Opinion
No. CV 08 4009028
April 17, 2009
MEMORANDUM OF DECISION
The present case arises from the plaintiff's, city of Norwich's, condemnation of property pursuant to its exercise of eminent domain. On July 18, 2008, the plaintiff voted to acquire property, known as "Falls Avenue," for the purpose of effectuating a development plan. The only persons having a record interest in the property were: "Heirs and representatives of C.B. Rogers, deceased. Address unknown." In accordance with General Statutes §§ 8-129 and 8-130, the plaintiff determined that the amount of compensation to be paid for the property was $14,000, filed a "Statement of Compensation" on October 29, 2008 and deposited $14,000 with the clerk of the court.
On November 17, 2008, Richard Thayer, Mary Anna Thayer, Thayer's Enterprises, LLC and Thayer's Marine, Inc. filed an appearance as defendants in this action and thus, will hereafter be referred to as "the defendants." On the same day, the defendants filed an "Appeal and Application for Review of Statement of Compensation." The defendants claim that the condemned property abuts their property and was "abandoned as a city street by the Council of the City of Norwich on September 2, 2008 and therefore by operation of law [they], as abutting landowners gained title to the center of Falls Avenue." Thus, although the condemned property "stand[s] in the name of the heirs of C.B. Rogers," they "have acquired an easement by prescription, over and upon said premises for ingress and egress." As a result, they "are aggrieved by the Statement of Compensation because it fails to recognize their interest in the premises and is inadequate." The plaintiff filed a motion to strike on December 30, 2008 and the defendants filed an objection on January 8, 2009.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The plaintiff claims the defendants' "Appeal and Application for Review of Statement of Compensation" is legally insufficient because the defendants failed to commence a separate civil action, pursuant to General Statutes § 8-132, and failed to identify the property. The plaintiff also contends that "an easement of prescription . . . is not an interest of record which would entitle the Thayer defendants to notice under the statute" and denies that the property was abandoned. The defendants, relying on the Appellate Court's decision in Killingly v. Wells, 18 Conn.App. 508, 558 A.2d 1039, cert. denied, 212 Conn. 807, 563 A.2d 1357 (1989), argue that § 8-132 does not require a party contesting a condemnation award to commence a separate civil action.
General Statutes § 8-132(a) provides: "Any person claiming to be aggrieved by the statement of compensation filed by the redevelopment agency may, at any time within six months after the same has been filed, apply to the superior court for the judicial district in which such property is situated for a review of such statement of compensation so far as the same affects such applicant. The court, after causing notice of the pendency of such application to be given to the redevelopment agency, may appoint a judge trial referee to make a review of the statement of compensation."
In Killingly v. Wells, the Appellate Court rejected plaintiff's, town of Killingly's, argument that § 8-132 requires the filing of a separate action collateral to the condemnation proceeding. Id., 512-13. The Court stated: "Although applications for review of statements of compensation have been initiated by way of the filing of a separate action in the Superior Court . . . the statute does not require such a procedure . . . The language of § 8-132 simply does not mandate the initiation of a separate action to test the adequacy of a condemnation award. When the legislature has required that a separate action be brought in similar matters, it has specifically provided the procedure to be followed . . . The statute involved in this case requires only that a condemnee `apply' to the Superior Court, and, thereafter, the court will cause notice of the pendency of [the] application to be given to said [redevelopment agency] . . .' Thus, under the statutory scheme of § 8-132, the court bears the responsibility for giving notice to the town, a responsibility normally associated with one who initiates a cause of action." (Citations omitted.) Id.
In addition, the Appellate Court rejected the argument that the application was deficient because the property was not described. See id., 514. "With respect to the lack of description in the application for review, we again note that § 8-132 does not require that the condemnee provide a description of the property. Although the property description is essential for the statement of compensation under § 8-129 . . . the lack of such description does not warrant a denial of an application, brought pursuant to § 8-132, which makes specific reference to the statement of compensation and the description of the property therein." (Citation omitted.) Id.
