Opinion
Nos. CV98-0488051S, CV99-0495681S, CV99-0495682S
January 31, 2000
MEMORANDUM OF DECISION
INTRODUCTION
The plaintiffs, Frank W. Bugryn, Jr., Nellie Fillipetti, Mary Dudko, Michael Dudko and John Bugryn brought this action against the defendant, city of Bristol (the city), to restrain the city and its duly authorized municipal agencies, the Bristol Developmental Authority and the Bristol Planning Commission, from taking, in the name of the city, their properties located in the State Route 229 corridor of Bristol for the construction of an industrial park facility pursuant to the Economic Development and Manufacturing Assistance Act of 1990, General Statutes § 32-220, et seq. The homeowners seek temporary and permanent injunctive relief in their complaint on the ground that a taking of the homeowners' property under the current circumstances is not for a public use and that the actions taken by the city and the Bristol Development Authority were illegal, arbitrary and an abuse of public trust. After the city filed statements of compensation on the two properties, the homeowners filed motions for temporary and permanent injunctions in those cases. In their motions, the homeowners seek to either stay the proceedings and restrain the city from recording the certificates of taking or restrain the city from taking possession of the property due to following reasons: (a) the acquisition of property is not for a public purpose; (b) the acquisition is not for the purposes stated in the notice dated May 25, 1999; (c) the acquisition of all the property is not necessary for its redevelopment plan; (d) the city failed to make reasonable efforts to negotiate with the homeowners in determining the compensation to be paid; and (e) the plaintiffs currently reside on property and are elderly.
Technically, the city is the plaintiff in two of the cases in which the city filed statements of condemnation for the two properties located at 299 and 269 Middle Street, Bristol, Connecticut, docket numbers 4956981 and 495682, respectively. For convenience sake, this court will refer to the homeowners of the aforementioned properties as being the plaintiffs in all of the cases, even in the two condemnation cases commenced by the city. Exhibits marked during the course of this trial list the homeowners as being the plaintiffs and the city as being the defendant.
In the homeowners' individual affidavits, filed with their motions on June 4, 1999, they list their ages as being the following: Frank W. Bugryn, Jr., 77; Nellie Fillipetti, 76; Mary Dudko, 74; Michael Dudko, 72; and John Bugryn, 64.
BACKGROUND FACTS
The origins of the matter at hand are lengthy and convoluted. The pertinent background facts are as follows: On May 21, 1998, the homeowners made an application for temporary and permanent injunctions in response to a final letter from the city advising the homeowners it was going to institute condemnation proceedings on the two properties if the homeowners did not accept its last offer for compensation. Thereafter, the court, Holzberg, J., issued an order to show cause for a hearing on the temporary injunctions to be held on June 8, 1998. On December 12, 1998, during the pendency of the hearing for the temporary injunctions, the city filed an application for court-annexed mediation, which was granted on January 5, 1999, by the court, Shortall, J. In mid-April, 1999, the parties met for several days with the court appointed mediator, but the matter remained unsettled.
Frank W. Bugryn, Jr. resides at 269 Middle Street. The remainder of the homeowners reside at 299 Middle Street.
The homeowners filed a complaint, docket number 488051, requesting temporary and permanent injunctions restraining the city from taking any action to acquire homeowners' property located at 269 and 299 Middle Street, Bristol, Connecticut.
The city, through Mayor Nicastro and Mr. Rosenthal, the Executive Director of the Development Authority, met and had discussions with various members of the Bugryn family beginning in October of 1996 to discuss the voluntary sale of the homeowners' properties to the city for use in the development of the Southeast Bristol Mini-Industrial Park. The city continued to make attempts to contact the homeowners to discuss acquisition while the industrial park plan was being developed, although the homeowners indicated that they were not interested in selling. The city made final settlement offers to acquire the properties in letters dated May 15, 1998, addressed to Frank W. Bugryn, Jr. for the property located at 269 Middle Street and to Frank W. Bugryn, Jr., Michael and Mary Dudko, Nelli Fillipetti and John Bugryn for the entire 39.9 acres of the property located at 299 Middle Street.
On June 8, 1998, the city filed a motion to dismiss the application for temporary injunctions for lack of ripeness because the city had not yet filed any statements of compensation. The city, however, dropped its motion after the city filed statements of compensation on the two properties on May 25, 1999.
