author: CALLAHAN, C. J.

text:
    CUMBERLAND FARMS, INC. v. TOWN OF GROTON
    (SC 15797)
    Callahan, C. J., and Borden, Norcott, Katz and McDonald, Js.
    Argued April 24
    officially released November 3, 1998

      Michael A. Zizka, with whom, on the brief, was Everett E. Newton, for the appellant (plaintiff).

      Raymond L. Baribeault, Jr., with whom, on the brief,, was James F. Brennan, Jr., for the appellee (defendant).

      Richard Blumenthal, attorney general, and Janet P. Brooks, assistant attorney general, filed a brief for the commissioner of environmental protection as amicus curiae.
   Opinion

CALLAHAN, C. J.

The zoning board of appeals of the town of Groton (board) denied, for lack of hardship, the application of the plaintiff, Cumberland Farms, Inc., for a zoning variance. The dispositive issue in this appeal is whether the board’s denial of the variance application constituted a final decision that rendered ripe for adjudication an inverse condemnation claim the plaintiff subsequently brought against the defendant, the town of Groton, based on the denial of its variance application. We conclude that it did.

The Appellate Court opinion adequately sets forth the facts and the underlying procedural history. “The relevant facts are not in dispute. As set forth in the trial court’s memorandum of decision, ‘the 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 defendant 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 plaintiffs property requires substantial upgrading. To offset the costs of these improvements, the plaintiff applied to the [defendant’s] zoning board of appeals 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. The [board] denied the plaintiffs application after a hearing.’ The plaintiff appealed the board’s decision regarding its variance application to the Superior Court. That appeal is presently pending.

“On September 5,1996, the plaintiff filed [a separate] amended complaint, claiming inverse condemnation of the property and seeking damages and other compensation, pursuant to the fifth and fourteenth amendments to the United States constitution, as well as article first, § 11, of the Connecticut constitution. The defendant filed a motion to dismiss the plaintiffs amended complaint on the ground that the court lacked subject matter jurisdiction over the plaintiffs inverse condemnation action due to the pending appeal of the board’s decision. The plaintiff filed a memorandum of law in opposition to the defendant’s motion.

“On December 9,1996, the trial court issued a twelve page memorandum of decision in which it determined that because the plaintiff submitted only one application for a variance to the defendant’s zoning regulations, no final administrative decision had been made. The trial court also concluded that the plaintiff was required to exhaust its administrative remedies, through an appeal of the board’s adverse decision on its variance application, before it could maintain a separate takings action. Finally, the trial court determined that because the plaintiff could have raised its takings claim in the appeal from the denial of its variance application, the prior pending action rule required that the plaintiffs inverse condemnation action be dismissed. Accordingly, the trial court granted the defendant’s motion to dismiss the plaintiffs amended complaint for lack of subject matter jurisdiction.” Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 514-16, 699 A.2d 310 (1997).

The plaintiff appealed from the judgment of the trial court to the Appellate Court. On appeal, the plaintiff claimed that the trial court improperly determined that: (1) a landowner must appeal the denial of a variance to the Superior Court before it can file a taking claim under the United States and Connecticut constitutions; (2) a landowner must always submit more than one application for a variance to a zoning board of appeals for the denial of the variance to be considered an appeal-able “final action”; and (3) an inverse condemnation lawsuit is precluded by the “prior pending action” rule when the other action at issue is an appeal of the denial of a variance. Id., 514-15.

The Appellate Court affirmed the trial court’s decision, concluding that the plaintiffs inverse condemnation action was premature because its administrative appeal from the denial of its application for a variance was not yet final and, therefore, the action was not justiciable. Id., 517-19. The Appellate Court reasoned that “[ujntil the plaintiffs underlying appeal of the board’s decision has been resolved, there can be no final and authoritative determination of the type of development legally permitted on the plaintiffs property. Furthermore, because the extent of any damages sustained by the plaintiff cannot be determined until the resolution of its appeal of the board’s decision, the plaintiffs inverse condemnation action is premature and is not presently capable of resolution on the merits.” Id., 519.

We granted the plaintiffs petition for certification to appeal limited to the following question: “Did the Appellate Court properly conclude that the plaintiffs claim for inverse condemnation was not ripe for review and, therefore, was properly dismissed by the trial court?” Cumberland Farms, Inc. v. Groton, 243 Conn. 936, 702 A.2d 641 (1997). In order to answer the certified question, we must resolve both the first and second issues raised in the Appellate Court; namely, whether the plaintiffs action was not ripe for adjudication because: (1) the plaintiffs administrative appeal had not been resolved; and (2) the plaintiff had failed to submit multiple plans. **5 To decide these issues, we must determine whether 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. If the resolution of that inquiry is in the affirmative, the Appellate Court improperly affirmed the trial court’s dismissal of the plaintiffs inverse condemnation action for lack of subject matter jurisdiction. We conclude that the inquiry should be answered affirmatively, and, therefore, reverse the judgment of the Appellate Court.

In its inverse condemnation action, the plaintiff seeks compensation for an alleged taking of its property without just compensation in violation of the fifth amendment to the United States constitution and article first, § 11, of the Connecticut constitution. Specifically, the plaintiff maintains that the board’s denial, pursuant to the defendant’s zoning regulations, of the variance application operated to deprive the plaintiff of any economically feasible, reasonable use of its property. In the plaintiffs view, the regulatory action that the plaintiff alleges constitutes a taking of its property became final at the time the board denied the variance application, and it was at that point that the plaintiffs inverse condemnation action became ripe for adjudication. According to the plaintiff, because any subsequent action by the Superior Court sustaining its administrative appeal from the board’s decision would have been purely remedial, resolution of the administrative appeal was not a necessary predicate to its inverse condemnation claim.

The defendant, however, argues that the plaintiffs inverse condemnation action was not justiciable because the plaintiff had submitted only one plan to the zoning board of appeals, and because the plaintiffs administrative appeal from the board’s decision to the Superior Court pursuant to General Statutes § 8-8 had not been resolved.

I

The parties agree that our decision in Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 600, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S. Ct. 64, 116 L. Ed. 2d 39 (1991), is dispositive of this appeal. They diverge, however, with respect to the proper application of our holdings in Port Clinton Associates to these facts. A brief summary of the facts and the resolution of Port Clinton Associates is, therefore, appropriate.

Port Clinton Associates and Port Clinton Marina, Inc., (together Port Clinton) were the riparian owner and lessor, respectively, of three piers that extended into Clinton Harbor. The Clinton board of selectmen denied

Port Clinton’s application to expand its piers on the basis of a local ordinance that required the board’s permission for expansions into the harbor beyond certain established building lines. Id., 590-93.

In Port Clinton Associates, we stated that a property owner challenging an application of a local ordinance as constituting a taking without just compensation may not maintain its claim unless and until a final decision has been rendered by the initial decision maker. Id., 607. The lack of such a final decision renders the claim unripe for review, and the Superior Court is without subject matter jurisdiction for lack of a justiciable issue. Id., 604. We stated further that “[v]afiances and exceptions in Connecticut are generally granted not by the zoning commission, but by the zoning board of appeals. General Statutes § 8-6. Thus, in many instances, a final decision by the ‘initial decisionmaker, really means a decision by the zoning board of appeals, when that body is not acting in a reviewing capacity but is exercising its power to grant variances and exceptions.” (Emphasis added.) Id., 606-607, relying on Florentine v. Darien, 142 Conn. 415, 115 A.2d 328 (1955). Consequently, where the necessity of a variance is concerned, the zoning board of appeals is typically the “initial” decision maker.

