Cumberland Farms, Inc. v. Town of Groton

The plaintiff, Cumberland Farms, Inc.,
appeals1 from the judgment of the trial court rendered
in favor of the defendant, the town of Groton (town).
The plaintiff initiated the present action against the
town, alleging that the denial of its application for a
zoning variance by the town's zoning board of appeals
(board) effected an inverse condemnation2 of its property
entitling the plaintiff to compensation under the
takings clauses of the fifth amendment to the United
States constitution3 and article first, § 11, of the constitution
of Connecticut.4 The trial court, Martin, J.,
granted the town's motion for summary judgment, concluding
that there was no genuine issue of material fact
and that the town was entitled to judgment as a matter
of law. See Practice Book § 17-49. In so concluding, the
court determined that the plaintiff was barred, under
the doctrine of collateral estoppel, from litigating certain
factual issues that had been decided by the board
in denying the plaintiff's variance application and that
ostensibly had been decided by the trial court, Purtill,
J., in denying the plaintiff's administrative appeal from
the adverse decision of the board. On appeal, the plaintiff
claims that the trial court, Martin, J., improperly
gave preclusive effect to the resolution of certain factual
issues by the board and the court, Purtill, J. We agree
with the plaintiff that the doctrine of collateral estoppel does not bar the plaintiff from litigating, in its inverse
condemnation action, any factual issues that are pertinent
to its inverse condemnation claim. In light of our
conclusion, which compels us to reverse the judgment
of the trial court, Martin, J., and remand the case for
a determination on the merits of the plaintiff's inverse
condemnation claim, we must decide a second issue
raised by the plaintiff, namely, whether the court, Hon.
D. Michael Hurley, judge trial referee (Hurley, J.),
improperly granted the town's motion to strike the
plaintiff's case from the jury docket. The plaintiff challenges
the decision to grant the town's motion to strike
the plaintiff's case from the jury docket, claiming that
the plaintiff's inverse condemnation claim gives rise to
a right to a jury trial under article first, § 19, of the
constitution of Connecticut.5 We reject the plaintiff's
claim regarding its right to a jury trial and, accordingly,
affirm the decision of the court, Hurley, J., to grant the
town's motion to strike the plaintiff's case from the
jury docket.

This appeal marks the second occasion that we have
had these parties before us in this matter. In Cumberland
Farms, Inc. v. Groton, 247 Conn. 196, 197, 201–202,
719 A.2d 465 (1998), we concluded that the board's
denial of the plaintiff's application for a variance constituted
a final decision that enabled the plaintiff to maintain
this separate and independent inverse condemnation
action without first pursuing its administrative appeal to completion. Our opinion in that case sets forth
the following facts relating to the plaintiff's variance
application. ‘‘[T]he plaintiff . . . owns land with a
building, other structures and improvements in Groton.
The building is more than twenty years old and was
used as a car repair garage and gasoline service station
since before the area was zoned residential by the . . .
town. Three underground gasoline storage tanks are
also located on the property. The car repair use of the
building was abandoned in 1979. The remainder of the
building continues to be used to sell gasoline and, to
a limited extent, snacks and sundries.

‘‘To comply with environmental laws and regulations,
the plaintiff's property requires substantial upgrading.
To offset the costs of these improvements, the plaintiff
applied to the . . . board . . . for a variance to the
zoning regulations so that the [existing] nonconforming
use of the property could be expanded to include a
convenience store, as well as the existing gasoline service
station.'' (Internal quotation marks omitted.) Id.,
198. The board denied the plaintiff's variance application
after a hearing, stating as its reasons: ‘‘No hardship
[was] shown. [The] [v]ariance request did not meet the
criteria of [§ 8.5-8]6 of the [1996] town . . . zoning regulations.
[The] [p]roposed expansion to a convenience
store . . . was considered financial. Also, [the] applicant
is presently making reasonable use of the property.
In addition, the applicant purchased [the] property
knowing the nature of the nonconform[ity].''

Thereafter, the plaintiff appealed from the board's
denial of its variance application to the Superior Court;
see General Statutes (Rev. to 1995) § 8-8 (b);7 claiming
that the board's decision was illegal, arbitrary and an
abuse of its discretion. The plaintiff contended, inter
alia, that the board improperly had declined to credit
certain expert opinion indicating that the combined
effect of state environmental regulations and the town's
zoning regulations was a diminishment in the value of
the plaintiff's property such that the value was ‘‘practically
destroy[ed] . . . for any of the uses to which it
could reasonably be put . . . .'' The court, Purtill, J.,
rejected the plaintiff's claim, explaining that it was
bound, under the deferential standard of review applicable
to appeals from the administrative decisions of zoning
boards of appeals,8 to deny the plaintiff's appeal if
any one of the reasons articulated by the board was
supported by the record. The court, Purtill, J., then
examined each of those reasons and concluded that
each reason was ‘‘reasonably supported by the record.''
Consequently, the court, Purtill, J., rendered judgment
denying the plaintiff's appeal. Thereafter, the plaintiff
filed a petition for certification to appeal to the Appellate
Court, which that court denied.

During the pendency of the plaintiff's appeal from the
board's denial of its variance application, the plaintiff commenced the present action, alleging that the board's
denial of its application for a variance constituted an
inverse condemnation entitling it to compensation
under the takings clauses of the federal and state constitutions.
9 The plaintiff claimed that the cost of upgrading
its property to conform with environmental laws and
regulations made it economically unfeasible to continue
to use the property under the existing, limited, nonconforming
use or to change the use of the property to a
conforming use. The plaintiff further claimed that the
property was not suitable for redevelopment for uses
permitted under the town's zoning regulations because
a gasoline station previously had been operated on
the property.

