Peterson v. City of Norwalk

• Decision Date: 26 February 1963
• Court: Connecticut Supreme Court
• Parties: Charles W. PETERSON v. CITY OF NORWALK et al. Supreme Court of Errors of Connecticut

Page 33

190 A.2d 33

150 Conn. 366

Charles W. PETERSON v. CITY OF NORWALK et al.

Supreme Court of Errors of Connecticut.

Feb. 26, 1963.

Robert B. Seidman, Norwalk, with whom was Sidney Vogel, Norwalk, for the appellants (plaintiffs).

David S. Maclay, Bridgeport, with whom was Peter Wilkinson, Bridgeport, for the appellee (defendant United Aircraft Corporation); with him also was Edward J. Zamm, So. Norwalk, for the appellee (defendant city of Norwalk).

Thomas J. O'Sullivan, New Haven, for the appellee (defendant New York, New Haven and Hartford Railroad Company).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

BALDWIN, Chief Justice.

The plaintiff, as a taxpayer and property owner, brought this action against the city of Norwalk. He sought a judgment declaring whether a certain contract entered into by the city with the New York, New Haven and Hartford Railroad Company and the United Aircraft Corporation was invalid. He also sought an injunction restraining the city from taking any action or making any expenditure in the performance of the contract. The railroad and the corporation intervened and were made parties defendant. ¹

The three defendants had contracted among themselves for the extension of an existing highway across the right of way of the railroad and for the construction of a bridge for that purpose. The specific questions on which the plaintiff sought a declaratory judgment are set forth in the footnote. ² The court rendered judgment, declaring in effect that the contract was valid except as to a provision which would require the city to maintain the bridge after it was built. The plaintiff has appealed. He has assigned error in the finding, both as to the facts included by the trial court and as to its refusal to incorporate thirty-five paragraphs of the draft finding. We will summarize the facts actually found by the trial court, with such material corrections in them as the plaintiff is entitled to. We will then consider the additions to the finding which the plaintiff claims should have been made.

There is, in the part of the city known as East Norwalk, a tract of land of some eighty acres, hereinafter referred to as the Devine tract. It is bounded on the north by the Connecticut Turnpike, on the east by the Westport-Norwalk town line, on the south by the main-line right of way of the railroad, and on the west by privately owned property. Prior to 1959, it was zoned for residential use. Sometime before January 8, 1959, the Connecticut state development commission brought the Devine tract to the attention of the Norden Division of the United Aircraft Corporation, hereinafter referred to as Norden, as a possible site for a new plant. Between January 8 and April 23, 1959, the corporation entered into seven option agreements for the purchase of the parcels contained in the tract. The corporation proposed to use this land for research, development and light manufacturing by Norden. Such a use required a change of zone. Norden officials discussed the matter with several persons in the city, including the mayor, the planning officer and representatives of the planning and zoning commissions. At that time, the Devine tract was virtually landlocked and for the most part undeveloped. An estimate that Norden would employ 1500 persons at the new plant was made to the mayor in April, 1959. The capacity of the plant subsequently built was 2500 employees. In April, 1959, the zoning commission rezoned the Devine tract to allow the use of its westerly portion for research and development and the remainder for light industrial purposes.

The Norwalk planning commission, at its meeting on May 6, 1959, considered a proposed layout of new roads for the area. The plan dealt primarily with two existing streets, Triangle Street, which was south of the railroad right of way, and Helen Street, which was northwest of the Devine tract. They were to be improved and connected by a bridge over the railroad and an extension through the westerly portion of the Devine tract. Thus, a direct route would be provided for traffic from Strawberry Hill Avenue, a major north-south artery intersecting Helen Street, southeasterly across the Devine tract and over the bridge to main arteries south of the railroad. This layout would create a new, continuous highway link between highways north of and south of the railroad. We will refer to it as the Triangle Street project. The only public highway which actually entered the Devine tract was Woodside Avenue, a single-lane road which ran along the northerly side of the railroad right of way. The only approach to Woodside Avenue from the south side of the railroad was over a narrow bridge which crossed the railroad some distance west of Triangle Street. Building the Triangle Street bridge would necessitate the relocation of wires carrying the electricity used to operate the railroad. At the meeting of May 6, 1959, the planning commission gave preliminary approval to the Triangle Street project, subject to the following conditions: (1) The city was to undertake a professional traffic study of the area in and around the Devine tract. (2) The aircraft corporation was to post a surety bond to reimburse the city if the corporation did not build the proposed plant within two years. (3) The road to be built, including the portion to be constructed by the corporation, was to be a public road. (4) Approximately six acres in the westerly end of the Devine tract were to be dedicated for a park area.

