JOSEPH M. SHORTALL, Judge Trial Referee[fn*]
For most of the twentieth century, from 1919 to 1983, the Connecticut Foundry Company manufactured a wide variety of cast iron products in a factory located on ten acres of land on the west bank of the Connecticut River (property) in the town of Rocky Hill. The present owner of the land, Riverfront Future Partners (Riverfront), sees it as the site for a development of mixed commercial and residential uses and for public access to the riverfront. For reasons not claimed to be relevant here, however, it has not brought that vision to fulfillment. The town, through its town manager, Barbara Gilbert (collectively, town), after unsuccessful efforts to purchase the property from Riverfront, has now condemned the property and means to take it by way of its power of eminent domain.
See website, Rocky Hill Historical Society, History of Rocky Hill, Connecticut (2009).
In this case Riverfront seeks to enjoin the town from taking any further steps to pursue that course, claiming that the town is unlawfully exercising its power of eminent domain because it has failed to comply with the town charter in appropriating funds for the taking, failed to obtain the planning and zoning commission approval necessary for a taking and failed to negotiate in good faith with Riverfront in an attempt to acquire the property by agreement before resorting to condemnation.
I
The parties have stipulated to the facts underlying their legal claims and to the admissibility of numerous exhibits. See Joint Stipulation of Facts and Exhibits (stipulation). Based on the CT Page 23132 stipulation, the court finds the material facts to be as follows. Riverfront is a general partnership which has owned the property since 2003. In that year the property was the subject of an agreement among the town, Riverfront and Riverfront's predecessors in title (2003 agreement) which was intended to settle a tax foreclosure action against the predecessors in title and provide for development of the property by Riverfront. Exhibit 1. The proposed development, however, has not come to fruition. On August 7, 2006 the town council (council) passed an ordinance stating the town's intent to purchase the property from Riverfront or, if necessary, to take it by eminent domain and, pursuant to General Statutes § 8-24, requested the town planning and zoning commission (commission) to report whether it approved or disapproved of the council's proposal. Exhibit 23. After the approval of the commission was obtained; see exhibit 24; the parties engaged in negotiations for the purchase and sale of the land during 2007 and 2008. Stipulation, ¶ 13.
In file, #111. See also joint supplemental stipulations of facts and exhibits, #'s 113, 114.
Additional facts will be found where relevant to the legal issue under discussion.
Paragraph 9 of the parties' stipulation states that this vote occurred on August 10, 2006, but exhibit 23, the minutes of the council's meeting of August 7, demonstrate that the vote took place at that meeting. August 10 was the date of the Commission meeting at which it approved the council's proposal. See exhibit 24.
On April 24, 2008 the town sent Riverfront a proposed purchase and sale agreement for the property; the price was $3,000,000. Exhibit 7. On May 6, 2008 the proposed agreement was returned by Riverfront with suggested changes, but the $3,000,000 purchase figure was unchanged. Exhibit 9. In response the town proposed, in a June 3, 2008 letter, that an independent third party be engaged to mediate the parties' disagreements over the proposed purchase agreement; exhibit 10; a suggestion to which Riverfront did not respond.
The town's counsel described the agreement as a "draft which has not been approved by [the town]." He went on to say, however, that he believed it "satisfies the concerns of the parties" and that it was his intention to present the agreement to the town the following week.
The town reiterated its interest in reaching an agreement to purchase the land, and also stated that, failing agreement, it would "reluctantly" consider invoking the power of eminent domain "as an available last resort."
In November 2008 Riverfront's counsel did float a proposal to use the property as consideration for Riverfront's acquisition of another parcel in town for development. See exhibit 11. The court does not consider that proposal a response to the town's suggestion that the parties mediate their differences over its acquisition of the property, and, in any event, further investigation by Riverfront's counsel uncovered several problems in developing that other parcel; exhibit 12; and its proposed acquisition appears to have foundered.
Time passed, and no agreement between the town and Riverfront had been reached by April 23, 2009, when the town informed Riverfront that an ordinance was to be proposed for the town to acquire the property by eminent domain. Exhibit 13. That ordinance was adopted by the council on May 4, 2009, and the ordinance continued to authorize purchase of the land and set a purchase price of "up to" $962,500 minus the cost of environmental remediation. Exhibit 16.