On the mediation report dated April 15, 1999, and filed with the court July 22, 1999, the mediator, Satter, J., noted that the attorneys agreed but the plaintiffs could not face the thought of leaving their homes so they would not accept the defendant's offer of fair compensation.
Thereafter, the city, pursuant to the statutory provisions of General Statutes § 8-129, filed two statements of compensation for the homeowners' properties on May 25, 1999. As a concession to the Bugryn family, the city decided to leave the 8 back acres to the 299 Middle Street property with the homeowners, even though the plan for the Southeast Bristol Mini-Industrial Park, approved by the Bristol Development Authority and City Council provides for the taking of the entire approximately 40 acres. (See Plaintiffs' Exhibit C, current plan.) On June 4, 1999, the homeowners filed motions for temporary injunctions in the two condemnation cases. The city served notice pursuant to General Statutes § 8-129, and on June 9, 1999, filed the required record of notice with the clerk of the Superior Court. The homeowners filed a motion to consolidate on July 6, 1999, and the three cases pending before this court were consolidated for the purposes of hearing the motions for temporary injunctions regarding the condemnation proceedings. With the hearing action pending, the city refrained from taking any further steps under § 8-129.
Docket number 495681 is the condemnation proceeding for the 32 acre parcel property, including a two story residential building, located at 299 Middle Street, Bristol, Connecticut. Pursuant to General Statutes § 8-130, the city deposited $1,200,000 with the clerk of the Superior Court.
Docket number 495682 is the condemnation proceeding for the approximately .3 acre parcel property, including a single family residence, located at 269 Middle Street, Bristol, Connecticut. Pursuant to General Statutes § 8-130, the city deposited $90,000 with the clerk of the Superior Court.
Prior to filing the statements for compensation, resolutions to adopt the current plan and acquire the homeowners' land by condemnation passed by unanimous vote at both the Bristol Development Authority and City Council, at two separate meetings, both held on March 25, 1999.
Between 1993 and 1999 the city, through the Bristol Development Authority and the City Council, approved three project plans for the Southeast Bristol Mini Industrial Park. (See Defendant's Exhibits A through C, project plans) The plan adopted January 7, 1998, was the first to include the homeowners properties at 269 and 299 Middle Street, in their entireties. (See Defendant's Exhibit B, previous plan adopted January 1998). The current plan dated October 1998 (see Defendant's Exhibit C, current plan adopted October 1998), which also includes both properties in their entireties, was amended by the Bristol Planning Commission at its regular meeting on March 25, 1998 (See Plaintiff's Exhibit 23, Minutes of Bristol Planning Commission, March 25, 1998). The amendment excludes from industrial development the back 8 acres of the 299 Middle Street property. (See Plaintiff's Exhibit 21, Amendment to Bristol Plan of Development, effective date April 13, 1998).
Mr. Rosenthal testified that the city's plan is still in effect for the entire approximately 40 acres so designated as city action, but that for state purposes the 8 acre parcel is excluded. He further stated that for purposes of approval as a municipal development plan for the state the 8 acres are excluded from use, but not from acquisition.
The homeowners' motions for injunctions included affidavits from each homeowner, as required by General Statutes § 52-471 (b). These motions each requested two alternate claims for relief: (1) to stay the proceedings and restrain the recording of the certificate of taking; or (2) restrain the city from taking possession of the property due to the following reasons: (a) the acquisition of the property is not for a public purpose; (b) the acquisition of all the property is not for the purposes stated in the notice dated May 25, 1999; (c) the acquisition of all the property is not necessary for the city's redevelopment plan; (d) the city failed to make reasonable efforts to negotiate with the plaintiffs in determining the compensation to be paid; (e) the plaintiffs currently reside on the property and are elderly; and (f) no adequate remedy at law exists and irreparable harm will incur on the plaintiffs if an injunction is not issued.
Also on June 9, 1999, the homeowners filed a motion to add Michael Dudko as a plaintiff on docket number 495681, granted on July 19, 1999 by the court, Shortall, J., and a request to leave to amend their complaint together with an amended complaint. During trial, on October 6, 1999, the homeowners withdrew count four of their amended complaint.
See supra, footnotes 4 and 8.
Hearings on the application for temporary injunctions (docket number 488051) were marked over several times, due to scheduled negotiations, never having been heard prior to the city filing the statements of condemnation and the homeowners' subsequent motions for temporary injunctions in those two cases (docket numbers 495681 and 495682). Thereafter, several other hearing dates were marked over, including dates of June 21, 1999 and July 6, 1999, whereupon the cases were consolidated, and the motions were all heard as one proceeding commencing on or around September 26, 1999 and continuing through early October, 1999.
