Opinion
No. CV02-0468446 S
February 22, 2011
MEMORANDUM OF DECISION
The plaintiff, Connecticut Historical Commission, now renamed the Commission on Culture Tourism, seeks a permanent injunction to prevent the defendant, the town of Wallingford from demolishing a contributing structure, referred sometimes as the "American Legion" building and for this decision simply referred to as the "Building." The Building is located at 41 South Main Street, Wallingford, Connecticut, a property listed on the Wallingford Center National Register Historic District and located next to the Town Hall. The plaintiff contends that the defendant's proposed demolition would violate the Connecticut Environmental Protection Act ["CEPA"] Connecticut General Statute §§ 22-14 to 22-19a. This court agrees with the plaintiff.
The building is commonly referred to as the American Legion building because it was occupied by the organization for many years.
On August 28, 2002, the court (Munro, J.) issued a temporary injunction as follows: "the Town of Wallingford and its agents be stayed from any form of demolition of the American Legion building, pending a hearing on the merits of the injunction application; and further, that the Town of Wallingford secure the building so that it is safe from the public and the elements. If windows or doors are missing and alike, they should be secured; and further, that the Town safekeep those elements of the building that have been removed, and prepare an inventory of the nature and extent of building removal that has occurred prior to this order, and that's all pending further order of the Court and/or hearing on the merits of the injunction."
The Connecticut Trust for Historic Preservation, Inc. was granted permission to and did participate in these Proceedings as amicus curiae.
The court, together with the parties, made an on-site visit and heard substantial testimony.
From that inspection, which revealed an opening in one of the walls of the building that exposed the interior to the elements, the defendant appears to have violated the temporary injunction, but no issue with respect to this violation has been raised before the court. Neither has any original property which may have been listed on the inventory ordered by the court been raised as an issue.
Evidence presented to the court revealed the following facts. The Building at issue, which was constructed in approximately 1890, is a two-story, late Victorian Queen Anne style T-shaped residential house. The Building abuts the parade ground, which fronts several properties on South Main Street, and the Wallingford Town Hall. It is part of the Wallingford Center Historic District and, since December 2, 1993, is listed on the National Register of Historic Places (the national register) as a property that contributes to the historical significance of the Wallingford Center National Register Historic District. In January 1995, the defendant purchased the property for the future needs of the town hall and to obtain parking spaces behind the building by the lessee. At that time, it was aware that the building was on the national register.
In June 1995, the town rejected an offer to lease the building. Such lease was to provide $1.00 per year in rent and a proposal to make $20,000 in improvements to the first floor of the building. In 1998, the defendant obtained an estimate of approximately $330,000 to completely renovate the building for use as office space. Later that same year, the defendant advertised the building for lease. A second offer was made to lease the building for $1.00 per year and to make renovations to the property at estimated costs ranging from $40,000 to $50,000. That offer was later withdrawn by the bidder after negotiations. Between 1998 and 1999, the defendant incorporated more than half of the rear of the property into the town hall parking lot. As a result, the defendant added 137 parking spaces to its parking lot.
In July 2001, the mayor of the defendant town urged that the Building be demolished in order to construct a gazebo and band stand in its place. In May 2002, the Wallingford town council voted to demolish the Building and approved the construction of a gazebo on the property at an estimated cost of $90,000. In June 2002, after hearing a presentation regarding the destruction of the Building and the construction of a gazebo, the plaintiff determined that there were reasonable alternatives and the defendant's plan to demolish the Building was unreasonable. The plaintiff further alleged that the defendant had not considered prudent and feasible alternatives to the destruction of the Building. The town council approved demolition and appropriated $50,000 for that purpose. After the plaintiff commenced the current action, the Wallingford Historic Preservation Trust offered to purchase and renovate the Building. That proposal received strong public support. In October 2007, the town issued a request for proposals for the sale of the property and received one bid, which was rejected by the town council. In 2008, the town received another offer to buy and renovate the building. That offer was also rejected. In January 2010, a motion to sell the property was defeated by the town council.
The evidence indicates that the defendant allowed the Building to fall into disrepair after its purchase. There is significant damage to the exterior of the building. However, the Building retains many of its original and unique features.
In support of its motion for a permanent injunction, the plaintiff argues that the Building is protected against unreasonable destruction based upon its listing on the national register. Moreover, it contends that the defendant has failed to meet its burden of proof regarding a lack of feasible and prudent alternatives to demolition of the Building. In response, the defendant argues that the town council's determination to keep the property for future use by the defendant and demolish the Building which passed by a vote of 5 to 4 is entitled to deference by the court. It asserts that it has found that there are no feasible and prudent alternatives to demolition of the Building.
