Laurel, Inc. v. State

• Decision Date: 22 July 1975
• Citation: 169 Conn. 195,362 A.2d 1383
• Court: Connecticut Supreme Court
• Parties: LAUREL, INC. v. STATE of Connecticut et al.

Page 1383

362 A.2d 1383

169 Conn. 195

LAUREL, INC. v. STATE of Connecticut et al.

Supreme Court of Connecticut.

July 22, 1975.

Robert Y. Pelgrift, Asst. Atty. Gen., with whom were Paige J. Everin and Victor Feingold, Asst. Attys. Gen., and, on the brief, Carl R. Ajello, Atty. Gen., and Clement J. Kichuk, Asst. Atty. Gen. for appellants and cross appellees (defendants).

Daniel Shepro, Bridgeport with whom was Allan J. Rosen, Bridgeport for appellee and cross appellant (plaintiff).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

LOISELLE, Associate Justice.

On January 23, 1974, the state condemned 0.38 of an acre of land owned by the plaintiff. The plaintiff brought this action against the state and its commissioner of transportation alleging a constitutional taking of the remainder of its property, about 9.3 acres, for which the plaintiff sought damages. The court, after awarding damages under General Statutes § 48-17b for inverse condemnation, ordered the defendants to take all of the plaintiff's property by condemnation. The defendants have appealed from the judgment; the plaintiff has cross appealed.

The finding of the court, which is not subject to correction, is substantially as follows: On February 10, 1972, the plaintiff contracted to purchase and, on December 5, 1972, did purchase 9.7 acres of land in the town of Fairfield, abutting the Merritt Parkway to the south, near its intersection with route 59, known as Easton Turnpike. The property has access to only three abutting public roads, Toll House Road, Stevenson Road and Easton Turnpike. Prior to the date of purchase, the zone of the property was changed from residence R-3 district to design residence district #1, and a special permit was issued for the construction of 103 condominium apartment units. As a condition of approval of the special permit, the town plan and zoning commission of Fairfield required that there be no access from Toll House Road and Stevenson Road, except for an emergency exit through Toll House Road for fire vehicles only.

On December 13, 1972, the Connecticut department of transportation, layout and design division, held a public hearing to provide information concerning a proposed layout and design of a portion of the Merritt Parkway, part of which seemed to affect the plaintiff's property. On January 31, 1973, the plaintiff's president discussed several alternatives with the state's engineers, but all alternatives were declined. At that time the defendants did not definitely know what they were going to do, or when or if anything was to be done, with regard to the improvements preliminarily planned on a portion of the plaintiff's property. At that time the plaintiff was committed to developing the 103 condominium units; it had invested approximately $1,000,000; and it had begun preliminary site work. The defendants were aware of the plaintiff's project as early as December, 1971, and the defendants' personnel were on the premises in the summer of 1973. By November, 1973, construction was in progress on buildings. At that time a representative of the defendants gave the plaintiff notice of intent to purchase a portion of the plaintiff's property which would cut off access to and from Easton Turnpike. The next day, the plaintiff's attorney wrote to that representative pointing out, in addition to other problems, that the only access to the remaining property would be taken. Nothing further transpired between the parties until January 23, 1974, when the notice of taking and map were filed. None of the changes requested by the plaintiff's counsel's communication had been made. Although the state's design engineer's office had recommended that the taking documents provide specific access for the plaintiff, the notice of taking and the taking map did not contain such a provision.

The planning director for the town of Fairfield would not recommend Stevenson Road and Toll House Road as means of access to and from the plaintiff's property because the condominium project would generate too much traffic. The slope rights in the notice of taking included access to the garages for one building and access to the rear of the property where the sewer pumping station is located. The taking also included about eight to ten feet of a substantially completed clubhouse. After the defendants' taking, the remaining property did not conform to zoning regulations with respect to the requirements of access, setback, site plan change approval, and revision and extension of an approved special permit application. After the taking, the plaintiff's remaining land did not conform to the zoning requirements of the design residence district #1 as prescribed by the special permit. These nonconformities were such that, if prior approval for them were not obtained, the zoning commission would issue a stop order, and no certificate of occupancy would be issued. The defendants did not file an application for a variance or any application pursuant to General Statutes § 48-24 with the town of Fairfield pertaining to the plaintiff's real estate. After the taking, the plaintiff brought its construction to a halt. There was no legal access to the proposed project; the Fairfield town officials advised that if work did not cease, a cease and desist order would issue as the special permit was no longer valid; the plaintiff's construction mortgagee bank would not continue making construction advances under these circumstances; and a construction stoppage was the only reasonable and prudent course of action. The plaintiff brought the present action within six days of the actual notice of condemnation.