Namely, the proposed certificates of taking were not completed or filed by the court clerk following the city's return of notice filed on June 9, 1999; therefore, the city did not record any certificates of taking in the appropriate town clerk's office. See infra, footnote 19, General Statutes § 8-129.
DISCUSSION
"An injunction is a harsh remedy . . . and when an equitable injunction is the specific relief claimed, it is incumbent upon the party seeking relief to allege facts showing irreparable damage and the lack of an adequate remedy at law." (Citation omitted; internal quotation marks omitted.) Stoker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967). "`Adequate remedy at law' means a remedy vested in the complainant, to which he may, at all times, resort, at his own option, fully and freely, without let or hindrance." Id. "If the plaintiffs have an adequate remedy at law then they are not entitled to the injunction." Id.
The Economic Development and Manufacturing Assistance Act of 1990, § 32-220, et seq., expressly provides that the condemnation must be conducted in accordance with General Statutes §§ 8-128 to 8-133, the Redevelopment Act. Sections 8-128 through 8-133 deal with the taking of land by redevelopment agencies. Under § 8-129, title to the property and the right to immediate possession vest in the agency immediately upon the recording of the certificate of taking with the office of the town clerk in which the property is located. Because the provisions of § 8-129 fail to provide the property owner with an opportunity to contest the taking, the plaintiffs are without an adequate remedy at law. SeeBroadriver, Inc. v. Stamford, 158 Conn. 522, 527, 265 A.2d 75, cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1969).
Redevelopment Act, General Statutes § 8-124, et seq.
General Statutes § 8-128 provides, in part, that "[t]he redevelopment agency may acquire real property by eminent domain with the approval of the legislative body of the municipality and in accordance with sections 8-129 to 8-133, inclusive, and this section."
General Statutes § 8-129 provides: "The redevelopment agency shall determine the compensation to be paid to the persons entitled thereto for such real property and shall file a statement of compensation, containing a description of the property to be taken and the names of all persons having a record interest therein and setting forth the amount of such compensation, and a deposit as provided in section 8-130, with the clerk of the superior court for the judicial district in which the property affected is located. Upon filing such statement of compensation and deposit, the redevelopment agency shall forthwith cause to be recorded, in the office of the town clerk of each town in which the property is located, a copy of such statement of compensation, such recording to have the same effect as and to be treated the same as the recording of a lis pendens, and shall forthwith give notice, as hereinafter provided, to each person appearing of record as an owner of property affected thereby and to each person appearing of record as a holder of any mortgage, lien, assessment or other encumbrance on such property or interest therein. . . . Not less than twelve days nor more than ninety days after such notice and such statement of compensation have been so served or so mailed and first published, the redevelopment agency shall file with the clerk of the superior court a return of notice setting forth the notice given and, upon receipt of such return of notice, such clerk shall, without any delay or continuance of any kind, issue a certificate of taking setting forth the fact of such taking, a description of all the property to so taken and the names of the owners and of all other persons having a record interest therein. The redevelopment agency shall cause such certificate of taking to be recorded in the office of the town clerk of each town in which such property is located. Upon the recording of such certificate, title to such property in fee simple shall vest in the municipality, and the right to just compensation shall vest in the person entitled thereto. (Emphasis added.)
The plaintiffs, however, must also show they will suffer irreparable harm if injunctions are not issued. "[I]rreparable harm arises when there exists no legal remedy furnishing full compensation or adequate redress for a wrong done to or sustained by an individual. The injury or wrong complained of must be serious or material and not adequately reparable by damages at law in that, such damages will not restore the complaining party to the position in which the party formerly stood." Allshouse v. Farmer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 153327 (March 10, 1997, Tierney, J.). "Although absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." Silitschanu v. Groesbeck, 12 Conn. App. 57, 65, 529 A.2d 732 (1987), aff'd, 208 Conn. 312, 543 A.2d 737 (1988). "Whether damages are to be viewed by a court at equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered." (Internal quotation marks omitted.) Patry v. Board of Trustees, 190 Conn. 460, 472, 461 A.2d 443 (1983).
