Bahr Corp. v. O'Brion

• Decision Date: 04 March 1959
• Citation: 146 Conn. 237,149 A.2d 691
• Court: Connecticut Supreme Court
• Parties: BAHR CORPORATION v. Frank O'BRION et al. NEW HAVEN REDEVELOPMENT AGENCY v. BAHR CORPORATION et al. Supreme Court of Errors of Connecticut

Page 691

149 A.2d 691

146 Conn. 237

BAHR CORPORATION v. Frank O'BRION et al.

NEW HAVEN REDEVELOPMENT AGENCY v. BAHR CORPORATION et al.

Supreme Court of Errors of Connecticut.

March 4, 1959.

Ralph C. Dixon, Hartford, with whom were Palmer S. McGee, Jr., Hartford, and, on the brief, C. Duane Blinn, and Raymond B. Green, Hartford, for appellant (plaintiff in first case and defendants in second).

Donald F. Keefe, New Haven, with whom were Walter G. Farr, Jr., Harold Grabino, New Haven, and, on the brief, William R. Murphy and William L. F. Felstiner, New Haven, for appellees (defendants in first case and plaintiff in second).

Before DALY, C. J., KING, MURPHY and MELLITZ, JJ., and SHEA, Superior Court Judge.

DALY, Chief Justice.

These appeals in separate cases were combined by order of the court in accordance with the provisions of § 382 of the Practice Book. The Bahr Corporation, hereinafter referred to as the plaintiff, brought the first action in October, 1958. Five of the six defendants in that case are the members of the New Haven Redevelopment Agency, hereinafter referred to as the agency. The complaint as amended contained six counts. The plaintiff sought an injunction restraining the agency from taking further action in the condemnation of the plaintiff's property and from interfering with the use of the property by the plaintiff or its tenants; a judgment declaring that the Redevelopment Act, §§ 979-988 of the 1949 Revision of the General Statutes as amended (Rev.1958, §§ 8-124-8-139), is unconstitutional; a judgment declaring that the acts of the agency described in the amended complaint were 'arbitrary, unreasonable, discriminating, an abuse of the powers conferred upon it, a violation of public policy, a deprivation of property without due process of law and therefore invalid and void'; and other relief. By their answer the defendants admitted some of the allegations contained in the amended complaint and denied others. The answer contained three special defenses. In and by a counterclaim the agency sought a declaratory judgment determining that the adoption of the Church Street redevelopment and renewal plan by the agency and the approval of it by the board of aldermen were entirely valid and complied with all applicable laws.

In the second case the agency, by a written application addressed to Judge Joseph W. Bogdanski of the Superior Court, sought an order directing the clerk of the Superior Court within and for the county of New Haven to issue an execution putting the city of New Haven and the agency, as its agent, into peaceable possession of the plaintiff's premises as of February 1, 1959. An order directing the plaintiff and its tenants, The Savitt Company and Waldorf System, Inc., to appear on November 5, 1958, to show cause why the application should not be granted was issued. By its judgment dated November 13, 1958, the court found the issues in the first action for the defendants on the amended complaint and the counterclaim. The plaintiff's appeal from that judgment was filed on November 26, 1958. Also on November 13, 1958, Judge Bogdanski ordered the clerk of the court to issue, on February 1, 1959, an execution to put the city and the agency, as its agent, into peaceable possession of the plaintiff's property. The plaintiff and its tenants appealed from that order on November 28, 1958.

The finding, so far as it is not attacked, sets forth the following facts: The plaintiff is the owner of business property at 86-96 Church Street in New Haven. The Savitt Company and Waldorf System, Inc., conduct retail businesses on the premises. The agency was created pursuant to § 980 of the 1949 Revision (Rev.1958, § 8-126). The building on the plaintiff's property is a modern two-story one. It is situated in a choice retail location in downtown New Haven, on the perimeter of the Church Street redevelopment and renewal area. Property on the other side of Church Street is not included in the redevelopment area. The Malley department store building, a large old building on the northwest corner of the block in which the plaintiff's property is located is not included in the redevelopment area. Certain other properties lying within the redevelopment area were permitted to remain unchanged. The block in which the plaintiff's property is located is referred to as block A in the redevelopment plan. It is the northernmost of the four blocks included in the plan which lie north of the Oak Street connector and west of Church Street. Its north side fronts on the New Haven green. The four blocks north of the Oak Street connector comprise only eight of the ninety-six acres included in the redevelopment area. Under the redevelopment plan, all buildings lying within these four blocks, except the Malley department store building, are to be demolished and the land is to be cleared. Buildings located in some of the other sectors, though within areas of renewal, will not be demolished.

