Opinion
No. X05 CV-02-0187685 S
September 5, 2003
MEMORANDUM OF DECISION
This is an action brought by the plaintiffs, Maritime Ventures, LLC ("Ventures") and Maritime Motors, Inc. ("Motors"), seeking preliminary and permanent injunctive relief. Plaintiffs are seeking an injunction to prohibit the City of Norwalk from acquiring by eminent domain properties owned by Ventures and leased by Motors. The City of Norwalk is attempting to condemn these properties pursuant to the Reed Putnam Urban Renewal Plan which was amended in 1998.
A. The Parties and Properties
Ventures is a Connecticut limited liability company and Motors is a Connecticut corporation. While Motors has an ownership interest in Ventures, Motors and Ventures are distinct legal entities.
Motors sells and services new and used Chevrolet cars manufactured by General Motors. Motors purchased the former Pellitteri Chevrolet dealership located at 51 West Avenue and 31 Putnam Avenue (the "Properties") in February of 1994 and began leasing the Properties from Pellitteri on February 14, 1994.
On April 18, 2000, Ventures obtained title to 51 West Avenue and 31 Putnam Avenue from Thomas Pellitteri and then leased the Properties to Motors pursuant to an oral lease. 51 West Avenue is approximately one acre in size and 31 Putnam Avenue is approximately .6 acres in size. A two-story showroom building, parking and a 60 used car display parking lot are located at 51 West Avenue. 31 Putnam Avenue is utilized for new car display and storage.
Motors employs thirty-five employees and is a successful dealership. It ranks in the top third of volume of sales in the State of Connecticut.
Defendant Norwalk Redevelopment Agency (the "Agency") is an agency of the City of Norwalk responsible for preparing and implementing plans to redevelop areas of the City of Norwalk pursuant to Chapter 130 of the Connecticut General Statutes. Defendant City of Norwalk ("the City") is a Connecticut municipality.
The redevelopment plan for the Reed Putnam Redevelopment Area (the "Reed Putnam Area") encompasses approximately seventy acres. Defendant French Norwalk, LLG ("French") is a commercial developer that was designated a preferred redeveloper for part of the Amended Reed Putnam Urban Renewal Plan ("the Amended Plan"). Specifically, French was designated to develop Parcels 1, 2, and 4, of the Reed Putnam Area and was one of two entities that executed a Land Disposition Agreement with the Agency.
Plaintiffs' expert, Dr. Mullin, acknowledged in his testimony that redevelopment agencies can properly seek out redevelopers, without going through the process of seeking requests for proposals.
Ventures' property at 51 West Avenue is located at the gateway to the Reed Putnam Area and is located in Parcel 4. The Properties will be severely impacted by the Amended Plan's proposed location of the roadways and railroad crossing and the detailed roadway plans contained in the traffic engineering study done by Allan Davis Associates (the "Davis Plan"). The Davis Plan proposes to increase the number of lanes of West Avenue from four to six lanes for approximately 60 feet of the 51 West Avenue frontage. This widening would necessitate losing approximately four feet of a corner of the Motors building, assuming a twelve-foot wide sidewalk. The Davis Plan proposes to widen Reed Street, from two to five lanes. This widening coupled with the Reed Street underpass would result in a lowering of Reed Street approximately four to five feet below the Reed Street entrance to Motors. It would necessitate the encroachment of a small part of the northwest corner of the building with a further encroachment necessary to establish a retaining structure. The proposed Reed Street railroad crossing would take the majority of the plaintiffs' property at 31 Putnam Avenue.
B. The History of the Redevelopment Plan Adoption of the Plan in 1983
On October 19, 1983, the Agency passed a resolution approving the Reed Putnam Plan for Urban Renewal of the Reed Putnam Area. On October 25, 1983, the Common Council of the City of Norwalk passed a resolution approving the Reed Putnam Plan.
The Reed Putnam Plan includes the following findings related to the blighted condition of the Redevelopment Area:
The Norwalk River area from the I-95 Turnpike to the South Norwalk Business District, and west toward West Avenue, has deteriorated over the past forty years due primarily to the adjacent Norwalk Landfill. This deleterious use, coupled with the heavy industrial nature of the railroad yards and the Danbury branch, has caused properties in the Reed Street and Putnam Avenue corridor to become seriously blighted. Light industrial and commercial uses in the area are antiquated, and the road system is inadequate for modern requirements.
The Agency determined in 1983 that the Reed Putnam Area was deteriorated, deteriorating, or substandard.