General Statutes § 22a-19a provides in relevant part: "The provisions of sections 22a-15 to 22a-19, inclusive, shall be applicable to the unreasonable destruction of historic structures and landmarks of the state, which shall be those properties (1) listed . . . as individual units on the National Register of Historic Places . . . or (2) which are part of a district listed . . . on said national register and which have been determined by the State Historic Preservation Board to contribute to the historic significance of such district." The statute extends the protections afforded by the Connecticut Environmental Protection Act (CEPA), which encompasses the aforementioned sections, to historic structures, landmarks or contributing structures. Under CEPA, there is a public trust in state resources and it is within the public interest to prevent such resources from unreasonable destruction. See General Statutes § 22a-15. The court is empowered to grant temporary or permanent equitable relief to prevent such unreasonable destruction. See General Statutes § 22a-18. "General Statutes § 22a-17 sets the hurdles one must overcome in order to satisfy the burden of proof requirements set under CEPA." Waterbury v. Washington, 260 Conn. 506, 550 (2002). Subsection (a) provides: "[w]hen the plaintiff in any such action has made a prima facie showing that the conduct of the defendant . . . has, or is reasonably likely unreasonably to . . . destroy the public trust in . . . resources of the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also prove, by way of an affirmative defense, that, considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant's conduct and that such conduct is consistent with the reasonable requirements of public health, safety and welfare."
The first issue for the court's consideration is whether the plaintiff has made a prima facie showing that the defendant's intention to demolish the building will unreasonably destroy the public trust in a historic building. The court finds that the plaintiff has met its burden. The parties do not dispute that the building is listed on the national register as a property which contributes to the historic significance of the Wallingford Center National Register Historic District. The building is specifically included in the inventory of buildings that makes up that historic district. The court notes that this alone is not enough to enjoin an owner from demolishing a building. However, in the present case, the plaintiff has presented credible testimony regarding the historical significance of the building, its contribution to the Wallingford parade ground area and the potential for the building to be restored, rehabilitated or redeveloped. Specifically, the testimony indicates that the building is in relatively good condition, remains structurally sound and has maintained its decorative integrity despite its age and the lack of attention it has received since it was purchased by the defendant. Moreover, the building retains architectural elements which make it unique and factor into the contribution it makes to the overall historic district in the defendant town. Thus, the plaintiff has successfully made its prima facie showing.
"Once a prima facie case is shown, the burden of production shifts to the defendant . . . [T]he defendant may rebut the prima facie showing by the submission of evidence to the contrary . . . [T]he nature of the evidence necessary to rebut plaintiff's showing will vary with the type . . . destruction alleged and with the nature and amount of the evidence proffered by the plaintiff. (Citation omitted; internal quotation marks omitted.) Manchester Environmental Coalition v. Sockton, 184 Conn. 51, 60 (1981).
In the present case, the defendant attempts to rebut the plaintiff's prima facie showing and contends that demolition of the building is not unreasonable. However, the circumstances of the present case are clearly distinguishable from those in which demolition of a building was found to be reasonable, despite its historic significance or listing on the national register. For example, in Harris Memorial Church v. Bridgeport Redevelopment Agency, Superior Court, judicial district of Fairfield, Docket Nos. CV 00 0373620, CV 00 0370421 (Dec. 21, 2000, Moran, J.), the court determined that demolition of the church at issue was not unreasonable because the historical significance of the building had been altered as a result of a fire. Similarly, in Friends of Hillhouse Avenue v. Yale, Superior Court, judicial district of New Haven, Docket No. CV 98 0419300 (Apr. 28, 1999, Meadow, JTR), the court found that the defendant sufficiently rebutted the plaintiff's prima facie case because the evidence demonstrated that only a single board remained from the original building, and that any attempt to restore the building at issue would be more akin to a replica rather than a restoration.
In the present case, the defendant did not present evidence to contradict that presented by the plaintiff, which demonstrates that the building's architectural and design elements remain intact. As such, the court cannot find that the historical significance of the building has been altered so as to diminish the public interest in preventing its destruction. Thus, the defendant has not presented sufficient evidence to rebut the plaintiff's prima facie showing.
"In addition to rebutting the plaintiffs' prima facie case, [a defendant] may also prove, by way of an affirmative defense, that, considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant's conduct and that such conduct is consistent with the reasonable requirements of the public health, safety and welfare." (Internal quotation marks omitted.) Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 61.
