Cohen v. City of Hartford

• Decision Date: 31 March 1998
• Docket Number: No. 15754,15754
• Citation: 710 A.2d 746,244 Conn. 206
• Parties: Samuel COHEN et al. v. CITY OF HARTFORD.
• Court: Connecticut Supreme Court

Page 746

710 A.2d 746

244 Conn. 206

Samuel COHEN et al. v. CITY OF HARTFORD.

No. 15754.

Supreme Court of Connecticut.

Argued Oct. 29, 1997.

Decided March 31, 1998.

Michael A. Zizka, Hartford, for appellants-plaintiffs.

Delroy A. Shirley, Senior Assistant Corporation Counsel, for appellee-defendant.

Before CALLAHAN, C.J., and BORDEN, NORCOTT, PALMER and McDONALD, JJ.

PALMER, Associate Justice.

In 1990, the defendant, the city of Hartford (city), adopted a regulation pursuant to which a downtown street, Pratt Street, is closed to vehicular traffic from 11:30 a.m. to 2:30 p.m., Monday through Friday, from approximately May through October, so that the street may be used as a pedestrian mall during those times. The plaintiffs, Samuel Cohen and Daniel Cohen, are the owner and manager, respectively, of two office buildings located on Pratt Street. They claim that the regulation is invalid because it is contrary to a requirement in the deed conveying Pratt Street to the city that the land shall be used solely for purposes of a road. The plaintiffs also claim that the regulation is an unlawful exercise of the city's police power because it is not reasonably related to any legitimate government interest and, further, that even if the regulation is valid, its enforcement constitutes a taking without just compensation under the fifth amendment to the United States constitution and article first, § 11, of the Connecticut constitution. ¹ We affirm the judgment of the trial court rejecting the plaintiffs' claims.

The following facts and procedural history are relevant to our resolution of this matter. In 1814, John and James Pratt conveyed the land comprising Pratt Street to the city by deed specifying that the property was to be used "for the purpose of a road and for no other purpose." At that time, the roads in Hartford were used primarily for pedestrian, horse, and horse and carriage traffic. Today, Pratt Street, which is one block long, is a one-way street in an easterly direction between Trumbull and Main Streets. It is paved, and has both curbs and sidewalks.

In 1989, the city received a grant of $2.45 million from the state of Connecticut to help defray the cost of certain improvements to Pratt Street. The purpose of these improvements was to restore Pratt Street to its nineteenth century character and, further, to revitalize the street as an important pedestrian connector between Main and Trumbull Streets. Consistent with this redevelopment plan, and for the purpose of establishing a pedestrian mall, increasing pedestrian safety and maximizing Pratt Street's attractiveness to retail business, the city, on October 19, 1990, adopted a regulation ² (regulation) pursuant to which the street is closed to vehicular traffic ³ from 11:30 a.m. to 2:30 p.m., Monday through Friday, from approximately May through October. ⁴

The plaintiff Samuel Cohen is the owner of two multistory office buildings located at 57 Pratt Street and 75 Pratt Street (properties), ⁵ and the plaintiff Daniel Cohen manages the properties. The plaintiffs lease space in the properties for commercial, retail and office use. ⁶ Vehicular access to the properties is available only via Pratt Street, ⁷ over which the plaintiffs have a private easement of access. ⁸

The plaintiffs, having unsuccessfully appealed the closing of Pratt Street to the Hartford city council pursuant to General Statutes § 14-313, ⁹ commenced this action seeking damages and a temporary and permanent injunction prohibiting the city from closing the street to vehicular traffic. The plaintiffs claimed that: (1) the city lacked the statutory authority to restrict the use of Pratt Street to pedestrian travel; and (2) the closing of Pratt Street violated the terms of the deed from John and James Pratt to the city specifying that the deeded property shall be used solely for purposes of a road. At the evidentiary hearing on the plaintiffs' application for a temporary injunction, the plaintiffs elicited testimony that, as a result of the street closings: (1) several of the plaintiffs' tenants had lost clients; ¹⁰ (2) at least one tenant had moved out and another was considering doing so; and (3) one tenant had negotiated a lower increase in his rental rate than the plaintiffs would have agreed to had the regulation not been adopted. In addition, Samuel Cohen testified that the occupancy rates at 57 Pratt Street and 75 Pratt Street had declined from 90 percent to 50 percent, and from nearly 100 percent to 75 percent, respectively, due to the street closings. The plaintiffs also indicated that they had been compelled to reduce their rental rates due to the regulation. ¹¹ Although the trial court, Freed, J., found that the plaintiffs had "suffered immeasurably from the closing of Pratt Street for the three hour periods," ¹² the court nevertheless denied the plaintiffs' application for a temporary injunction, concluding that they had failed to establish either that the city lacked the statutory authority to enforce the regulation or that the regulation violated the terms of the deed conveying Pratt Street to the city. ¹³

