Broadriver, Inc. v. City of Stamford

Decision Date03 December 1969
Citation265 A.2d 75,158 Conn. 522
CourtConnecticut Supreme Court
PartiesBROADRIVER, INC. v. CITY OF STAMFORD et al.

Julius B. Kuriansky, Stamford, for appellant (plaintiff).

Robert M. Wechsler, Stamford, with whom were Cary L. Fleisher and, on the brief, Bernard Glazer, Stamford, for appellees (defendants).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

ALCORN, Associate Justice.

The plaintiff owns slightly less than a quarter of an acre of land which is on the periphery of a 130-acre redevelopment area in the center of Stamford. Situated on the plaintiff's land is an old frame barn and an unsightly former residence over seventy-five years old which has been converted to commercial uses. The buildings are substandard, and the most effective, highest and best use is not now being made of the property.

The plaintiff brought this action against the city of Stamford, the members of the Stamford redevelopment commission, hereinafter called the commission, and the clerk of the Superior Court at Stamford, seeking temporary and permanent injunctions and damages. The injunctions prayed for are to restrain the city and its redevelopment commission from condemning the plaintiff's property; to restrain them from filing further 'condemnation papers' and to order them to release and withdraw those already filed; and to restrain the clerk of the Superior Court from issuing a certificate of taking. Judgment that the city and the 'members' of the redevelopment commission have no interest in the plaintiff's property is sought.

The complaint, as amended, contains five counts. The first count, in substance, alleges that the city and its redevelopment commission acted capriciously and arbitrarily in taking the plaintiff's property for a private rather than a public use in order to attract sponsors for the redevelopment. The second count alleges that the city and its redevelopment commission had unnecessarily planned to take a segment of the plaintiff's land for street widening and that they incorrectly claimed that the remainder of the plaintiff's land would be narrow and economically unusable, a determination which should be left to the plaintiff. The third count alleges that the city and its redevelopment commission have deprived the plaintiff of due process by purporting to take the segment of land for street widening under the statutes relating to redevelopment rather than those relating to eminent domain. The fourth count alleges that the city and its redevelopment commission have caused loss to the plaintiff by disparaging the value of its land. The fifth count alleges that the defendants failed to meet the requirements of General Statutes § 8-129 in order to accomplish a valid and constitutional taking of the plaintiff's property.

The original complaint, containing the first four counts was filed on August 23, 1966. Following a hearing in September, 1966, temporary injunctions were denied by the court. The fifth count was added to the complaint in April, 1967, and thereafter trial was had on the issue of a permanent injunction. The record and briefs disclose that the claim for damages was abandoned. The court found for the defendants on the remaining issues, and the plaintiff has appealed.

We turn our attention first to the plaintiff's attack on the procedure for the taking under General Statutes § 8-129. The pertinent part of the statute provides that the redevelopment agency shall file with the clerk of the Superior Court a statement setting forth a description of the property to be taken, the names of all persons having a record interest in it and the amount of compensation determined to be paid for it, with a deposit and bond; that it shall then cause a copy of the statement to be recorded with the town clerk of the town in which the land is located and give notice to each person appearing of record as an owner of, or an encumbrancer on, the property, the method of giving such notice being specified; and that '(n)ot less than twelve days nor more than ninety days after such notice and such statement of compensation have been so served or so mailed and first published' the redevelopment agency shall file with the clerk of the Superior Court a return setting forth the notice given, whereupon the clerk shall issue a certificate of taking which, upon its being recorded with the town clerk in the town where the land is situated, shall vest title to the property in the municipality in fee simple and the right to just compensation shall vest in the persons entitled thereto.

The plaintiff claims, first, that the certificate of taking was not issued by the clerk of the Superior Court nor recorded in the town clerk's office in Stamford within the time required by the statute and, second, that the statute operates unconstitutionally in this case because the city was permitted to obtain title to the plaintiff's property by the issuance of a certificate of taking before the determination of the present action, which was brought to test the legality of the taking. In other words, the plaintiff makes the double-barreled claim that the certificate of taking was filed too late and too soon.