We also concluded in Port Clinton Associates that “a property owner need not pursue remedial procedures that merely review the propriety of the initial decisionmaker’s action.” Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 606. In support of this conclusion, we relied on Williamson County Regional Planning Commissions. Hamilton Bank, 473 U.S. 172, 194-95, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), in which the United States Supreme Court had concluded that a property owner is not required to pursue “ ‘those procedures [that] clearly are remedial’ ” or those in which the reviewing entity, be it a court or an administrative review board, “ ‘was empowered, at most, to review [the] rejection [of the plaintiff s application], not to participate in the [initial decisionmaker’s] decisionmaking.’ ” Port Clinton Associates v. Board of Selectmen, supra, 605. Consequently, we concluded that Port Clinton was not obligated, prior to bringing a taking action, to pursue an administrative appeal to the Superior Court pursuant to § 8-8 from the administrative action of the board denying the plaintiffs application. In effect, we countenanced an exemption from the exhaustion doctrine.

Notwithstanding the fact that Port Clinton was not obligated to pursue an administrative appeal prior to asserting a taking claim, we also determined that it nonetheless had failed to meet its burden of demonstrating finality. Port Clinton had presented to the board only one relatively ambitious plan for expanding its piers. We noted that “[i]t is not implausible to conclude that the board might have approved a somewhat less ‘grandiose’proposal. . . .” Id., 609-610. Consequently, we concluded that Port Clinton could not sustain its burden of demonstrating finality because it had not shown that the board would have denied a less ambitious plan. We also concluded that, in the absence of such finality, it would be impossible for the court to determine whether a taking had occurred and, if it had, to calculate damages. Id., 603.

II

The defendant argues that certain aspects of our decision in Port Clinton Associates are dispositive of this appeal. According to the defendant, the exemption from the exhaustion requirement in Port Clinton Associates is not applicable in this case because that exemption has been applied only in cases where the plaintiffs taking claim is predicated on 42 U.S.C. § 1983, not to “pure” taking claims, that is, those claims based exclusively on the constitutional just compensation clauses. See footnote 3 of this opinion. The defendant further argues that the remainder of the holding in Port Clinton Associates, namely, the requirement that a plaintiff must submit multiple plans before achieving finality, is applicable. Consequently, the defendant contends that the trial court properly dismissed the plaintiffs inverse condemnation action as unripe for lack of finality both because the plaintiff had submitted only a single plan in conjunction with its application for a variance, and because the plaintiffs appeal to the Superior Court pursuant to § 8-8 was not final.

The plaintiff, on the other hand, argues that the regulatory action upon which its taking claim is based was complete when the board, as the initial decision maker, denied its application for a variance, and that its inverse condemnation action became justiciable at that point. It maintains that the exemption from the exhaustion doctrine, which is applicable to § 1983 taking claims, should be equally applicable to pure taking claims. It also argues that the necessity of submitting multiple plans is not a per se rule but is based on the circumstances of each case. According to the plaintiff, submission of additional plans would have been unavailing in this instance and, thus, was not a requisite to establishing finality. We agree with the plaintiff.

A

Effect of the Plaintiffs Administrative Appeal

We begin our analysis of this issue by emphasizing the distinction between an inverse condemnation action and an administrative appeal to the Superior Court from an adverse decision of a zoning board of appeals pursuant to § 8-8. A plaintiffs administrative appeal serves the remedial purpose of reviewing the propriety of the board’s decision. Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 607 (“[Section 8-8] provides for an administrative appeal to the Superior Court, which may review the propriety of the initial decisionmaker’s action within the usual limits on judicial review of an agency action. The statutory appeals process under § 8-8 is, thus, precisely the type of procedure that a [taking] claimant . . . need not pursue as a prerequisite to filing his suit.”); see General Statutes § 8-8 (1). An administrative appeal cannot provide a monetary remedy to the plaintiff.

By contrast, in an inverse condemnation action, a plaintiff alleges that a regulatory action constitutes a taking for constitutional purposes and seeks compensation for the alleged taking. An inverse condemnation action does not concern itself with the propriety of the board’s action. The only inquiry is whether a taking has, in fact, occurred. If the board’s action resulted in a taking, the inverse condemnation action will determine the amount of compensation due. Although action by the Superior Court favorable to the plaintiff in the plaintiffs administrative appeal might eliminate the plaintiffs claim of compensation for a complete taking, the plaintiff might nonetheless be entitled to compensation for the temporary taking that wrongly denied the plaintiffs use of its property while the appeal was pending.

The defendant asserts that our conclusion in Port Clinton Associates with respect to the inapplicability of the exhaustion doctrine to a taking claim does not apply in the context of this case because the plaintiff has brought only a pure taking claim, not a § 1983 action. In Port Clinton Associates, we were presented with a “pure” taking claim pursuant to the state and federal constitutions, as well as a statutory taking claim pursuant to § 1983. There, relying on Williamson County Regional Planning Commission v. Hamilton Bank, supra, 473 U.S. 194-95, we concluded that exhaustion of the administrative appeal process was not required to sustain a § 1983 taking claim. Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 604-10. We declined to address the issue of whether it would be necessary for the plaintiff to exhaust its administrative remedies by way of an appeal to the Superior Court in order to establish finality for a pure taking claim.

The defendant has not presented any authority in support of the proposition that a pure taking claim, unlike a § 1983 taking claim, requires exhaustion of administrative remedies. Our own research has revealed none. A taking claim brought pursuant to § 1983 is predicated upon the federal constitutional requirement of the fifth amendment that the government may not take private property without just compensation. See footnote 3 of this opinion. “[T]he touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution . . . .” Monell v. Dept. of Social Services, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Consequently, in the context of a taking claim, § 1983 is no more than a statutory vehicle for redress of an alleged unconstitutional taking without just compensation. There is no relevant distinction between the procedure and the substance of a pure taking claim and a § 1983 taking claim that would justify different treatment with respect to the applicability of the exhaustion and finality doctrines. In reviewing our precedent and the policy considerations underlying taking claims of either genre, we conclude that the inapplicability of the exhaustion doctrine is equally applicable to both § 1983 taking claims and pure taking claims.

Moreover, we indicated in Port Clinton Associates, with respect to the inapplicability of the exhaustion doctrine, that “we have used similar reasoning in addressing a pure taking claim; see Florentine v. Darien, [supra, 142 Conn. 415] . . . .” Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 610. In Florentine, we concluded that “[i]f the plaintiffs are denied relief by the zoning board of appeals, the action of the zoning authorities has then become final and complete. The plaintiffs are still in a position to appeal from the decision of the zoning board of appeals or to challenge by direct attack in an independent proceeding the constitutionality of the regulation, or indeed, of the entire ordinance or law.” (Emphasis added.) Florentine v. Darien, supra, 430; see id., 428. Florentine presented a pure taking claim, not a § 1983 claim, and we concluded that the plaintiffs could challenge the constitutionality of the zoning regulation directly from the ruling of the zoning board of appeals, which constitutes the final administrative decision maker, without first bringing an administrative appeal from that decision to the Superior Court. Id., 431. That conclusion was based on the same rationale set forth in Port Clinton Associates relating to § 1983 taking claims and was cited in Port Clinton Associates as supporting authority. “[T]he zoning commission and the board of appeals act in a legislative or an administrative capacity, and after they have both functioned the zoning powers have been fully exercised. The Court of Common Pleas [now Superior Court], on appeal, acts, and can only act, in a judicial capacity. It has no legislative or administrative powers.” Florentine v. Darien, supra, 431. Because the Superior Court does not have the ability to act in a legislative or administrative capacity, its review is exclusively remedial, not participatory. Port Clinton Associates v. Board of Selectmen, supra, 608.

The rationale for permitting an inverse condemnation claim without the prerequisite of an administrative appeal to the Superior Court is simply that the regulatory action that allegedly resulted in a taking has occurred upon the final decision of the initial decision maker, typically the zoning board of appeals. An administrative appeal from that decision may, if favorable to the property owner, render the alleged taking temporary, but it does not eliminate the taking. Nor can the administrative appeal provide the compensation that the inverse condemnation action seeks. Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 604-10. Consequently, we are persuaded that a party asserting a pure taking claim should be exempt from the obligation to pursue an appeal pursuant to § 8-8 to the same extent as a party asserting a taking claim pursuant to § 1983. The plaintiff, therefore, was not required to pursue its administrative appeal pursuant to § 8-8 prior to instituting this inverse condemnation action.