The town moved to dismiss the plaintiff's inverse
condemnation claim on the ground that the trial court
lacked subject matter jurisdiction owing to the plaintiff's
pending administrative appeal. The court, Hurley,
J., granted the town's motion to dismiss10 and rendered
judgment thereon, from which the plaintiff appealed
to the Appellate Court. The Appellate Court affirmed.
Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514,
520, 699 A.2d 310 (1997). We granted the plaintiff's petition
for certification to appeal to this court; Cumberland
Farms, Inc. v. Groton, 243 Conn. 936, 702 A.2d
641 (1997); and thereafter reversed the judgment of the
Appellate Court, concluding that ‘‘the board's denial of
the variance application constituted a final decision
that enabled the plaintiff to maintain an independent
inverse condemnation action against the town for an
alleged unconstitutional taking without first pursuing
its administrative appeal to completion.'' Cumberland
Farms, Inc. v. Groton, supra, 247 Conn. 201–202.

After the case was remanded to the Superior Court,
the plaintiff filed a claim for a jury trial pursuant to
General Statutes § 52-215.11 The town moved to strike
the plaintiff's case from the jury docket, contending
that an inverse condemnation claim is equitable in
nature and, therefore, does not give rise to a constitutional
right to a jury trial.12 The court, Hurley, J., granted
the town's motion to strike the plaintiff's case from the
jury docket.

Thereafter, the town moved for summary judgment,
claiming that no material facts were in dispute because
the doctrine of collateral estoppel operated to bar the
plaintiff from: (1) relitigating certain factual issues that
the board had resolved in denying the plaintiff's variance
application; and (2) litigating certain factual issues
that, according to the town, had been litigated and
decided by the court, Purtill, J., in denying the plaintiff's
appeal from the board's denial of the plaintiff's variance
application. The town further maintained that, on the
basis of the apparent resolution of those factual issues
by the board and the court, Purtill, J., the town was
entitled to judgment as a matter of law.

The court, Martin, J., granted the town's motion for
summary judgment, reasoning that, ‘‘[b]ecause the viability
of a taking claim based on the denial of a variance
application hinges on whether the denial has deprived
the property of any reasonable use, the determination
of the issue of reasonable use is necessary and essential
to the taking claim for purposes of issue preclusion.''
After reviewing the memorandum of decision on the
merits of the plaintiff's appeal from the board's denial
of the plaintiff's variance application and the record of
the proceedings before the board, the court, Martin,
J., concluded that ‘‘[t]here [was] ample evidence . . .
that the issue [of reasonable use] was raised, litigated
and decided in both proceedings.'' The court, Martin,
J., also observed that the issues of whether a zoning
board's denial of a variance application has deprived
the applicant of any reasonable use of the applicant's
property and whether that denial has resulted in a ‘‘practical
confiscation'' of the applicant's property are common
both to a claim of undue hardship under the zoning
regulations and to an inverse condemnation claim. The
court, Martin, J., further noted that, although the court,
Purtill, J., primarily had focused on the relatively narrow
issue raised by the plaintiff's administrative appeal, namely, whether the record supported the board's
denial of the plaintiff's variance application based on
a perceived lack of hardship, the court, Purtill, J., also
expressly had considered, and rejected, the merits of
the plaintiff's claim of a regulatory taking. In this regard,
the court, Martin, J., referred to certain statements in
the memorandum of decision of the court, Purtill, J., to
the effect that the plaintiff's alleged economic hardship
arose not out of the necessity of complying with the
town's zoning regulations but, rather, out of the necessity
of complying with the regulations of the state
department of environmental protection. After
determining that this issue, like the reasonable use
issue, was necessary and essential to the decision of
the court, Purtill, J., the court, Martin, J., concluded:
‘‘[T]he plaintiff has failed to demonstrate the existence
of genuine issues as to the facts of no deprivation of any
reasonable use under the challenged zoning regulations
and the source of claimed financial hardship experienced
by the plaintiff. Because there is no genuine issue
as to those facts and those issues or facts have been
decided against the plaintiff by the board, supported
by ample evidence and affirmed by the court [Purtill,
J.] in the administrative appeal, the plaintiff's taking claim is foreclosed and the [town] is entitled to judgment
in its favor as a matter of law.''13 This appeal
followed.

On appeal, the plaintiff claims that the court, Martin,
J., improperly granted the town's motion for summary
judgment. Specifically, the plaintiff contends that the
court, Martin, J., improperly concluded that the doctrine
of collateral estoppel barred the plaintiff from litigating, in its inverse condemnation action, issues of
fact that the board had resolved in denying the plaintiff's
variance application and that the court, Purtill, J.,
ostensibly had decided in denying the plaintiff's appeal
from the adverse decision of the board. The plaintiff
also contends that the court, Hurley, J., improperly
granted the town's motion to strike the plaintiff's claim
from the jury docket. We address each of these claims
in turn.

I.

The plaintiff advances two primary arguments in support
of its claim that the court, Martin, J., improperly
concluded that the doctrine of collateral estoppel
barred the plaintiff from litigating, in its inverse condemnation
action, factual issues that the board had
resolved and that the court, Purtill, J., ostensibly had
decided in denying the plaintiff's administrative appeal.
First, the plaintiff contends that the application of that
doctrine violated its due process right to a de novo
determination of the merits of its inverse condemnation
claim. Second, the plaintiff contends that, even if principles
of due process do not erect a per se bar to the
application of the doctrine, the court, Martin, J.,
improperly concluded that the issues of fact essential
to the plaintiff's takings claim actually had been decided
by the board and by the court, Purtill, J., on appeal.