The Killingly decision prompted a policy change, which was outlined in a memorandum sent to all Judicial District Chief Clerks on March 31, 1997. The memorandum states: "In light of the recent discovery of [ Killingly v. Wells], 18 Conn.App. 508, the following policies and procedures are to be implemented . . . Upon the filing of a statement of compensation, pursuant to C.G.S. § 8-129 or an assessment of damages and benefits, pursuant to C.G.S. § 13a-73(b) the clerk's office is to collect a fee of $2.00 as required by C.G.S. § 52-259 for `receiving and filing an assessment of damages . . .' A civil docket number is to be assigned to the case and a civil file is to be created . . . Pursuant to C.G.S. § 8-132, if the condemnee does not agree with the statement of compensation filed by the redevelopment agency, the condemnee may file with the Superior Court an application for review of the statement of compensation. Upon the filing of the application for reassessment of damages and benefits or the application for review of the statement of compensation, the application is to be placed in the existing court file containing the assessment of damages and benefits or the statement of compensation. As a result of the above change in procedure, only one court file will exist."
One Superior Court judge has repeatedly rejected the Appellate Court's holding in Killingly v. Wells and the policy change that followed. Judge Bieluch writes: "For those keeping abreast of the latest developments in Superior Court case law pertaining to eminent domain and redevelopment condemnation, the opening language of the present memorandum of decision will sound quite familiar. This proceeding is an appeal from the assessment of damages incident to a condemnation. As with some recent decisions; see, e.g., Commissioner of Transportation v. Shea, 47 Conn.Sup. 418, 802 A.2d 239 (2002); Newington v. Estate of Young, 47 Conn.Sup. 65, 777 A.2d 219 (2000) [ 28 Conn. L. Rptr. 341]; Commissioner of Transportation v. Connemara Court, LLC, 46 Conn.Sup. 623, 763 A.2d 696 (2000) [ 27 Conn. L. Rptr. 479]; Bristol v. Milano, 45 Conn.Sup. 605, 732 A.2d 835 (2000); the present case has also come to the court on the wrong procedural track, as a result of directions given by the court clerk on instructions from the civil court manager of the judicial branch division of court operations. It was not entered on the court records as a separate civil action and the entry fee required by General Statutes § 52-259 was not paid. Rather, this appeal and application for review of the statement of compensation was filed, without payment of the statutory entry fee, as a further pleading in the matter, having the above title and docket number, that previously had been created for purposes of depositing with the clerk of the Superior Court the assessed damages . . . See Commissioner of Transportation v. Shea, supra, 419; Newington v. Estate of Young, supra, 66; Commissioner of Transportation v. Connemara Court, LLC, supra, 623; Bristol v. Milano, supra, 605." Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 47 Conn.Sup. 505-06, 810 A.2d 333 (2002).
Judge Bieluch argues: "It is this court's conclusion that Killingly was issued in error, and the policy and procedure enforced by the Superior Court . . . is contrary to our long established law, procedure and practice in condemnation proceedings . . . The dicta in Killingly and its subsequent implementation . . . are contrary to, and invalidated by two prior holdings of our Supreme Court reaffirming our long established practice and procedure in condemnation actions under the provisions of § 8-132. [T]he docketing of the statement of compensation in the clerk's office of the Superior Court did not originate a civil action . . . Where statutes provide an efficacious procedure for assuring just compensation, that procedure will be followed . . . The provisions of § 8-132 provide an efficient procedure for vindicating the common-law right to just compensation for a taking of property by eminent domain . . . The procedure under § 8-132 is mandatory." (Citations omitted; internal quotation marks omitted.) Bristol v. Milano, supra, 45 Conn.Sup. 610-11. "The initiation of an eminent domain proceeding by the filing in court of a statement of compensation under § 8-129, followed by the deposit with the clerk of the Superior Court of a sum of money equal to the amount set forth in the statement of compensation under § 8-130, is not a civil action or contested matter between condemnor and condemnee. It is the beginning of the due process of law required for the taking of private property." Id., 611.