The defendant, nevertheless, argues that the trial court properly determined that the plaintiffs inverse condemnation claim was not ripe for adjudication because, at the time the trial court rendered its decision, a future reversal, on administrative appeal, of the board’s decision would have operated to provide the plaintiff with all permissible relief. Specifically, the defendant contends that if the board’s decision had been reversed on appeal and the plaintiffs variance application subsequently had been granted, the plaintiff would not have been entitled to compensation for the fluctuations in the value of its property during the pendency of the appeal because such fluctuations do not constitute a temporary taking.

There are two problems with the defendant’s argument. First, the factual predicate for the defendant’s argument, namely a reversal of the board’s action, was not the only possible outcome. In fact, the Superior Court has denied the plaintiffs administrative appeal, and the Appellate Court has denied the plaintiffs application for certification to appeal from the judgment of the Superior Court.

Second, although a reversal of the board’s decision would not have entitled the plaintiff to damages for mere fluctuations in the value of its property during the pendency of its administrative appeal, such reversal would not have precluded the plaintiff from obtaining damages pursuant to its inverse condemnation claim. We previously have said that “[w]e do not believe that the constitution requires compensation for any temporary infringement of an owner’s property rights, no matter how slight, every time a town makes a mistake in construing an enabling statute or in measuring its geographical boundaries.” Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 601-602. The United States Supreme Court has concluded that “[m]ere fluctuations in value during the process of governmental decisionmaking” do not constitute a temporary taking. Agins v. Tiburon, 447 U.S. 255, 263 n.9, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980); see Danforth v. United States, 308 U.S. 271, 285, 60 S. Ct. 231, 84 L. Ed. 240 (1939) (“A reduction or increase in the value of property may occur by reason of legislation for ... a project. Such changes in value are incidents of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.”). The plaintiffs inverse condemnation claim, however, does not seek to recover for mere fluctuations in the value of its property during the pendency of its administrative appeal. Instead, the plaintiff seeks compensation for lost profits and opportunities occasioned by the alleged unconstitutional taking.

The defendant’s argument, moreover, is contrary to the holding of First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987) (First English). In First English, the court concluded that, where finality of the underlying administrative action is established, a plaintiff may bring a claim for a temporary taking. Id., 310-11. It is unnecessary for the plaintiff to await judicial review of the administrative action. Id. The court noted that the “ [invalidation of the ordinance or its successor ordinance after this period of time [between the final administrative decision and the subsequent judicial reversal of that decision], though converting the taking into a ‘temporary’ one, is not a sufficient remedy to meet the demands of the Just Compensation Clause.” Id., 319. The court distinguished between the language in Agins v. Tiburon, supra, 447 U.S. 255, and that in Danforth v. United States, supra, 308 U.S. 271, with respect to the nonrecoverable nature of “mere fluctuations in value” as no more than a reflection of the notion that the valuation of the loss must be made at the time a taking has occurred, not prior thereto, and that depreciation in value due to preliminary action is not chargeable to the government. Thus, as the court noted, preliminary regulatory activity may not work a taking in the same way as a final regulatory decision. By preliminary regulatory activity, the court in First English was referring to those activities of the zoning authorities such as the process of submitting applications for, and consideration of, building permits, variances and the like. See First English Evangelical Lutheran Church v. Los Angeles County, supra, 326. As previously indicated, however, once the zoning board of appeals has finally ruled on these applications, the regulatory activity is final for purposes of pursuing an inverse condemnation claim. Id.; Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 606-607. Consequently, we conclude that the plaintiff was not barred from pursuing this inverse condemnation action by the possibility that the alleged taking might be rendered temporary by a favorable resolution of its administrative appeal.

B

Finality of the Board’s Denial of the Plaintiffs Variance Application

The defendant next maintains that the plaintiffs inverse condemnation action was not ripe for adjudication because the plaintiff did not submit alternative plans to the zoning board. According to the defendant, submission of multiple plans is a prerequisite to a finding of finality by the initial decision maker.

In Port Clinton Associates, however, we did not conclude that submission of multiple plans is always required. We concluded only that “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 taking clause.” Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 607. We expressly included the caveat, however, that “repeated applications and denials” are not required and the property owner is not obliged to “take patently fruitless measures.” (Internal quotation marks omitted.) Id. We also indicated that “[precisely what procedures a given property owner must pursue [before finality may be assured] depends upon the specific regulation at issue.” Id., 606. We conclude that the plaintiff was not obligated, under the present circumstances, to file multiple plans with the zoning board as a predicate to a determination that the board, as the initial decision maker, had rendered a final decision.

The basis for the board’s decision in the present case, unlike that in Port Clinton Associates, was not that the proposed nonconforming use was unacceptable, but, rather, that the plaintiff had not demonstrated that it suffered from a hardship that warranted the granting of a variance. It is well settled that the granting of a variance must be reserved for unusual or exceptional circumstances. “Proof of existence of such hardship is a condition precedent to the granting of such variances.” Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn, 364, 368, 423 A.2d 90 (1979). “[T]he established law of this state . . . prohibits a zoning board of appeals from reversing its previous decision unless the facts and circumstances which actuated the decision are shown to have so changed as to vitiate or materially affect the reason which produced and supported it and no vested rights have intervened.” Laurel Beach Assn. v. Zoning Board of Appeals, 166 Conn. 385, 387, 349 A.2d 834 (1974). The submission of a different application would not have constituted a material change of circumstances with respect to the issue of hardship. Therefore, the board could not have reversed its decision on that issue. In other words, because the basis for the denial of the plaintiffs requested variance was lack of hardship, a different plan could not have changed the result. Consequently, the submission of an alternative plan would have been a “patently fruitless measure” and was not, therefore, a prerequisite to the plaintiffs inverse condemnation claim.

Ill

Finally, we consider whether the trial court properly concluded that the plaintiffs inverse condemnation claim was properly dismissed in light of the prior pending action doctrine. The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. “The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.” (Internal quotation marks omitted.) Halpern v. Board of Education, 196 Conn. 647, 652-53, 495 A.2d 264 (1985). “We must examine the pleadings to ascertain whether the actions are ‘virtually alike’ id., 653; and whether they are brought to adjudicate “the same underlying rights.” Id., 655; Beaudoin v. Town Oil Co., 207 Conn. 575, 584, 542 A.2d 1124 (1988).

As indicated above, an administrative appeal pursuant to § 8-8 and an inverse condemnation action are distinct actions that raise distinct claims and seek distinct remedies. At least facially, the plaintiffs propose here is not to bring vexatious litigation, but to obtain compensation for an alleged unconstitutional taking. The administrative appeal may alleviate the continuation of the alleged taking, but it cannot provide compensation. Consequently, the actions are neither virtually alike nor do they seek to adjudicate the same rights. Moreover, if we were to conclude that the prior pending action doctrine could preclude an inverse condemnation claim when the prior action is an administrative appeal from the adverse decision of the board, it would render meaningless the rule articulated above excluding such actions from the exhaustion doctrine.

The trial court concluded that the prior pending action doctrine was applicable because the plaintiff could have raised its taking claim in its administrative appeal. Although the plaintiff could claim in its administrative appeal that the board’s denial of its variance was so unreasonable or arbitrary that it was confiscatory; see DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 269 n.1, 205 A.2d 774 (1964); the court could do no more than remand the case to the board for reconsideration if it agreed with the plaintiff. It could not award any monetary damages. Connecticut has no statutory vehicle by which to obtain compensation for a regulatory taking and, therefore, a common-law inverse condemnation action is the sole method by which the plaintiff may be compensated if the board’s denial of its application for a variance constitutes a taking. See Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 250 n.15, 662 A.2d 1179 (1995)(“[i]nverse condemnation is ‘a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted’ ”).

