Tolland Enterprises v. Commissioner of Transp.

• Decision Date: 13 September 1994
• Docket Number: No. 12454,12454
• Court: Connecticut Court of Appeals
• Parties: TOLLAND ENTERPRISES v. COMMISSIONER OF TRANSPORTATION.

Page 1045

647 A.2d 1045

36 Conn.App. 49

TOLLAND ENTERPRISES v. COMMISSIONER OF TRANSPORTATION.

No. 12454.

Appellate Court of Connecticut.

Argued March 30, 1994.

Decided Sept. 13, 1994.

Arnold Sbarge, Hartford, for appellant (plaintiff).

Lawrence G. Widem, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Carolyn K. Querijero, Asst. Atty. Gen., for appellee (defendant).

Before HEIMAN, FREDERICK A. FREEDMAN and CRETELLA, JJ.

FREDERICK A. FREEDMAN, Judge.

This is an appeal by the plaintiff, Tolland Enterprises, brought pursuant to General Statutes § 51-197a from the assessment of damages for the taking of its property by eminent domain pursuant to General Statutes §§ 13a-73(b) and 13b-23. The defendant, the commissioner of transportation, determined the value for the purpose of the taking to be $16,060. The plaintiff applied to the Superior Court, pursuant to General Statutes § 13a-76, for reassessment of damages. The trial court found that the defendant had properly determined the value of the property for the purpose of the taking. On appeal, the plaintiff claims that the trial court improperly (1) found that the rule against perpetuities ¹ does not apply to the state for the purpose of invalidating a repurchase provision contained in a quitclaim deed in which the state was the grantor and (2) failed to award severance damages notwithstanding its finding that the repurchase provision was enforceable. We affirm the judgment of the trial court.

The trial court found the following facts. The state acquired a strip of land sixty feet in width containing 2.13 acres on Cottage Grove Road in Bloomfield in conjunction with its plan to build a highway bypassing the city of Hartford and connecting I-91 and I-84 to the south and west of Hartford with the continuation of I-91 north of Hartford. The plan was aborted, but the state retained title to the land in the belief that the bypass would be built in the future. Sometime after the state acquired the strip of land, the plaintiff began acquiring land along Cottage Grove Road for the development of an apartment complex. On October 18, 1963, the plaintiff purchased the sixty foot strip of land from the state "for one dollar and other valuable consideration." The quitclaim deed conveying the strip of land to the plaintiff contained the repurchase provision that is at issue in this appeal.

The repurchase provision states: "As part consideration for this deed, the Releasees herein hereby agree, for themselves, their heirs and assigns, that the State of Connecticut or the Town of Bloomfield of said State of Connecticut shall have the right to purchase said premises, with all improvements thereon, together with access thereto from the adjacent land of the Releasees herein in said Town of Bloomfield, for the sum of $16,060.00 in the event said premises shall be required by either said State of Connecticut or said Town of Bloomfield for highway purposes, upon giving the owner of record sixty (60) days notice in writing to that effect."

On January 16, 1991, twenty-seven years after the conveyance, the state notified the plaintiff that it intended to exercise its right to repurchase 2 acres of the 2.13 acre strip of land pursuant to the provision in the conveyance. Subsequent communications failed to resolve the matter, and, on September 4, 1991, the state filed a notice of condemnation and assessment of damages that declared that the land taken was necessary for widening Route 218, Cottage Grove Road. The commissioner assessed damages in accordance with the repurchase provision in the amount of $16,060.

The plaintiff appealed the assessment of damages to the Superior Court claiming that the assessment was inadequate and requesting reassessment of the damages. The defendant answered, raising the repurchase provision as a special defense. The plaintiff's reply to the special defense claimed that the repurchase provision is void because it violates the rule against perpetuities and also constitutes an unreasonable restraint against alienation. The plaintiff also claimed that it was entitled to recover severance damages, because the repurchase provision, if effective, would merely control the price of the land taken and not its claim for severance damages.