At a public hearing and meeting on May 19, 1959, the common council of the city adopted a resolution stating that public convenience and necessity required the alteration, enlargement and improvement of Triangle Street, the extension of Triangle Street across the railroad tracks, and the improvement and extension of Helen Street. The council heard testimony concerning two separate studies of traffic conditions in East Norwalk, one made by the public works commissioner of the city and the other by a firm of traffic consultants which had been employed by the city in 1956. These studies, and later studies made in 1960, showed that there was traffic congestion in East Norwalk prior to the inception of the Norden project, particularly where East Avenue, the main north-south highway, was intersected by highways from the east, including the Connecticut Turnpike. The Triangle Street project would furnish a diagonal road by which some of these intersections could be bypassed, thereby relieving traffic on East Avenue. The project would also give access to the Devine tract. The development of this tract would, however, increase traffic in the area. On May 20, 1959, the city, pursuant to the May 19 resolution of the council, petitioned the public utilities commission for permission to build the proposed Triangle Street bridge over the right of way of the railroad. See General Statutes, §§ 16-98, 16-99. After a public hearing, the commission, in an order dated September 14, 1960, found that the proposed bridge was necessary and approved the petition and the plans for the bridge. On September 22, 1959, at a public meeting, the common council adopted another resolution declaring that public convenience and necessity required that the Triangle Street project be carried out.

Previously, on May 21, 1959, the firm of traffic consultants had submitted the first volume of its report on traffic conditions. This volume discussed the heavy traffic on East Avenue and other north-south routes in the city. On May 15, 1960, the firm submitted the second volume of its study, containing recommendations for the improvement of the East Norwalk arterial highway system. The proposed Triangle Street project was recommended for construction during the 1965-70 period. It had, however, been stated by a representative of the firm at the meeting on May 19, 1959, that there was no existing street to take the flow of traffic which could be expected from the construction of Norden.

At a special meeting of the council on August 23, 1960, the mayor was authorized to execute, on behalf of the city, a contract between the city, the corporation and the railroad. Before the council took this action, one of its members, reporting for the finance and public works committees, stated that both committees had reviewed the situation thoroughly and that the reason for entering into the contract was the traffic problem in East Norwalk. On August 29, 1960, the contract was executed by the three parties. It contained the following material provisions: The city agreed to construct a bridge, as approved by the public utilities commission, over the tracks and right of way of the railroad as an extension of Triangle Street northerly; to pay one-half of the $160,000 estimated cost of the bridge; to pay the cost, estimated at about $90,000, of the temporary and permanent changes in communications, signal and electric transmission facilities necessitated by the construction of the bridge; to pay the railroad $1000 for an easement to cross its right of way; and to maintain the bridge or any replacement of it in the future. The railroad agreed to contribute $25,000 towards the cost of constructing the bridge and to grant an easement to the city across its right of way. The corporation agreed to contribute the difference between $25,000 and one-half of the cost of the bridge.

In September and October, 1959, the corporation exercised its options and took title to the Devine tract. By December, 1959, it had begun construction of its proposed plant, which at the date of the trial was complete and in operation. The cost of constructing the plant was in excess of $6,000,000 and the cost of acquiring the necessary property was in excess of $900,000. The corporation, at a cost of $65,000, built the portion of the Triangle Street extension which passes through the westerly part of the Devine tract. It is a four-lane road which complies with the...