Gerlt v. Town of South Windsor

• Decision Date: 09 October 2007
• Docket Number: No. 17790.,17790.
• Citation: 284 Conn. 178,931 A.2d 907
• Parties: Wayne C. GERLT v. TOWN OF SOUTH WINDSOR et al.
• Court: Connecticut Supreme Court

931 A.2d 907

284 Conn. 178

Wayne C. GERLT v. TOWN OF SOUTH WINDSOR et al.

No. 17790.

Supreme Court of Connecticut.

Argued February 7, 2007.

Decided October 9, 2007.

Gwendolyn S. Bishop, with whom were Paul T. Smith and, on the brief, Paul W. Smith, Windsor Locks, for the appellant (plaintiff).

Charles D. Ray, with whom were Gerald L. Garlick and, on the brief, William H. Narwold, Hartford, for the appellees (defendant Evergreen Walk, LLC, et al.).

Christopher J. Picard, with whom, on the brief, were John P. Casey, Thomas R. Girarde and Brian R. Smith, Hartford, for the appellees (named defendant and defendant Matthew Galligan).

BORDEN, NORCOTT, KATZ, ZARELLA and SULLIVAN, Js.^*

SULLIVAN, J.

The plaintiff, Wayne C. Gerlt, appeals¹ from the judgment of the trial court granting the motion of the defendants, the town of South Windsor (town), Matthew Galligan, town manager, Evergreen Walk, LLC (Evergreen Walk), Evergreen Walk Lifestyle Center, LLC (Evergreen Lifestyle),² and the Prudential Insurance Company of America (Prudential),³ to dismiss as moot the plaintiff's complaint. The plaintiff alleged that the town had conveyed real property in the form of an easement to Evergreen Walk in violation of certain procedural provisions in the town charter. The trial court, Berger, J., issued a declaratory ruling that the conveyance violated the charter and was void, but did not render judgment in the case. Thereafter, the town and Evergreen Lifestyle entered into another agreement concerning the use of the town's property and the plaintiff claimed that the agreement was void. Evergreen Walk, Evergreen Lifestyle and Prudential filed a motion to dismiss the complaint as moot and the trial court, Lavine, J., granted the motion and rendered judgment of dismissal. The plaintiff claims on appeal that the trial court improperly concluded that (1) the action was moot on the ground that there were no issues that remained to be adjudicated under the allegations of the complaint, and (2) the second agreement was not inconsistent with its prior declaratory ruling on the ground that it did not constitute a conveyance of real property that triggered the procedural provisions of the town charter. We conclude that the plaintiff's action is not moot and that the second agreement is a conveyance of real property subject to the requirements of the town charter. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

The record reveals the following stipulated facts and procedural history. Special Acts 2001, No. 01-6, § 9 (S.A.01-6), which authorized the commissioner of the department of transportation to convey to the town three parcels of land located in the town, took effect on July 6, 2001. The special act provides in relevant part that "[t]he town . . . shall use said parcels of land for open space or storm water management and infrastructure improvement purposes, or may sell all or any portion of said parcels of land to a purchaser who shall use such land for economic development purposes. . . ." S.A. 01-6, § 9(b)(1). Section 9(b)(2) of S.A. 01-6 further provides that "[i]f, in the case of any such parcel, the town . . . (A) does not use the parcel for open space or storm water management and infrastructure improvement purposes, (B) does not retain ownership of all of the parcel, except for a sale of all or any portion of the parcel for economic development purposes in accordance with subdivision (1) of this subsection, or (C) leases all or any portion of the parcel, the parcel shall revert to the state of Connecticut." On June 18, 2002, the state conveyed the three parcels of land on Buckland Road to the town by quitclaim deed.

On July 2, 2001, the town council approved a resolution authorizing Galligan to provide a letter to the town planning and zoning commission indicating that the town, as owner of the property, had no objection to Evergreen Walk filing an application to use two of the parcels the town had received from the state pursuant to S.A. 01-6, § 9, as part of a private development project.⁴ On May 7, 2003, Galligan sent a letter to Marcia A. Banach, the director of planning for the town, authorizing Evergreen Walk or Poag and McEwen Lifestyle Centers-Connecticut, LLC,⁵ to include the two town parcels in applications to either the town planning and zoning commission or the town conservation and inland wetlands commission for the proposed development project and to conduct regulated activities on the parcels. Also on May 7, 2003, Galligan sent a letter to Banach indicating that he expected that an easement or some other form of right-of-way would be granted by the town for use of the parcels, although the specific terms and nature of this transaction still were being negotiated.

