Manor Development Corp. v. Conservation Commission

433 A.2d 999, 180 Conn. 692, 12 Envtl. L. Rep. (Envtl. Law Inst.) 20063, 1980 Conn. LEXIS 811
CourtSupreme Court of Connecticut
DecidedMay 20, 1980
StatusPublished
Cited by96 cases

This text of 433 A.2d 999 (Manor Development Corp. v. Conservation Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manor Development Corp. v. Conservation Commission, 433 A.2d 999, 180 Conn. 692, 12 Envtl. L. Rep. (Envtl. Law Inst.) 20063, 1980 Conn. LEXIS 811 (Colo. 1980).

Opinion

N. O’Neill, J.

The defendant conservation commission of the town of Simsbury after a public hearing by written decision denied the plaintiff’s [693]*693application to conduct a regulated activity on a tract of land containing some thirty-three proposed building lots. The commission’s authority stems from General Statutes §§ 22a-36 through 22a-45 and the inland wetlands and water courses regulations of the town of Simsbury.

The plaintiff appealed that decision to the Court of Common Pleas. After a hearing the appeal was dismissed. The plaintiff now appeals that dismissal. The appeal was taken prior to July 1, 1978.1

The plaintiff’s basic claim is that there was an unconstitutional taking of its property without compensation in contravention of the fifth amendment to the United States constitution and article first, § 11 of the Connecticut constitution.

Because of facts outside the original record, but admitted in argument to this court, the question of whether this appeal is moot has arisen. Gormley v. Panuzio, 166 Conn. 1, 347 A.2d 78 (1974).

On December 30, 1976, the plaintiff applied to the defendant for a permit to conduct a regulated activity on its land in Simsbury. The activity proposed was: to construct 1080 feet more or less of road with sewer, water lines and storm outlets, remove about 3500 cubic yards of top soil and subsoil, deposit about 500 cubic yards of fill, and install some 1200 cubic yards of road construction material. A hearing was held February 22, 1977, and on March 14, 1977, the application was denied.

The denial was based on the following factors:

“1. Seven of the building lots are shown to be totally in wetlands area.
[694]*694“2. A enl de sac is proposed at one end of a water course, northeasterly portion of the site.
“3. There is extensive crossing of wetlands by Road 'C’ in the southeast section. The Commission finds that these proposed uses of inland wetlands to be [sic] unsuitable by reason that they will cause unnecessary expense and produce problems of health and safety to residents of that area. The commission finds evidence for this in adjacent wetland areas which have already been developed and that residents of this adjacent area have supplied abundant testimony as to the problems created by over-development in similar wetlands.
"4. The area is valuable as a natural habitat and development would destroy this.
"5. The area may also serve as a significant aquifer recharge area and a means of sustaining stream flow.
“In addition, from a Conservation viewpoint, the commission finds the proposed project to be inconsistent with the Simsbury Plan of Development. This area is already heavily developed, and this particular area has been designated as proposed recreational open space.”

The plaintiff appealed to the Court of Common Pleas on March 25,1977. On May 22,1978, the Court of Common Pleas dismissed the appeal. On June 13, 1978, and on July 25,1978, the plaintiff filed another application for a permit to conduct a regulated activity on the same tract of land. That application was approved by the defendant on September 12, 1978. The net effect of the denial of the first application and the approval of the second is a loss to the plaintiff of some seven lots.

[695]*695As far as the appeal as a whole is concerned, the case is not moot because practical relief could still be afforded the plaintiff if the case were to be reversed; i.e., the plaintiff would have seven additional lots in its proposed subdivision. Gormley v. Panuzio, supra, 3. However, the question raised by the plaintiff in regard to being deprived of its property without just and adequate compensation may have become moot.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); United Liquors of Connecticut, Inc. v. Teamsters Local 443, 179 Conn. 211, 212, 425 A.2d 1262 (1979); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974).

“Until it appears that the plaintiff has been finally deprived by the commission of the reasonable and proper use of the property, it cannot be said that there has been an unconstitutional taking of property without just compensation.” Vartelas v. Water Resources Commission, 146 Conn. 650, 658, 153 A.2d 822 (1959); Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 345, 356, 362 A.2d 948 (1975).

Merely because the total value of the property has decreased does not justify a conclusion that there has been an unconstitutional taking. Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir. 1972). A property may be subject to reasonable restraints without resulting in a [696]*696taking. Lovequist v. Conservation Commission of Town of Dennis, Mass. , 393 N.E.2d 858, 866 (1979); Turnpike Realty Co. v. Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S. Ct. 908, 34 L. Ed. 2d 689 (1973).

This case is distinguished from such cases as Horwits v. Waterford, 151 Conn. 320, 197 A.2d 636 (1964), where no use could be made of the property as a result of the defendant’s action; Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 311, 197 A.2d 770 (1964), where “the change of zone to flood plain district froze the area into a practically unusable state”; and Bartlett v. Zoning Commission, 161 Conn. 24, 31, 282 A.2d 907 (1971), where the value of the plaintiff’s property was reduced from $32,000 to $1000 by the action of the defendant in imposing “extreme restrictions” on the plaintiff’s use of his property.

The same is true in other states. Candlestick Properties, Inc. v. San Francisco Bay Conservation & Development Commission, 11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1970);

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Bluebook (online)
433 A.2d 999, 180 Conn. 692, 12 Envtl. L. Rep. (Envtl. Law Inst.) 20063, 1980 Conn. LEXIS 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manor-development-corp-v-conservation-commission-conn-1980.