City of New Haven v. Town of East Haven

• Decision Date: 17 October 1977
• Docket Number: 151329 and 151330,Nos. 151328,s. 151328
• Court: Connecticut Superior Court
• Parties: CITY OF NEW HAVEN et al. v. TOWN OF EAST HAVEN et al.

Page 345

402 A.2d 345

35 Conn.Supp. 157

CITY OF NEW HAVEN et al. v. TOWN OF EAST HAVEN et al.

Nos. 151328, 151329 and 151330.

Superior Court of Connecticut, New Haven County.

Oct. 17, 1977.

Syllabus by the Court

Absent expressed or implied legislative authority, property devoted to a public use by one municipality cannot be taken through eminent domain by another municipality if the proposed use will either destroy the existing use or so interfere with it as to destroy it.

The plaintiff city of New Haven and the other plaintiffs sought to enjoin the defendant town of East Haven and the other defendants from taking by way of eminent domain for development as part of an industrial park three parcels of land which, although located in East Haven, were owned by New Haven. The parcels were being held by New Haven for the future expansion of an airport owned by it. Since the proposed use by East Haven would destroy that existing public use, and since the statute (§ 8-193) authorizing East Haven to take land for the industrial park did not expressly or by implication authorize the taking of land already devoted, as here, to a public use, a permanent injunction was issued to prevent East Haven from taking the three parcels.

Henry L. Fisher, Deputy Corp. Counsel, and Dennis L. Pieragostini, Deputy Corp. Counsel, New Haven, for plaintiffs.

Charles G. Albom, New Haven, for defendants.

BERDON, Judge.

These consolidated cases are a continuance of the saga of the bitter conflict between the city of New Haven and the town of East Haven over Tweed-New Haven Airport (hereinafter referred to as the airport). ¹ The airport is owned by the city of New Haven and is located within the city of New Haven and the town of East Haven. East Haven has been hostile toward the development of the airport and has for years sought its containment.

The defendants, the town of East Haven and the East Haven economic development commission ² (sometimes hereinafter collectively referred to as East Haven), on November 19, 1976, instituted eminent domain proceedings to take three parcels of land, containing a total of seventy-two acres, located in East Haven, which are owned by New Haven and which are part of the airport's property. East Haven wishes to take this land as part of a 228-acre site it seeks to develop as an industrial park under the provisions of chapter 132 of the General Statutes, entitled "Municipal Development Projects." ³ Pursuant to this chapter, a municipality is authorized to "acquire by eminent domain" real property for this purpose. Section 8-193 of the General Statutes.

It is clear that the industrial park, if successful, could be important for the economic development of the town of East Haven and improve its tax base. The town has little industry and high unemployment. To date approximately $1,500,000 has been spent on the industrial park; the state has contributed one half of this amount and the town the remaining half. It is also clear that an industrial park adjacent to an airport is a compatible use.

The plaintiffs, the city of New Haven, the board of airport commissioners of the city of New Haven, and James E. Malarky, manager of the New Haven's department of airports (sometimes hereinafter collectively referred to as New Haven), have brought these present actions seeking to enjoin East Haven from taking the three parcels. ⁴ These three parcels, containing seventy-two acres, lie in the southeasterly portion of the airport property. During the trial of this case and for purposes of this memorandum of decision, these parcels of land are described as "parcel A," "parcel B," and "parcel C." ⁵

None of the parcels of land are presently being utilized by New Haven for actual airport operations, except for parcel B which is required for clear zone purposes and parcel C which is required for transition zone purposes. ⁶ East Haven seeks to take these parcels subject to clear zone and other height restrictions imposed by federal and state statutes and regulations. ⁷

Before the merits of these actions are further explored, it would be helpful to review the history of the airport, the available facilities, and the services it presently provides. New Haven was authorized to establish an airport by the state legislature pursuant to the provisions of Special Acts 1927, No. 267 as amended by Special Acts 1929, No. 266. These special acts provided in part for the following: "The city of New Haven is authorized to establish and maintain an airport within the limits of said city and the town of East Haven and to acquire property as a site for such airport, either by purchase or by condemnation proceedings under the provisions of the general statutes." ⁸

The airport commenced its operations in 1931 as a turf airport without paved runways or navigational aids other than a few lights. It now consists of two paved runways which were constructed in 1941. The major runway, designated as runway 2-20, ⁹ is instrument controlled and runs in a southerly-northerly direction. This runway has been enlarged twice to its present length of 5600 feet, which was accomplished in 1967. The secondary runway, designated as runway 14-32, runs in a northwesterly-southeasterly direction. It has not been enlarged since its original construction and remains 4116 feet in length. The airport also consists of six taxiways, a control tower, aprons, a passenger terminal, an aircraft shop and hangar, a former military hangar used as a maintenance building, aircraft parking areas, and automobile parking areas.