On June 25, 2009 that offer was communicated to Riverfront. Exhibit 14. The town requested acceptance of the offer by July 2, 2009; otherwise, eminent domain proceedings would be commenced. Id. At this time Riverfront was seeking other counsel to represent it in connection with possible condemnation proceedings. Exhibit 15. On August 17, 2009 the offer communicated in the June 25 letter was restated by the town, this time in a letter to one of the Riverfront partners, and agreement was requested within fourteen days. Exhibit 30. Riverfront's response CT Page 23133 was forthcoming on August 25, 2009, this time from new counsel. Exhibit 32. That letter expressed Riverfront's willingness to enter into negotiations with the town over the fair value of the land, challenged the town's assertions in its letters of June 25 and August 17 that it had been negotiating with Riverfront for the past year and requested the basis for the town's offer of up to $965,000 minus remediation costs, claiming that it was at variance with appraisals previously obtained by the town and provided to Riverfront. Id.
The town's response came on October 15, 2009: it now offered to purchase the property for $775,512.70. Exhibit 35. This letter set forth the town's basis for the new purchase figure and enclosed a "phase III" environmental remediation action plan, along with a remediation cost estimate of $378,304, and updated demolition cost estimates. It required agreement by Riverfront to the proposed purchase price by October 29 and threatened eminent domain proceedings if no agreement was forthcoming by that date.
The town's insistence on a response by October 29 was prompted by the requirement of General Statutes § 48-6(a) that condemnation proceedings be commenced within six months of the vote authorizing them; otherwise that vote is void. The town's vote to acquire the land by purchase or, in the absence of agreement, by eminent domain; see exhibit 16; was taken on May 4; thus, the six-month statutory period would expire on November 4, 2009.
Despite Riverfront's protestations, in letters dated October 23 and 27, 2009; exhibits 36, 37; that it could not, consistent with its duty to exercise due diligence in evaluating the town's offer, respond to the offer by the October 29 deadline, the town commenced the pending condemnation proceeding on October 30, 2009, when it filed a statement of compensation with the clerk of the Superior Court for the Judicial District of New Britain.
Riverfront's letters also indicated its willingness to set a reasonable timeline for settlement discussions and/or mediation.
Gilbert v. Riverfront Future Partners, Docket No. CV 09 5014587.
II
Certain established principles of law govern the court's consideration of the issues raised by the parties.
The town desires to acquire the property to establish a public park, pursuant to General Statutes § 48-7, which provides: "When any town . . . votes to acquire any tract of land within its limits for the purpose of a public square, common or park, and cannot obtain such land by agreement with the owner thereof, it may take the same for such purpose in the manner provided by [section] . . . 48-12 . . ." Pursuant to General Statutes § 48-6, the council voted on May 4, 2009 to purchase the property and, failing that, to acquire it by eminent domain. General Statutes § 48-12 provides: "The procedure for condemning land or other property for any of the purposes specified in [section] . . . 48-6 . . . if those desiring to take such property cannot CT Page 23134 agree with the owner upon the amount to be paid him for any property thus taken, shall be as follows: . . . any town . . . shall proceed in the same manner specified for redevelopment agencies in accordance with [section] . . . 8-129 . . ."
General Statutes § 8-129, discussed more fully in Part IV B, infra, defines the procedural steps the town must take when proceeding by eminent domain.
The standard for granting a permanent injunction has recently been set forth by our Supreme Court: ". . . A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion." (Internal quotation marks omitted.) Brennan v. Brennan Associates, 293 Conn. 60, 86-87 (2009).
"The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." (Citations omitted; internal quotation marks omitted.) Tighe v. Berlin, 259 Conn. 83, 87-88 (2002). "[I]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction." Id., 88.
"If the plaintiffs have an adequate remedy at law then they are not entitled to the injunction." (Citations omitted.) Stocker v. Waterbury, 154 Conn. 446, 451 (1967). "Adequate remedy at law means a remedy vested in the complainant, to which he may at all times resort, at his own option, fully and freely, without let or hindrance." Milford Education Ass'n. v. Board of Education, 167 Conn. 513, 519 (1975). "Section 8-129 fails to provide the property owner with an opportunity to contest the taking of his property . . . Thus, being without an adequate remedy at law, the property owner is required to seek equitable relief to obtain a review of the taking agency's actions." (Citation omitted.) Simmons v. State, 160 Conn. 492, 501-02 (1971).
The town does not contest Riverfront's right to seek injunctive relief.
