, Hawkins wrote to the town’s

tax assessor, advising that the lot line adjustments

reflected on the recorded maps did not create additional
building lots, and that, therefore, the plaintiff’s property

should be taxed as one parcel of land. In May, 2000,

the tax assessor revised the tax assessment map so that

the plaintiff’s property was taxed as a single lot. This

did not affect the existing lot lines, however.

‘‘In 2002, [the plaintiff] was in default on its mortgage.

The bank threatened foreclosure, and . . . Walpuck

sought permission to sell one of the reconfigured lots

to generate cash to cure the default. However, the

Ridgefield Bank refused to release any of the six lots

from the plaintiff’s mortgage because of, among other

things, uncertainty about the legitimacy of the six lot

configuration shown on map #3449. Subsequently, the

bank commenced a mortgage foreclosure action against

the plaintiff in February, 2002.

‘‘Upon receiving Hawkins’ letter, the plaintiff did not

seek subdivision approval from the commission or

appeal the position of the letter to the Zoning Board of

Appeals. Instead, in 2004 and 2005, the plaintiff made

requests to town attorneys Kenneth Bernhard and Patricia C. Sullivan to reconsider the town’s position, based

on the plaintiff’s contention that the parcels did not

constitute a subdivision under General Statutes § 8-18.

The town attorneys rejected these requests and urged

[the] plaintiff to apply for subdivision approval. Instead,

[the] plaintiff commenced the present action in [November], 2005. . . . Walpuck testified that he did not apply

for subdivision approval because it was a time-consuming and expensive process, and because his lawyer told

him that it might impair the collateral to his loan, or,

‘since it could be viewed’ as a possible admission that

the lot line adjustments were invalid.

‘‘In April, 2006, subsequent to the commencement of

this action, the plaintiff filed an informal, handwritten

application with town Zoning Enforcement Officer

Robert Turner for a certificate of zoning compliance for

parcel D on map #3449. Turner denied the application,

noting that he lacked authority to grant a certificate of

zoning compliance for anything other than the smaller,

preexisting lot called the ‘Honor Leeming Lot’ on an

older map of the property in its previous, nonconforming configuration. Turner further stated that the proposed lot line arrangements shown on map #3449

‘would have to be reviewed before permission can be

given.’ Turner continued, ‘[a]s has been explained to you

on a number of prior occasions, the way to legitimately

divide the property purported to be owned by [the plaintiff] adjacent to the Honor Leeming parcel, is by filing

a subdivision application with the Planning and Zoning Commission.’

‘‘The plaintiff appealed Turner’s decision to the Zoning Board of Appeals, which upheld Turner’s decision.

The plaintiff then appealed to the Superior Court, which

dismissed the action for lack of aggrievement because

the plaintiff had lost the property to foreclosure in
August, 2006. See Stones Trail, LLC v. Weston, Superior

Court, judicial district of Stamford-Norwalk, Docket

No. CV-06-4010003-S, 2008 WL 2168967 (May 6, 2008)

(J. Downey, J.).

‘‘Walpuck also testified that the subsequent owner

of the property in question successfully applied to the

commission for subdivision approval. The subsequent

owner received formal subdivision approval for four

lots, which were larger than those proposed by . . .

Walpuck, and which allowed the construction of considerably larger houses.’’

The plaintiff commenced this action in November,

2005, by way of an eight count complaint. Of those eight

counts, the following proceeded to trial: denial of equal

protection of the law in violation of 42 U.S.C. § 1983;

denial of procedural due process in violation of 42

U.S.C. § 1983; inverse condemnation or regulatory taking of land in violation of 42 U.S.C. § 1983; and inverse

condemnation or regulatory taking of land in violation

of the fifth amendment to the United States constitution

and article first, § 11, of the state constitution.4 The

plaintiff’s three § 1983 claims were tried to the jury,

and its federal and state constitutional claims were

simultaneously tried to the court. The jury returned a

verdict in favor of the plaintiff on all three § 1983 counts

and awarded damages to the plaintiff in the amount

of $5,000,000.

Following trial, the court, sua sponte, raised the issue

of whether the plaintiff’s claims were ripe for adjudication, and thus whether it had jurisdiction over them. In

so doing, it explained: ‘‘Over the course of nine and

one-half years, this case has amassed an extensive procedural history. Of relevance to the present discussion

are the defendant town’s motions, on four separate

occasions before trial, to dismiss the plaintiff’s claims

for lack of subject matter jurisdiction, arguing that [the]

plaintiff had failed to apply to the commission for subdivision approval, that its claims were unripe for adjudication, and any appealed act of the town lacked finality.

On each occasion, the [town’s] motion was denied. See

Stones Trail, LLC v. Weston, Superior Court, judicial

district of Stamford-Norwalk, Docket No. CV-05-

4007138-S, 2014 WL 6765409 (October 23, 2014) (Hon.

Edward R. Karazin, Jr., judge trial referee); Stones

Trail, LLC v. Weston, Superior Court, judicial district

of Stamford-Norwalk, Docket No. CV-05-4007138-S,

2013 WL 4046688 (July 19, 2013)(Hon. Edward R. Karazin, Jr., judge trial referee); Stones Trail, LLC v. Weston, Superior Court, judicial district of StamfordNorwalk, Docket No. CV-05-4007138-S, 2011 WL

6976565 (December 16, 2011) (Hon. Taggart D. Adams,

judge trial referee); Stones Trail, LLC v. Weston, Superior Court, judicial district of Stamford-Norwalk,

Docket No. CV-05-4007138-S, 2007 WL 2039086 (June

25, 2007) (Hon. Edward R. Karazin, Jr., judge trial
referee). Among the parties’ posttrial motions is the

town’s fifth motion to dismiss, this time premised on

its argument that the plaintiff’s § 1983 taking[s] claims

were unripe when the jury rendered its verdict because

the court had yet to render a decision on the plaintiff’s

state law takings claim.

