Posted by: Patricia Salkin | June 29, 2016

CT Appeals Court Rejects Inverse Condemnation Claims Due to Lack of Finality

The plaintiffs, Hayes Family Limited Partnership, Richard P. Hayes, Jr., and Manchester/Hebron Avenue, LLC, 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 was zoned for commercial development, but all uses required a special permit with design review approval. The property was abutted by an established single-family neighborhood in a rural residential zone. The town’s Plan and Zoning 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. The plaintiffs then commenced the present action against the defendant, claiming that the denial of their application for a special permit “precluded any reasonable economical development of the site and constituted an unconstitutional taking without just compensation….”

On appeal, the plaintiffs argued that the “commission will be bound under the prior application rule from allowing any reasonable commercial use of the property” because “due 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.” However, during the trial, 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, the court found it was sheer speculation to assume that a less intensive proposal than the one originally submitted would be denied by the commission. As to the plaintiffs’ argument that the court’s previous decision would have a preclusive effect on any future applications for a special permit, the court found that no findings were made as to traffic, noise, property values or adverse impacts upon the neighborhood: thus, no mention was made of any possible future applications.

Hayes Family Limited Partnership v Town of Glastonbury, 2016 WL 4305464 (CT App. 6/28/2016)

 


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