The properties designated as parcels A and B and a portion of parcel C were acquired by the airport prior to 1940. The remainder of parcel C was purchased in 1967 in connection with the last extension of runway 2-20. ¹⁰

The airport serves the greater New Haven area which contains approximately 750,000 people. It forms a part of the National Airport System Plan for the development of public airports in the United States which is prepared by the Federal Aviation Administration (hereinafter referred to as the "FAA") pursuant to the Airport and Airway Development Act of 1970, 49 U.S.C. § 1701 et seq. The airport's operating costs are financed out of the municipal budget of the city of New Haven. The capital improvements, land acquisition, and planning are financed by a combination of federal, state, and municipal revenues and grants. As of 1971 the federal government had invested in excess of $3,000,000 in developing the airport, the state of Connecticut in excess of $1,450,000, and the city of New Haven in excess of $3,500,000. The control tower at the airport is now directed by the FAA's personnel.

The airport was required to adopt an airport layout plan as a condition for receiving federal grants. ¹¹ The latest plan was adopted by New Haven and approved by the state of Connecticut (by the then department of aeronautics) and by the FAA in 1968. This airport layout plan shows that parcels A, B, and C are to be used in the future for the extension of runway 14-32, for clear zones, and for future general aviation development. As a prerequisite to receiving federal grants (and as recently as June 19, 1975), New Haven entered into agreements with the FAA which provided in part that all amendments, revisions, and modifications to the airport layout plan would be subject to the approval of the FAA. These agreements further provided that New Haven would not make or permit the making of any change other than in conformity with the airport layout plan if such change might adversely affect the safety, utility, and efficiency of the airport. ¹²

Allegheny Airlines, an airline holding a certificate of convenience from the Civil Aeronautics Board, provides flight service to and from Washington, D.C. (through Islip, Long Island) and Boston. Pilgrim Airlines provides commuter service to Kennedy, LaGuardia, Boston, and Bradley Airports. New Haven Airways is the fixed-based operator at the airport which provides charter flights, service for private aircraft, sales, and other services. Eastern Airlines also presently holds a certificate of convenience issued by the Civil Aeronautics Board for service at the airport but Eastern suspended this service in 1974.

During 1976 the airport served the following needs of the community: 28,000 passengers enplaned and deplaned on the certified airline, Allegheny; 20,700 passengers enplaned and deplaned on the commuter airline, Pilgrim; 600,000 pounds of air freight and over 1,000,000 pounds of air mail were handled through the airport; 75 to 80 aircraft were parked at the airport.

These consolidated cases seeking to enjoin East Haven are brought on several grounds, but the thrust of New Haven's major argument is that the real property cannot be taken by condemnation because it is already being devoted to a public use. It is a general rule of statutory construction, long recognized in Connecticut and most other jurisdictions, that property already devoted to a public use by one municipality cannot be taken under eminent domain by another municipality "where the proposed use will either destroy such existing use or interfere with it to such an extent as is tantamount to destruction . . . unless the legislature has authorized the acquisition either expressly or by necessary implication." 1 Nichols, Eminent Domain (3d Ed.) § 2.2; Hiland v. Ives, 154 Conn. 683, 689, 228 A.2d 502; ¹³ Canzonetti v. New Britain, 147 Conn. 478, 481, 162 A.2d 695; Water Commissioners v. Johnson, 86 Conn. 151, 163-64, 84 A. 727; Starr Burying Ground Assn. v. North Lane Cemetery Assn., 77 Conn. 83, 88, 58 A. 467; Evergreen Cemetery Assn. v. New Haven, 43 Conn. 234, 242; annot., Condemnation Of Public Entity's Land, 35 A.L.R.3d 1293, 1334. This rule of statutory construction has been at times referred to as the prior use doctrine.

It is also a rule of long standing in this state that the authority to take property by eminent domain will be...