‘‘[The town’s] first and second motions to dismiss

were decided prior to the Appellate Court’s decision

on January 15, 2013, in Lost Trail, LLC v. Weston, [140

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

61 A.3d 1102 (2013)]. That case, as more fully explained

[herein], was essentially a companion case to the present action, involving the identical stamps by Weston

officials and correspondence with attorneys acting on

behalf of the town. . . . Walpuck, the principal in both

Stones Trail, LLC, and Lost Trail, LLC, filed both lawsuits in December, 2005, and subsequently lost both

properties to foreclosure. In the Lost Trail, LLC litigation, the Appellate Court and federal courts agreed with

the jurisdictional challenges of the defendant town and

dismissed each of [the] plaintiff’s claims due to its failure to apply to the commission for subdivision approval.

See id.; Lost Trail, LLC v. Weston, 485 F. Supp. 2d 59

(D. Conn. 2007), aff’d, Lost Trail, LLC v. Weston, 289

Fed. Appx. 443 (2d Cir. 2008).

‘‘The town based its third and fourth pretrial motions

to dismiss on the Appellate Court and federal court

decisions in Lost Trail, LLC, but the [trial] court, without the benefit of the full factual record which has

been developed at trial, noted differences between Lost

Trail, LLC, and the facts as then presented to it in the

instant case, and denied both motions. See Stones Trail,

LLC v. Weston, supra, 2014 WL 6765409; Stones Trail,

LLC v. Weston, supra, 2013 WL 4046688.

‘‘As explained [previously], in its posttrial motion to

dismiss, the [town] did not reassert the arguments

raised in its previous motions to dismiss. The court,

however, in light of the facts developed at trial, and the

Appellate Court and federal court decisions in Lost

Trail, LLC, elected to raise and reconsider, sua sponte,

the issue of the court’s subject matter jurisdiction.’’

On June 9, 2015, the court issued a memorandum of

decision, in which it set aside the jury’s verdict and

dismissed all of the plaintiff’s claims for lack of subject

matter jurisdiction on the ground that its claims were

not ripe because it had failed to obtain a final decision

from the commission on its subdivision proposal. In its

decision, the court specifically discussed Connecticut’s

law requiring that a plaintiff must establish the finality

of the determination made in his case before he is

entitled to judicial review of his regulatory takings

claim. The court then proceeded in its memorandum

of decision to separately discuss the federal law requirement of ripeness, as set forth in Williamson County

Regional Planning Commission v. Hamilton Bank, 473
U.S. 172, 186, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985),

which provides that a takings claim ‘‘is not ripe until

the government entity charged with implementing the

regulations has reached a final decision regarding the

application of the regulations to the property at issue.’’

The court further noted in its discussion of the federal

ripeness requirement that (1) a plaintiff is excused from

obtaining a final decision if it would have been futile

to pursue such a course, and (2) although the ripeness

requirement discussed in Williamson was announced

in a takings context, the requirement had been extended

to equal protection and due process claims asserted in

land use cases. Finally, the court discussed Lost Trail,

LLC, and concluded that, ‘‘[g]iven the substantial conformity of the facts between the present case and Lost

Trail, LLC . . . the legal outcome should conform as

well.’’ The court ultimately determined that, because

the plaintiff had both ‘‘failed to prove that a final decision was rendered by any administrative body charged

with allegedly depriving [the] plaintiff of its rights,’’

or ‘‘that it would have been futile to pursue available

administrative remedies,’’ it was necessary to dismiss

the plaintiff’s claims for lack of subject matter jurisdiction. Judgment entered in accordance with the trial

court’s June 9, 2015 memorandum of decision on that

same date. On June 19, 2015, the plaintiff timely filed

this appeal.

Subsequently,the town filed a motion for articulation,

seeking clarification of the basis for the court’s June

9, 2015 decision. Specifically, the town argued that clarification was necessary because, in the court’s June 9,

2015 memorandum of decision, the court had made

several references to the exhaustion of administrative

remedies doctrine, which need not be satisfied before

bringing a § 1983 claim, thereby creating an ambiguity

as to whether the trial court had applied that doctrine.

In particular, the town noted that the trial court had

included a reference to the exhaustion of administrative

remedies doctrine in the conclusion of its memorandum

of decision, stating that it was dismissing the plaintiff’s

federal takings and § 1983 claims ‘‘for lack of ripeness

due to the plaintiff’s failure to exhaust administrative

remedies.’’ The town therefore sought in its motion for

articulation to have the trial court clarify that (1) the

sole basis for its dismissal of the plaintiff’s federal takings and § 1983 claims was lack of ripeness under Williamson, (2) the futility exception is the exception to

the Williamson ripeness test and not the futility exception to the exhaustion of administrative remedies doctrine, and (3) the plaintiff did not satisfy the futility

exception with respect to its § 1983 claims.

The court granted the town’s motion over the plaintiff’s objection, and noted that ‘‘it is clear that the court

rendered its decision on the § 1983 claims based on its

finding that the lack of a final (or any) decision from

the [commission]rendered the appeal unripe. Any refer-
ences to exhaustion of administrative remedies were

unnecessary dicta and will be removed to avoid any

ambiguity or confusion as to the basis of the court’s

decision.’’ On October 19, 2015, the court issued a

revised memorandum of decision consistent with its

articulation.