"The proper burden of proof for injunctive relief is by a preponderance of the evidence. The party seeking the injunction must prove his own case and adduce whatever proof is necessary to show the existence of the conditions or circumstances upon which he bases the right to and necessity for injunctive relief, and he must CT Page 23135 establish his right thereto by a preponderance of the evidence." (Internal quotation marks omitted.) Beacon Falls v. Posick, 17 Conn.App. 17, 24 n. 5 (1988), rev'd on other grounds, 212 Conn. 570 (1989). "In Connecticut, it is not the condemner, but rather the plaintiff [who has] the burden of establishing that the taking . . . was unreasonable, in bad faith or an abuse of power." Kelo v. City of New London, 268 Conn. 1, 117 (2004).
III
Riverfront first argues that the council failed to comply with Section 408 of the Rocky Hill town charter (charter) in that it appropriated money to purchase the property that was not in the town budget for the year in question, and some of the money appropriated was required to be the subject of a town referendum. Because compliance with the charter is grafted onto General Statutes § 48-6, Riverfront argues, this failure to comply with the charter renders the taking illegal. The court finds this argument unavailing.
First, the language of § 48-6 does not state that compliance by the town with every section of its charter is a condition precedent to its taking of property by eminent domain. The statute only requires, before the town may "take or acquire" real property, that it "has, in accordance with its charter or the general statutes, voted to purchase the same . . ." § 48-6(a). Here, the ordinance was properly adopted on May 4, 2009 by a vote of the council, and gave the town the authority to acquire the property, either by purchase in an amount up to $962,500 minus remediation costs or, in the absence of an agreement with Riverfront on a purchase price, by taking the property under its eminent domain power.
Second, the charter section upon which Riverfront relies precludes a resolution or ordinance "making an appropriation" which exceeds by $150,000 funds appropriated in the town's annual budget unless there has been a referendum at which a majority of the voters has approved the appropriation. The resolution of May 4, 2009 does not appropriate any town funds; it merely authorizes a purchase of the property for "up to" $962,500 minus remediation costs. Thus, Section 408 has not been violated.
The funds in the "foundry account" were part of a capital projects account; Stipulation, ¶ 55; which continued in existence from year to year without the necessity of a renewed appropriation. See charter, § 811. Such accounts are not subject to the requirements of § 408 of the charter.
Finally, combining funds in the town's land acquisition account ($158,000) and funds in the "foundry account" ($708,000), the town had $866,000 with which to purchase the property without any CT Page 23136 additional appropriation. The amount now being offered, and the amount deposited in court when the condemnation action was begun, $775,512.70, is well within the available funds.
Pursuant to the 2003 agreement (exhibit 1), Riverfront had CT Page 23152 paid $407,000 in back taxes, which was deposited into a capital fund for the "Foundry project." See exhibits 2 3. The parties agree that by the time of the May 4, 2009 ordinance there was $708,000 in the "foundry account." See, e.g., Transcript of argument, August 12, 2010 (transcript), 14, 1.2 et seq.; see also, exhibit 45. The court can see no reason why these funds are not properly available for purchase of the property.
IV
Riverfront next contends that the town's impending taking is illegal because the town failed properly to refer the proposal to purchase the property or take it by eminent domain to the commission, as required by General Statutes § 8-24. Specifically, the town did not refer the proposal contained in its May 4, 2009 ordinance to the commission before initiating condemnation proceedings on October 30, 2009; it did so only after the fact on February 10, 2010. Furthermore, the defendants cannot rely on the town's earlier referral to and approval by the commission in April of 2006 because that proposal was substantially different from the proposal in 2009. Finally, neither the 2006 nor the 2009 referrals were sufficiently detailed to comply with the town's obligation to obtain a report from the commission before taking the property.
General Statutes § 8-24 provides in relevant part: "No municipal agency or legislative body shall . . . acquire land for any . . . park . . . or other municipally owned property . . . until the proposal to take such action has been referred to the commission for a report."
A
The town first referred a proposal to acquire the property for a "public purpose" to the commission on August 3, 2006. The commission gave its approval on August 10, 2006, concluding that the proposal "is consistent with the Plan of Conservation and Development Update adopted effective 10/15/2001. Specifically page 48, Stategy #3 Consider acquiring (the) property whenever river front property becomes available." Obviously, this approval is "timely," in that it precedes by over three years the town's initiation of condemnation proceedings. Riverfront complains, however, that the 2006 referral does not suffice because of differences between it and the 2010 referral in the description of the property proposed for acquisition and because a proposed taking for a "public purpose" is too vague to allow for a meaningful review of the proposal by the commission.
