Opinion
No. CV04 0104758-S
October 31, 2006
MEMORANDUM OF DECISION
FACTS
On June 14, 2004, the plaintiff, Grandview Farms, LLC, filed a three-count complaint alleging declaratory relief, injunctive relief and negligent misrepresentation against the defendants, the town of Portland and the town of Portland Planning and Zoning Commission. This action arises from the requirement of the defendants' that the plaintiff obtain bonds for a site improvement as a condition of approval for the private development of a condominium complex. The plaintiff alleges that the defendants are improperly withholding $195,000, which is a portion of the bonded work that has been inspected and approved by the defendants. The plaintiff is seeking injunctive relief based on the allegation that it has no adequate remedy at law to require the defendants to release the bonds held for the work and improvements.
This motion addresses only count two, injunctive relief. Count one, which was dismissed in an earlier defendants' motion, and count three, which originally alleged fraud but was later amended, are not at issue in this motion.
On April 28, 2006, the defendants filed a motion for summary judgment as to count two for injunctive relief on the ground that there is no genuine issue of material fact since the plaintiff has only completed a portion of the bonded work for which it posted a performance bond, and, accordingly, the defendants are entitled to judgment as a matter of law. On July 7, 2006, the plaintiff filed a memorandum in opposition to the motion arguing that the defendant's prior conduct has equitably estopped them from enforcing the plain language of the zoning regulations.
The defendants' motion for summary judgment was filed on April 28, 2006. This case had been assigned for trial on December 15, 2005. The defendants failed to obtain judicial permission to file their motion. As such, it is within the court's discretion to dismiss the defendants' motion for summary judgment without reaching the merits. "Practice Book § 17-44 . . . provides that a party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 140 n. 3, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000); see also Larobina v. McDonald, 274 Conn. 394, 397 n. 3, 876 A.2d 522 (2005), quoting Practice Book § 17-44. This memorandum, however, will address the merits of the defendants' motion.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
"[T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, supra, 279 Conn. 318-19.
The defendants argue that based on the town's zoning regulations, which provide that "[t]he bond shall be released upon Commission certification that all required improvements have been completed to the satisfaction of the Commission and other appropriate Town Departments"; (emphasis added.) Portland Zoning Regs., §§ 14.03.01(6), 09.12.03(4); they are entitled to judgment as a matter of law because the plaintiff has not completed all of the bonded work. In support of their motion, the defendants submit the following evidence: (1) the signed and sworn affidavit of Deanna Rhodes, interim town planner for Portland; (2) a certified copy of the plaintiff's application; and (3) copies of the Portland zoning regulations, §§ 14.03.01(6) and 09.12.03(4).
The plaintiff neither contests the relevant language of the Portland zoning regulations nor that it completed all of the required work. Instead, the plaintiff counters that, on prior occasions the defendants partially released the bonds following the inspection and approval of portions of the bonded work, and, therefore, the defendants now are equitably estopped from enforcing the language of the zoning regulations. The plaintiff argues that although the regulations state that the bonds are not to be released until all the required work is completed, the defendants' past practice has been to reduce the bond as the work has been completed. The plaintiff maintains that the defendants cannot now take the position that their past actions violated their own regulations, in that, they should not have released any of the money until all of the work was completed. As a result, the plaintiff asserts that genuine issues of material fact exist as to the conduct of the defendants in releasing the bond money and then stopping that practice. The plaintiff did not submit any admissible evidence along with its motion in opposition. The plaintiff, however, had attached a signed and sworn affidavit of Anthony Silvestri, the plaintiff's managing member, to an earlier motion contained in the court's file. All subsequent references to the plaintiff's evidence are to this earlier affidavit.
The plaintiff submitted with his memorandum of law two uncertified, unauthenticated pages of an unidentified deposition. As such, these pages are not admissible, and, cannot be considered because "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46.
In the plaintiff's memorandum of law in opposition to the motion, this affidavit was not referenced. Though the plaintiff ordinarily should call the affidavit to the court's attention, the court has the discretion to consider the evidence contained elsewhere in the file. See In re Jeisean M., 270 Conn. 382, 402, 852 A.2d 643, appeal dismissed, 270 Conn. 406, 852 A.2d 657 (2004) ("[t]rial courts may take judicial notice of facts contained in the court file"); Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995) (finding the party should ordinarily call the court's attention to the prior evidence, however, "[t]he trial court has wide discretion in its rulings on evidence").
"The contours of the application of the doctrine of municipal [equitable] estoppel to zoning regulations are well established in our jurisprudence. [I]n special circumstances, a municipality may be estopped from enforcing its zoning regulations . . . In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge . . .
"To summarize, in order for a court to invoke municipal [equitable] estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts had existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents . . .
"Furthermore, because municipal estoppel should be invoked only with great caution, our case law clearly imposes a substantial burden of proof on the party who seeks [to invoke municipal estoppel]." (Citation omitted; internal quotation marks omitted.) Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 418-19, 876 A.2d 540 (2005).
The defendants have met their burden of providing evidence sufficient to establish that there is an absence of a genuine issue of material fact. There is no dispute that the zoning regulations provide for the release of bonds only upon the completion of all the work and that the plaintiff has not completed all of the bonded work. Since these facts are undisputed, the only issue is whether the defendants are entitled to judgment as a matter of law. The plaintiff argues they are not because they should be equitably estopped from enforcing the language of the zoning regulation.