On appeal, the plaintiff claims that (1) ‘‘the concept

of finality of judgments supersedes reconsideration of

claims of lack of subject matter jurisdiction based on

ripeness for review under the facts of this case after

four pretrial motions denied that claim’’; (2) the four

pretrialrulings rejecting the town’s ripeness claims constituted the law of the case by which the court was

bound, and thus it was precluded from reconsidering

those rulings after the jury returned its verdict; (3) it

had vested property rights to the six lots at issue in

this case, and thus it was not required to apply to, nor

was a decision on its application required from, the

commission, to establish finality; (4) this court’s decision in Lost Trail, LLC v. Weston, supra, 140 Conn.

App. 136, is distinguishable from the present case, and

thus the trial court improperly relied upon it; (5) the

futility exception to ripeness applies to this case; (6)

ripeness does not apply to its § 1983 claims alleging

equal protection and procedural due process violations;

and (7) the court’s articulation improperly altered the

basis for its decision.5 The first two of the plaintiff’s

claims concern the propriety of the trial court’s decision, sua sponte, to reconsider the issue of subject

matter jurisdiction. The remaining claims go to the merits of the trial court’s decision that the plaintiff’s claims

were unripe, and thus that it lacked subject matter

jurisdiction over them.

Because the trial court devoted a great deal of attention to, and relied in large part upon, Lost Trail, LLC

v. Weston, supra, 140 Conn. App. 136, we set forth the

trial court’s general description of the pertinent factual

and procedural history, and legal rulings, in that case.

The trial court recounted: ‘‘Lost Trail, LLC v. Weston,

supra, 136, was essentially a companion case to the

present case, and involved nearly identical facts, including, inter alia, the purchase of land on Georgetown

Road in Weston in 1997 intended for development by

[a limited liability company] controlled by . . . Walpuck; the attempt to create additional buildable lots

through the adjustment of lot lines; and the filing of

maps showing the existing and proposed configuration

in the summer of 1998. The Lost Trail maps received

the same stamped language from town officials one

month before the Stones Trail maps. The letter of February 14, 2000, from special counsel Hawkins, advising

that an application to the commission for subdivision

approval was required, referred to both the Lost Trail

and Stones Trail properties in its ‘re’ line, and the letter

made no distinction between them. As in the present

case, rather than pursue subdivision approval from the
commission, counsel for Lost Trail argued with the

town attorneys, the property went into default and ultimately foreclosure. Lost Trail, LLC, commenced an

action against the town in the same month as did Stones

Trail, LLC, for the same alleged violations, i.e., denial of

equal protection, denial of due process, and a regulatory

taking, all in violation of 42 U.S.C. § 1983, and regulatory

takings claims premised on the United States and Connecticut constitutions.

‘‘The legal action proceeded somewhat more quickly

in Lost Trail, LLC, than in Stones Trail, LLC. Upon

removal to federal court, the . . . town . . . successfully moved to dismiss Lost Trail’s § 1983 claims for

lack of ripeness. The District Court’s summary of Lost

Trail, LLC’s, arguments, namely, that it was exempt

from the subdivision approval process and that it would

have been futile to submit permit applications under

the circumstances, underscores Lost Trail, LLC,’s similarity to the present case. The court noted that Lost

Trail relies heavily on the alleged 1998 decision of the

former TownAttorney and ZoningEnforcement Officer,

as noted on [the stamps on] map #3443 and map #3444,

that changes to Lost Trail’s property converting two

lots . . . to four lots did not require subdivision

approval. . . . Lost Trail asserts that in 2000 [by way

of special counsel Hawkins’ letter] the Town reversed

this decision and now considers the four lots invalid

because they lack subdivision approval from the Planning and Zoning Commission. Lost Trail argues that this

reversal, coupled with specific instructions to various

town officials notto issue permits until a proper subdivision application is processed, sufficiently meets the

finality test in the first part of the Williamson decision

and places this case squarely under the futility exception to the finality rule. . . . Lost Trail, LLC v. Weston,

supra, 485 F. Supp. 2d 65.

‘‘The court disagreed, holding that Lost Trail has

failed to demonstrate that the Town has rendered a

final decision as to how subdivision or zoning regulations will be applied to Lost Trail’s property and

whether the Town will prohibit all economically beneficial uses. That the Town refuses to recognize maps,

recorded by Lost Trail and depicting four lots, without

formal consideration by the Planning and Zoning Commission through the subdivision approval process does

not constitute a final decision as to the outcome of

that process. [Id., 65]. Nor does the Town’s alleged

prospective refusal to issue zoning or building permits

until subdivision approval is obtained for the four lots

demonstrate either a final decision orfutility exempting

Lost Trail from the final decision requirement. Lost

Trail’s futility argument hinges largely on what it deems

a purely legal question, namely whether the [Georgetown] lots exist as a matter of law as [four] separate

parcels under Connecticut statutory law and case law.

. . . Regardless of the merit to Lost Trail’s legal argu-
ment, it has never been presented to the Planning and

Zoning Commission for its formal consideration and

thus Lost Trail has not obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property. . . . Id., 66. The

District Court dismissed the plaintiff’s equal protection

and due process claims along with its takings claim,

having noted that ‘[the plaintiff’s claims] asserting

denial of equal protection, denial of substantive and

procedural due process, and inverse condemnation or

regulatory taking of plaintiff’s land in violation of the

Fifth Amendment are . . . all tested under the first

prong of the Williamson test for ripeness.’ [Id., 64].

On appeal, the United States Court of Appeals for the

Second Circuit affirmed, by summary order, the District

Court’s dismissal of all of the plaintiff’s federal claims.

Lost Trail, LLC v. Weston, 289 Fed. Appx. 443 (2d

Cir. 2008).