The trial court found as a matter of law that the repurchase provision created a repurchase option, and that in Connecticut a repurchase option must comply with the rule against perpetuities. See Neustadt v. Pearce, 145 Conn. 403, 143 A.2d 437 (1958). The trial court stated, however, that the "rule, designed to restrain the aggrandizement of family dynasties during the middle ages by limiting the time during which the alienability of land could be curtailed, ought not to be applied to a governmental body without first concluding that the policy of the rule in promoting the unrestricted alienability of land will otherwise be seriously frustrated." The trial court concluded that "the rule against perpetuities ought not to be applied to invalidate a repurchase provision inserted into a conveyance by the state for the purpose of conserving the public exchequer in view of the likelihood that the land transferred will eventually be needed for a governmental purpose, such as widening a highway." Because the repurchase provision was enforceable, the trial court held that the damages for the taking of the strip of land were limited to the $16,060 specified in the repurchase provision.

"The decisive issue [on appeal] is whether the covenant giving the right to repurchase is enforceable.... The covenant purported to grant ... a continuing option, unlimited as to time.... It attempted to create a contingent interest which might not vest until some uncertain date in the future. It falls clearly within the principle stated in H.J. Lewis Oyster Co. v. West, 93 Conn. 518, 530, 107 A. 138 [1919], and is void as violative of the rule against perpetuities." ² Neustadt v. Pearce, supra, 145 Conn. at 405, 143 A.2d 437. The state does not dispute that the repurchase option of this case is such a covenant. Neither of our appellate courts has addressed the question of whether the rule against perpetuities applies to the state for the purpose of invalidating a repurchase provision for the benefit of the state inserted in a conveyance by the state. We conclude that it does not.

The question of whether the rule against perpetuities applies to the state in this matter is a question of law. We, therefore, review this claim de novo. Stiefel v. Lindemann, 33 Conn.App. 799, 806, 638 A.2d 642 (1994); McCullough v. Waterfront Park Assn., Inc., 32 Conn.App. 746, 750, 630 A.2d 1372 (1993).

"The underlying and fundamental purpose of the common law rule against perpetuities is the protection of society by allowing full utilization of land. As commonly noted, '[t]he rule [against perpetuities] evolved to prevent ... property from being fettered with future interests so remote that the alienability of the land and its marketability would be impaired, preventing its full utilization for the benefit of society at large as well as of its current owners.' " Village of Pinehurst v. Regional Investments of Moore, 330 N.C. 725, 732, 412 S.E.2d 645 (1992).

"The compelling reasons for the rule against perpetuities are believed to be these. First, it strikes a fair balance between the satisfaction of the wishes of members of the present generation to tie up their property and those of future generations to do the same. The desire of property owners to convey or devise what they have by the use of trusts and future interests is widespread, and the law gives some scope to that almost universal want. But if it were permitted without limit, then members of future generations would receive this property already tied up with future interests and trusts, and could not give effect to their desires for the disposition of the property. Thus, the law strikes a balance between these desires of the present generation and of future generations.

"A further reason is that, other things being equal, society is better off, if property is controlled by its living members than if controlled by the dead. Thus, one policy back of the rule against perpetuities is to prevent too much dead hand control of property." L. Simes & A. Smith, The Law of Future Interests (2d Ed.1956) § 1117.

While the theories supporting the application of the rule against perpetuities clearly apply to individuals, we conclude that its application to the state is unjustified. Unlike persons, the state is perpetually in existence. Thus, the effect of future interests in yet unborn or contingent remaindermen, or of control of property by those long dead, are not legitimate concerns where the state is involved in the transaction. In addition, the state could have retained the land pending future construction of the bypass; instead, it chose to convey the land to a private party so that it could be utilized until such time as the state or the town of Bloomfield requires it for highway purposes.

Cases from other jurisdictions lend strong support to our conclusion that the rule against perpetuities does not apply...