To the extent that the issues addressed in the inverse condemnation action overlap the administrative appeal, the parties would be free to request a consolidation of the cases. Alternatively, they may employ the procedural tools of claim and issue preclusion to prevent duplicative litigation of the same issues or claims. At any rate, the plaintiffs inverse condemnation action is not precluded by the existence of its pending administrative appeal from the adverse ruling of the board.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court for further proceedings according to law.

In this opinion the other justices concurred.

       “See Cumberland Farms, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV96-0538647S.” Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 515 n.1, 699 A.2d 310 (1997).

       Subsequent to the Appellate Court’s decision in the present case; Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 699 A.2d 310 (1997); the Superior Court denied the plaintiffs administrative appeal. Cumberland Farms, Inc. v. Groton, Superior Court, judicial district of New London, Docket No. CV96-538647S (September 24, 1997). On November 5, 1997, the Appellate Court denied the plaintiffs application for certification to appeal from the judgment of the Superior Court denying its administrative appeal. Thus, the plaintiffs administrative appeal has now been resolved. See part II A of this opinion regarding the effect of the resolution of the plaintiffs administrative appeal on its inverse condemnation claim.

       “The fifth amendment to the United States constitution provides in relevant part: ‘[N]or shall private property be taken for public use, without just compensation.’ The taking clause of the fifth amendment is made applicable to the states through the fourteenth amendment. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980); Pennsylvania Central Transportation Co. v. New York City, 438 U.S. 104, 122, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). Article first, §11, of the Connecticut constitution provides: The property of no person shall be taken for public use, without just compensation therefor.’ ” Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 516 n.2, 699 A.2d 310 (1997). The complaint filed on September 5,1996, was an amended version of an original complaint claiming an inverse condemnation.

       The Appellate Court concluded that because the plaintiffs claim was not ripe, it was unnecessary to address the other issues raised on appeal, including whether the prior pending action doctrine applied, and whether the plaintiff was required to submit multiple plans in order to establish finality for its taking claim. Cumberland Farms, Inc. v. Groton, supra, 46 Conn. App. 520.

       The parties have fully briefed the issues of ripeness and finality as well as the impact of our decision in Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 600, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S. Ct. 64, 116 L. Ed. 2d 39 (1991), on the resolution of this case. Because, in view of our conclusion in Port Clinton Associates, the issue of finality and ripeness as staled in the certified question is necessarily two-pronged, our analysis would be incomplete if we addressed only the first prong relating t.o completion of the plaintiffs administrative appeal. Moreover, the defendant's brief in this court is virtually identical to that filed in the Appellate Court, particularly with respect to the issues of the necessity of multiple plans and exhaustion of the administrative appeal. In the furtherance of judicial economy, therefore, we address the issue of multiple plans, notwithstanding the fact that, it was not addressed by the Appellate Court. State v. Brown, 242 Conn. 445, 447, 700 A.2d 1089 (1997).
      In addition, although the resolution of these ripeness issues necessarily informs the resolution of the third issue relating to the prior pending action doctrine, we need not specifically address that issue to resolve the certified question. Although courts may not necessarily be entitled to raise the issue of the prior pending action doctrine sua sponte; see Conti v. Murphy, 23 Conn. App. 174, 178, 579 A.2d 576 (1990); the parties have raised this issue in both the trial court and the Appellate Court. Moreover, both parties fully addressed the issue in their briefs to this court. Consequently, we also address that issue for reasons of judicial economy. See part III of this opinion.

       The question certified in this appeal, whether the denial of the plaintiffs variance application constitutes an appealable final action, is separate and distinct from the question of whether that denial constitutes a taking of the plaintiffs property for constitutional purposes.

       The plaintiff has not alleged that the regulations are facially unconstitutional.

       General Statutes § 8-8 provides in relevant part: “(a) As used in this section:
      “(1) ‘Aggrieved person’ means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.
      “(2) ‘Board’ means a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission the decision of which may be appealed pursuant to this section, or the chief elected official of a municipality, or his designee, in a hearing held pursuant to section 22a-250, whose decision may be appealed.
      “(b) Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. . . .”

       In Port Clinton Associates, there was no opportunity to seek a variance from the decision of the board of selectmen. Consequently, the board of selectmen was the equivalent of a zoning board of appeals for finality purposes.

       By stating this proposition as an exemption from the exhaustion doctrine, we do not mean to imply that the doctrine is wholly inapplicable. We mean to say only that a property owner who has applied for and been denied a variance by the zoning board of appeals is not obligated to pursue a statutory appeal to the Superior Court pursuant to § 8-8 in order to meet the requirement of finality for purposes of bringing an inverse condemnation action. This notion is perhaps better understood as the inapplicability of the exhaustion doctrine in those limited circumstances where the constitutionality of a regulation as applied is at issue pursuant to a taking claim. In such cases, the plaintiff is exempt from the usual requirement of first pursuing judicial review of the otherwise final administrative action. Other issues relating to finality, specifically, whether the property owner must file multiple plans or exhaust existing administrative remedies other than an appeal to the Superior Court, are not addressed by this specific portion of the holding in Port Clinton Associates.

       Title 42 of the United States Code, § 1983, provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or otherperson within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

       “Temporary takings” are defined by the United States Supreme Court as “those regulatory takings which are ultimately invalidated by the courts.” First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 310-11, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987).

       We stated in Port Clinton Associates that “we need not decide whether one making [a pure taking] claim is never required to pursue procedures that provide review of the legality of an initial decision but cannot themselves result in a decision allowing an owner some reasonable use of his property or award just compensation for deprivation of reasonable use of the property. For the same reasons given above, whether or not Port Clinton would be required to exhaust the statutory appeals process before presenting its pure taking claim outside the § 1983 context, we conclude that the trial court had no jurisdiction to consider the taking claim until Port Clinton obtained a final decision from the board of selectmen as to the amount of expansion it would permit.” Port Clinton Associates v. Board of Selectmen, supra, 217 Conn. 610.

       The United States Supreme Court noted that First English presented the first opportunity to reach this conclusion. First English Evangelical Lutheran Church v. Los Angeles County, supra, 482 U.S. 310. Prior cases, including Williamson County Regional Planning Commission v. Hamilton Bank, supra, 473 U.S. 172, and Agins v. Tiburon, supra, 447 U.S. 255, had been tripped up at the threshold for lack of finality.

       We have stated that “[t]o demonstrate the requisite finality, a property owner asserting a regulatory [taking] 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. Inlands Wetlands & Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991). While we recognize that the board’s action does not render the plaintiffs property unfit for any use, the plaintiff has alleged that the action renders the property unfit for any economically feasible use. This appeal is brought following the grant of a motion to dismiss. “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). We accept as true, for purposes of this appeal only, that the board’s denial of the variance, because it is a final administrative action, has left the plaintiff without any reasonable use of its property, at least until such time as that action may be reversed by subsequent judicial action.


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    WRIGHT BROTHERS BUILDERS, INC. v. JOSEPH A. DOWLING ET AL.
    (SC 15741)
    Borden, Berdon, Katz, Palmer and McDonald, Js.

      Argued January 15
    officially released November 3, 1998

      Alan R. Spirer, for the appellant (plaintiff).

      Frank W. Murphy, with whom were Christopher C. Vaugh and, on the brief, Barbara L. Coughlan, for the appellees (defendants).

      William H. Elhier filed a brief for the Home Builders Association of Connecticut, Inc., as amicus curiae.
   Opinion

BERDON, J.

The dispositive issue in this certified appeal is whether a home improvement contract entered into by the plaintiff, Wright Brothers Builders, Inc., and the defendants, Sandra O. Dowling and her husband, Joseph A. Dowling, complied with the Home Improvement Act (HIA), General Statutes § 20-418 et seq.