Our Supreme Court has repeatedly held that "the issuance of an injunction rests within the sound discretion of the trial court."Anderson v. Latimer Point Management Corp., 208 Conn. 256, 262, 545 A.2d 525 (1988). "An injunction is an extraordinary remedy which is not mandatory, but is left to the court's sound discretion even if there is a proper showing of irreparable harm." Demers Exposition Services, Inc. v. Porter, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 466718 (September 12, 1995, Goldberg, J.); see alsoGorra Realty, Inc. v. Jetmore, 200 Conn. 151, 165, 510 A.2d 440 (1986) (such relief may be denied even when irreparable harm has been shown). "In exercising this discretion the trial court must balance the competing interests of the parties . . . and the relief granted must be compatible with the equities of the case." (Citations omitted; internal quotation marks omitted.) Dukes v. Durante, 192 Conn. 207, 225, 471 A.2d 1368 (1984). "[T]he exercise of discretion by the trial court [is] in light of the totality of the relevant circumstances." Doublewal Corp. v. Toffolon, 195 Conn. 384, 392, 488 A.2d 444 (1985). "Injunctive relief may not lie where it is predicated on the fears and apprehensions of the party applying for it or where it would be incompatible with the equities of the case. . . ." (Citations omitted.) Karls v. Alexandra Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980). "Where the granting of the injunction would cause damage to the defendant greatly disproportionate to the injury of which the plaintiff complains, it may be held inequitable to grant a mandatory injunction and the plaintiff may be remitted to her remedy by way of damages." Moore v. Serafin, 163 Conn. 1, 6-7, 301 A.2d 238 (1972); see also Housing Authority v. Water Pollution Control Authority, Superior Court, judicial district of New London at Norwich, Docket No. 3311 (April 19, 1996, Teller, J.) ( 16 Conn. L. Rptr. 496) (a party seeking injunctive relief has the burden of showing a balancing of the equities in its favor over the hardships to the defendant). "Injunctions should not be issued when damages can adequately protect the injured party." Harvey v. Daddona, 29 Conn. App. 369, 377, 615 A.2d 177 (1992).
The plaintiffs requested temporary and permanent injunctions, by their complaint and by their motions in the condemnation cases. "A temporary injunction is a preliminary order of the court granted at the outset or during the pendency of an action, forbidding the performance of the threatened acts described in the original complaint until the rights of the parties respecting them shall have been finally determined by the court." Deming v. Bradstreet, 85 Conn. 650, 659, 84 A. 116 (1912). "The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits." (Internal quotation marks omitted.) CT Page 1402Clinton v. Middlesex Mutual Assurance Co., 37 Conn. App. 269, 270, 655 A.2d 814 (1995); see also Gattoni v. Zaccaro, 52 Conn. App. 274, 282, 727 A.2d 706 (1999).
Because a certificate of taking was not recorded, the condition of the parties has remained as it was before the commencement of any of the actions. Therefore, because the status quo has been preserved, temporary injunctions are no longer in issue. The homeowners, however, also requested permanent injunctions restraining the city from taking the properties.
"Permanent injunctions can be granted only after a final hearing on the merits and last indefinitely." 42 Am.Jur.2d, Injunctions § 9 (1969); see also Doublewal Corp. v. Toffolon, supra, 195 Conn. 391 (a court cannot issue a permanent injunction unless the pleadings are closed.) "[T]he trial court does not have authority to render permanent judgments [injunctions] on pending claims where the pleadings are not yet closed." (Internal quotation marks omitted.) Gattoni v. Zaccaro, supra, 52 Conn. App. 281. Herein, a trial was held regarding the plaintiffs' claims; thus, consideration of permanent injunctions is proper.
I IRREPARABLE HARM
This court has determined that the homeowners are without an adequate remedy at law, thereby meeting the first prong for the issuance of an injunction. The homeowners, however, must also meet the second prong by showing that they will suffer irreparable harm if injunctions are not issued. Here, the homeowners allege that they are elderly, reside on the premises, have held these properties in their family for generations and that they do not want to leave their homes.
While this court is sympathetic to the homeowners' situation, this court, in its discretion, does not find the harms the homeowners allege constitute serious or material injuries. Also, this court does not find that there is a substantial probability that but for the issuance of the injunctions, the homeowners will suffer irreparable harm. However sympathetic the homeowners' and their concerns might be, this court notes that injunctive relief may not lie where it is predicated on the fears and apprehensions of the parties applying for it.