In support of its affirmative defense, the defendant asserts that there are no feasible and prudent alternatives to the demolition of the building. There is not an established list of factors for the court to consider in reaching a conclusion regarding the existence of feasible or prudent alternatives to demolition for the purposes of § 22a-17(a). Conduct has been held to be not feasible if it cannot be done as a "matter of sound engineering . . ."; Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 62; however, "our case law leaves the judicial officer to ponder exactly where a bottom rung exists below which a suggested alternative is not feasible." Norwalk Preservation Trust v. Norwalk Inn, Superior Court, judicial district of Stamford, Docket No. CV 07 4010609 (February 6, 2008; Nadeau, J.) [ 44 Conn. L. Rptr. 872]. Generally, "[f]easible alternatives are those which do not present unique problems." (Internal quotation marks omitted.) Connecticut Historical Commission v. 250 Waldmere Avenue Association, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 232984, (March 6, 1997, Jacobson, J.) "One would think that the measure of feasibility of alternatives is not simply the hope or plan of the owner proposing demolition. At the other, very distant end of a spectrum, perhaps a judicial officer should not deem feasible some, any, endeavor rather totally unrelated to the defendant's past or current business." Norwalk Preservation Trust v. Norwalk Inn, supra, Superior Court, Docket No. CV 07 4010609.
Prudent alternatives, meanwhile, are "those which are economically reasonable in light of the social benefits derived from the activity." Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 63. While "[c]ost may be considered in deciding what is prudent . . . [a] mere showing of expense . . . will not mean that an alternative is imprudent." Id. In conducting an analysis of what is prudent, "[c]onsiderations of cost should not be paramount." Id., 62.
The defendant argues that selling the property on which the building sits is not prudent because the defendant wishes to retain ownership of the property abutting the town hall. In support of that argument, the mayor of the defendant town testified that the property was purchased to add parking spaces and to plan for the future of town hall. In addition, both parties presented testimony regarding the consistent resistance on the part of the town council to sell the property. The defendant also argues that it is not prudent for it to retain ownership of the building and incur the costs of renovations. In support of this contention, the defendant points to testimony indicating that it attempted to lease the building on two separate occasions. The defendant also stresses the significant costs of renovating the building. Both parties presented evidence regarding estimated costs of renovating the building. These estimates differed substantially. Included in the costs of the defendant's estimate were the costs associated with making the building code-compliant, which would include gutting the interior of the building to replace the staircase, and paying "prevailing wages." The court acknowledges the high costs of renovating the building, but is compelled to follow the long-established line of case law in which costs is not the sole factor considered in making a determination of what is prudent.
Rather, the court considers other circumstances and evidence. First, as discussed above, there have been offers to buy the property. Second, the court finds the testimony presented by the plaintiff regarding the availability of grants, tax credits and code modifications. The party that eventually renovates the building could, take advantage of such programs, thereby decreasing the costs incurred as a result of renovations. Moreover, the court considers the desirable location of the building, which lends itself to either commercial or residential use. The building abuts another building on the parade ground, which was renovated and now is used as offices. Furthermore, although the court is mindful of the defendant's intent when purchasing the property and the difficulties it faced in its past attempts to lease or sell the building, the court is not persuaded that there are no feasible or prudent alternatives to demolition of the building.
The court notes the defendant's argument that its decision to demolish the building and retain the land for the future needs of the town hall is entitled to deference by the court. The plaintiff cites to Tighe v. Berlon, 259 Conn. 83, 91 (2002), for that proposition. The defendant asserts that it has determined that it needs to retain the property, and should not be required to consider alternatives to frustrate that determination. In Tighe, supra, the Court stated that "[w]hen municipal authorities are acting within the limits of the formal powers conferred upon them and in due form of law, the right of courts to supervise, review or restrain them is necessarily exceedingly limited." (Internal quotation marks omitted.) The defendant does not specify which formal power has exercised in making its determination to demolish the building. However, the court holds that the statutory scheme created by CEPA, infra, necessarily limits the exercise of such municipal powers when the demolition of a building listed on the national register is at issue. In fact, the very language of CEPA creates a mechanism for judicial intervention. See § 22a-18. Moreover, § 22a-17(a) provides a burden of proof for a defendant in actions to prevent demolition. The court is not persuaded that a municipal defendant in an action brought under CEPA would have a lesser burden of proof than that placed upon a defendant who is a private property owner.
Regarding the defendant's argument that it should not be forced to consider alternatives that would frustrate "the purpose of owning the property," the court is also not persuaded. Rather, the court is guided by the reasoning in Norwalk Preservation Trust v. Norwalk Inn, supra, Superior Court, Docket No. CV07 4010609. In that case, the court granted a temporary injunction to prevent the demolition of a building listed on the national register as part of a historic district, despite evidence that the building was purchased by the defendant for the sole purpose of demolishing the building and that the defendant was unaware of the building's protected status at the time of the purchase. Also relevant is that the city of Norwalk had approved the requested demolition. To effectuate, or to consider as paramount, the purpose of a defendant in owning the property would be to ignore the statutory scheme and the burdens of proof placed on both parties by § 22a-17.
For the foregoing reasons, the permanent injunction against demolition of the building is granted.