Town of Wallingford v. Werbiski

• Decision Date: 19 July 2005
• Docket Number: No. 17376.,17376.
• Citation: 877 A.2d 749,274 Conn. 483
• Court: Connecticut Supreme Court
• Parties: TOWN OF WALLINGFORD v. Walter WERBISKI et al.

877 A.2d 749

274 Conn. 483

TOWN OF WALLINGFORD v. Walter WERBISKI et al.

No. 17376.

Supreme Court of Connecticut.

Argued April 11, 2005.

Decided July 19, 2005.

Michael Brodinsky, for the appellants (named defendant et al.).

Janis M. Small, Wallingford, town attorney, for the appellee (plaintiff).

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

NORCOTT, J.

The principal issue in this appeal is whether General Statutes § 7-148(c)(6)(A)(iii)¹ permits a municipality to enter upon and to survey privately owned land to determine the feasibility of creating a "public improvement" on that land, when the survey would be for exploratory purposes only because the "public improvement" has not yet formally been planned or funded. The defendants, Walter Werbiski and Joyce Werbiski,² appeal³ from the judgment of the trial court granting the application of the plaintiff, the town of Wallingford (town), for a permanent injunction permitting the town's representatives to access the defendants' property for the purpose of conducting a land and wetlands survey. On appeal, the defendants contend that the trial court improperly: (1) construed § 7-148(c)(6)(A)(iii); and (2) concluded that the town either did not need to plead or to prove, or in any event had established, the irreparable harm necessary for the issuance of an injunction. We affirm the judgment of the trial court.

The record reveals the following undisputed relevant facts and procedural history. In January, 2003, the town council voted to fund and authorize the town engineer, John Thompson, to study and to report on the potential for developing 270 acres of privately owned farmland that is located in a part of the town that is zoned for industrial expansion. The area presently is not served by roads or utilities, and Thompson proposed to study the feasibility of constructing roads and utilities such as water, gas, electric and telephone services therein in connection with the possible expansion of an industrial park that is located adjacent thereto. This study would require surveyors to enter upon, and to survey and map the property in order to gather necessary data about the topography of the land. The defendants own two parcels of real property located within this area that are used as working farms for the farming of hay and corn for animal consumption, as well as the milking of dairy cows.

In 2003, the town sent letters to property owners in the area, including the defendants, advising them of the town's interest in expanding the industrial park and the need to evaluate the area to determine the feasibility of constructing roads and utilities.⁴ Thereafter, town officials met with these property owners, including the defendants, and explained the study further. The defendants nevertheless refused to consent to the town's surveyors entering upon their land, and have ordered them off on at least two occasions.⁵ Thompson testified, however, that the feasibility assessment cannot be completed with an acceptable level of accuracy without surveying the defendants' properties. Thompson testified that the surveyors need access to a 300 foot corridor on the defendants' property to plan the centerline of a proposed roadway and to outline the location of wetlands.

Subsequently, the town, via an order to show cause, applied to the trial court for temporary and permanent injunctions requiring the defendants to allow town agents access to their property for the purpose of conducting a survey pursuant to § 7-148(c)(6)(A)(iii). The trial court held a hearing on the order, which the parties stipulated would serve as the full and final hearing on the merits of the case. The trial court granted the town's application for a permanent injunction and rejected the defendants' argument that the town's surveying activities were not "public improvement[s]," as contemplated by § 7-148(c)(6)(A)(iii), because they were limited to feasibility studies only. The trial court, noting that the "town has the power to take this land by eminent domain, [but] prefers to determine the physical and financial feasibility of the project before investing town funds in a taking that could prove to be detrimental to all concerned," concluded that the defendants' construction of the statute would preclude the town from engaging in "careful and informed planning . . . ." The trial court did state, however, that it was "disturbed by the manner in which an earlier entry onto the subject property by town agents was conducted," and ordered that the surveying work be completed after the defendants' growing season had concluded, with other accommodations to be negotiated by the parties. The trial court retained jurisdiction over the matter for further review if necessary, and rendered judgment in accordance with its order. This appeal followed.⁶