See exhibit 24.
The council's May 4, 2009 ordinance made two de minimis CT Page 23137 changes in its August 3, 2006 proposal. It specified that the use would be for a "public park" and it made specific reference to the "deep water dock which is part of and/or which adjoins said 125 Meadow Road," as being included in the taking. Use of property for a "public park" certainly would qualify as use for a "public purpose," and the commission's approval of the latter use in 2006 as in conformity with the conservation and development plan (plan) does not militate against approval of the former in 2010. Riverfront cannot be heard to complain because the town had made the proposal more specific. Moreover, by specifying that the deepwater dock would be part of its taking the town did not seek to acquire more or different parcels of land than the commission had approved in 2006. The "125 Meadow Road" parcel, which includes the dock, is specified as part of the proposed acquisition in both 2006 and 2009. Indeed, the quitclaim deed of the property to Riverfront in 2005 demonstrates that the dock is part of the property.
See exhibit 16.
See exhibits 23 21.
See exhibit 44.
The case of Trivalent Realty Co. v. Westport, 2 Conn.App. 213 (1984), holds that, when a municipality significantly changes a proposal previously approved by the commission pursuant to § 8-24, it must make a new submission in order to comply with the statute. In that case, however, after obtaining commission approval of a proposal for a parking lot, the town revised the design layout to incorporate a new tract of land that the town sought to take by eminent domain, while eliminating a tract formerly included in the land to be acquired. Id., 216. The court held that the changes were not de minimis. Rather, the "elimination [of the tract of land] changed the basic configuration of the lot, reduced it in size by nearly one acre, and accounts for approximately one-half of the reduced number of parking spaces. These substantial differences persuade us that the [town] did not comply with General Statutes 8-24 . . ." Id., 218-19. The minor changes contained in the town's 2009 proposal do not require approval beyond that obtained in 2006.
General Statutes § 8-24 does not require that the town's request for commission approval of the municipal improvements described in the statute take any particular form or contain any specific level of detail. Nor does Riverfront cite case law that imposes any such requirements.
Although the statute does not specify its purpose, members of the commission who considered the 2009 referral recognized that their CT Page 23138 task was to determine whether the proposed use was consistent with the plan which the commission, itself, had developed in 2001, pursuant to General Statutes § 8-23. Members of the commission who considered both the 2006 and the 2009 referrals found that the referrals were consistent with the plan., 282 AD2d 962, 963; compare Matter of Pyramid Crossgates Co. v Board of Assessors of Town of Guilderland, 302 AD2d 826, 828, lv denied 100 NY2d 504). Accordingly, we conclude that petitioner's appraisal is sufficiently supported by underlying data to be admissible.
We also note that respondents did not move to strike the note of issue in order to compel service of a verified or certified statement, instead waiting until the trial itself to object to its absence. Furthermore, in our view, respondents have demonstrated no actual prejudice based on petitioner's lack of technical compliance with the applicable regulation.
Nor is it fatal that Sprague's report does not make specific reference to the applicable valuation dates. Respondents have not identified any statute or regulation that definitively requires such explicit reference in the report. Moreover, inasmuch as the income capitalization method of appraisal is based on a consideration of profits derived from a property over a period of time, rather than the sale price on a particular date ( see generally 41 Kew Gardens Rd. Assoc. v Tyburski, 70 NY2d 325, 331; Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538, 542-543), it is possible that, if permitted to testify fully, petitioner's expert will adequately relate his determination of value to the applicable valuation and taxable status dates. Thus, petitioner should be given an opportunity to cure such deficiency in Sprague's report through his testimony ( see Matter of Regency Realty Assoc. LLC v Board of Assessment Review of the Town of Malta, 75 AD3d 950, 952; Matter of Gibson v Gleason, 20 AD3d 623, 625, lv denied 5 NY3d 713).
Based upon the foregoing, we are of the view that petitioner's appraisal meets the minimal standards for admissibility and demonstrates the existence of a genuine dispute regarding valuation. Therefore, the matter should proceed to trial where such appraisal may be further explained and any deficiencies explored so that Supreme Court may give it the appropriate weight ( see Matter of Ames Dept. Stores v Assessor of Town of Greenport, 276 AD2d 890, 892).
The parties' remaining contentions have been considered and are either academic or unpersuasive.
Ordered that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.