The Common Council determined in 1983 as follows:
WHEREAS, the Redevelopment Agency of the City of Norwalk, hereinafter referred to as the Redevelopment Agency, has made detailed studies of the location, physical condition of the structures, land use, environmental influences, feasibility and potential for rehabilitation, and social, cultural and economic conditions of the project area, and has determined that the area is a deteriorated, deteriorating, substandard and blighted area and that it is detrimental and a menace to the safety, health and welfare of the inhabitants and users thereof and of the locality at large; and NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Norwalk, Connecticut, as follows:
1. That it is hereby found and determined that the project area is in a deteriorated, deteriorating, substandard and blighted area and that said area in which the proposed redevelopment is to be located, is a redevelopment area as defined in Section 8-125, Chapter 130 of the Connecticut General Statutes, Revision of 1958, as amended, and qualifies as an eligible project area under Section 8-127, Chapter 130 of the Connecticut General Statutes, Revision of 1958.
2. That it is hereby found and determined that the carrying out of the Redevelopment Plan will result in materially improving the conditions in such area.
3. That it is hereby found and determined that sufficient living accommodations are available within reasonable distance of such area or are provided for in the Redevelopment Plan for families displaced by the proposed improvement at prices or rentals within the financial means of such families.
4. That it is hereby found and determined that the Redevelopment Plan is satisfactory as to site planning and relation to the comprehensive or general plan of the municipality.
5. That said Urban Renewal Plan for the project, having been duly reviewed and considered, is hereby approved, and the City Clerk be and is hereby directed to file said copy of said Urban Renewal Plan with the minutes of this meeting.
The Reed Putnam Plan includes the following findings related to the potential for economic development of the Redevelopment Area:
. . . the unique location, including several thousand feet of waterfront on the navigable Norwalk River, excellent highway visibility and access from Interstate 95, coupled with the economic development opportunities that the decade of the eighties will bring to mid-Fairfield County, indicate that this area could be of primary importance in contributing to Norwalk's job and housing resources and ongoing financial stability.
The Reed Putnam Plan set forth the following plan objectives:
1. Create development opportunities for the appropriate mix of uses including office, retail, residential, hotel and non — profit institutions.
2. Increase the tax base of Norwalk.
3. Make possible public access to and enjoyment of the Norwalk waterfront.
4. Increase housing for residents of Norwalk with the objective of having 20% of the housing units available for occupancy by low and moderate income citizens.
5. Increase job opportunities for the residents of Norwalk by requiring developers to employ Norwalk residents to the greatest extent possible.
The Reed Putnam Plan sets forth the following proposed actions:
The Agency will acquire and offer for redevelopment those parcels whose condition warrants clearance or whose acquisition is necessary to provide an adequate unit of development. Those buildings compatible with the overall design are designated not to be acquired, and are slated for preservation.
The Reed Putnam Plan, including both the original plan of 1983 and the Amended Plan of 1998, have always included the Properties and designated them for acquisition and demolition.
Intermediate Studies
Subsequent to passage of the 1983 Reed Putnam Plan there were several studies conducted regarding potential traffic and appropriate roadway alignments.
In July 1987, Greiner Engineering Sciences released a study entitled "South Norwalk Traffic Parking Study" for the City of Norwalk.
The Grenier Study recommended the widening of Crescent Street and a new bridge on Crescent Street over the railroad tracks. One assumption of the Greiner Study was that the landfill would be developed as a location for office buildings, and therefore access to that location was required for office use. As a result of further analysis after adoption of the Reed Putnam Plan, including the conclusion that office buildings could not be built on the landfill, the 1998 Amended Reed Putnam Plan deleted the construction of an office building on the landfill. Therefore the necessity for access to the landfill for office buildings as assumed in the Greiner Study was no longer a valid assumption.
Urbitran Associates
On May 20, 1991, Urbitran Associates released a study commissioned by the Agency entitled "Assessment of Selected Environmental Issues for the Riverside Drive Project" ("the Urbitran Study").
One of the issues facing the planners was that the Danbury branch of the New Haven Railroad bisects the Reed Putnam Area. The Reed Putnam Area includes Reed Street, which is the direct extension of Exit 14 of I-95 northbound, and is the most direct route and easiest accessway from I-95 to the Norwalk Maritime Aquarium (the "Aquarium"). As of now, access from I-95 to the Aquarium is by way of Ann Street, Marshall Street, or North Water Street, each of which has substandard clearances under the railroad tracks, making them inaccessible to full-size tour buses and tractor trailer trucks.
The Urbitran Study concluded that it is preferable to cross the Danbury branch of Metro-North Railroad by an underpass at Reed Street than by a bridge over Crescent Street. The Crescent Street alternative "requires more length of roadway (from Reed to Crescent Street) and an additional bridge structure over the Metro-North Danbury Line. These extra costs are not justified by improvements in traffic operation. The recommended option, therefore, is the Reed Street alternative."
The Urbitran Study also concluded, that Reed Street is preferable to Marshall Street or Ann Street for an underpass under the railroad tracks.
Hardesty Hanover
In June 1992, Hardesty Hanover released a study entitled "Riverside Drive Project Phase I Study" ("the Hardesty Study"). The purpose of the Hardesty Study was to conduct an engineering investigation of the various possible alignment alternatives for a new north-south roadway along the Norwalk River.