The plaintiff relies on Glazer v. Dress Barn, Inc., 274 Conn. 33, 873 A.2d 929 (2005), Bozzi v. Bozzi, 177 Conn. 232, 413 A.2d 834 (1979), and Beard v. Cosmar, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 920039903 (May 25, 1993, Jones, J.) as its authority to apply equitable estoppel against the defendants in the present case. Those cases, however, applied estoppel to purely private transactions. Where municipal equitable estoppel is implicated, as it is here, a more restrictive test applies. See Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. 411.
As to the first prong of the Cortese test, that an agent of the municipality did say or do something that would lead a plaintiff to believe certain facts existed, the affidavit of Silvestri, attached to the earlier motion by the plaintiff, attests that the bonds were "obtained . . . based upon the representations and statements of Town officials . . . that reductions would he permitted as the work progressed." The plaintiff argues that it acted upon these representations to its detriment, which should satisfy the first element of municipal estoppel.
As to the second Cortese factor, the plaintiff has provided no evidence, however, to show that it "exercised due diligence to ascertain the truth and [that] [it] not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge." In Deveau v. East Haddam Zoning Board of Appeal, Superior Court, judicial district of Middlesex, Docket No. CV 020099749 (October 7, 2005, Holzberg, J.) ( 40 Conn. L. Rptr. 112), the plaintiffs challenged the zoning board of appeals decision that municipal estoppel applied when a zoning officer approved the plaintiffs' neighbor's site plan, which violated the zoning regulations. The court sustained the plaintiffs' challenge and found municipal estoppel does not prevent enforcement of the zoning regulations when: (1) there is no evidence submitted that the plaintiffs' neighbors did not know the true state of things; and (2) there is evidence that the plaintiffs' neighbors discussed the relevant regulation with the building department. Id., 114. Given those facts, the plaintiffs' neighbors could not claim they "lacked" or had "no convenient means of acquiring" the language in the regulations. Id.
This is an essential element of equitable estoppel, even for purely private equitable estoppel. See Celentano v. Oaks Condominium Assoc., 265 Conn. 579, 615, 830 A.2d 164 (2003).
In the present case, the plaintiff submitted no evidence to show that it was unaware of the zoning regulations. Nowhere does the plaintiff claim lack of knowledge of the true state of things. On the contrary, the affidavit of Silvestri attests that the plaintiff "had several meetings with town officials . . . to discuss bonding procedures." Further, no evidence is submitted that the plaintiff exercised due diligence to ascertain the meaning of the language of the public zoning regulations. Just as in Deveau, the plaintiff here had meetings with the defendants and does not claim lack of knowledge. Thus, even viewing the evidence in the light most favorable to the plaintiff, the second prong of Cortese is not met because no evidence submitted indicates that the plaintiff did not know, or could not ascertain, the true language of the zoning regulations.
With respect to prong three, one of the essential elements of estoppel is that the party claiming estoppel "must actually change his position or do something to his injury which he otherwise would not have done." Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 236, 842 A.2d 1089 (2004). The plaintiff's evidence supports this factor that the plaintiff "changed its position" in reliance on the defendants' representations. The affidavit of Silvestri shows that the plaintiff changed its position by obtaining the bonds, "based upon the representations . . . of Town officials."
Lastly, the plaintiff has not submitted any evidence to fulfill the fourth part of the Cortese test to show that it would suffer a substantial loss if the regulations were enforced. "Without some evidence of a substantial loss as a result of the defendant's action, not just a substantial investment on the part of the plaintiff, it [is] improper . . . to invoke the doctrine of municipal estoppel." (Emphasis in original.) Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. 421. In Cortese, the court "addressed the issue of what constitutes a substantial loss for purposes of municipal estoppel . . . Although we made no attempt to define a specific level of economic loss that would qualify as substantial, we noted that [there was no substantial loss when] the defendants [had] offered no evidence of any out of pocket investment, such as a capital investment in equipment, a building, or real property, that would be lost if the town zoning regulation were enforced." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 419.
Furthermore, the court in Cortese disallowed the enforcement of a cease and desist order even when the plaintiff spent $655,000 to purchase land in reliance on a letter countersigned by a zoning enforcement officer that outlined the plaintiff's expected nonconforming use. Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. 421. The court explained therein that the purchase of the land was a significant out of pocket expense, but municipal estoppel was still not proper because the plaintiff submitted no evidence that the land would be lost by enforcement of the regulation. Id.
In dicta, the court explained that a change in the value of the land could constitute a loss for the purposes of municipal estoppel, but no such change had been submitted as evidence by the plaintiff. Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. 421.
In the present case, the plaintiff has provided no evidence that it incurred any additional out of pocket expenses. The $195,000 was not spent on things "such as a capital investment in equipment, a building, or real property"; rather it was bonded. Moreover, there is no evidence of a "loss" at all in the present case because no evidence was submitted that the plaintiff will not recover the full $195,000 upon completion of all of the work. On the contrary, the evidence submitted by the defendants shows the zoning regulations will require them to release all bonds, including the $195,000, upon completion of all the work. Even viewing the evidence in the light most favorable to the plaintiff in the present case, the plaintiff has not suffered a "substantial loss" within the meaning of the fourth Cortese prong.
CONCLUSION
No genuine issue of material fact exists but that the language of the zoning regulations requires all bonded work to be completed prior to the release of the money and the plaintiff has not completed all the bonded work. Furthermore, equitable estoppel does not apply to preclude the defendants from enforcing the regulations.