In response, the town claims that the court, Martin,
J., properly precluded the plaintiff from litigating the
factual issues that, according to the town, were fully and
fairly litigated before the board and subject to review by
the court, Purtill, J., on appeal. The town further claims
that, in applying the doctrine of collateral estoppel, the
court, Martin, J., properly determined that the court,
Purtill, J., had resolved two particularly significant factual
issues, the determination of which was binding
on the parties to the plaintiff's inverse condemnation
action, namely, that: (1) the board's denial of the plaintiff's
variance application did not result in a practical
confiscation of the plaintiff's property; and (2) the
town's zoning regulations were not the source of the
plaintiff's economic hardship. In the town's view, these
purported findings are equally applicable to, and dispositive
of, the plaintiff's inverse condemnation claim. We
reject the town's arguments and conclude that: (1) for
policy reasons, the doctrine of collateral estoppel does
not bar the plaintiff from litigating, in its inverse condemnation
action, any and all factual issues relevant to
its claim of inverse condemnation regardless of whether
those issues were decided by the board;14 and (2)
because none of the factual issues raised by the plaintiff
in its inverse condemnation claim actually was litigated
and decided in the administrative appeal, the decision of the court, Purtill, J., cannot have preclusive effect
as to the factual issues raised in the plaintiff's inverse
condemnation action.15

The applicability of the doctrine of collateral estoppel,
like the applicability of the closely related doctrine
of res judicata,16 presents a question of law that we
review de novo. E.g., R & R Pool & Patio, Inc. v. Zoning
Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61
(2001); Linden Condominium Assn., Inc. v. McKenna,
247 Conn. 575, 594, 726 A.2d 502 (1999). The fundamental
principles underlying the doctrine of collateral estoppel
are well established. ‘‘The common-law doctrine
of collateral estoppel, or issue preclusion, embodies a
judicial policy in favor of judicial economy, the stability
of former judgments and finality. . . . Collateral estoppel
means simply that when an issue of ultimate fact
has once been determined by a valid and final judgment,
that issue cannot again be litigated between the same
parties in any future lawsuit. . . . Issue preclusion
arises when an issue is actually litigated and determined
by a valid and final judgment, and that determination
is essential to the judgment. . . . Collateral estoppel
express[es] no more than the fundamental principle
that once a matter has been fully and fairly litigated, and
finally decided, it comes to rest.''17 (Citations omitted;
internal quotation marks omitted.) Gladysz v. Planning
& Zoning Commission, 256 Conn. 249, 260, 773
A.2d 300 (2001).

Application of the doctrine of collateral estoppel is
neither statutorily nor constitutionally mandated. The
doctrine, rather, is a judicially created rule of reason
that is ‘‘enforced on public policy grounds.'' Stratford
v. International Assn. of Firefighters, AFL-CIO, Local
998, 248 Conn. 108, 127, 728 A.2d 1063 (1999). Accordingly,
as we have observed in regard to the doctrine of
res judicata, the decision whether to apply the doctrine
of collateral estoppel in any particular case ‘‘should
be made based upon a consideration of the doctrine's
underlying policies, namely, the interests of the defendant
and of the courts in bringing litigation to a close
. . . and the competing interest of the plaintiff in the
vindication of a just claim. . . . These [underlying] purposes
are generally identified as being (1) to promote
judicial economy by minimizing repetitive litigation; (2)
to prevent inconsistent judgments which undermine the
integrity of the judicial system; and (3) to provide
repose by preventing a person from being harassed by
vexatious litigation. . . . The judicial doctrines of res
judicata and collateral estoppel are based on the public
policy that a party should not be able to relitigate a
matter which it already has had an opportunity to litigate.
. . . Stability in judgments grants to parties and
others the certainty in the management of their affairs which results when a controversy is finally laid to rest.''
(Citation omitted; internal quotation marks omitted.)
Isaac v. Truck Service, Inc., 253 Conn. 416, 422–23, 752
A.2d 509 (2000).

We also have recognized, however, that ‘‘the applica tion of the collateral estoppel doctrine has dramatic
consequences for the party against whom the doctrine
is applied. [Consequently] [c]ourts should be careful
that the effect of the doctrine does not work an injustice.''
Gladysz v. Planning & Zoning Commission,
supra, 256 Conn. 261. Thus, ‘‘[t]he doctrines of preclusion
. . . should be flexible and must give way when
their mechanical application would frustrate other
social policies based on values equally or more
important than the convenience afforded by finality in
legal controversies.'' (Internal quotation marks omitted.)
Isaac v. Truck Service, Inc., supra, 253 Conn. 423;
see also Quinones Candelario v. Postmaster General
of the United States, 906 F.2d 798, 801 (1st Cir. 1990),
cert. denied, 499 U.S. 919, 111 S. Ct. 1307, 113 L. Ed.
2d 242 (1991) (eschewing automatic or rigid application
of doctrine of res judicata to determinations in administrative
proceedings in face of contrary public policy).
Accordingly, on occasion, we have recognized exceptions
to the general policy favoring application of the
doctrines of res judicata and collateral estoppel. See,
e.g., Isaac v. Truck Service, Inc., supra, 422, 429 ( preclusion
doctrines do not bar relitigation of property damage
claim, which initially was litigated in small claims
court, in subsequent personal injury action pending on regular civil docket even though both small claims and
personal injury actions were predicated on same
events); Stratford v. International Assn. of Firefighters,
AFL-CIO, Local 998, supra, 248 Conn. 124–25 (second
arbitration panel need not give preclusive effect
to issues decided by first arbitration panel even when
decisions of both panels involve same parties and interpretation
of same contract provision); State v. McDowell,
242 Conn. 648, 654, 657, 699 A.2d 987 (1997)
(doctrine of collateral estoppel does not bar state from
bringing defendant to trial on criminal charges even
though state had failed to prove those charges as basis
for probation violation); Connecticut Natural Gas
Corp. v. Miller, 239 Conn. 313, 323, 684 A.2d 1173 (1996)
(doctrine of res judicata cannot be invoked to preclude
relitigation of determination made in summary proceeding
for appointment of receiver of rents brought pursuant
to General Statutes § 16-262f); Delahunty v.
Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 598,
674 A.2d 1290 (1996) (doctrine of res judicata does not
bar relitigation of tort claim that had been litigated
and decided in prior marital dissolution proceeding);
Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475,
486–89, 628 A.2d 946 (1993) (adverse determination on Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475,
486–89, 628 A.2d 946 (1993) (adverse determination on
issue in arbitration proceeding does not preclude
employee from relitigating issue in subsequent action
for retaliatory discharge). In establishing exceptions to
the general application of the preclusion doctrines, we
have identified several factors to consider, including:
(1) whether another public policy interest outweighs
the interest of finality served by the preclusion doctrines;
see, e.g., Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, supra, 127–28; (2)
whether the incentive to litigate a claim or issue differs
as between the two forums; Isaac v. Truck Service,
Inc., supra, 428–29; Delahunty v. Massachusetts Mutual
Life Ins. Co., supra, 594; (3) whether the opportunity
to litigate the claim or issue differs as between the two
forums; see, e.g., Connecticut Natural Gas Corp. v.
Miller, supra, 323; Genovese v. Gallo Wine Merchants,
Inc., supra, 489; and (4) whether the legislature has
evinced an intent that the doctrine should not apply.
See, e.g., Genovese v. Gallo Wine Merchants, Inc.,
supra, 487–88.