On October 29, 2003, on behalf of the town, Galligan signed an easement agreement with Evergreen Walk granting both temporary and permanent easements over the town parcels "for the purposes of promoting storm water management, infrastructure improvements and open space within the [town]. . . ." The easement agreement was recorded in the town land records on November 21, 2003. On January 5, 2004, the town council approved a resolution in which it purportedly ratified the execution of the easement agreement. Neither a referendum nor a public hearing was held before or after the easement agreement was approved.

In December, 2003, the plaintiff, an elector and taxpayer of the town, filed a complaint for declaratory and injunctive relief against the defendants. In his complaint, the plaintiff sought: (1) a declaratory judgment that the easement agreement, having been executed without proper and necessary authorization, was "null and void and of no force or effect"; (2) a declaratory judgment that the requirements of § 314 of the town charter⁶ apply to the "conveyance of easements and other interests in real property" contemplated by the easement agreement; (3) temporary and permanent injunctions preventing and restraining Evergreen Walk and Evergreen Lifestyle from "using, accessing or entering" the town parcels or "otherwise exercising the rights purportedly granted to Evergreen [Walk]" pursuant to the easement agreement until and unless such rights were granted by way of a conveyance that complied with the requirements of § 314 and the limitations of the state deed; (4) temporary and permanent injunctions preventing and restraining the town from "transferring, or attempting to transfer, to . . . Evergreen [Walk and Evergreen Lifestyle] easements or other interests in the [town] parcels by way of a conveyance that did not comply" with the requirements of § 314 and the limitations of the state deed; and (5) a permanent injunction requiring the restoration of the town parcels to "substantially the same condition in which such parcels were immediately prior to delivery" of the easement agreement to Evergreen Walk.

At a hearing on February 24 and 25, 2004, the trial court heard argument on the plaintiff's claims for permanent and temporary injunctive relief with a focus on the predominant issue of whether the easements granted to Evergreen Walk constituted a conveyance of real property within the meaning of § 314 of the town charter. At the hearing, the parties, with the court's consent, stipulated to a "wait and see" approach, in which, if the court did find the easement agreement to be in violation of § 314, the town would be given a chance to remedy its action, with the plaintiff reserving the right to seek further relief if the remedy was still in violation of § 314.⁷ On May 28, 2004, the trial court issued a memorandum of decision in which it concluded that the easement agreement was null and void because it was a conveyance of real property from the town to Evergreen Walk that had not been put to a referendum or public hearing in accordance with § 314 of the town charter.⁸ The court did not, however, formally render a judgment in the case.⁹

On June 9, 2004, in response to the trial court's memorandum of decision, the plaintiff filed a motion for order on the application for injunctive relief. The plaintiff sought orders: (1) permanently enjoining Evergreen Walk from continuing to exercise the rights that the town improperly had attempted to convey to Evergreen Walk by way of the easement agreement until and unless Evergreen Walk was granted such rights by way of a properly executed conveyance that complied with § 314 of the charter; and (2) requiring that any alterations that had been made to the town parcels in accordance with the null and void easement agreement be reversed and that the town parcels be restored to the state in which they were found just prior to the delivery of the easement agreement to Evergreen Walk. The trial court never ruled on this motion.

Also in response to the trial court's memorandum of decision, the defendants attempted to remedy their violation of § 314. On October 4, 2004, the town and Evergreen Lifestyle entered into an emergency access easement and public dedication (2004 agreement). In the 2004 agreement, Evergreen Lifestyle granted an easement to the town and the public over the property running from one entrance of the development project to the other (Evergreen property),¹⁰ "to have access by foot and motor vehicle for the purpose of travel by public and private motor vehicles and emergency motor vehicles and municipal personnel and agents in the event of emergencies of any and all nature . . . ." In addition, to provide the town and the public access to the easement over the Evergreen property, Evergreen Lifestyle agreed to maintain entranceways on the land of the town, "at its full cost and expense under all the terms and conditions of the covenants of this easement" and to maintain "those portions of the [town's] land . . . [as] a private way . . . in safe, sound, and unobstructed condition, for access, ingress, and egress, including any and all...