The plaintiff, a licensed home improvement contractor, instituted this action to foreclose a mechanic’s hen on property owned by Sandra Dowling. The plaintiff had filed the lien to secure payment for work that it performed on the residence of Sandra Dowling in accordance with a written home improvement contract (contract). In defending against foreclosure of the hen, the defendants claimed that the contract did not comply with the statutory requirements of General Statutes § 20-429 (a) of the HIA and, therefore, could not be enforced by an action for foreclosure of the lien or by any other means.

The attorney trial referee to whom the matter was initially referred in accordance with General Statutes § 52-434 (a) (4) and Practice Book § 19-1 et seq., formerly § 428 et seq., concluded (1) that the contract complied with the HIA and (2) that even if the contract failed to comply with the HIA, the defendants were precluded by their own bad faith from invoking the HIA as a defense to the contract. In accordance with his findings, the attorney trial referee recommended judgment for the plaintiff in the amount of $101,275. The trial court rejected the attorney trial referee’s recommendations, finding that (1) the contract violated § 20-429 (a), and (2) there was insufficient evidence of bad faith to preclude the defendants from invoking the HIA as a defense to the contract. Consequently, the trial court rendered judgment in favor of the defendants.

On appeal to the Appellate Court, the judgment was affirmed in a per curiam decision. Wright Bros. Builders, Inc. v. Dowling, 45 Conn. App. 918, 694 A.2d 46 (1997). We granted the plaintiffs petition for certification limited to the following two issues: (1) “Did the Appellate Court properly affirm the trial court’s decision overruling the attorney trial referee’s conclusion that the agreement between the plaintiff and the defendants complied with [the HIA], General Statutes (Rev. to 1993) § 20-429 (a) (6); if so, did the Appellate Court also properly affirm the trial court’s conclusion that the plaintiff is not entitled to recover under its claim of unjust enrichment?”; and (2) “Did the Appellate Court properly affirm the trial court’s decision overruling the attorney trial referee’s conclusion that the defendants’ bad faith precluded their invocation of [the HIA] as a basis for repudiating the contract?” Wright Bros. Builders, Inc. v. Dowling, 242 Conn. 914, 914-15, 697 A.2d 369 (1997). We conclude that the contract complied with § 20-429 (a) (6) and, therefore, we do not address either the second part of the first certified question or the second certified question.

The attorney trial referee found the following facts, which are not in dispute. “The plaintiff is a licensed home improvement contractor engaged in the business of constructing residential and commercial structures. . . . Sandra Dowling is the record owner of the premises located at 13 Hitchcock Road, Westport, Connecticut, where she resides with her husband . . . Joseph Dowling.

“After several months of preliminary design and estimating work, the parties entered into the agreement dated January 11, 1993. The agreement provided that [the] plaintiff would renovate approximately 2817 square feet of the defendants’ house and construct an addition of approximately 3500 square feet. The plaintiff was to be paid on a cost plus basis (10 percent for overhead and 7 percent for profit), and the preliminary budget was set at $528,360. Although [Sandra] Dowling was the record owner, [Joseph] Dowling represented the two in all substantive dealings with [the] plaintiff.

“Work began on the project in February, 1993. Thereafter, the defendants initiated a number of changes and upgrades, which raised the total contract budget to $875,579 as of August 30,1993. Leading up to that point there had been a great deal of communication between the parties, and [the] plaintiff regularly updated [the] defendants regarding the cost and progress of the work. This information was conveyed orally, in correspondence and in periodic billings.

“Problems commenced when the work was nearing completion. After receiving billing no. 7, dated August 30,1993, which showed the revised budget of $875,579, [Joseph] Dowling expressed concerns about the cost of the job. Whereas before [the] defendants had promptly paid [the] plaintiffs billings, they failed to pay billing no. 7 in a timely fashion. On September 20, 1993, [Joseph] Dowling and Kelly M. Wright, [the] plaintiffs president, signed a one page document entitled ‘Amendment to Contract dated 11 January, 1993 . . . .’ Among other things, [the amendment] provided that:

“ ‘1. Contractor agrees to finish Project at 13 Hitchcock Road, Westport, CT for a final guaranteed price of $835,579. . . .

“ ‘7. There will be no change in the plans for construction and no alteration of material. The house will be delivered to Owner in “Turnkey” condition. . . .

“ ‘9. The final payment ($67,474) shall be due sixty days after the issuance of Certificate of Occupancy and the approval of said work by the architect whose approval will not be unreasonably withheld. Builder agrees to assist Owner in preparing documents necessary for financing. . . .

“ ‘11. Owner will pay $75,000 towards Contract upon signing of this Agreement. . . .’

“Pursuant to this amendment, the [defendants] paid $75,000 to [the] plaintiff. Thereafter, the project was completed. [The] [p]laintiff claims that $141,275 is due, whereas [the] defendants claim only $67,474 is [owing], [The] [p]laintiff seeks the larger amount because it claims the scope of work was enlarged by the owner after the signing of the amendment. As a result, when [the] defendants tendered $67,474 in full and final settlement, [the] plaintiff refused the tender.”

In January, 1994, the plaintiff filed a multicount complaint against the defendants seeking, in part, to foreclose on the mechanic’s lien it had filed on Sandra Dowling’s property. In the defendants’ answer, they interposed a special defense claiming that the contract failed to comply with General Statutes § 42-135a (2) and (3) of the Home Solicitation Sales Act (HSSA), the requirements of which are incorporated into § 20-429 (a) (6) of the HIA.

The attorney trial referee, having found that the contract complied with the HIA, recommended judgment in the amount of $101,275 on the plaintiffs breach of contract claim, together with a dismissal of the defendants’ counterclaim. I*****7 The plaintiff moved that the trial court accept the attorney trial referee’s recommended ruling with respect to the award of monetary damages, but at the same time filed certain exceptions to the ruling. The trial court, rejecting the attorney trial referee’s recommendations, concluded that (1) the contract violated the HIA and (2) the factual findings of the attorney trial referee were insufficient to allow the plaintiff to invoke the bad faith exception to the HIA. Accordingly, the trial court rendered judgment in favor of the defendants on the complaint and on the Connecticut Unfair Trade Practices Act (CUTPA) count of their counterclaim, but awarded no damages to the defendants, reasoning that, although the plaintiff technically had violated the HIA, the defendants were not entitled to even nominal damages pursuant to CUTPA because they “not only did not suffer any loss, they actually received a windfall as the [attorney trial] referee found that they had received approximately $100,000 of construction, for which the defendants are absolved from paying because of the violation of the HIA.” That determination is not before us on this appeal.

The plaintiff appealed from the judgment of the trial court to the Appellate Court and that court affirmed the judgment. Wright Bros. Builders, Inc. v. Dowling, supra, 45 Conn. App. 918. This certified appeal followed. On this appeal, the plaintiff claims that the contract complies with the provisions of the HIA. The defendants dispute this contention, arguing that the contract failed to satisfy two requirements of the HSSA that are incorporated by reference into the HIA. Specifically, the defendants argue that the plaintiff did not attach two copies of the notice of cancellation to the copy of the contract that it provided to Sandra Dowling, as required by § 42-135a (2), and did not enter the date of the transaction or the date by which the transaction could be canceled on the notice of cancellation, as required by § 42-135a (3). The defendants claim that these defects in compliance preclude the plaintiff from enforcing the contract. The plaintiff responds that strict compliance with those sections is not required and that, despite the discrepancies, the contract complies with the HIA. We agree with the plaintiff.

The determination of the requirements of the HIA is a matter of statutory construction and, therefore, a matter of law over which this court’s review is plenary. Crandall v. Gould, 244 Conn. 583, 590, 711 A.2d 682 (1998). “[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature.” (Internal quotation marks omitted.) State v. Ledbetter, 240 Conn. 317, 327, 92 A.2d 713 (1997). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 663, 680 A.2d 242 (1996).