The homeowners also claim federal and state constitutional rights violations due to the city's use of eminent domain allegedly to benefit a private individual or entity, thereby constituting an abuse of the public trust and a taking of privately owned property for a private purpose. It is well established that the takings clause of the Fifth Amendment to the United States Constitution, as applied to the states via the Fourteenth Amendment, and section 11 of Article First of the Connecticut Constitution provide protections against the taking of private property for public use without just compensation. "Authority to take by condemnation will be construed in favor of the condemnee and against the condemnor."Torrington v. Coles, 155 Conn. 199, 201, 230 A.2d 550 (1967). Our Supreme Court has held that the "public purpose is not affected by the agency's subsequent resale of the property to private redevelopers with the requirement, . . . [under the applicable statute effectuating the taking], that the land be used according to the redevelopment plan." Fishman v. Stamford, 159 Conn. 116, 125, 267 A.2d 443, cert. denied, 399 U.S. 905, 90 S.Ct. 2197, 26 L.Ed.2d 560 (1970); see also Gohld Realty Co. v. Hartford, 141 Conn. 135, 143, 104 A.2d 365 (1954). Furthermore, our Supreme Court has held that "where the public use which justifies the taking of the area in the first instance exists, an element over which there is no controversy in the present case, that same public purpose continues even though the property is later transferred to a private person." Broadriver, Inc. v. Stamford, supra, 158 Conn. 533; see also Gohld Realty Co. v. Hartford, supra, 141 Conn. 143.
The homeowners also claim the taking of their properties is not "necessary." Our Supreme Court has held that "[t]he determination of what property is necessary to be taken . . . in order to effectuate the public purpose is . . . a matter for the exercise of the legislative power." Gohld Realty Co. v. Hartford, 141 Conn. 135, 146, 104 A.2d 365 (1954). "Necessary, in legislative acts . . . does not mean an absolute or indispensable necessity, but only that the taking provided for is reasonably necessary." (Internal quotation marks omitted.) West Hartford v. Talcott, 138 Conn. 82, 91, 82 A.2d 351 (1951). "When the legislature delegates the making of that determination [what property is necessary] to another agency, the decision of that agency is conclusive; it is open to judicial review only to discover if it was unreasonable or in bad faith or was an abuse of the power conferred." Gohld Realty Co. v. Hartford, supra, 141 Conn. 146. Because there is no evidence that the city's duly authorized municipal agencies acted with unreasonableness, bad faith or abuse of their power, this court may not further examine this claim.
It is undisputed that "there is no right to condemn land for a private purpose." Fishman v. Stamford, 159 Conn. 116, 125, 267 A.2d 443, cert. denied, 399 U.S. 905, 90 S.Ct. 2197, 26 L.Ed.2d 560 (1970).
At trial, the homeowners testified that they did not believe the amount of compensation for the two properties is fair. That is not the issue before this court at this time. Subsequent to this trial, the homeowners filed appeals for review of the statements of compensation for the properties located at 269 and 299 Middle Street, docket numbers 498772 and 498773, respectively.
Even construing authority to condemn in the homeowners' favor, based on the evidence presented, this court finds the city's condemnation of the homeowners' properties is not in violation of any constitutional right. The evidence shows the city approached the homeowners with the intention to purchase their properties for the purpose of building an industrial park. Although the city had numerous discussions with and made plans to have Yarde Metals as an anchor tenant in the proposed industrial park, no agreement or contract, written or oral, was made with Yarde Metals. Furthermore, and more telling, the evidence shows the city plans on developing the industrial park whether or not Yarde Metals indeed becomes a tenant. This court notes that even if Yarde Metals becomes the hoped-for anchor tenant, it will have to comply with the developmental plan as approved by the Bristol's Developmental Board and City Council. Therefore, this court finds that the homeowners' claims of constitutional right violations are without merit.
The homeowners do not dispute that the development of an industrial park is a public use.
This court finds the homeowners do not meet the second prong alleging irreparable harm and this court finds that damages at law by way of fair compensation for their properties can adequately restore the homeowners. Even assuming, however, that the homeowners' allegations constitute irreparable harm or demonstrate a substantial likelihood thereof, granting the homeowners' requests for injunctions must be compatible with the equities of the case. In the following section, this court undertakes a review of the competing interests of the parties with particular focus on the hardships to the city should the homeowners' injunctions be granted. After balancing the equities, this court comes to the same conclusion that the homeowners' injunctions should be denied.