As a general matter, administrative decisions are entitled
to preclusive effect. E.g., Lafayette v. General
Dynamics Corp., 255 Conn. 762, 773, 770 A.2d 1 (2001);
New England Rehabilitation Hospital of Hartford, Inc.
v. Commission on Hospitals & Health Care, 226 Conn.
105, 129, 627 A.2d 1257 (1993); see Wade's Dairy, Inc.
v. Fairfield, 181 Conn. 556, 561, 436 A.2d 24 (1980);
Corey v. Avco-Lycoming Division, 163 Conn. 309, 318,
307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S.
Ct. 903, 34 L. Ed. 2d 699 (1973); see also 2 Restatement
(Second), Judgments § 83 (1), p. 266 (1982) (‘‘a valid and
final adjudicative determination by an administrative
tribunal has the same effects under the rules of res
judicata, subject to the same exceptions and qualifications,
as a judgment of a court''). We are persuaded,
however, that this case necessitates an exception to
the general rule and, consequently, the plaintiff should
not have been precluded from relitigating any issue
relating to its constitutional takings claim that may have
been decided in the course of the plaintiff's administrative
efforts to obtain a zoning variance. We premise this
conclusion primarily on the nature of the right that the
plaintiff seeks to vindicate through its inverse condemnation
claim and the particular administrative context
in which the board made its findings in denying the
plaintiff's variance application.

We begin by emphasizing, as we did in our opinion
addressing the plaintiff's earlier appeal; see Cumberland
Farms, Inc. v. Groton, supra, 247 Conn. 207–208;
the distinction between an administrative appeal to the
Superior Court from an adverse decision of a zoning
board of appeals and an inverse condemnation action.
Although our statutory scheme affords an aggrieved
applicant the right to judicial review of the denial of a
variance application, the scope of that review is limited.
See id., 207. See generally General Statutes § 8-8. As
we have indicated; see footnote 8 of this opinion; when,
as in the present case, a zoning board of appeals has
articulated its reasons for the action it has taken, the
trial court's review of those reasons is limited to
determining whether they are supported by the record
and, if so, whether, under the applicable zoning regulations,
the reasons given provide a legally sufficient basis
for the zoning board's action. Thus, the trial court does not find facts, and it may not substitute its judgment
for that of the zoning board.18 E.g., R & R Pool & Patio,
Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470.
Furthermore, no monetary remedy is available in an
administrative appeal. E.g., Cumberland Farms, Inc. v.
Groton, supra, 207. See generally General Statutes § 8-
8 (k).

By contrast, a plaintiff in an inverse condemnation
action seeks to demonstrate that the action of a zoning
board of appeals resulted in a taking that, in turn, gives
rise to a constitutional right to compensation. E.g.,
Cumberland Farms, Inc. v. Groton, supra, 247 Conn.
207–208. A plaintiff who brings an inverse condemnation
action may vindicate that right in the Superior
Court, where the court19 hears evidence, finds facts
and determines whether the action of a zoning board
amounts to a practical confiscation. See id., 208. If so,
the court also determines what compensation is due.
Id. If a plaintiff does not prevail in the Superior Court,
he is entitled, as a matter of law, to appellate review.
General Statutes § 52-263. With these distinctions in
mind, we now turn to the issue of whether the court,
Martin, J., properly invoked the doctrine of collateral
estoppel under the circumstances of this case.

As we noted previously, the court, Purtill, J., applied
a deferential standard of review to the board's factual
findings. Therefore, to accord preclusive effect to the
board's findings in the context presented would be to
vest the board with the responsibility of deciding the
facts underlying the plaintiff's constitutional claim and,
in effect, would give the board the authority to settle
the issue raised by that claim. Under such a regime,
local zoning boards would have the power to decide
virtually all inverse condemnation actions that are predicated
on a claim that the denial of a variance application
constitutes a practical confiscation. Such a result
would run counter to the well established common-law
principle that administrative agencies lack the authority
to determine constitutional questions. See, e.g., Genden
v. American Airlines, 257 Conn. 520, 525, 778 A.2d 58
(2001); Giaimo v. New Haven, 257 Conn. 481, 490 n.8,
778 A.2d 33 (2001); Cioffoletti v. Planning & Zoning
Commission, 209 Conn. 544, 551, 552 A.2d 796 (1989),
overruled on other grounds, Stafford Higgins Industries,
Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998);
Caldor, Inc. v. Thornton, 191 Conn. 336, 343–44, 464
A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86
L. Ed. 2d 557 (1985). Moreover, we are particularly
reluctant to relegate to zoning boards the responsibility for constitutional fact-finding in view of the fact that
the citizen volunteers who compose such boards generally
are not land use professionals but, rather, ‘‘laypersons
with little or no technical expertise.''20 Kelley
Property Development, Inc. v. Lebanon, 226 Conn. 314,
341, 627 A.2d 909 (1993); see also DeBeradinis v. Zoning
Commission, 228 Conn. 187, 198–99 n.7, 635 A.2d 1220 (1994) (‘‘local land use commission [is] composed
of laypersons whose procedural savoir-faire may not
rise to the sophisticated level needed to achieve strict
compliance with the statutory directions under which
they operate''); Carini v. Zoning Board of Appeals, 164
Conn. 169, 172, 319 A.2d 390 (1972), cert. denied, 414
U.S. 831, 94 S. Ct. 64, 38 L. Ed. 2d 66 (1973) (‘‘publicspirited
citizens volunteer to perform their civic duties
in serving on boards such as those involving zoning'').
Furthermore, although members of local zoning boards
undoubtedly strive to attain a high degree of impartiality,
especially when acting in their adjudicative capacity,
they nevertheless are governed by rules that, in
contrast to those governing court proceedings, encourage
input by members of the general public with an
interest in the outcome of the board's deliberations.
See General Statutes § 8-7;21 see also Willimantic Car
Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732,
739, 724 A.2d 1108 (1999) (‘‘[b]ecause of the public
impact of land use decisions, Connecticut's governing
statutory scheme promotes public participation in such
decision making'').