‘‘The District Court remanded the state law counts

to the Superior Court. [The] [d]efendant town filed

motions to dismiss the plaintiff’s three remaining state

law claims, which were granted on the ground that the

plaintiff had failed to obtain a final decision from the

commission and to exhaust available administrative

remedies prior to seeking declaratory relief. See Lost

Trail, LLC v. Weston, Superior Court, judicial district

of Stamford-Norwalk, Docket No. CV-05-5000500-S,

2009 WL 1532642 (May 8, 2009) (Pavia, J.); Lost Trail,

LLC v. Weston, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-5000500-S, 2011 WL

2739436 (June 9, 2011) (Hon. Alfred J. Jennings, Jr.,

judge trial referee).

‘‘On appeal, the Appellate Court first noted Lost

Trail’s argument that its division of the . . . property

plainly did not constitute a subdivision under § 8-18;

thus, as a matter of law, the commission had no jurisdiction over the matter. In Lost Trail’s view, [t]here was

nothing for the . . . [c]ommission to decide as to

either (1) whether subdivision approval was necessary

for the property . . . or (2) to review and approve (or

deny) a subdivision application. Because this issue was

beyond the commission’s purview, Lost Trail asserts

that the finality requirement is simply beside the point.

Lost Trail additionally argues that, even if it was

required to seek the commission’s consent, the town

effectively approved the division of the two preexisting

parcels into four separate lots in August, 1998, when

the final maps were stamped and signed by town officials and recorded in the town land records. Lost Trail

characterizes the town’s subsequent actions as a revocation of this apparent approval, which revocation

inflicted an immediate injury ripe for adjudication. . . .

Lost Trail, LLC v. Weston, supra, 140 Conn. App.

144–45.

‘‘The Appellate Court disagreed, holding that [t]he
rationale for requiring a final and authoritative determination from local administrators as a prerequisite to

asserting a regulatory takings claim is well illustrated

here. Although Hawkins suggested that, in his opinion,

Lost Trail’s division of the Georgetown Road property

created a subdivision, he did not have the authority

to speak for or to bind the commission. Indeed, he

recommended that Lost Trail apply for subdivision

approval and stated that the commission was willing

to work with Lost Trail to ensure the safe and proper

development of the Georgetown Road property. This

correspondence cannot be considered a definitive position on the issue from an authoritative initial decisionmaker. . . . Lost Trail tries to circumvent the finality

requirement by arguing that its use of the subject property so obviously did not constitute a subdivision that

the commission’s involvement was gratuitous. Strength

of unilateral conviction is not, however, a substitute

for a final administrative decision. As the town correctly

points out, property owners cannot be their own arbiters of whether the commission has the authority to

act. . . . Furthermore, by refusing to engage the commission in the zoning approval process, Lost Trail eliminated the possibility that this matter could be resolved

by local political choices and settlements. . . . Lost

Trail’s prediction of futility turned out to be wrong—

in January, 2011, the commission agreed with Lost Trail

and disavowed Hawkins’ position. . . . Id., 148–49. If

Lost Trail had sought the opinion of the commission

when Hawkins first suggested that Lost Trail’s use of

its property created a subdivision, these issues could

have been settled—that is, the commission would have

been given the opportunity to adopt or to correct

Hawkins’ position. If the commission, as constituted

twelve years ago, had decided these issues favorably

to Lost Trail, Lost Trail could have then sought building

permits and zoning certification. Had it decided the

issue adverse to Lost Trail, Lost Trail presumably could

have appealed years ago. Having failed to do so, it

cannot now challenge the town’s actions in court as an

unconstitutional taking. Id., 150–51.

‘‘Finally, the Appellate Court addressed Lost Trail’s

argument that it was exempted from applying to the

commission for subdivision approval by the futility

exception, specifically, that once Hawkins informed

zoning and building officials that, in his opinion, Lost

Trail had illegally subdivided its property, it was pointless to apply for zoning certificates and building permits

from those officials because § 8-3 (f) precludes a building official from issuing a building permit in the absence

of a zoning permit or certificate in writing from the

zoning enforcement official that the proposal is consistent with zoning regulations. Lost Trail additionally contends that an application for zoning permits, without

first engaging the commission in the zoning approval

process, would have been futile because the town did
not recognize the attempted division of its property into

four lots. Id., 151.

‘‘The court rejected these arguments, holding that

[h]aving already rejected Lost Trail’s reasons for opting

out of the planning and zoning review process, we hold

that its futility argument must also fail. Although a property owner need not pursue patently fruitless measures

to satisfy the finality doctrine . . . it cannot claim futility by setting up its own obstacles. Put simply, Lost

Trail claims that it would have been futile to pursue

step two of an administrative process, applying for zoning and building permits, because it refused to engage

in step one, pursuing the opinion of the commission as

to whether a subdivision had been created. . . . Id.,

151–52. Moreover, [i]t is futile to seek a[n] [administrative] remedy only when such action could not result in

a favorable decision and invariably would result in

further judicial proceedings. . . . It is clear that the

commission could have determined that Lost Trail had

not created a subdivision—as it later did—or approved

an application to subdivide its property, clearing the

way for zoning and building permits to be issued. Thus,

we reject Lost Trail’s attempt to bootstrap its way to

futility. . . . Id., 152. In rejecting Lost Trail’s futility

argument, the court also noted that ‘[i]n its reply brief,

Lost Trail advances its futility argument by delineating

its interactions with several town officials regarding

the status of its . . . property: the town attorney, the

zoning enforcement officer, and the tax assessor. None

of these officials was a substitute for the commission.’

