W.R. Assoc of Norwalk v. Comm'r of Transp.

• Decision Date: 18 June 1999
• Docket Number: No. CV840070182S,CV840070182S
• Citation: 46 Conn.Sup. 355,751 A.2d 859
• Parties: (Conn.Super. 2000) W.R. ASSOCIATES OF NORWALK ET AL. v. COMMISSIONER OF TRANSPORTATION - NORWALK, AT STAMFORD
• Court: Connecticut Superior Court

751 A.2d 859 (Conn.Super. 2000)

W.R. ASSOCIATES OF NORWALK ET AL. v. COMMISSIONER OF TRANSPORTATION

No. CV840070182S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD - NORWALK, AT STAMFORD

June 18, 1999, Memorandum Filed

Lepofsky, Lepofsky & Lang, for the plaintiffs.

Robert T. Morrin and Clare E. Kindall, assistant attorneys general, for the defendant.

Before: HON. SAMUEL S. FREEDMAN, HON. HUGH C. CURRAN, HON. GEORGE W. RIPLEY, II, JUDGE TRIAL REFEREES.

OPINION:

INTRODUCTION

This dispute between the plaintiffs, W.R. Associates of Norwalk, et al.^* (the associates), and the defendant, the commissioner of transportation for the state of Connecticut (commissioner), arises from the state's condemnation of the associates' property to construct a highway. The case has spawned extensive litigation.

On February 6, 1984, the state filed a certificate of taking for a portion of the associates' property. The taking was a federal urban systems improvement project with the state, pursuant to an agreement with the city dated July 19, 1977, acting on behalf of the city of Norwalk. Prior to the condemnation, the associates owned 176,139.21 square feet (4.0436 acres) of land on which they operated their chemical mixing plant and tank farm (Guard All Chemical Company, Inc.) in addition to a right of way over another 19,584.65 square feet (0.4558 acre). The state condemned approximately 30,492 square feet (0.7 acre) of the associates' property and the right of way.¹

After the taking, the associates were left with 145,647.21 square feet (3.3436 acres) of land. The state determined the value of the property taken including the right of way to be $ 104,000, which it deposited with the court. The associates instituted this action challenging the sufficiency of the award and seeking other relief. The associates also instituted a separate injunctive action to insure access to their property during construction of the highway in the Stamford-Norwalk judicial district. A stipulation was entered in the injunctive action on July 9, 1984, which required the state to make certain modifications and to file an amended certificate of taking.

During the course of construction of the highway in 1984-85, the state's contractor excavated, among other debris, barrels containing quantitites of environmentally sensitive chemicals. As a result, the department of environmental protection of the state of Connecticut (DEP) instituted suit against the associates in the judicial district of Hartford-New Britain on or about December 12, 1985 for reimbursement for DEP's expenses in removing and disposing of the barrels. Pursuant to a stipulated judgment, the associates agreed to repay the state $ 110,676.48, the amount allegedly incurred by the state to remove and dispose of the barrels, together with interest.

During construction of the highway in 1984 to 1986, the state constructed a curb cut at the edge of the former right of way and Duke Place. The parties agreed that the state would complete that work in approximately three weeks. The state entered the property to do the construction, but ultimately halted its work because of environmental concerns and never completed the curb cut.

The trial of the present action commenced August 23, 1988 before a predecessor panel. The associates asserted at trial that the right of way that was taken by the state should be returned to the associates because the right of way was unnecessary for the taking. The panel indicated it would bifurcate the issues and first determine whether the panel had jurisdiction to consider whether the taking of the right of way was necessary. If it determined that it had such jurisdiction, it would go on to decide whether the right of way should be returned to the associates. On October 6, 1988, the state filed an amended certificate of taking, as required by the July 9, 1984 stipulation.

On December 28, 1988, the panel hearing the case decided that it had jurisdiction in this action to entertain the associates' request for a return of the right of way and a determination whether the right of way was necessary to the taking.² On August 9, 1989, a successor panel of judges decided that the state had substantiated the public necessity for the taking of the right of way based on the state's claim that it was necessary for lateral support of the highway.³ The associates later filed a notice of intention to appeal the August 9, 1989 decision that the taking was necessary.