Our conclusion is reinforced by virtue of the fact
that, in the present case, the board's decision itself is
the action that gives rise to the constitutional claim.
Cf. Cumberland Farms, Inc. v. Groton, supra, 247 Conn.
208. Thus, this case presents a fact pattern that is readily
distinguishable from the scenario involving a proceeding
in which the doctrine of collateral estoppel is
applied to preclude the relitigation of certain factual
issues and in which the claim being asserted does not
arise out of the agency's actions. See, e.g., University
of Tennessee v. Elliott, 478 U.S. 788, 796–99, 106 S.
Ct. 3220, 92 L. Ed. 2d 635 (1986) (decision in state
university's administrative proceeding on issue of
whether university was motivated by racial prejudice
when it discharged employee should be accorded same
preclusive effect that would be accorded in state court
in subsequent federal action brought pursuant to 42
U.S.C. § 1983);22 Aunyx Corp. v. Canon U.S.A., Inc., 978
F.2d 3, 7–8 (1st Cir. 1992), cert. denied, 507 U.S. 973,
113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993) (decision of
International Trade Commission accorded preclusive
effect in subsequent antitrust action); Crot v. Byrne,
957 F.2d 394, 396–97 (7th Cir. 1992) (state industrial
commission's finding in workers' compensation proceeding
that plaintiff's discharge from employment did
not cause his subsequent stroke accorded preclusive
effect in subsequent action involving claim that plaintiff's
discharge was politically motivated); Lafayette v.
General Dynamics Corp., supra, 255 Conn. 764 (decision
of United States Department of Labor administrative
law judge awarding death benefits to plaintiff under
federal Longshore and Harbor Workers' Compensation
Act accorded preclusive effect in action for survivor's
benefits under state Workers' Compensation Act). Moreover, as we mentioned previously, the board's
decision is subject to highly deferential judicial review.23

The town claims that even if the board's resolution
of factual issues is not entitled to preclusive effect, the
court, Martin, J., properly gave such effect to certain
findings ostensibly made by the court, Purtill, J., in
rejecting the plaintiff's administrative appeal. Specifically,
the town contends that the memorandum of decision
of the court, Purtill, J., reflects the following
findings: (1) that the board's denial of the plaintiff's
variance application did not result in a practical confiscation;
and (2) that certain state and federal environmental
regulations, and not the town's zoning
regulations, constituted the source of the plaintiff's
alleged hardship.24 The town further contends that these
findings are dispositive of the plaintiff's inverse condemnation
claim.

We disagree with the town's contention. With respect
to the issue of practical confiscation, the passing reference
to a regulatory taking found in the memorandum
of decision of the court, Purtill, J.; see footnote 24 of
this opinion; reasonably cannot be considered a finding
on that issue. Moreover, that issue was not raised by
the plaintiff in its administrative appeal,25 and it, therefore,
was not an issue subject to review by the court,
Purtill, J.26 Consequently, even if the court, Purtill, J.,
had intended to make a finding on the issue - and it is
clear from the record that it did not - any such finding
would be dictum and, therefore, not entitled to preclusive
effect. See Leydon v. Greenwich, 257 Conn. 318,
357 n.46, 777 A.2d 552 (2001).

For similar reasons, the observation of the court,
Purtill, J., that the source of the plaintiff's alleged hardship
was not the town's zoning regulations but, rather,
state and federal environmental regulations, also does
not have preclusive effect in the plaintiff's inverse condemnation
action. Even if we assume, arguendo, that
the court's statement on that issue can be characterized
as a finding, neither of the parties raised that issue
during the proceedings before the board, and it was
not addressed in the board's decision. As we have indicated,
the doctrine of collateral estoppel is inapplicable
in such circumstances.27 See, e.g., Dowling v. Finley
Associates, Inc., supra, 248 Conn. 374 (‘‘[t]o assert successfully
the doctrine of issue preclusion . . . [it] must
[be] establishe[d] that the issue sought to be foreclosed
actually was litigated and determined in the prior
action'').

We conclude, therefore, that the plaintiff is entitled
to a de novo review of the factual issues underlying its
inverse condemnation claim, unfettered by the board's
previous resolution of any factual issues. We also conclude
that the decision of the court, Purtill, J., to deny
the plaintiff's administrative appeal does not preclude
the plaintiff from litigating any factual issues in its inverse condemnation action.28 Because the court, Martin,
J., improperly applied the doctrine of collateral
estoppel in granting the town's motion for summary
judgment, the judgment of the court, Martin, J., must
be reversed and the case must be remanded to the trial
court for a determination on the merits of the issues
raised by the plaintiff in its inverse condemnation
action.

II.

In light of our conclusion in part I of this opinion,
we also must decide whether, contrary to the decision
of the court, Hurley, J., to grant the town's motion
to strike the plaintiff's case from the jury docket, the
plaintiff's inverse condemnation action gives rise to a
right to a jury trial. We agree with the court, Hurley,
J., that the plaintiff does not have a right to a jury trial
in connection with its inverse condemnation action.

A.