Id., 152 n.11; see also Murphy v. New Milford Zoning

Commission, 402 F.3d 342, 352–54 (2d Cir. 2005) (holding that a plaintiff’s land use claims were not ripened

by the town zoning enforcement officer’s issuance of

a cease and desist order where the plaintiff could have

pursued a variance application to the Zoning Board

of Appeals).’’ (Emphasis in original; internal quotation

marks omitted.)

Against this backdrop, the trial court stated: ‘‘Given

the substantial conformity of the facts between the

present case and Lost Trail, LLC, supra, 140 Conn. App.

136, the court believes that the legal outcome should

conform as well. Of course, the court is bound to follow

the Appellate Court’s decision in Lost Trail, LLC, and

it is persuaded by the District Court’s decision.’’ The

court further noted that the doctrine of collateral estoppel might have precluded some of the claims that had

been decided in Lost Trail, LLC, but did not engage in

an estoppel analysis, since neither of the parties had

argued or briefed it. The court then went on to consider

its jurisdiction in the present case, which is the issue

before us on appeal.

Generally, ‘‘[t]he standard of review of a challenge

to a court’s granting of a motion to dismiss is well

established. In an appeal from the granting of a motion
to dismiss on the ground of subject matter jurisdiction,

this court’s review is plenary. Adetermination regarding

a trial court’s subject matter jurisdiction is a question

of law. When . . . the trial court draws conclusions of

law, our review is plenary and we must decide whether

its conclusions are legally and logically correct and find

support in the facts that appear in the record.’’ (Internal

quotation marks omitted.) Bloom v. Miklovich, 111

Conn. App. 323, 335–36, 958 A.2d 1283 (2008). With the

foregoing in mind, we address each of the plaintiff’s

claims in turn.

I

The plaintiff first claims that the principle of finality

of judgments barred the trial court’s reconsideration

of whether it had subject matter jurisdiction over the

plaintiff’s claims under the circumstances of this case

because the issue of ripeness had been determined four

times prior to trial and the case had gone to verdict.

We are not persuaded.

‘‘[I]t is a fundamental rule that a court may raise and

review the issue of subject matter jurisdiction at any

time. . . . Subject matter jurisdiction involves the

authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court

lacks discretion to consider the merits of a case over

which it is without jurisdiction . . . . The subject matter jurisdiction requirement may not be waived by any

party, and also may be raised by a party, or by the court

sua sponte, at any stage of the proceedings, including

on appeal.’’ (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 139 Conn. App.

173, 177–78, 55 A.3d 588 (2012), cert. granted on other

grounds, 307 Conn. 947, 60 A.3d 960 (2013) (appeal

withdrawn May 28, 2013).

Nevertheless, ‘‘even 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.

. . . Under this rationale, at least where the lack of

jurisdiction is not entirely obvious, the critical considerations are whetherthe 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.’’(Internal quotation marks

omitted.)Investment Associates v. Summit Associates,

Inc., 309 Conn. 840, 855, 74 A.3d 1192 (2013).

‘‘Litigation about whether subject matter jurisdiction

exists should take into account whether the litigation

is a collateral or direct attack on the judgment, whether

the parties consented to the jurisdiction originally, the

age of the original judgment, whether the parties had

an opportunity originally to contest jurisdiction, the
prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court

as to constitute an abuse of authority, and the desirability of the finality of judgments. Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 468 A.2d

1230 (1983); Vogel v. Vogel, [178 Conn. 358, 362–63, 422

A.2d 271 (1979)]; Monroe v. Monroe, 177 Conn. 173, 413

A.2d 819, [cert. denied], 444 U.S. 801, 100 S. Ct. 20, 62

L. Ed. 2d 14 (1979); 1 Restatement (Second), Judgments

§ 12 [(2012)].’’ (Internal quotation marks omitted.) Morris v. Irwin, 4 Conn. App. 431, 434, 494 A.2d 626 (1985).

‘‘We have strongly disfavored collateral attacks upon

judgments because such belated litigation undermines

the important principle of finality. . . . The law aims to

investjudicial transactions with the utmost permanency

consistent with justice . . . . Public policy requests

that a term be put to litigation and that judgments, as

solemn records upon which valuable rights rest, should

not lightly be disturbed or overthrown.’’(Citations omitted; internal quotation marks omitted.) Gennarini Construction Co. v. Messina Painting & Decorating Co.,

15Conn. App. 504, 512, 545 A.2d 579 (1988). ‘‘Acollateral

attack is an attack upon a judgment, decree or order

offered in an action or proceeding other than that in

which it was obtained, in support of the contentions

of an adversary in the action or proceeding . . . .’’

Id., 511–12.

Here, the court’s reconsideration of its jurisdiction

was not a collateral attack on a judgment rendered in

another proceeding. Although the parties had opportunities to argue the issue of ripeness prior to trial, and

the court considered it four previous times, and the

case had been tried and the jury’s verdict accepted, the

court determined that reconsideration was necessary

based upon facts that were developed at trial and were

unknown to the court when previously considering the

issue of ripeness. Although it may seem unfair for the

trial court to have revisited the issue again, after trial

and after the jury returned a sizeable verdict in the

plaintiff’s favor, it is, as noted, important to prevent a

miscarriage of justice, to ensure that the court did, in

fact, have jurisdiction over the plaintiff’s claims, particularly under these circumstances, where the plaintiff

did not comply with municipal procedures to ensure

compliance with local zoning regulations, but, instead,

sought to circumvent those procedures. We thus conclude that the principle of the finality of judgments did

not bar the trial court from reconsidering the ripeness

of the plaintiff’s claims and its jurisdiction over them.