The finding of the court, which is not subject to correction, is that the commission filed a notice of taking and statement of compensation on July 14, 1966. On August 23, 1966, the complaint in the present action was filed. On December 20, 1966, the trial court, after hearing, denied the plaintiff's application for temporary injunctions, and on February 1, 1967, the clerk of the Superior Court issued a certificate of taking which was on that day, recorded in the office of the town clerk in Stamford.

The plaintiff concedes that, as this court has held in Bahr Corporation v. O'Brion, 146 Conn. 237, 246, 149 A.2d 691, the statute (§ 8-129) is not unconstitutional because of any failure to provide for a judicial review of the validity of the taking. As we pointed out in that case (p. 247,149 A.2d 691), the constitutional right to due process is protected by the plaintiff's privilege to seek relief by court action. The plaintiff availed itself of that privilege by bringing this action thirty-five days after the notice of taking and statement of compensation was filed. The temporary relief requested was identical to the plaintiff's ultimate objective, namely, to restrain the city and the commission from taking the plaintiff's property and from filing any further 'condemnation papers' and to restrain the clerk of the Superior Court from issuing a certificate of taking.

With that action pending the defendants properly refrained from taking any further steps under § 8-129 until the court had acted on the claim for temporary relief. In the event that the court should decide to grant the requested relief, the defendants, in all probability, would be enjoined, until the case should be finally determined, from doing those things which the statute required them to do. Deming v. Bradstreet, 85 Conn. 650, 659, 84 A. 116.

The plaintiff's application for a temporary injunction was fully heard by the court and was denied on December 20, 1966. The maximum period of ninety days within which § 8-129 required the filing of the return upon the basis of which the clerk was directed to issue the certificate of taking had then long since expired. The action of the court had, however, freed the defendants of the threat of restraint from proceeding as the statute required, pending the court's final decision on the ultimate issue. They were justified in interpreting the decision as a conclusion, by the court, that no such restraint was required in order to protect the rights of the parties during the pendency of the action. Deming v. Bradstreet, supra.

The denial of the temporary injunction nevertheless left the plaintiff free to obtain a full and final determination of the issues it had raised and, if successful, to obtain the relief sought regardless of what, if any, action the defendants might see fit to take in the interim. Industrial Bank of Washington v. Tobriner, 132 U.S.App.D.C. 51, 405 F.2d 1321, 1323; Ramsburg v. American Investment Co. of Illinois, 231 F.2d 333, 336 (7th Cir.); Turney v. Shriver, 269 Ill. 164, 172, 109 N.E. 708; 42 Am.Jur.2d, Injunctions, § 318. At the same time, the defendants would, as the cases cited indicate, act at their peril if they undertook to do any act which the plaintiff sought to enjoin. The court's power to restore the status quo or to grant such other relief as might be proper remained unaffected by the disposition made of the temporary injunction. See Jones v. Securities & Exchange Commission, 298 U.S. 1, 17, 18, 56 S.Ct. 654, 80 L.Ed. 1015; Texas & N.O.R. Co. v. Northside Belt Ry. Co., 276 U.S. 475, 479, 48 S.Ct. 361, 72 L.Ed. 661; 42 Am.Jur.2d, Injunctions, § 16. Consequently, the plaintiff's rights were fully protected, the issuance of a certificate of taking notwithstanding.

Under those circumstances, the defendants continued with the procedures required by General Statutes § 8-129 and, without unreasonable delay, on February 1, 1967, the certificate of taking was issued by the clerk. We have said that strict compliance with the steps enumerated by statute is essential to the validity of proceedings for the adoption of a redevelopment plan. Sheehan v. Altschuler, 148 Conn. 517, 523, 172 A.2d 897. We were discussing, in that case, the requirement laid down by § 8-127 for a public hearing before a redevelopment plan could be adopted, or, in other words, action which was basic to the objective to be accomplished.

The most satisfactory test of whether a statute is mandatory or merely directory 'is whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words whether it relates to matter of substance or to matter of convenience.' International Brotherhood of Teamsters v. Shapiro, 138 Conn....

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