II BALANCING THE EQUITIES
Although the issuance of an injunction rests within the sound discretion of this court, a "trial court must balance the competing interests of the parties . . . and the relief granted must be compatible with the equities of the case." (Citations omitted; internal quotation marks omitted.) Dukes v. Durante, supra, 192 Conn. 225. In particular, this court notes that a party seeking injunctive relief has the burden of showing a balancing of the equities in its favor over the hardships to the defendant. See Housing Authority v. Water Pollution Control Authority, supra, Superior Court, Docket No. 3311. This court recognizes that the hardships to the homeowners are that they are elderly, reside on the property which has been in their family for generations and that they do not want to leave their homes. In contrast, this court recognizes the following hardships to the city if it were to grant the homeowners' injunctions: (a) no other suitable industrial properties in Bristol; (b) no bond posted by the homeowners; (c) the city's monies are tied up in deposits not earning interest; (d) an increased burden on the city's services if the homeowners' properties are developed residentially, as currently zoned; and (e) the need for new jobs in Bristol due to the city's high manufacturing unemployment rate and the large number of shutdowns and downsizings of companies in the last few years. These hardships to the city will each be addressed separately.
A. No Other Suitable Industrial Property in Bristol.
Our courts have consistently reaffirmed the principle that each parcel of real property is recognized to be in some ways unique. See French v. Clinton, 215 Conn. 197, 200, 575 A.2d 686 (1990). The uniqueness of the homeowners' two parcels is precisely that which creates the conflict with the city. At the trial, the city provided evidence of the unique suitability of the two tracts of land, at 269 and 299 Middle Street, for industrial park development. Specifically, the city cites to the following as making the homeowners' properties uniquely suitable for the proposed industrial park: (1) direct access to Interstate 84 and other major routes; (2) adjacent location to an already existing industrial development allowing for combined development; (3) visibility of the proposed park from State Route 229 (Middle Street); and (4) city services already accessible. These aspects of suitability will be discussed separately.
1. Direct Access to Interstate 84 and Other Major Routes
Evidence was presented that the location of the homeowners' properties location on Middle Street (also known as State Route 229) provides direct motor vehicle access to Interstate Route 84. (See Defendant's Exhibit C, current plan, existing conditions; site description.) Access to Interstate Route 84 is critical because the city expects that proposed tenants at the industrial park will be involved in manufacturing, thereby utilizing large trucks. Evidence shows the homeowners' properties also have access to State Route 72, approximately one mile north and U.S. Route 6, approximately 2.2 miles to the north. Both these routes provide east-west access to the city of Bristol. State Route 229 provides north-south access to the homeowners' properties. The homeowners' properties are located approximately 3.5 miles from Interstate 84, as accessed via State Route 72. Interstate 84 provides east-west access for central and northern Connecticut.
Evidence shows that there are 290 industrial acres available in Bristol. Evidence shows some that of the 290 acres were given to the Nature Conservancy and that some land is currently in farm use. Although some of these other industrially zoned acres are of sufficient size to accommodate the city's proposed industrial park, evidence shows that none of these other parcels provide direct highway access. Testimony repeatedly reaffirms the city's need for highway access for the proposed industrial park tenants. None of the other 290 available acres zoned for industrial development in the city of Bristol provide such direct access to Interstate 84. This direct access alone makes the homeowners' properties uniquely suitable for industrial development.
2. Properties Are Located Adjacent to an Already Existing Industrial Development
The homeowners' properties are located adjacent to property of a manufacturer, DANA/Warner Electric Company (formerly Superior Electric). The DANA/Warner Electric Company (DANA/Warner) property, which lies to the south of the homeowners' properties, is an industrial use property with room for expansion. DANA/Warner owns the adjacent industrial zoned property encompassing approximately sixty-eight acres. DANA\Warner is cooperating with the city allowing for combined development of approximately fourteen of its acres with the homeowners' properties. (See Defendant's Exhibit C, current plan). The homeowners' properties are located in the southeast part of Bristol, one of the major industrial areas of the city where there is much development. There are no comparable quality parcels to the homeowners' properties when combined with DANA/Warner's parcel for purposes of development.
Also, evidence shows that the homeowners' properties, in combination with the DANA/Warner property, are of sufficient width and depth to provide adequate access for large trucks. Testimony reveals that the city expects to have tenants involved in manufacturing who will utilize large trucks for distribution. These trucks need adequate room to maneuver, and incoming, outgoing and handling sections are needed for these trucks. The homeowners' properties are uniquely suitable for industrial development because they are located adjacent to an already existing industrial development with room for expansion of sufficient width and depth to provide adequate access for large trucks.