II

The plaintiff next claims that the trial court was

barred by the law of the case doctrine from reconsidering the issue of ripeness when it had already been

considered four times previously during the proceedings. We disagree.
‘‘The law of the case doctrine provides that [w]here

a matter has previously been ruled upon interlocutorily,

the court in a subsequent proceeding in the case may

treat that decision as the law of the case, if it is of the

opinion that the issue was correctly decided, in the

absence of some new or overriding circumstance. . . .

A judge is not bound to follow the decisions of another

judge made at an earlier stage of the proceedings, and

if the same point is again raised he has the same right

to reconsider the question as if he had himself made

the original decision. . . . [O]ne judge may, in a proper

case, vacate, modify, or depart from an interlocutory

order or ruling of another judge in the same case, upon

a question of law.’’(Citation omitted; emphasis omitted;

internal quotation marks omitted.) Olson v. Mohammadu, 169 Conn. App. 243, 263, 149 A.3d 198, cert.

denied, 324 Conn. 903, 151 A.3d 1289 (2016). ‘‘[T]he

application of the law of the case doctrine involves a

question of law, over which our review is plenary.’’

(Internal quotation marks omitted.) Glastonbury v.

Sakon, 172 Conn. App. 646, 657, A.3d (2017).

Here, the trial court explained that it was reconsidering the issue of ripeness, and, thus, its jurisdiction,

based upon facts that were developed at trial. In light

of that development, and because the law of the case

doctrine does not mandate that a court adhere to all

rulings made at earlier stages in the proceedings, we

cannot conclude that it was improper for the court to

revisit the issue of ripeness in this case.

III

The plaintiff next claims that its rights in the lots at

issue in this case were vested, and thus that it was not

required to apply to, nor was a decision required from,

the commission, to establish finality for the purposes

of establishing the ripeness of its claims. The plaintiff

claims that because it had ‘‘vested property rights’’ in

the six lots at issue in this action, Turner, as the zoning

enforcement officer, was the initial decision maker

whose decision was required to establish the ripeness of

the plaintiff’s claims. The plaintiff claims that Turner’s

decision denying the plaintiff’s application on the basis

that the plaintiff was required to seek subdivision

approval from the commission constituted a final decision revoking the plaintiff’s vested rights in the six lots

at issue herein. We are not persuaded.

‘‘A final decision has been rendered when the initial

decision-maker [has] arrived at a definitive position on

the issue that inflict[ed] an actual, concrete injury

. . . . If a property owner has not obtained a final decision from the administrative agency applying the regulation, the reviewing court lacks jurisdiction to rule on a

taking claim. The jurisdictional nature of finality derives

from its similarity to ripeness.’’ (Internal quotation

marks omitted.) Lost Trail, LLC v. Weston, supra, 140
Conn. App. 147. Our Supreme Court has made it clear

that ‘‘[a] plaintiff is not entitled to judicial review of

the merits of his regulatory takings claim until he has

met the requirement of establishing the finality of the

agency determination.’’ Gil v.Inland Wetlands & Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368

(1991).

The plaintiff asserted this same claim to the trial

court in opposing dismissal of its claims for lack of

ripeness. The trial court rejected the claim, explaining:

‘‘The plaintiff’s argument is unavailing for two reasons.

. . . First, a vested property right is simply a term used

to describe a constitutionally protectable property

interest, which must be demonstrated in order to assert

a takings claim. See Brady v. Colchester, 863 F.2d 205,

212 (2d Cir. 1988) (in the context of fourteenth amendment due process claim, employing the term vested

property right interchangeably with property interest

. . . that was protectable under the fourteenth amendment . . . .). The court’s research has failed to disclose

any authority for the proposition that the existence of

a vested property right excuses the plaintiff from the

separate requirements of subject matter jurisdiction for

its § 1983 challenges.

‘‘Second, the court is persuaded by the District

Court’s holding in Lost Trail, LLC, that the town’s

alleged prospective refusal to issue zoning or building

permits until subdivision approval is obtained for the

four lots [does not] demonstrate either a final decision

or futility exempting Lost Trail from the final decision

requirement. Lost Trail’s futility argument hinges

largely on what it deems a purely legal question, namely

whether the [Georgetown] lots exist as a matter of law

as [four] separate parcels under Connecticut statutory

law and case law. . . . Regardless of the merit to Lost

Trail’s legal argument, it has never been presented to

the Planning and Zoning Commission for its formal

consideration and thus Lost Trail has not obtained a

final decision regarding the application of the zoning

ordinance and subdivision regulations to its property

. . . . Lost Trail, LLC v. Weston, supra, 485 F. Supp.

2d 66]. The court also notes that the Appellate Court

plainly held, albeit while addressing Lost Trail’s municipal estoppel claim, that Lost Trail . . . cannot demonstrate that the town ever actually repudiated [the]

apparent approval [in the form of stamping the maps

of Lost Trail’s property] because Lost Trail did not

engage in the zoning approval process. Lost Trail, LLC

v. Weston, supra, 140 Conn. App. 154–55.

‘‘Thus, even if the court were to accept the plaintiff’s

characterization of Turner as the initial decision maker,

his decision rejecting the plaintiff’s application for a

certificate of zoning compliance was not a final one.

Instead, it was conditional, with Turnerrefusing to issue

the certificate before the plaintiff had presented its
application to the commission and received subdivision

approval. Turner merely referred the initial determination of the subdivision issue and the validity of the

plaintiff’s lots to the administrative body charged with

deciding those issues. See General Statutes § 8-26 (a)

(All plans for subdivisions and resubdivisions, including

subdivisions and resubdivisions in existence but which

were not submitted to the commission for required

approval, whether or not shown on an existing map or

plan or whether or not conveyances have been made

of any of the property included in such subdivisions or

resubdivisions, shall be submitted to the [planning and

zoning] commission with an application in the form to

be prescribed by it. The commission shall have the

authority to determine whether the existing division

of any land constitutes a subdivision or resubdivision

under the provisions of this chapter, provided nothing

in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision

which conflicts with the applicable zoning regulations

. . . .).’’ (Internal quotation marks omitted.)