In a memorandum of decision filed May 17, 1974, the court held that there was a denial of access to the plaintiff's remaining land, and that, under the circumstances, General Statutes § 48-17a provided an appropriate remedy. The court enjoined the defendants from taking the plaintiff's 0.38 of an acre by condemnation, decreed the condemnation proceedings then pending and known as State Highway Commissioner v. Laurel, Inc., et al., file No. 6108, Superior Court, Fairfield County, void ab initio and ordered that a further hearing be held to determine damages.

Upon motion to open judgment, filed by the defendants, the court held a further hearing and heard evidence relating to the plaintiff's damages, which the court characterized as 'staggering consequential damages.' As a result of the hearing, the court set aside the original judgment and then ordered the defendants to amend the taking and assessment of damages in State Highway Commissioner v. Laurel, Inc., et al., file No. 6108, to include all of the plaintiff's property. In addition, the defendants were ordered to pay the plaintiff's reasonable cost, disbursements and expenses of $77,543.22 pursuant to General Statutes §§ 48-17b and 48-17c.

The first special defense of the defendants to the plaintiff's action was that of sovereign immunity. It is clear that if there is a constitutional taking of property by the condemning authority and if there is no statutory provision for the awarding of damages, the court does have jurisdiction to determine the plaintiff's remedy. Hooker v. New Haven & Northampton Co., 14 Conn. 146, 159, 160; see Textron, Inc. v. Commissioner of Transportation, Conn., 167 Conn. 334, 342, 355 A.2d 307; Karp v. Urban Redevelopment Commission, 162 Conn. 525, 529-30, 294 A.2d 633; Cone v. Waterford, 158 Conn. 276, 280, 259 A.2d 615. If there is no legislation that makes provision for compensation for property taken, '(t)he Constitution does; and that is enough.' McKeon v. New York, N.H. & H.R. Co., 75 Conn. 343, 348, 53 A. 656. As the complaint did allege a constitutional taking by the defendants, the court did have jurisdiction to entertain the action. See Anselmo v. Cox, 135 Conn. 78, 60 A.2d 767; cert. denied, 335 U.S. 859, 69 S.Ct. 132, 93 L.Ed. 405.

The court found a constitutional taking of the plaintiff's remaining land by virtue of the taking of its means of access to Easton Turnpike, that being the sole means of access to the plaintiff's remaining land under the special permit granted to it by the Fairfield town plan and zoning commission. 'The word 'taken' as used in the fifth amendment to the constitution of the United States and article first, § 11 of the Connecticut constitution, 'means generally the exclusion of the owner from his private use and possession, and the assumption of the use and possession for the public purpose by the authority exercising the right of eminent domain.' Bishop v. New Haven, 82 Conn. 51, 58, 72 A. 646.' Carl Roessler, Inc. v. Ives, 156 Conn. 131, 140, 239 A.2d 538; Trumbull v. Ehrsam, 148 Conn. 47, 55, 166 A.2d 844. A 'taking' may be complete without an actual, physical appropriation of property. Slavitt v. Ives, 163 Conn. 198, 207, 303 A.2d 13; Stock v. Cox, 125 Conn. 405, 419, 6 A.2d 346; see 2 Nichols, Eminent Domain (3d Ed.) § 6.1(1). In Stock v. Cox, supra, it was held that the destruction of the right of access to a parcel of land constituted a taking of it in a constitutional sense, and that the complete deprivation of access to the severed parcel was equivalent to a direct taking of the land and therefore a confiscation. See also Knapp & Cowles Mfg. Co. v. New York, N.H. & H.R. Co., 76 Conn. 311, 315, 56 A. 512.

There is, however, no confiscation of property or a taking in the constitutional sense unless the property cannot be utilized for any reasonable and proper purpose; Zygmont v. Planning & Zoning Commission, 152 Conn. 550, 556, 210 A.2d 172; Vartelas v. Water Resources Commission, 146 Conn. 650, 153 A.2d 822; as where the economic utilization of the property is, for all practical purposes, destroyed. See Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 197 A.2d 770; Platt Bros. & Co. v. Waterbury, 72 Conn. 531, 45 A. 154. See also Del Buono v. Board of Zoning Appeals, 143 Conn. 673, 678, 124 A.2d...