3. Visibility of the Proposed Park from Middle Street
Testimony shows that prospective tenants to industrial parks regard visibility of their expensive facilities as important, and that visibility is part of the total setting of the industrial park. The homeowners' properties front Middle Street, a four lane bi-directional principal arterial road. (See Defendant's Exhibit C, current plan, existing conditions.) There are visibility constraints to the north by approximately thirty single family homes and a well treed area. Testimony shows that taking the homeowners' properties and removing all the residential structures located along the Middle Street frontage provides for better, unimpaired visibility of the industrial park. Furthermore, testimony reaffirms the importance of frontage in creating an attractive and visible industrial park and increasing its marketability.
Also, the city is concerned with the present and future appearance of the property, including landscaping, and having control over the property in order to properly maintain its appearance. Currently the homeowner's properties are zoned residential. A ranch-style residential home rests on the approximately .3 acre plot at the 269 Middle Street location. Testimony shows that the residence at 269 Middle Street is currently in good condition. If this relatively small property is not taken along with the 299 Middle Street property, there is evidence problems would arise with carving out a piece of the industrial park. Such problems include the city's need to provide adequate buffer zones because the state requires a fifty foot buffer zone around the industrial park. Buffer zones in turn implicate issues of landscaping and grading of the area. Zoning issues would also arise relating to nonconforming uses within the proposed industrial zoned area for the park.
The property at 299 Middle Street encompasses approximately forty acres in a long, narrow rectangular shape. There is a two story multi-family residence with a detached three car garage located directly at the Middle Street entrance; however, the majority of the property is utilized as a Christmas tree farm. The city is proposing to take thirty-two acres of the property beginning at the narrow end of the rectangle shape of the property fronting Middle Street. (See Exhibit C, current plan; see also Exhibit G, aerial view photograph with overlay.) The house at 299 Middle Street is not in the best of conditions. As with the other parcel, the 299 Middle Street frontage provides needed visibility to the proposed industrial park, and the same issues of appearance, control thereof and marketability of the park arise here. Visibility of the proposed park contributes to making the homeowners' properties uniquely suitable for industrial development.
Under Act 490, a forestry exemption, this use provides a substantial tax break on the property.
The city, concerned with the appearance of the street entrance to its proposed industrial park, submitted eight photographs of the subject premises to show the condition of the structures on the homeowners' property at 299 Middle Street. (See Defendant's Exhibits H 1 through H 8, photos).
4. City Services Already Accessible
Evidence shows that both the homeowners' properties already have access to major utilities, including city water and sanitary sewers, storm sewers, gas, telephone and electric. (See Defendant's Exhibit C, current plan, existing conditions.) Therefore, the time involved and the costs to the city in developing the homeowners' properties are both substantially lessened. Also, the homeowners' properties are largely vacant, except for the two houses. The financial savings to the city by accessing already existing utilities on the homeowners' properties also contributes to making the homeowners' properties uniquely suitable for industrial development.
Because there is nothing comparable to the homeowners properties within the city of Bristol and their properties are uniquely suitable for industrial development, as discussed above, it would be an inequitable hardship to the city if homeowners' injunctions are granted.
B. No Bond Posted by the Homeowners
In connection with their complaint (docket number 488051) and pursuant to General Statutes § 52-472, on June 1, 1998, the homeowners filed a request that the court waive the requirement of bond for good causes. Should the homeowners be granted injunctive relief, the city is left without compensation for its costs, except for the value of the property, the fate of which is the subject matter of this action. The lack of compensation for the city's costs presents an inequitable hardship to the city if the homeowners' injunctions are granted.
The homeowners made the request on the basis that the plaintiffs are elderly and of limited means and that the subject matter of the action is the real property upon which they all reside. The homeowners further asserted that such real estate is ample surety to answer all damages in case they fail to prosecute the action to effect.
C. City's Monies Are Tied Up in Deposits Not Earning Interest
On May 25, 1999, the city separately deposited $90,000 and $1.2 Million with the clerk of the Superior Court, as required by General Statutes § 8-129. On September 29, 1999, motions for payment of deposit on the two properties were made and signed by attorneys for the city and the homeowners. At trial, the city noted it has lost investment income on this money since May 25, 1999, because the money was removed from the city's coffers and the money is not in an interest bearing account. The city noted that even on a simple interest basis of approximately five percent, the city is losing approximately five thousand dollars per month on the deposited amount for the 299 Middle Street property alone. If the homeowners' injunctions are granted, the absence of the funds from the city's coffers with no acquisition to show for it and the loss of interest income present an inequitable hardship to the city of Bristol.