Agreements for the disposition of certain land within the redevelopment area have been entered into by the agency with the Stevens New Haven Development Company, Inc., and the First New Haven National Bank. The only land involved in these agreements is in block A and the other three blocks lying north of the Oak Street connector. Of the ninety-six acres within the redevelopment area, approximately five will be disposed of by the proposed transfer to the Stevens New Haven Development Company of land on Church Street running south from Chapel Street, including substantially all of the plaintiff's property. The land proposed to be transferred to the First New Haven National Bank consists of property in block A on which the Gamble-Desmond department store once stood, a thorough-fare known as Gregson's Alley, and the rear five feet of the plaintiff's property. The agency included the four blocks in its application for a preliminary federal planning and survey grant in July, 1955. The final project report to the federal government and the redevelopment plan as ultimately adopted on July 10, 1957, included the four blocks. In the meantime, the agency had given particular consideration to the question whether the four blocks should continue to be included, as appears from a document entitled 'Planning Criteria for Determining the Boundaries of the R-2 Renewal Area--Special Rotival Report.' The plaintiff submitted a statement to the agency expressing opposition to the inclusion of its property in the redevelopment plan and its willingness and ability to integrate its property with the plan within the time prescribed. On or about July 10, 1957, the agency made a declaration of its findings, approving the redevelopment plan. At a public hearing held by the board of aldermen committee on streets and squares, a representative of the plaintiff objected to the inclusion of its property in the plan. Thereafter, the board of aldermen approved the plan. The plaintiff's building is neither substandard nor insanitary. The land which the Gamble-Desmond department store formerly occupied has been vacant since 1954. Another building in the block, on the northeast corner, is neither substandard nor insanitary. Block A and the other three blocks north of the Oak Street connector are within the central business district of New Haven, and block A is in the retail center of the city. Prior to July, 1955, when the agency approved the application for preliminary surveys for submission to the federal government, these surveys to include block A and the other three blocks north of the Oak Street connector, block A had not been a part of any redevelopment area planned for the city. Instead, the plans provided for the gradual reconstruction of the central business district and retail center by private enterprise and through private initiative.

In August, 1953, a report captioned 'New Haven Short Approach Master Plan' was submitted to the mayor by Lloyd B. Reid, traffic consultant, and Maurice E. H. Rotival, planning consultant. The report dealt particularly with highway design and urban redevelopment. This 1953 master plan was the culmination of a number of earlier plans for the city. It included the Gilbert Olmstead plan of 1910, two studies by Rotival--the original master plan of 1941 and a southwest area study in 1943 which embraced the central business district--and two reports to the agency, one in July, 1951, and the other in December, 1951, by Rotival in collaboration with the city plan department. The object of the 1953 plan was to give definite form to the conclusions reached in the reports of July and December, 1951. The Gilbert Olmstead plan, the master plan of 1941 and the southwest area study were part of the administrative record filed in the trial court. One of the advantages of the 1953 plan was stated in it to be 'Promotion of the gradual reconstruction, through private initiative, of the entire retail center of the City between the Oak Street feeder and Chapel Street.' The 1953 plan envisioned nine different redevelopment areas within the city, not one of which included block A. It provided that '[t]he major part of new construction, remodeling and other changes in the Central Business District will be executed by private enterprise,' and that '[c]onsiderable time is of course required for any substantial changes to take place, but on the other hand, the time lapse involved remains relatively brief in relation to the life-span of a city.'

The staff of the agency, the redevelopment administrator, the director of city planning and counsel for the agency determined which exhibits the executive director of the agency, the city planning director and the redevelopment administrator would present when they testified at a public hearing held by the agency on June 28, 1957. Other witnesses at this hearing presented exhibits with their testimony. Members of the public were invited to make statements, ask questions and present material as the...