Whether a property owner has a right, pursuant to
article first, § 19, of the constitution of Connecticut and
General Statutes § 52-215, to a jury trial in an inverse
condemnation action is an issue of first impression.
Our resolution of this issue, however, is guided by well
settled principles. ‘‘[A]rticle first, § 19, of the Connecticut
constitution . . . guarantees the right to a jury trial
in all cases for which such a right existed at the time
of the adoption of that constitutional provision in 1818
. . . [or] in cases that are substantially similar to cases
for which the right to a jury trial existed at common
law in 1818. . . . Because at common law only legal
claims were tried to a jury, the state constitutional right
to a trial by jury does not extend to equitable claims.
. . . Accordingly, in determining whether a party has
a right to a trial by jury under the state constitution
and . . . §52-215, we must ascertain whether the
action being tried . . . has roots in the common law,
and if so, whether the remedy involved was one in law
or equity. If the action existed at common law and
involved a legal remedy, the right to a jury trial exists
. . . .'' (Citations omitted; internal quotation marks
omitted.) Associated Investment Co. Ltd. Partnership
v. Williams Associates IV, 230 Conn. 148, 153–54, 645
A.2d 505 (1994). The test, then, ‘‘is whether the issue or is such an issue as prior to 1818 would have been
triable to a jury.'' (Internal quotation marks omitted.)
Skinner v. Angliker, 211 Conn. 370, 375, 559 A.2d 701
(1989). This test is ‘‘flexible and may require a jury in
a new cause of action, not in existence in [1818], if it
involves rights and remedies of the sort traditionally
enforced in an action at law or if its nearest historical
analogue is an action at common law.'' (Internal quotation
marks omitted.) Id., 377.

The federal courts apply a similar test when determining whether the right to a jury trial exists under the
seventh amendment to the United States constitution.29
See, e.g., Swanson v. Boschen, 143 Conn. 159, 162, 120
A.2d 546 (1956) (recognizing similarity in federal and
state tests). Under the federal approach, federal courts
consider whether the cause of action was one tried at
law when the seventh amendment was adopted in 1791
or whether the action is substantially similar to such
an action. See, e.g., Markman v. Westview Instruments,
Inc., 517 U.S. 370, 376, 116 S. Ct. 1384, 134 L. Ed. 2d
577 (1996); Curtis v. Loether, 415 U.S. 189, 193, 94 S.
Ct. 1005, 39 L. Ed. 2d 260 (1974). Accordingly, although
the seventh amendment guarantee to a jury trial applies
only to actions in federal courts; e.g., GTFM, LLC v.
TKN Sales, Inc., 257 F.3d 235, 245 (2d Cir. 2001); Skinner
v. Angliker, supra, 211 Conn. 379 n.9; we nevertheless
may look to federal case law for guidance in
determining whether the plaintiff is entitled to a jury
trial under article first, § 19, and § 52-215, in light of
the similarity between the federal and state tests.

B.

Inverse condemnation is a modern day concept,
unknown at the time of the adoption of the Connecticut
constitutional provision guaranteeing a jury trial. See
Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687, 711–17, 119 S. Ct. 1624, 143 L. Ed. 2d 882
(1999) (opinion announcing judgment) (suggesting that
claim for inverse condemnation did not exist at common
law prior to 1791); Fichter v. Board of Environmental
Protection, Civ. A. CV-90-624, 2000 WL
33676710, *2 (Me. Super. May 1, 2000) (‘‘inverse condemnation
cases did not exist when Maine became a
state''). We therefore must determine whether an
inverse condemnation action is analogous to any common-
law action that was triable to a jury prior to 1818,
the year in which the provision of our state constitution
guaranteeing the right to a jury trial in civil cases was
adopted.Webegin by examining the nature of the action
at issue. Inverse condemnation is ‘‘a cause of action
against a governmental defendant to recover the value
of property which has been taken in fact by the governmental
defendant, even though no formal exercise of
the power of eminent domain has been attempted by
the taking agency.'' (Internal quotation marks omitted.)
United States v. Clarke, 445 U.S. 253, 257, 100 S. Ct. 1127, 63 L. Ed. 2d 373 (1980); see also Florida East
Coast Properties, Inc. v. Metropolitan Dade County,
572 F.2d 1108, 1111 (5th Cir.), cert. denied, 439 U.S.
894, 99 S. Ct. 253, 58 L. Ed. 2d 240 (1978); Citino v.
Redevelopment Agency, 51 Conn. App. 262, 284, 721
A.2d 1197 (1998). An inverse condemnation claim
accrues ‘‘when the purpose of government regulation
and its economic effect on the property owner render
the regulation substantially equivalent to an eminent
domain proceeding . . . .'' (Internal quotation marks
omitted.) Cohen v. Hartford, 244 Conn. 206, 220, 710 A.2d 746 (1998). Accordingly, an inverse condemnation
action has been aptly described as ‘‘an eminent domain
proceeding initiated by the property owner rather than
the condemnor.'' (Internal quotation marks omitted.)
Marshall v. Dept. of Water & Power, 219 Cal. App. 3d
1124, 1138, 268 Cal. Rptr. 559 (1990).

The close relationship between eminent domain and
inverse condemnation is further evidenced by the fact
that the evolution of inverse condemnation as a cause
of action may be traced directly to eminent domain
jurisprudence.30 Moreover, the legal principles that
apply in eminent domain proceedings generally apply
with equal force in inverse condemnation actions. See
First English Evangelical Lutheran Church v. Los
Angeles, 482 U.S. 304, 315, 107 S. Ct. 2378, 96 L. Ed. 2d
250 (1987) (‘‘The fact that condemnation proceedings
were not instituted and that the right was asserted in
suits by the owners [does] not change the essential
nature of the claim. The form of the remedy did not
qualify the right. It rested upon the Fifth Amendment.''
[Internal quotation marks omitted.]); New Port Largo,
Inc. v. Monroe County, 95 F.3d 1084, 1092 (11th Cir.
1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2514, 138 L.
Ed. 2d 1016 (1997) (‘‘[w]e have discovered no indication
that the rule in regulatory takings cases differs from
the general eminent domain framework''); Citino v.
Redevelopment Agency, supra, 51 Conn. App. 285 (‘‘eminent
domain and an inverse condemnation case are
for practical purposes alike''). But see Monterey v. Del
Monte Dunes at Monterey, Ltd., supra, 526 U.S. 712–15 Monte Dunes at Monterey, Ltd., supra, 526 U.S. 712–15
(opinion announcing judgment) (identifying differences
between direct and inverse condemnation); Agins v.
Tiburon, 447 U.S. 255, 258 n.2, 100 S. Ct. 2138, 65 L.
Ed. 2d 106 (1980) (distinguishing inverse condemnation
and eminent domain).