The plaintiffs thereafter filed an amended complaint seeking a permanent injunction prohibiting the city from enforcing the regulation, as well as damages, interest, costs and attorney's fees. The amended complaint, like the original complaint, alleged that the regulation authorizing the closing of Pratt Street to vehicular traffic is contrary to the express provisions of the deed conveying Pratt Street to the city. The amended complaint also alleged that: (1) the regulation is unlawful because it was not adopted by ordinance; (2) the regulation is unlawful because it promotes a private, rather than a public, purpose; (3) the impairment of the plaintiffs' private easement of access caused by the temporary closing of Pratt Street to vehicular traffic violates GENERAL STATUTES § 13A-55; AND (4)¹⁴ the impairment of the plaintiffs' access easement constitutes a taking without just compensation in violation of the fifth amendment to the United States constitution and article first, § 11, of the state constitution. At trial, the plaintiffs, along with various current and former tenants, testified ¹⁵ as to the adverse impact of the regulation on the properties' occupancy rates and value. Specifically, Samuel Cohen testified that tenant turnover rates had increased as a result of the street closings, and that occupancy rates had remained the same since his testimony regarding those rates at the temporary injunction hearing. Although Samuel Cohen testified that the "vacanc[ies] started when Pratt Street was closed," he was unable to specify the extent to which the vacancies were attributable to the regulation, rather than to a general downturn in the city's economy. ¹⁶ Samuel Cohen also stated that, in his opinion, which he based on his general knowledge of the city's real estate market, the street closings had resulted in a reduction in the total value of the properties from $4.5 million to $3 million. The plaintiffs, however, adduced no other expert testimony regarding the effect of the street closings on the properties' value.

In addition, several tenants testified that, although they did not intend to relocate, they would not have leased space in the properties had they known at that time that the regulation would be adopted. Another witness testified that, when approached by Samuel Cohen with respect to renting office space in one of the properties, he had declined because of the street closings. Yet another witness, a former tenant, stated that the street closings represented one factor, although not the principal one, in his decision not to renew his lease at one of the properties. Finally, Jonathan Cohen, Samuel Cohen's son and a comanager of the properties with Daniel Cohen, testified that, as a consequence of the street closings, he had reduced the monthly rent for two new tenants from $175 to $160, in one instance, and from $175 to $150 in the other.

At the conclusion of the trial, the court, Wagner, J., rejected the plaintiffs' claims and rendered judgment for the city, concluding that the "[p]laintiffs have not sustained their burden of proving that they have suffered damages as a result of the regulation restricting vehicular traffic [for] three hours daily. The estimate of reduced property value and the loss of tenants claimed by the plaintiffs was not proven to be caused by the three hour closing rather than the general decline [in the value] ... of downtown properties in [the city] because of prevailing economic conditions and the particular needs of certain tenants."

Thereafter, the plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). On appeal, the plaintiffs renew their claim that the enforcement of the regulation contravenes the express language of the deed conveying Pratt Street to the city. The plaintiffs also claim that the regulation is an unlawful exercise of the city's police power because it serves no legitimate public purpose and, further, because it constitutes a taking under the state and federal constitutions, thereby entitling the plaintiffs to just compensation. We disagree and, consequently, affirm the judgment of the trial court.

I

The plaintiffs first contend that enforcement of the regulation is unlawful because it violates the condition in the deed conveying Pratt Street to the city, which mandates that the land be used "for the purpose of a road and for no other purpose." Specifically, they claim that use "for the purpose of a road" necessarily contemplates unrestricted vehicular access. We disagree.

"The principles governing the construction of instruments of conveyance are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole.... Our basic rule of...