We agree with the trial court that although the plaintiff had vested rights in the property at issue in this

case, it did not have vested rights in the configuration

of that property as it sought to reconfigure it, nor could

it have acquired such vested rights without seeking

approval of its proposed reconfiguration in accordance

with established protocol and procedures. Indeed, none

of the case law cited by the plaintiff in its brief to this

court supports the plaintiff’s claim. We thus agree with

the trial court’s thorough and well reasoned analysis

of this claim. It would serve no useful purpose to discuss

it further.

IV

The plaintiff next claims that this court’s decision in

Lost Trail, LLC, supra, 140 Conn. App. 136, was factually distinguishable from the present case, and thus

that the trial court improperly relied upon it as binding

precedent in this case. Although the trial court relied

heavily upon Lost Trail, LLC, its jurisdictional inquiry

was based upon the factual record developed throughout the proceedings, up to the jury’s verdict, in this

case. The court relied upon Lost Trail, LLC, for its legal

analysis and factual similarities. To the extent that Lost

Trail, LLC, differed factually from the case at hand,

it is clear that the trial court considered any factual

differences in assessing its jurisdiction over the plaintiff’s claims in this case. The court properly bore in

mind the prior rulings in Lost Trail, LLC, with an eye

to the consistent application of the relevant legal principles as they applied to the facts before it here. We

cannot conclude that the court’s reliance on Lost Trail,

LLC, for that purpose was in error.

V
The plaintiff next claims that the court erred in

rejecting its claim that it would have been futile to apply

to the commission for subdivision approval, and thus

that it should have been excused from applying to the

commission for that approval. We disagree.

‘‘To demonstrate the requisite finality, a property

owner asserting a regulatory takings claim bears the

burden of proving that the relevant government entity

will not allow any reasonable alternative use of his

property.’’ (Emphasis in original.) Gil v. Inland Wetlands & Watercourses Agency, supra, 219 Conn. 415.

Thus, ‘‘although repeated applications and denials are

not necessary to show finality, in most cases, a property

owner must do more than submit one plan to an agency

in order to establish that the agency’s decision is final

for the purposes of the takings clause. . . . [R]ejection

of exceedingly grandiose development plans does not

logically imply that less ambitious plans will receive

similarly unfavorable reviews.’’ (Citation omitted; internal quotation marks omitted.) Id., 417.

‘‘A property owner, for example, will be excused from

obtaining a final decision if pursuing an appeal to a

zoning board of appeals or seeking a variance would

be futile. That is, a property owner need not pursue such

applications when a zoning agency lacks discretion to

grant variances or has dug in its heels and made clear

that all such applications will be denied.’’ Murphy v.

New Milford Zoning Commission, supra, 402 F.3d 349.

In considering the plaintiff’s claim of futility, the trial

court noted with approval this court’s prior decision in

Lost Trail, LLC, in which the plaintiff also claimed that

it would have been futile to apply to the commission

for subdivision approval, and thus that it should not

have been required to do so in order to demonstrate

finality. The court explained, inter alia, the following

as it pertained to the plaintiff’s futility argument: ‘‘[W]ith

regard to the plaintiff’s futility argument, the Appellate

Court held that Lost Trail cannot claim futility by setting

up its own obstacles. Put simply, Lost Trail claims that

it would have been futile to pursue step two of an

administrative process, applying for zoning and building

permits, because itrefused to engage in step one, pursuing the opinion of the commission as to whether a

subdivision had been created. . . . Lost Trail, LLC v.

Weston, supra, 140 Conn. App. 152. Moreover, [i]t is

futile to seek a[n] [administrative] remedy only when

such action could not result in a favorable decision and

invariably would result in further judicial proceedings.

. . . It is clear that the commission could have determined that Lost Trail had not created a subdivision—

as it later did—or approved an application to subdivide

its property, clearing the way for zoning and building

permits to be issued. Thus, we reject Lost Trail’s attempt

to bootstrap its way to futility. . . . Id.’’ (Emphasis in

original; internal quotation marks omitted.) The court
thus rejected the plaintiff’s argument that it would have

been futile to engage in the zoning process, noting that,

as in Lost Trail, LLC, the commission granted a subdivision application relating to the property in question, in

which a subsequent owner of the property was permitted to subdivide the property.

Here, not only did the commission not dig in its heels

and refuse to grant any subdivision proposals submitted

by the plaintiff, but the plaintiff was directed at every

turn, by every town representative with whom it spoke

about the matter, to seek approval from the commission. It never did so. The plaintiff’s futility argument is

further belied by Walpuck’s testimony that he did not

apply for subdivision approval because it was a timeconsuming and expensive process and because his

attorney told him that it might impair the collateral to

his loan or it could be viewed as a possible admission

that the lot line adjustments were invalid. As aptly noted

by the trial court, if the plaintiff had applied to the

commission seventeen years ago, when Hawkins

advised it of the invalidity of its attempt to obtain a

reconfiguration of the lots on its property by filing a

map showing the lot line adjustments, it might have

obtained approval from the commission, and would

have avoided wasting many years and significant

amounts of state and municipal resources. If the commission had denied its application, it could have established the jurisdictional basis for its judicial challenge

that it now lacks. As in Lost Trail, LLC, the plaintiff

put up its own obstacles. It cannot now hide behind

those self-imposed obstacles and avail itself of the futility exception.