It is apparent, therefore, that an inverse condemnation
action bears a close and substantial relationship
and resemblance to an eminent domain proceeding.
Because the principles underlying a constitutional taking
by eminent domain or inverse condemnation are
essentially sui generis, it is not surprising that there is
no other claim or cause of action, extant before or after
1818, that is comparable to an inverse condemnation
action.

Our determination that an inverse condemnation
action is analogous to an eminent domain proceeding -
and to no other cause of action that existed prior to
1818 - is fatal to the plaintiff's claim that it is entitled
to a jury trial, for it is well settled that eminent domain
proceedings are equitable in nature. Northeast Ct. Economic
Alliance, Inc. v. ATC Partnership, 256 Conn.
813, 828, 776 A.2d 1068 (2001) (‘‘[t]he question of what
is just compensation [in an eminent domain proceeding]
is an equitable one rather than a strictly legal or technical
one'' [internal quotation marks omitted]); Commissioner of Transportation v. Towpath Associates, 255
Conn. 529, 540, 767 A.2d 1169 (2001) (same); Ives v.
Addison, 155 Conn. 335, 341, 232 A.2d 311 (1967)
(same). Consequently, it is well settled, under both federal
and Connecticut law, that no right to a jury trial
existed at common law in eminent domain proceedings.
31 E.g., United States v. Reynolds, 397 U.S. 14, 18,
90 S. Ct. 803, 25 L. Ed. 2d 12 (1970); Bauman v. Ross,
167 U.S. 548, 593, 17 S. Ct. 966, 42 L. Ed. 270 (1897);
Meigs v. Theis, 102 Conn. 579, 594, 129 A. 551 (1925);
New York, N. H. & H. R.R. Co. v. Long, 69 Conn. 424,
437, 37 A. 1070 (1897). Because an inverse condemnation
action has no common-law analogue that was triable
to a jury prior to 1818 - indeed, its nearest
historical analogue, eminent domain, gives rise to a
proceeding in equity - we reject the plaintiff's claim
that it is entitled to a jury trial in the present case.32

C.

In support of its claim that it is entitled to a jury trial,
the plaintiff relies primarily on Monterey v. Del Monte
Dunes at Monterey, Ltd., supra, 526 U.S. 687 (Del Monte
Dunes). The court's conclusion in Del Monte Dunes,
however, does not persuade us that the plaintiff is entitled
to a jury trial in the present action.

In Del Monte Dunes, the aggrieved property owner,
Del Monte Dunes at Monterey, Ltd. (Del Monte Dunes),
filed suit against the city of Monterey (city) under 42
U.S.C. § 1983, claiming, inter alia, that the city had
effected a regulatory taking by rejecting numerous
applications for authorization to develop certain property
that were submitted by Del Monte Dunes and its
predecessor in interest. Id., 695–98 (opinion announcing
judgment). A jury awarded Del Monte Dunes damages
on its takings claim; id., 701 (opinion announcing judgment);
and the United States District Court for the
Northern District of California rendered judgment in
accordance with the jury's verdict. See id. The city
appealed to the Ninth Circuit Court of Appeals, claiming,
inter alia, that Del Monte Dunes' takings claim did
not give rise to a right to a jury trial. Del Monte Dunes
at Monterey, Ltd. v. Monterey, 95 F.3d 1422, 1425 (9th
Cir. 1996). The Ninth Circuit rejected the city's contention
and affirmed. Id., 1427–28, 1430, 1435. Amajority
of the United States Supreme Court agreed that Del
Monte Dunes was entitled to a jury trial on its action
under 42 U.S.C. § 1983 seeking damages for an unconstitutional
regulatory taking. Monterey v. Del Monte Dunes
at Monterey, Ltd., supra, 526 U.S. 721–22 (opinion
announcing judgment); id., 732 (Scalia, J., concurring
in part and concurring in the judgment).

In evaluating the jury trial issue, the court engaged in a historical analysis; see id., 712–16 (opinion
announcing judgment); see also part II A of this opinion;
to determine whether Del Monte Dunes' claim under
42 U.S.C. § 1983 was analogous to a cause of action that was ‘‘tried at law at the time of the founding [of
the seventh amendment] . . . .'' Monterey v. Del Monte
Dunes at Monterey, Ltd., supra, 526 U.S. 708 (opinion
announcing judgment), quoting Markman v. Westview
Instruments, Inc., supra, 517 U.S. 376. The court further
explained that the seventh amendment ‘‘jury guarantee
extends to statutory claims unknown to the common
law, [e.g., a claim under 42 U.S.C. § 1983] so long as
the claims can be said to soun[d] basically in tort, and
seek legal relief.'' (Internal quotation marks omitted.)
Monterey v. Del Monte Dunes at Monterey, Ltd., supra,
709 (opinion announcing judgment).

In concluding that Del Monte Dunes' claim met that
test, the court relied on two important and related considerations,
the first of which is the ‘‘essential character
of [42 U.S.C. § 1983] . . . .'' Id. After noting the importance
of that consideration to its seventh amendment
analysis, the court stated: ‘‘[T]here can be no doubt that
claims brought pursuant to [42 U.S.C.] § 1983 sound in
tort. Just as common-law tort actions provide redress
for interference with protected personal or property
interests, [42 U.S.C.] § 1983 provides relief for invasions
of rights protected under federal law. . . . [Thus, the
court has] repeatedly noted that 42 U.S.C. § 1983 creates
a species of tort liability . . . and ha[s] interpreted the
statute in light of the background of tort liability . . . .
[The court's] settled understanding of [42 U.S.C.] § 1983
and the Seventh Amendment thus compel[s] the conclusion
that a suit for legal relief brought under the statute
is an action at law.'' (Citations omitted; internal quotation
marks omitted.) Id., 709–10 (opinion announcing
judgment).

