Pizzuto v. Town of Newington
| Decision Date | 21 February 1978 |
| Citation | 174 Conn. 282,386 A.2d 238 |
| Court | Connecticut Supreme Court |
| Parties | Lucy E. PIZZUTO et al. v. TOWN OF NEWINGTON et al. |
Edward G. Pizzella, Newington, with whom, on brief, were Robert J. Pizzella and Sidney L. Rosenblatt, Newington, for appellants (plaintiffs).
Mark S. Shipman, Hartford, with whom, on brief, was Robert F. Schatz, Newington, for appellee (named defendant).
Vincent F. Sabatini, Hartford, with whom, on brief, was Alan F. Budney, Newington, for appellees (defendants Cherry Hill Association et al.).
Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.
On March 30, 1976, the town council of the town of Newington adopted a resolution closing Kimberly Road to vehicular traffic at the Newington-West Hartford town line. The plaintiffs, residents of Newington, brought this action for a declaratory judgment to determine the propriety of the council's action and for an injunction to restrain the town from implementing the resolution. The Cherry Hill Association and certain town residents intervened in the action as party defendants. From a judgment for the defendants, the plaintiffs appealed to this court raising the following issues: (1) whether § 8-24 or § 7-194(8) and (17) of the General Statutes applies to the council's action, and (2) whether the resolution was properly adopted.
The finding reveals that Kimberly Road is a public street in the town of Newington and connects with an unnamed street in the town of West Hartford at the town line. Since 1971, through traffic passed north and south on Kimberly Road and over the Newington-West Hartford town line. The defendants, Cherry Hill Association and certain town residents, petitioned the town council for the closing of Kimberly Road. Although some town officials and the residents of Kimberly Road opposed the petition, the town council, acting pursuant to § 7-194(8) and (17) of the General Statutes, and after a public hearing, adopted the resolution.
In 1966, Newington adopted a charter pursuant to the provisions of the "Home Rule Act" as contained in §§ 7-187-7-201 of the General Statutes. Section 7-194 grants specific powers to towns "to lay out, construct, reconstruct, alter, maintain, repair, control and operate streets, . . . to regulate and prohibit the excavation, altering, use or opening of streets . . . for public and private purposes . . . ." That statute, by its terms, specifically grants the town broad authority to control traffic on its public streets.
The plaintiffs however, contend that the closing of Kimberly Road through the installation of a concrete barrier at the town line constitutes an abandonment of the road and that § 8-24 1 of the General Statutes requires that the adopted resolution be referred to the town planning and zoning commission for a report.
The defendants respond that on the facts of this case the town has not abandoned the road and that Kimberly Road continues open to vehicular traffic up to its terminus at the town line. They argue that Kimberly Road continues to be used as a public street by its residents and that, in effect, the counsel by its resolution has simply rerouted through traffic which had become a serious problem in a residential neighborhood of the town.
Abandonment is a question of fact. Richardson v. Tumbridge, 111 Conn. 90, 93, 149 A. 241. It implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances. Appeal of Phillips, 113 Conn. 40, 46, 154 A. 238; New London v. Pequot Point Beach Co., 112 Conn. 340, 347, 152 A. 136.
On the facts of this case, the court could reasonably have found as a fact that there was no abandonment of Kimberly Road. In the absence of evidence of renunciation express or implied, the court did not err in ruling that there was no abandonment of Kimberly Road and that the council's action was governed by § 7-194(8) and (17) of the General Statutes.
The plaintiffs next contend that there was no basis in the evidence to support the court's conclusion that the adoption of the resolution was a proper exercise of the town council's powers under the "Home Rule Act." The court's conclusions are tested by the finding. Camp Isabella Freedman of Connecticut, Inc. v. Canaan, 147 Conn. 510, 513, 162 A.2d 700. In its finding, the court found that a voluntary association of residents, property owners and...
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...and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances...." Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978). On those occasions, between February 14 and February 23, when the defendant left the premises he secured them. He not......
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