These funds are the city's fair compensation offers for the properties located at 269 and 299 Middle Street, respectively. See supra, footnote 8.
The motions requested the monies for both properties be deposited in interest bearing accounts, with the monies to go to the record owner of the properties once these matters are resolved. This court determined that court policy holds a condemnation case is removed from the docket if the deposit is removed. Thereafter, these motions were abandoned.
D. Increased Burden on City Services if Properties Developed Residentially
Testimony shows the majority of the 299 Middle Street property is used as a Christmas tree farm, which allows for reduced taxes. Taxes for the 299 Middle Street property (the house and the remaining approximately thirty-nine acres) are assessed at $2100 per year. The property as currently zoned allows for development of small, relatively inexpensive homes. Testimony shows that if the properties are developed as currently zoned, without a counterbalance of industrial development, there would be a net loss to the city because of costs of providing services, particularly schools. If the properties are developed under the proposed industrial zoning by building an industrial park, testimony shows the park would provide the city with acquisition monies from selling the park lots to private entities as well as provide the city with a substantial increase in tax base. If the homeowners' injunctions are granted, the city would suffer inequitable hardship by the increased burden on city services if the properties are developed as currently zoned.
E. Need for New Jobs
Manufacturing employment has steadily declined in Bristol since 1979. The rate of decline from 1990 to 1996 was sixteen percent. Unemployment rates in Bristol in the 1990s have been consistently greater than state and regional averages. (See Defendant's Exhibit C, current plan, employment overview.) Also, there have been many shutdowns and downsizings of companies since the 1970s, many in the last few years, which decreased the number of manufacturing jobs in Bristol.
Statewide decline for the same period was nineteen percent.
Mr. Rosenthal testified as to the loss of manufacturing employers in the city of Bristol. Specifically, he testified that the General Motors plant closed in 1995, wherein 500 jobs were lost, that Nestle closed its distribution facility with a loss of approximately 80 jobs, and that Barnes, a spring manufacturing company, had declined from 500 employees down to 300 employees.
The Economic Development and Manufacturing Assistance Act of 1990 distinguishes between the level of funding that might be available for particular categories of cities and towns within the State based on their financial status. Under the Act, the city of Bristol qualifies as a "targeted investment community" because of its poverty criteria. The city of Bristol has an Enterprise Zone, so under the Act it is eligible for up to ninety percent of funding from the State. Without this status, the maximum amount of funding the State could provide for the proposed industrial park project is fifty percent. Furthermore, the city of Bristol is a public investment community within the State of Connecticut because it is among the twenty-five percent poorest Connecticut towns.
General Statutes § 32-220, et seq.
Evidence shows the proposed industrial park would provide the city of Bristol with a needed increase in jobs and tax revenues. Evidence also shows the city currently has poverty status and that the Economic Development and Manufacturing Assistance Act could provide the city with a substantial boost in funding the proposed project. These factors, combined with the lack of other suitable industrial development property comparable with the homeowners' properties, would make it an inequitable hardship for the city if the homeowners' requests for injunctions are granted.
CONCLUSION
This court sympathizes with the homeowners' concerns over losing their homes; however, the fears and apprehensions of the parties applying for injunctive relief are not sufficient to constitute a showing of irreparable harm. This court does not find the disruption to the homeowners that the taking of their property would cause them evinces an irreparable injury. Furthermore, this court finds, based on the evidence submitted, that the homeowners' federal or state constitutional rights have and will not be violated by the taking of their property; and as such, the homeowners have not made their requisite showing of irreparable injury if permanent injunctions are not issued.
Also, as discussed herein, this court finds, based on the evidence submitted, that the balancing of equities does not justify granting the homeowners injunctive relief over the hardships to the city of Bristol due to the unique suitability of the homeowners' properties for development as an industrial park and because the damage to the city by the granting of the injunctions would be greatly disproportionate to the homeowners' injuries. This court determines that just compensation for the two properties to be taken provides an adequate remedy for the homeowners. Therefore, the homeowners' requests for permanent injunctive relief are hereby denied.
Kremski, J.T.R.