We begin with § 20-429 (a), a provision that has been the subject of several previous appeals before this court. Section 20-429 (a) provides in relevant part that “[n]o home improvement contract shall be valid or enforceable against [a homeowner] unless it: (1) [i]s in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of [the HSSA], (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. ...” Because § 20-429 (a) (6) incorporates the provisions of the HSSA by reference, it is also necessary to consider those provisions. The section of the HSSA that pertains to notice of cancellation is § 42-135a. That section provides in relevant part that it is the duty of the seller of the services to “furnish [to] each buyer ... a completed form in duplicate, captioned ‘NOTICE OF CANCELLATION,’ which shall be attached to the contract”; General Statutes § 42-135a (2); and to complete both copies of the latter form, before furnishing them to the buyer, “by entering [onto the forms] the name of the seller, the address of the seller’s place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation.” General Statutes § 42-135a (3). Thus, the plain language of these sections requires home improvement contractors to furnish two copies of the notice of cancellation to the homeowners with whom they contract to undertake home improvement services by attaching two copies of the notice to the back of the homeowner’s copy of the contract and that each of the copies specifies the date of the transaction and the date by which the contract may be canceled.

In construing § 20-429 (a), this court consistently has held that the requirements of that section are mandatory and that a contractor is precluded from enforcing a home improvement contract that does not satisfy its requirements. See Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 680, 657 A.2d 1087 (1995) (enforcement precluded because contract did not provide commencement and completion dates); Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247-48, 618 A.2d 506 (1992) (enforcement precluded because contract did not provide notice of homeowners’ cancellation rights); Habetz v. Condon, 224 Conn. 231, 235-36, 618 A.2d 501 (1992) (same); Sidney v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990) (enforcement precluded because no complete written agreement existed); Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 349-50, 576 A.2d 149 (1990) (same); A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990) (same); Barrett Builders v. Miller, 215 Conn. 316, 328, 576 A.2d 455 (1990) (enforcement precluded because contract did not contain entire agreement); Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986) (enforcement precluded because no written agreement existed). The mandatory nature of the requirements serves to advance the primary purpose of the statute, which is to protect consumers from unscrupulous contractors. In those cases where we have found a violation of the HIA, we also have found material noncompliance with the act’s requirements. Habetz v. Condon, supra, 239.

Significantly, in concluding that the requirements of § 20-429 (a) are mandatory, we have twice used “strict compliance” language; see Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 680; Barrett Builders v. Miller, supra, 215 Conn. 326. We, however, have never applied that section so as to require perfect, ritualistic compliance as a condition precedent to recovery by a contractor.

In Caulkins v. Potrillo, supra, 200 Conn. 718-19, we declined to find an exception to the requirement of § 20-429 (a) in effect at the time that home improvement contracts be in writing where an oral contract had been fully performed by the contractor. In refusing to recognize an implied exception, we observed that the remedial purposes of the legislation would be significantly undermined if oral contracts could be enforced. Id., 720. In Barrett Builders v. Miller, supra, 215 Conn. 320-22, we declined to allow quasi-contractual recovery with respect to work performed under a home improvement contract that did not comply with several of the requirements of § 20-429 in effect at that time, and which the contractor admitted was unenforceable under the statute. The contract did not contain the entire agreement between the contractor and the homeowner, did not contain a starting date or a date of completion, and did not contain any notice of the homeowner’s cancellation rights. Because the contractor admitted that the contract did not comply with § 20-429, we did not even consider the issue of compliance. Id., 327 n.6.

Similarly, in three other cases decided the same day as Barrett Builders, the facts were such as to leave no doubt that the contracts did not satisfy the purposes of, or comply with, in even a loose sense, the requirements of the same revision of § 20-429. In Sidney v. DeVries, supra, 215 Conn. 353, we denied the contractor recovery because: (1) although certain documents were exchanged between the parties, it was impossible to harmonize them as they were “full of contradictory terms” and did not set out the scope of the work to be performed or other details necessary to a complete written agreement as required by § 20-429 (a); and (2) in light of the requirement of § 20-429 (a) that the home improvement contract be in writing, the defendant could not prevail on his oral contract claim. In Liljedahl Bros., Inc. v. Grigsby, supra, 215 Conn. 350, the contractor claimed that there was an implied contract, and we concluded that an implied contract claim was barred by the requirement of § 20-429 (a) that the home improvement contract be in writing. In A. Secondino & Son, Inc. v. LoRicco, supra, 215 Conn. 340, the plaintiff contractor conceded that he was barred from recovering on his oral contract by § 20-429 (a). Likewise, the deviation from the precise specifications of § 20-429 (a) in Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 243, was more than merely technical in nature: the contract did not provide notice to the homeowners of their cancellation rights as required by § 20-429 (a) (6). Finally, in our most recent decision construing § 20-429, Rizzo Pool Co. v. DelGrosso, supra, 232 Conn. 680, we concluded that the contract was unenforceable because it did not contain a starting date or a completion date. Again, the defect in compliance amounted to more than a mere technicality and the plaintiff did not argue that the contract was in compliance despite the absence of those dates.

Thus, although we have frequently reiterated that compliance with the provisions of § 20-429 (a) is mandatory, we previously have not decided that what constitutes compliance under the act must be construed in accordance with a letter-perfect compliance standard. Furthermore, it does not necessarily follow that whenever a statute is to be strictly construed in the sense that its provisions are mandatory, compliance with the statute’s specific requirements must also be construed to require letter-perfect — rather than practical — compliance. See Jefferson Garden Associates v. Greene, 202 Conn. 128, 144, 520 A.2d 173 (1987) (“[s]trict construction [of a statute] does not . . . require ritualistic compliance with statutory or regulatory mandates”).

The HIA is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors. Caulkins v. Potrillo, supra, 200 Conn. 720. The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services. Habetz v. Condon, supra, 224 Conn. 239; 22 S. Proc., Pt. 17, 1979 Sess., p. 5797, remarks of Senator Audrey P. Beck. While the purposes of the statute are advanced by an interpretation that makes compliance with the requirements of § 20-429 (a) mandatory, it does not necessarily follow that advancement of the purposes also requires that the mandatory compliance with each subsection be technically perfect. Against this background, we examine the claimed defects.

In light of our prior interpretations of § 20-429 (a) and the legislative history of that subsection, we conclude that a construction that would require technically perfect compliance with each subdivision is inappropriate. Rather, an interpretation of that section that acknowledges and furthers the remedial purposes of the statute is in order. See Doe v. Stamford, 241 Conn. 692, 698, 699 A.2d 52 (1997).

In the present case, the alleged deviations from the precise specifications of § 42-135a (2) and (3) were of a minor and highly technical nature, and did not result in a lack of notice to the defendants that they had a right to cancel the contract within three days of the contract’s signing. The defects claimed by the defendants were that “(1) ‘as required by ... § 42-135a [the contract] did not have the cancellation notice in duplicate so that there would be a tear-off sheet to return if the homeowner decided to cancel the contract’ and (2) the cancellation notice failed to contain the date of the transaction and the date by which the defendants could cancel the contract on the notice of cancellation. The attorney trial referee concluded that these “highly technical” defects were insufficient to establish a breach of the HIA because they were insubstantial and meaningless in that “the purpose of the [HIA] was completely served by the [contract’s] provisions.”