As part of the July 9, 1984 stipulated judgment, the state was to install a Jersey barrier, fencing and two gates on the associates' property line. Although the entire highway project had been completed, the state never completed the installation of the Jersey barrier, fencing and gates. The associates eventually completed the work. As a result of defendant's reentry but failure to complete, the associates sought mandamus relief on or about February 14, 1990. Thereafter, the state and the DEP entered into a consent order regarding remediation and monitoring on the associates' remaining property.

I

The plaintiffs moved in limine to preclude the panel from considering the state's environmental concerns regarding the question of just compensation.

While there is no Connecticut appellate case directly addressing whether evidence of contamination should be considered in a valuation proceeding, two Superior Courts considering the issue have rejected contamination evidence. In Murphy v. Waterford, Superior Court, judicial district of New London, Docket No. 520173 (July 9, 1992, Healey, S.T.R.), the town of Waterford argued that environmental contamination discovered on the property after the date of taking should be considered in arriving at the amount of just compensation. The court concluded that "because the Connecticut Statutory scheme provides for reimbursement of cleanup expenses the defendant town cannot require the reduction, in this particular proceeding, of the amount determined to constitute just compensation for this taking." Id. Further, the court stated that "even recognizing that the matter of just compensation is not strictly legal but equitable, the circumstances just set out definitely militate against permitting, if it could ever be the case, of reducing the just compensation constitutionally due this plaintiff in this particular proceeding." Id. Among other things, the court noted that the town had not shown that the plaintiff was negligent and caused the contamination. Id.

Even if the property owner is liable for the contamination, the cleanup costs should not be a factor in determining just compensation. If cleanup costs were factored into the amount of compensation, the condemnor would benefit from double recovery. The owner would in effect pay for the cost of cleanup by receiving less money for the condemned property and pay again as a result of any judgment against him. The equitable nature of the condemnation proceeding precludes a double payment.

The court in Northeast Economic Alliance, Inc. v. ATC Partnership, Superior Court, judicial district of Windham at Putnam, Docket No. CV940049248S (June 22, 1998, Hammer, J.T.R.) (21 Conn. L. Rptr. 635), also considered the issue. The court granted the motion in limine filed by the defendant to preclude evidence of environmental contamination or cost estimates for remediation. The court relied on the following: (1) under Connecticut case law, property itself is valued in an eminent domain action, not the in personam liability of an owner; id., 637; (2) if the owner is liable for contamination, costs of cleanup can be recovered in a proceeding which provides fuller safeguards for due process; id., 638; (3) in an eminent domain proceeding, the trier relies on opinions of valuation experts rather than experts on environmental contamination; id., 639; (4) there are practical difficulties with quantifying contamination; id.; (5) considering environmental contamination would not further judicial economy; id.; and (6) there were fact-specific deficiencies in the evidence.⁴ Id.

Based on the reasoning of Murphy⁵ and Northeast Economic Alliance, Inc., the cost of cleaning up the contaminated property should not be considered here. See also Aladdin, Inc. v. Black Hawk County, 562 N.W.2d 608, 615, 616 (Iowa 1997) (considering cleanup costs would violate due process rights of property owner to have his liability established in separate proceeding; policy considerations also weigh against considering evidence); Department of Transportation v. Parr, 259 Ill. App. 3d 602, 605-606, 633 N.E.2d 19, 198 Ill. Dec. 557 (1994) (remediation costs do not constitute a condition on the property; even if admissible under statutes, admission would violate procedural due process rights of owner).

While there are some cases to the contrary in a few states, the better reasoned cases exclude contamination evidence, and leading commentators appear to agree.

Additional support for refusing to consider evidence of contamination in valuation proceedings is found in Nichols on Eminent Domain, often cited in Connecticut court decisions. The authors conclude that evidence of contamination should not be admitted over objection in eminent domain valuation trials. 7AP. Nichols, Eminent Domain (3d Ed. Rev. 1999) 13B.03, pp. 13B-86-13B-87. Supporting reasons for this position include: (1) an eminent domain valuation trial is in rem, not in personam; id., 13B-89; (2) eminent domain is independent of environmental law; id., 13B-90; (3) due process supports exclusion; id., 13B-92; (4) the burden of proof and entitlement to jury trial differ in eminent domain and environmental trials; id., 13B-97, 13B-99; (5) exclusive federal jurisdiction exists for some environmental laws; id., 13B-100; (6) the risk of double liability; id., 13B-101; and (7) the project influence rule;⁶ id., 13B-05: "The exclusion of contamination evidence from eminent domain valuation trials is...