Judge Bieluch refers to Simmons v. State, 160 Conn. 492, 494 n. 1, CT Page 7001 280 A.2d 351 (1971) and Karp v. Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972), which Superior Court Judges following Killingly v. Wells, supra, 18 Conn.App. 508, have distinguished. See Dept. of Transportation v. Tuck-It-Away Bridgeport, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 99 0363646 (August 9, 2000, Melville, J.) ( 27 Conn. L. Rptr. 674, 676) ("But what distinguishes the present case from Simmons and Karp is that the clerk of the court, in accordance with § 8-132, gave the commissioner notice of the application for reassessment. This court concludes that in condemnation proceedings the operative event which originates this type of action is when the court through its clerk gave notice to the commissioner of the application for reassessment pursuant to § 8-132. See Killingly v. Wells, supra, 18 Conn.App. 513. Accordingly, this court respectfully declines to follow the reasoning and recommendation set forth in Bristol v. Milano, supra, 45 Conn.Sup. 605"); see also Sullivan v. Krawski, Superior Court, judicial district of Hartford, Docket No. CV 92 0703872 (August 31, 2001, Peck, J.) ( 30 Conn. L. Rptr. 492, 494).
Once the condemnor has complied with General Statutes §§ 8-129 and 8-130, Judge Bieluch argues that "[t]he owner of the property taken has two courses open to him or her. The owner of the property may file a written acceptance with the clerk of the court. General Statutes § 8-131. Should the owner feel aggrieved, the owner may contest the amount of the compensation offered by an appeal to the court in a civil action separate from the filing of the deposit in court . . . The appeal by the owner of the property taken by the completed unilateral condemnation action, and contesting and seeking a review of the amount of compensation available to the owner by the statement and deposit, is the entry and docketing of a civil action. The condemnee is the plaintiff and the condemnor is the defendant. It is subject to the requirements of § 52-45a, and to the payment of the entry fee required by § 52-259 upon filing of the appeal and application for review of statement of compensation in the clerk's office. The appeal and application for review cannot be heard and decided as a short calendar or trial motion in a deposit file or docket opened previously by the court clerk for the acceptance, retention and payment of the amount of damages assessed by the condemnor upon his taking of the property. An order of notice to, and citation served upon, the condemnor for his appearance in the civil action for the appeal and application for review of statement of compensation, are required. A citation is not synonymous with notice." (Citation omitted.) Id., 612-13.
Other Superior Court judges, however, have declined to follow Judge Bieluch's recommendation and instead have relied upon Killingly v. Wells, supra, 18 Conn.App. 508, in finding that § 8-132 does not require a party contesting a condemnation award to commence a separate civil action. See Dept. of Transportation v. Tuck-It-Away Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 99 0363646 (August 9, 2000, Melville, J.) ( 27 Conn. L. Rptr. 674, 675-76) ("[A]n applicant need not initiate a new civil action. Although applications for review of statements of compensation have been initiated by way of the filing of a separate action in the Superior Court, the statute does not require such procedure . . . [T]his court respectfully declines to follow the reasoning and recommendation set forth in Bristol v. Milano, supra, 45 Conn.Sup. 605"); Sullivan v. Krawski, Superior Court, judicial district of Hartford, Docket No. CV 92 0703872 (August 31, 2001, Peck, J.) ( 30 Conn. L. Rptr. 492, 494) ("[I]n light of applicable appellate authority, the court declines to follow the reasoning and recommendation set forth in Bristol v. Milano, supra, 45 Conn.Sup. 605"); see also Commissioner of Transportation v. Wong, Superior Court, judicial district of Danbury, Docket No. CV 99 0337044 (August 15, 2000, Moraghan, J.) (27 Conn. L. Rptr. 669-70).
In light of the Appellate Court's decision in Killingly v. Wells, this court finds that the defendants' application is legally sufficient. The plaintiff's motion to strike is denied.
The plaintiff's remaining contentions are also without merit. The plaintiff argues that "an easement of prescription . . . is not an interest of record which would entitle the Thayer defendants to notice under the statute," however, in DeBeradinis v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0143860 (September 22, 1998, D'Andrea, J.) ( 23 Conn. L. Rptr. 95, 98), the court rejected the argument that a party must be named in the statement of compensation or notice of taking in order to bring an appeal under General Statutes § 8-132. "General Statutes § 8-132 does not restrict appeals to only those parties named in the statement of compensation. Rather, § 8-132 provides that `[a]ny person claiming to be aggrieved by the statement of compensation' may apply for review of such statement of compensation." Id. The plaintiff also contends that the property was not abandoned, an issue that is inappropriate for the court to determine at this early stage of the litigation. See e.g., Smith v. Muellner, 283 Conn. 510, 516-17, 932 A.2d 382 (2007) ("The question of whether the elements necessary to establish adverse use have been proven in a particular case is a factual one for the trier").