In concluding that Del Monte Dunes had ‘‘sought legal
relief''; id., 710; the court identified a second factor
critical to its analysis: when the applications of Del
Monte Dunes and its predecessor in interest were
denied by the city, California law provided no remedy
for regulatory takings. Id. As the court explained, ‘‘[Del
Monte Dunes] was entitled to proceed in federal court
under [42 U.S.C.] § 1983 because, at the time of the
city's actions, the [s]tate of California did not provide
a compensatory remedy for temporary regulatory takings.
. . . The constitutional injury alleged, therefore,
is not that property was taken but that it was taken
without just compensation. Had the city paid for the
property or had an adequate postdeprivation remedy
been available, Del Monte Dunes would have suffered
no constitutional injury from the taking alone.33 . . .
Because its statutory action did not accrue until it was
denied just compensation, in a strict sense Del Monte
Dunes sought not just compensation per se but rather
damages for the unconstitutional denial of such compensation.
Damages for a constitutional violation are
a legal remedy.'' (Citations omitted; emphasis altered;
internal quotation marks omitted.) Id.

The court in Del Monte Dunes repeatedly underscored
the significance of the fact that California law
afforded Del Monte Dunes no procedure for obtaining
compensation for a regulatory taking. E.g., id., 712
(opinion announcing judgment) (‘‘[w]here, as here, the
government not only denies liability but fails to provide
an adequate postdeprivation remedy [thus refusing to
submit the question of liability to an impartial arbiter],
the disadvantage to the owner becomes all the
greater''); id., 715 (opinion announcing judgment) (‘‘[i]n
this case . . . Del Monte Dunes was denied not only
its property but also just compensation or even an adequate
forum for seeking it''); id., 717 (opinion announcing
judgment) (‘‘Although the government acts lawfully
when, pursuant to proper authorization, it takes property
and provides just compensation, the government's
action is lawful solely because it assumes a duty,
imposed by the Constitution, to provide just compensation.
. . . When the government repudiates this duty,
either by denying just compensation in fact or by refusing
to provide procedures through which compensation
may be sought, it violates the Constitution. In those
circumstances the government's actions are not only
unconstitutional but unlawful and tortious as well.'' [Citations omitted.]). Indeed, the court suggested that
the absence of such a remedy ‘‘is the gravamen of the
§ 1983 claim.'' Id., 715 (opinion announcing judgment).

By contrast, the plaintiff in the present action has an
adequate postdeprivation remedy available to it,
namely, an inverse condemnation action.34 Thus, if the
plaintiff is successful in establishing the elements of its
claim of a regulatory taking, it will be awarded just
compensation for that taking in accordance with constitutional
requirements.35 In other words, the taking, if it
occurred, could not be deemed tortious or otherwise
wrongful because the plaintiff has an adequate postdeprivation
remedy to obtain just compensation for
the taking. See Williamson County Regional Planning
Commission v. Hamilton Bank, 473 U.S. 172, 194, 105 S.
Ct. 3108, 87 L. Ed. 2d 126 (1985) (‘‘The Fifth Amendment
does not proscribe the taking of property; it proscribes
taking without just compensation. . . . [A]ll that is
required is that a reasonable, certain and adequate provision
for obtaining compensation exist at the time of
the taking.'' [Citation omitted; internal quotation marks
omitted.]); cf. Monterey v. Del Monte Dunes at Monterey,
Ltd., supra, 526 U.S. 717 (opinion announcing judgment)
(when government takes property and either
denies just compensation or refuses to provide property
owner with procedures through which he may obtain
compensation, it not only has acted unconstitutionally, but ‘‘unlawful and tortuous as well''). Accordingly, in
the present case, the plaintiff does not allege tortious
conduct but, rather, lawful conduct entitling it to compensation.
Cf. Monterey v. Del Monte Dunes at Monterey,
Ltd., supra, 747 n.7 (Souter, J., concurring in part and dissenting in part) (noting distinction between situation
in which property owner seeks to enjoin regulatory
taking and situation in which property owner seeks
to obtain compensation). Therefore, the analogy to a
tort action is inapposite. Furthermore, the plaintiff's
common-law inverse condemnation action, in contrast
to the § 1983 action brought by Del Monte Dunes, traditionally
has not been characterized as an action sounding
in tort. To the contrary, an inverse condemnation
action is analogous to an eminent domain proceeding,
which is equitable in nature, and not to any action at
law.36 See part II B of this opinion.

Finally, the court in Del Monte Dunes expressly indicated
that it was not deciding the issue confronting this
court in the present appeal. The United States Supreme
Court stated in Del Monte Dunes: ‘‘We note the limitations
of our Seventh Amendment holding. We do not
address the jury's role in an ordinary inverse condemnation
suit. The action here was brought under [42
U.S.C.] § 1983, a context in which the jury's role in
vindicating constitutional rights has long been recognized
by the federal courts.'' (Emphasis added.) Monterey
v. Del Monte Dunes at Monterey, Ltd., supra, 526
U.S. 721 (opinion announcing judgment). Thus, it is
abundantly clear that the holding of Del Monte Dunes
does not dictate a holding contrary to our holding
today.37

We therefore reject the plaintiff's claim of a right to
a jury trial in connection with its inverse condemnation
claim. Accordingly, the court, Hurley, J., properly
granted the town's motion to strike the plaintiff's case
from the jury docket.

* * *

Click the case caption above for the full text of the Court's opinion.

The judgment is reversed and the case is remanded
for further proceedings according to law.

Unknown

Unknown

None