I

We begin with the defendants' first claim, which is that the trial court improperly concluded that the town was authorized to enter the defendants' land pursuant to § 7-148(c)(6)(A)(iii), because the statutory term "public improvement" contemplates only projects that are either: (1) already in existence; or (2) less speculative than a feasibility study, with the municipality's willingness to proceed having been demonstrated through either the appropriation of funds or the acquisition of land by market purchase or eminent domain. The defendants also contend that the trial court's decision renders superfluous General Statutes § 48-13,⁷ which permits condemning authorities, after filing a notice of condemnation and obtaining judicial approval, "to enter upon and into" the subject property "for the purpose of inspection, survey, borings and other tests." The town asserts in response that the trial court properly construed § 7-148(c)(6)(A)(iii), because, notwithstanding the statute's failure to include the word "contemplated," the defendants' construction of the statute frustrates the responsible planning of public improvements, which is a matter distinct from the condemnation process. We agree with the town.

The defendants' claim raises an issue of statutory construction over which our review is plenary. Manifold v. Ragaglia, 272 Conn. 410, 419, 862 A.2d 292 (2004). "It is well settled that in construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature"; (internal quotation marks omitted) id.; and that "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z.

We begin with the text of the statute. Section 7-148(c) sets forth the scope of the powers granted to municipalities,⁸ which include, inter alia, the power to "[e]nter into or upon any land for the purpose of making necessary surveys or mapping in connection with any public improvement, and take by eminent domain any lands, rights, easements, privileges, franchises or structures which are necessary for the purpose of establishing, constructing or maintaining any public work, or for any municipal purpose, in the manner prescribed by the general statutes . . . ." (Emphasis added.) General Statutes § 7-148(c)(6)(A)(iii).

We conclude that the phrase "public improvement," as used in § 7-148(c)(6)(A)(iii), is not limited to projects that either already exist or have been approved and funded by the municipality. Accordingly, § 7-148(c)(6)(A)(iii) includes within its ambit studies such as that undertaken in the present case, which are intended to determine the feasibility of a particular project. This conclusion is dictated by the broad language of § 7-148(c)(6)(A)(iii), read both by itself, and in conjunction with the rest of the statutory scheme.

We first note that town officials are authorized to "[e]nter into or upon any land" to perform surveys "in connection with any public improvement . . . ." (Emphasis added.) General Statutes § 7-148(c)(6)(A)(iii). This repeated use of the word "any" indicates the legislature's intention to give municipal officials a broad power of entry. See Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 707, 855 A.2d 212 (2004) ("[t]he repeated use in [General Statutes] § 46a-58[a] of the word `any'— `any person,' `any other person,' and `any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States'—indicates an intention to protect a broad and inclusive range of persons from broadly specified forms of discrimination by a broad and inclusive range of actors").

This conclusion is reinforced when § 7-148(c)(6)(A)(iii) is viewed in the context of related subparagraphs of that statute that empower the municipality, inter alia, to: (1) "[c]reate, provide for, construct, regulate and maintain all things in the nature of public works and improvements"; General Statutes § 7-148(c)(6)(A)(ii); (2) "[l]ay out, construct, reconstruct, repair, maintain, operate, alter, extend and discontinue sewer and drainage systems and sewage disposal plants"; General Statutes § 7-148(c)(6)(B)(i); and (3) "[l]ay out, construct, reconstruct, alter, maintain, repair, control, operate, and assign numbers to streets, alleys, highways, boulevards, bridges, underpasses, sidewalks, curbs, gutters, public walks and parkways . . . ." General Statutes § 7-148(c)(6)(C)(i). A construction of § 7-148(c)(6)(A)(iii) permitting feasibility studies aids, rather than hinders, municipalities in their exercise of these powers, especially those regarding the creation and laying out of public works and improvements.

Moreover, "this [court] presum[es] that the legislature intends to create statutes with reasonable...