Opinion
No. CV 04-0486695
August 13, 2009
MEMORANDUM OF DECISION
The above entitled case is an eminent domain proceeding whereby the Commissioner of Transportation (Commissioner) took on February 11, 2004, certain real property belonging to the United Illuminating Company (UIC) on Wallace Street in New Haven. Damages were assessed at $65,800 and UIC did not appeal the amount of the award. On said property was a billboard owned by Barrett Outdoor Communications, Inc. (Barrett). No damages were awarded by the Commissioner in favor of Barrett.
An appeal of the award was filed by Barrett on August 6, 2004. The Commissioner filed a motion to dismiss Barrett's appeal challenging the court's jurisdiction on the grounds that the billboard is personal property and not real property.
This appeal was originally taken in the name of Josephine Clark Barrett d/b/a Barrett Outdoor Communications because the attorney representing the Barrett family was under the mistaken belief that the lease was in her name as it was in the 1990s. The lessee with UIC was in fact, at the time of the commencement of this eminent domain proceeding, in the name of Barrett Outdoor Communications, Inc., (whose name was changed from Outdoor Communications, Inc.). Counsel moved to amend the name of the appellant to Barrett Outdoor Communications, Inc., notwithstanding the Commissioner had a motion to dismiss pending challenging the jurisdiction of this court. Although "[w]henever the absence of jurisdiction is brought to the notice of the court . . . cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction" (internal quotation marks and citations are omitted). Baldwin Piano Organ Co. v. Blake, 186 Conn. 295, 297 (1982). There are certain exceptions to this rule. One of the exceptions applicable in this case is General Statutes § 52-109 which provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff"; The court is satisfied that the wrong name was used as a result of a mistake and the appellant's name should have been Barrett Outdoor Communications, Inc. Therefore, the amendment is accordingly granted, notwithstanding that a motion to dismiss is pending. Wilson v. Zemba, 49 Conn.Sup. 542 (2004) [ 38 Conn. L. Rptr. 272].
The attorney for the Commissioner and previous counsel for Barrett agreed to hold this case in abeyance pending a decision by the Supreme Court of Connecticut in the case of Commissioner v. Rocky Mountain, LLC, 277 Conn. 696 (2006).
The billboard, when initially constructed in 1993 to 1994, was the property of UIC, the lease between Barrett and UIC expressly provided for its transfer to Barrett after seven years. Barrett acquired the sign structure from UIC on September 4, 2001, through a bill of sale, for $1.00.
The Commissioner argues the taking was pursuant to General Statutes § 13a-73, which only authorizes him to take for highway purposes real property but not personal property. He argues, relying upon Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696 (2006), that billboards are personal property, not fixtures and are not part of his taking.
A fixture is "[a]n article, once a chattel, but which, by being physically annexed or constructively affixed to the realty, has become accessory to it and part and parcel of it . . . Something so annexed to the freehold for use in connection therewith that it cannot be removed without injury to the freehold and accordingly has become a part of the freehold, losing its original identity as personal property . . ." Ballentine's Law Dictionary, 3rd ed.
See General Statutes § 8-273a amended with respect to outdoor advertising structural acquired on or after June 25, 2007.
The Commissioner points out that as a lessee, Barrett's remedy is that it is entitled to receive from the owner, UIC, its "lease bonus value." "That is, if the contract rent is below market, then it is entitled to receive from UIC the economic value of the lease. `The value of the lease is properly arrived at, in the case of a complete taking, by subtracting the rent provided for under the lease from the fair market value of the lease.' See Canterbury Realty v. Ives, 153 Conn. 377, 382 (1967). If, on the other hand, the rental payments called for in the lease were at or above market, then Barrett is entitled to no compensation." The Commissioner further argues because standing goes to a court's subject matter jurisdiction, the matter must be dismissed.
The issue therefore is what interest, if any, did Barrett have in the UIC property taken by the Commissioner in this eminent domain proceeding. In other words, was Barrett's property merely personal property or was it a fixture?
Although the Supreme Court decided in Commissioner v. Rocky Mountain, LLC, 277 Conn. 696 (2006) that the billboard on the land taken by the Commissioner in that case was personal property, the court clearly stated the "determination whether billboard is personal or real property depends upon [the] facts established in . . . [each] case." Id., 730.
The written agreement between UIC and Barrett provided that the "New Sign Shall become part of the realty and all rights and title to it shall be and remain with UIC." By the terms of the agreement, Barrett was granted permission to purchase the billboard which Barrett subsequently exercised. The sign was expensive to build and although Barrett had the right to remove it, to do so would destroy it as it would not be usable anywhere else. The billboard required a caisson footing with a hole 40 feet deep (7 feet in diameter at the bottom and 9 or 10 feet wide at ground level) into which a 5 1/2-foot diameter steel monopole was inserted, filled with concrete and surrounded by concrete. The concrete inside this pipe extended some 8 feet above grade. Above the ground, the design of the sign structure was also unique due to the curvature of the roadways to which the billboard's two faces were directed. Instead of the usual single "torque tube" to support both billboard faces, this billboard required two torque tubes (one for each billboard face). The foundation was unique not only because of the soft ground near New Haven harbor but also because the location of UIC's equipment at its then-active substation. The torque tubes are not usable elsewhere and would have to be scrapped if removed. The prefabrication work took several months; and the assembly work also took several months.
There were 37 tons or 74 thousand pounds of steel in its construction. It was calculated that there was three hundred thousand pounds of concrete (about 150 tons) below grade and about another 3 tons above grade and that the steel above the ground is a continuing piece that goes below ground. Based on the design of the structure it would take four weeks and cost $600,000 to remove the pole (to dig and drive in sheathing in a 25-foot square hole, to dewater the hole, requiring the use of a "range of equipment" including a backhoe and a crane, filtering the contaminated water, digging, cutting the pipe, breaking the cement) and filling the pit.
Although John Barrett conceded that some of his small billboards are movable, and personal property, this structure was intended to be a permanent structure. Tr. Pg. 61.
The court holds that the billboard in this case is a fixture attached to the land. The Commissioner's amended motion to dismiss Barrett's appeal is denied.