VI

The plaintiff next claims that the concept of ripeness

for review does not apply to § 1983 claims for violations

of equal protection and procedural due process. We

disagree.

‘‘The ripeness requirement of Williamson [County

Regional Planning Commission v. Hamilton Bank,

supra, 473 U.S. 172], although announced in a taking[s]

context, has been extended to equal protection and

due process claims asserted in the context of land use

challenges. Dougherty v. [North Hempstead Board] of

Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002); see also

Murphy [v. New Milford Zoning Commission, supra,

402 F.3d 349] (discussing application of the Williamson

finality rule to substantive due process, procedural due

process, and equal protection challenges to zoning decisions).’’ (Internal quotation marks omitted.) Lost Trail,

LLC v. Weston, supra, 485 F. Supp. 2d 64.

The plaintiff argues that its claims are not subject to

ripeness analysis because they are not directly related

to its takings or inverse condemnation claims. This

argument is belied by the plaintiff’s complaint, in which
the allegations underlying its takings or inverse condemnation claims mirror those set forth in its § 1983

claims, with the exception of a conclusory allegation

at the end of each separate count that the facts therein

pleaded gave rise to the legal cause of action claimed

therein. Because the plaintiff’s takings claims are inextricably intertwined with its § 1983 claims, this argument must fail.

VII

The plaintiff finally claims that the trial court’s decision to grant the town’s motion for articulation and to

file a revised memorandum of decision, omitting any

reference to the inapplicable exhaustion of administrative remedies doctrine, materially changed its June 9,

2015 decision in this case. We are unpersuaded.

As noted, the town moved for articulation of the trial

court’s June 9, 2015 memorandum of decision, seeking

clarification of the basis for the dismissal of the plaintiff’s claims. Specifically, the town sought clarification

of any ambiguity as to the legal basis for the court’s

determination that the plaintiff’s claims were not ripe

for adjudication. In granting the town’s motion for articulation, the trial court first stated its belief that the

basis for its June 9, 2015 decision was clear. The court,

nevertheless, issued a revised memorandum of decision

to eliminate any references to the exhaustion of administrative remedies doctrine to avoid any ambiguity or

confusion as to the basis of its decision. The plaintiff

claims that in so doing, the court materially altered

its decision.

It is well established that ‘‘[a]n articulation is appropriate where the trial court’s decision contains some

ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for

articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial

court rendered its decision, thereby sharpening the

issues on appeal. . . . In the absence of an articulation,

we are unable to determine the basis for the court’s

decision, and we therefore decline to review this claim.’’

(Internal quotation marks omitted.) Priest v. Edmonds,

295 Conn. 132, 140, 989 A.2d 588 (2010).

At the outset of the trial court’s June 9, 2015 memorandum of decision, the court specifically stated that,

because the plaintiff had ‘‘failed to prove that a final

decision was rendered by any administrative body

charged with allegedly depriving [the] plaintiff of its

rights,’’ or ‘‘that it would have been futile to pursue

available administrative remedies,’’ the plaintiff’s

claims were not ripe for adjudication, and thus the

court lacked jurisdiction over them. A review of the

trial court’s June 9, 2015 memorandum of decision in

its entirety reveals that the court’s decision focused on

(1) the requirement of finality for the plaintiff’s state
takings claim, (2) the requirement of ripeness (and the

futility exception thereto) with respect to the plaintiff’s

federal claims and (3) the fact that the present case

was similar to Lost Trail, LLC, which was essentially

decided by this court and the federal courts on grounds

of finality and ripeness. Although the court’s June 9,

2015 memorandum of decision at times mentioned the

exhaustion of administrative remedies, it did so only

in passing without any discussion of that doctrine or

how it would apply to the present case. Thus, a fair

reading of the court’s June 9, 2015 memorandum of

decision does not indicate that the exhaustion of administrative remedies doctrine formed the basis for the trial

court’s decision in this case. Including no reference to

that doctrine in the court’s October 19, 2015 memorandum of decision thus served only to dispel any confusion concerning the basis of the court’s original

decision, which is an appropriate use of the articulation process.

The judgment is affirmed.

In this opinion the other judges concurred.

1 As a claim against a subdivision of the state, this claim was treated as

a claim under the fifth and fourteenth amendments to the United States

constitution. Even so, we will refer to it, as did the parties and the trial

court, as a claim under the fifth amendment.

2 Prior to trial, the plaintiff’s claim for violation of substantive due process

was stricken as legally insufficient. The plaintiff’s additional claims, one for

a declaratory judgment and another asserting municipal estoppel, were

dismissed prior to trial. Those rulings have not been challenged on appeal.

3 Because we reject all of the plaintiff’s claims on appeal, we need not

address the town’s proposed alternative ground to affirm, which is that the

plaintiff failed to seek any variances.

4 See footnote 1 of this opinion.

5 The plaintiff also claims that ‘‘[t]he regulatory takings claim based on

the Connecticut constitution was incorrectly dismissed for lack of finality,

and the state constitution does not apply to the equal protection and procedural due process claims.’’ In support of this claim, the plaintiff claims to

be challenging a ruling that the trial court purportedly made regarding its

‘‘regulatory takings claim under the Connecticut constitution’’ in response

to the fifth motion to dismiss, which was filed by the town after the jury

returned its verdict. Because the court dismissed the plaintiff’s regulatory

takings claim ‘‘for lack of finality’’ upon its sua sponte raising of the issue

of subject matterjurisdiction, the plaintiff’s claim in this regard is unfounded.