In complying with the HIA by advising the defendants of their right to cancel the contract, the plaintiff furnished one copy of the contract, to which was attached one copy of the notice of cancellation, to Sandra Dow-ling, and furnished a second copy of the contract, to which also was attached one copy of the notice of cancellation, to Joseph Dowling. Thus, Sandra Dowling personally received only one copy of the notice of cancellation. The attorney trial referee determined, however, and it is undisputed, that Joseph Dowling was acting as the duly authorized agent of Sandra Dowling during all relevant times. General Statutes § 20-419 (6) provides in part that “ ‘[o]wner’ means a person who owns or resides in a private residence and includes any agent thereof. ...” Therefore, in effect, two copies of the notice of cancellation were furnished to Sandra Dowling. Consequently, we conclude that two copies of the notice of cancellation were provided to the homeowner, Sandra Dowling, in practical compliance with the requirements of the HIA. Furthermore, the two copies of the cancellation notice — one given to the titleholder, the other given to a resident of the property— were sufficient to constitute a “duplicate” of this notice of cancellation within the meaning of §§ 20-429 (a) (6) and 42-135 (a) (2).

Additionally, the plaintiffs failure to enter the required dates on the notice of cancellation did not, under the circumstances, constitute such a deviation from the precise specifications of the HIA as to compel the conclusion that the contract failed to comply with the HIA. The notice of cancellation form that was attached to the copies of the contract that the defendants received informed them that, “without any penalty or obligation,” they could cancel the contract “within three business days from the above date.” It might be argued that, because the “above date” was not filled in, the defendants did not know when their right to cancel would expire. The missing information, however, easily could have been gleaned from even the most cursory review of the contract. In immediate proximity to the space reserved in the contract for the homeowner’s signature, the contract provided notice, in bold, capital letters, of the right to cancel the contract “any time prior to midnight of the third business day after the date of this transaction" (emphasis added), in addition to the same notice provided on the notice of cancellation form. The date of the transaction— meaning the date on which the contract was signed— was entered on the first page of the contract as the “[eleventh day of January in the year of Nineteen Hundred and Ninety Three.” From that information, the defendants logically could and reasonably should have deduced that they had the right, until midnight of the third business day after January 11, 1993, to cancel the contract and, thus, were fully advised of their right to cancel. Therefore, the failure to include these dates on the notice of cancellation itself did not rise to the level of noncompliance with the HIA. Indeed, the attorney trial referee and the trial court concluded that the defendants received “precisely what they bargained for,” and that the defendants would receive a windfall of more than $100,000 if they were allowed to invoke the HIA to repudiate the contract.

Under the circumstances, we conclude that the contract in the present case satisfied the requirements of § 20-429 (a) of the HIA. Therefore, the HIA does not bar the plaintiff from enforcing the contract against the defendants.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the trial court’s judgment and to remand the case to the trial court for consideration of any remaining objections to the recommended judgment of the attorney trial referee.

In this opinion the other justices concurred.

       The plaintiff also sought damages for breach of contract, unjust enrichment, interference with financial expectancies, and false representation.

       General Statutes § 20-429 (a) provides: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740 [Home Solicitation Sales Act], (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor.”
      Subsequent to the execution of the original contract in this case, but prior to the filing of the plaintiffs complaint, § 20-429 was amended by the addition of subsection (f). See footnote 10 of this opinion. Because that amendment is not involved in this case, references herein to § 20-429 are to the current revision.

       In this court, the defendants also argue that the contract violated § 20-429 (a) (7) because it did not include commencement and completion dates. The attorney trial referee found that this claim had no merit because § 14.1 of the contract provided: “The Basic Services to be performed shall be commenced in 5 days and, subject to authorized adjustments and to delays not caused by the Design/Builder, Substantial Completion shall be achieved in two hundred (200) calendar days.”
      We do not reach this claim because the defendants did not raise this ground for affirming the trial court’s ruling in the Appellate Court. Practice Book § 84-11 (a), formerly § 4140 (a) (“[ujpon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court”).

       See footnote 1 of this opinion.

       The defendants also asserted a counterclaim alleging breach of contract, slander, intentional infliction of emotional distress, and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       General Statutes § 42-135a provides in relevant part: “No agreement of the buyer in a home solicitation sale shall be effective if it is not signed and dated by the buyer or if the seller shall ... (2) Fail to furnish each buyer, at the time he signs the home solicitation sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned ‘NOTICE OF CANCELLATION,’ which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten-point boldface type the following information and statements in the same language as that used in the contract:
      ‘NOTICE OF CANCELLATION
      .... (Date of Transaction)

      YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE.
      IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELLED.
      IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT YOUR RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR SALE; OR YOU MAY, IF YOU WISH, COMPLY WITH THE INSTRUCTIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE GOODS AT THE SELLER’S EXPENSE AND RISK.
      IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND THE SELLER DOES NOT PICK THEM UP WITHIN TWENTY DAYS OF THE DATE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE GOODS WITHOUT ANY FURTHER OBLIGATION. IF YOU FAIL TO MAKE THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.
      TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND A TELEGRAM TO ... . (Name of Seller) AT . . . .(Address of Seller’s Place of Business) NOT LATER THAN MIDNIGHT OF ... . (Date)

      I HEREBY CANCEL THIS TRANSACTION.
      .... (Date)
      .... (Buyer's Signature)’
      “(3) Fail, before furnishing copies of the ‘Notice of Cancellation’ to the buyer, to complete both copies by entering the name of the seller, the address of the seller’s place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation. . . .”
      (Emphasis added.)

       The attorney trial referee determined that, pursuant to the September 20, 1993 amendment, the defendants were liable for $67,474, and that they were liable for an additional sum of $33,801 for expanding the scope of the project after the date of the amendment.

       The trial court did not, therefore, address all of the issues raised by the parties in response to the attorney trial referee’s report.

       See footnote 6 of this opinion.

       Subsequent to the effective date of the original contract in this case, the legislature, by enacting No. 93-215, § 1, of the 1993 Public Acts, amended § 20-429 by adding subsection (f), which provides: “Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.” That amendment, however, does not apply to this contract, which predated it.


text:
    F. B. MATTSON COMPANY, INC. v. CONRAD TARTE ET AL.
    (SC 15857)
    Callahan, C. J., and Borden, Norcott, Katz and Palmer, Js.

      Argued October 1
    officially released December 1, 1998

      Thomas A. Kaelin, for the appellant (plaintiff.

      Stephen R. Griffin, with whom was Robert P. Hanahan, for the appellees (defendants).
   Opinion

CALLAHAN, C. J.

This certified appeal arises from an action brought by the plaintiff, F. B. Mattson Company, Inc., to foreclose a mechanic’s lien on property located at 161 Hillside Avenue in the city of Waterbury (property). The named defendant, Conrad Tarte, is the current owner of the property. The two other defendants are Commercial Investments International, Inc. (Commercial Investments), the previous owner of the property, and Great Western Bank, the holder of a mortgage on the property.

The following facts are relevant to this appeal. In the spring of 1995, the plaintiff, a licensed general contractor, entered into a written agreement with Commercial Investments, then the owner of the property, for renovation of the property on a time and materials basis. Located in a historic district, the property includes a mansion and carriage house that were constructed in the late 1880s. The principal work to be performed under the contract was the replacement of the mansion’s deteriorated copper roof.

The renovations began in April, 1995, and were substantially completed on October 3, 1995. By that time, Commercial Investments had fallen behind in payments due the plaintiff under the contract. On October 10, 1995, the plaintiff stopped work on the property but left scaffolding and roofing brackets in place. On that same date, Commercial Investments transferred ownership of the property to Tarte, the president and one-third owner of Commercial Investments.

Tarte subsequently requested that the plaintiff remove the scaffolding and roofing brackets from the property. The plaintiff returned to the premises on November 10,1995, and two of its employees, a carpenter and an apprentice carpenter, worked all day removing the scaffolding and roofing brackets. Thereafter, the plaintiff performed no further work on the property.

On January 25, 1996, the plaintiff recorded a certificate of mechanic’s hen against the property at 161 Hillside Avenue. The certificate, which claimed a balance due of $83,723.29, stated that the plaintiff had ceased furnishing services and materials to the property on November 10, 1995.

The plaintiff subsequently filed the present action seeking to foreclose its mechanic’s hen. The trial court rendered judgment in favor of the plaintiff, and the defendants appealed from the trial court’s judgment to the Appellate Court. The Appellate Court concluded that, as a matter of law, the plaintiff had ceased work on October 3, 1995, the date of substantial completion and, consequently, that the plaintiff had failed to satisfy the requirement under General Statutes § 49-34 that a mechanic’s lien certificate be filed within ninety days of cessation of work. Accordingly, the Appellate Court reversed the trial court’s judgment. See F. B. Mattson Co. v. Tarte, 47 Conn. App. 265, 704 A.2d 813 (1997).

Thereafter, the plaintiff filed a petition for certification to appeal from the judgment of the Appellate Court to this court. We granted certification limited to the following question: “Did the Appellate Court properly conclude that the plaintiffs mechanic’s lien was untimely filed?” F. B. Mattson Co. v. Tarte, 243 Conn. 966, 707 A.2d 1265 (1998). We answer the certified question in the negative and reverse the judgment of the Appellate Court.

We begin our analysis by noting that in Connecticut, the “mechanic’s lien is a creature of statute and gives a right of action which did not exist at common law.” Diamond National Corp. v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973); Parsons v. Keeney, 98 Conn. 745, 748, 120 A. 505 (1923). “The purpose of the mechanic’s lien is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon . . . . ” (Internal quotation marks omitted.) H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981); J. L. Purcell, Inc. v. Libbey, 111 Conn. 132, 136, 149 A. 225 (1930); Balch v. Chaffee, 73 Conn. 318, 320, 47 A. 327 (1900).

Moreover, “[t]he guidelines for interpreting mechanic’s lien legislation are . . . well established. Although the mechanic’s lien statute creates a statutory right in derogation of the common law; Camputaro v. Stuart Hardwood Corporation, [180 Conn. 545, 550, 429 A.2d 796 (1980)]; Gruss v. Miskinis, 130 Conn. 367, 370, 34 A.2d 600 (1943); its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. H & S Torrington Associates v. Lutz Engineering Co., [supra, 185 Conn. 553]; Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 115, 438 A.2d 834 (1981). Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction. Camputaro v. Stuart Hardwood Corporation, supra, 551; Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954).” (Internal quotation marks omitted.) New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 611-12, 706 A.2d 465 (1998); Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 375-76, 696 A.2d 326 (1997).

Section 49-34 provides in relevant part: “A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials . . . within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building ... is situated a certificate in writing . . . describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials . . . .” The issue in this case, therefore, is whether, as a matter of law, the date on which the plaintiff ceased to “[perform] the services or [furnish] the materials” within the meaning of § 49-34 is October 3,1995, the date on which work was substantially completed, or November 10, 1995, the date on which the plaintiff, at the defendant’s request, removed the scaffolding and roofing brackets from the property.

We previously have concluded that, although the general rule is that the time period for filing a certificate of mechanic’s lien commences on the last date on which services were performed or materials were furnished; Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., 99 Conn. 396, 403, 122 A. 102 (1923); when work has been substantially completed and the contractor unreasonably has delayed final completion, the time period for filing a certificate of mechanic’s lien will be computed from the date of substantial completion. Id. Moreover, when an unreasonable period of time has elapsed since substantial completion of the work, the performance of trivial services or the furnishing of trivial materials generally will not extend the time for filing the certificate past the date of substantial completion. Id., 400. If, however, subsequent to the date of substantial completion, trivial services or materials are provided at the request of the owner, rather than at the initiative of the contractor for the purpose of saving a lien, the furnishing of such work or material will extend the commencement of the period for filing a certificate of mechanic’s lien. Nichols v. Culver, 51 Conn. 177, 183 (1883) (single day’s work, rendered at request of owner, sufficient to extend time period); see also Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., supra, 400 (reiterating that, when rendered at request of owner, provision of trivial services and materials operates to extend date for filing certificate of mechanic’s lien). Thus, in order for the date on which a contractor ceased “performing . . . services or furnishing . . . materials” within the meaning of § 49-34 to be computed as the date of substantial completion, rather than as the date on which services or materials actually were last rendered or furnished, the following conditions must be satisfied: (1) the contractor must have unreasonably delayed final completion; and (2) any services or materials rendered by the contractor subsequent to the date of substantial completion must have been furnished at the contractor’s initiative, rather than at the owner’s request.

On November 10, 1995, two persons employed by the plaintiff, a carpenter and a carpenter’s apprentice, worked all day removing scaffolding and roofing brackets from the property. The work was done at the request of Tarte. Consequently, even if we assume, without deciding, that the plaintiff unreasonably delayed final completion of the work, and if we further assume, without deciding, that the work done on November 10,1995, was trivial, under the rule of Nichols v. Culver, supra, 51 Conn. 183, the time period for filing a certificate of mechanic’s lien is computed from November 10, 1995, rather than from October 3, 1995, the date of substantial completion.

Relying on Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., supra, 99 Conn. 403, the Appellate Court nevertheless concluded that the work done by the plaintiff on November 10, 1995, did not operate to extend commencement of the ninety day time period for filing the certificate of mechanic’s lien beyond October 3, 1995. In Martin Tire & Rubber Co., we determined that, under the circumstances of that case, certain services, namely, preparation for the removal and the actual removal of the contractor’s equipment from the property, were trivial and, therefore, did not operate to extend commencement of the statutory filing period past the date of substantial completion. Id., 403. Those services, however, were not rendered at the request of the owner. We explicitly stated in Martin Tire & Rubber Co. that when furnished at the request of the owner, even “trivial work done or material furnished will be sufficient to extend the time for filing the lien . . . .” (Emphasis added.) Id., 400.

Regardless of the fact that it was at the request of Tarte that the plaintiff removed the roofing brackets and scaffolding from the property, Great Western argues that the work done on November 10, 1995, did not operate to extend the commencement of the ninety day period for filing a certificate of mechanic’s lien because, in its view, the work done on that date did not constitute lienable “services.” General Statutes § 49-33 (a), however, provides in relevant part: “If anyperson has a claim for more than ten dollars for materials furnished or services rendered in the construction . . . or repairs of any building . . . the building, with the land on which it stands ... is subject to the payment of the claim.” (Emphasis added.) We recognize that we concluded that under the circumstances of Martin Tire & Rubber Co. “preparation for removal and the removal of the [contractor’s] equipment . . . was [not] the rendition of such service as would warrant the filing of a mechanic’s lien . . . .’’Id., 403. In the present case, however, removal of the roofing brackets from the building’s roof was a necessary predicate to removing the plaintiffs equipment from the property. The undisputed testimony was that, in order to remove the roofing brackets from the building’s roof, two of the plaintiffs employees, a carpenter and an apprentice carpenter, spent a total of sixteen hours lifting shingles, removing nails from the shingles, sliding out the roofing brackets, replacing the nails, tarring the nail holes and retarring the shingles in place. We conclude, therefore, that, under those circumstances, removal of the roofing brackets from the building’s roof was part of the repair of the building and, as such, was a lienable service pursuant to § 49-33. Because the plaintiff furnished that service at Tarte’s request, we further conclude that the date on which the plaintiff ceased to “[perform] . . . services [and furnish] . . . materials” within the meaning of § 49-34 was November 10, 1995, and that, consequently, the plaintiffs mechanic’s lien was timely filed.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       General Statutes § 49-34 provides: “A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing' the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.”

       “Persons entitled to claim a mechanic’s lien ... are those who have provided ‘services’ or ‘materials’ in connection with ‘the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 612, 706 A.2d 465 (1998); see General Statutes § 49-33.

       We express no opinion as to whether the work subsequently done by the plaintiff in removing the scaffolding materials and the roofing brackets from the property constitutes lienable services under § 49-33.