The Hardesty Study concluded that the Reed Street underpass "results in reduced congestion from the no-build condition at West Avenue/North Main St., Ann/North Main Sts., and Marshall/North Main Sts. Although it results in increased congestion at West Avenue/Crescent St. and West Avenue/Reed St., this alternative provides more extensive options for traffic to divert from West Avenue to Riverside Drive, thereby dispersing these negative effects between Reed Street and Crescent Street. For this reason it was selected as the preferred alternative by the traffic consultants."
Separate and apart from the Urbitran Study, the Grenier Study, and Hardesty Study, the Norwalk Department of Public Works had commissioned another study which ruled out improving Ann Street as an upgraded crossing.
Martin Overton is the Assistant Director of Public Works for the City of Norwalk and has held that position for the past nineteen years. Mr. Overton was the liaison between the Department of Public Works and the team that assisted in developing these traffic studies, which consisted of the Planning and Zoning staff, Agency staff, Building Department staff, and Department of Public Works staff.
Overton also considered the Reed Street underpass preferable to the Crescent Street bridge because 1) the landfill is not a location for an office building in the Amended Reed Putnam Plan so a Crescent Street crossing is not necessary for that purpose; 2) the Reed Street underpass is less expensive; 3) it functions better than the Crescent Street bridge; 4) it is preferable based on sloping geography and topography of the tracks; 5) it provides a direct route from I-95 Exit 14 to the east side of the Reed Putnam Area; and 6) the landfill is capped, and therefore no bridge can land on it.
C. Amendment to the Plan in 1998
In the mid-1990s, the Agency determined that it was necessary to review the Reed Putnam Plan. Accordingly, it conducted a series of meetings with groups in the community, elected officials, and interested parties, retained an expert to review the Reed Putnam Plan and propose amendments to it, and conducted public hearings on such amendments.
On November 22, 1996, the Agency sent a memo to the members of the Planning Committee of the Common Council of the City of Norwalk regarding the need to amend the Reed Putnam Plan. The memo states as follows:
The Reed Putnam Area embraces an area that many have referred to as the best development site in Fairfield County, given its high visibility, accessibility and proximity to New York.
Within the past six months . . . there has been a renewed interest exhibited by the development community in the Reed-Putnam Area. This interest has been largely in the office sites in the northern portion of the project area, as the excess supply office space has been absorbed in the marketplace.
[T]he city's marketing and promotional activities are also paying dividends as evidenced by the numbers of parties inquiring about the availability of space in Norwalk.
As a result of the fact that the Reed-Putnam Urban Renewal Plan has not been updated since its adoption 13 years ago there are major sections of the plan which . . . may in fact serve to discourage certain types of development that the City may desire on key parcels. During the 13 years since its adoption there have also been significant changes in the environmental laws limiting development on the landfill (as proposed under the Plan) and impacting on the overall economics of the Plan.
For these reasons we believe it is an appropriate time to undertake a review and update/re-statement of the Reed-Putnam Urban Renewal Plan. It is critically important to the City's ability to attract and capture development interest in the site that we have a clear course charted as to what the City would like to see on the Reed Putnam site.
On December 18, 1996, the Agency authorized retaining the firm of Cecil Rizvi, Inc. to undertake an update and revision to the Reed Putnam Plan. On September 24, 1997, Cecil made a presentation to the Agency about the proposed Amended Reed Putnam Plan and on October 15, 1997, the Planning Commission of the City of Norwalk passed a resolution approving the proposal to amend the Reed Putnam Plan, in accordance with Conn. Gen. Stat. §§ 8-24 and 8-127. By letter dated November 1, 1997, the Agency invited owners of property within the Reed Putnam Area to a joint Public Information Session followed by a Public Hearing on the proposed Amended Reed Putnam Plan scheduled for November 19, 1997. In November 1997, the Agency distributed a letter which described the Amended Reed Putnam Plan, its goals, objectives, and importance to the City of Norwalk and its residents, and procedures for the relocation of individuals and businesses affected by the Amended Reed Putnam Plan. The letter inviting property owners to the November 19, 1997 Public Information Session and Public Hearing was sent to Thomas Pellitteri, who was, at the time, the owner of the Properties.
On November 14, 1997, the Agency and the Norwalk Common Council published a "NOTICE OF PUBLIC HEARING AND PUBLIC INFORMATION SESSION: URBAN RENEWAL PLAN FOR REED PUTNAM PROJECT AREA" in the Norwalk Hour, giving notice of the time, place, and subject matter of the November 19, 1997 Public Information Session and Public Hearing. On November 19, 1997, the Agency and the Norwalk Common Council conducted the Public Information Session and Public Hearing, as noticed.
On November 19, 1997, the Agency approved amendments and revisions to the Reed Putnam Plan as proposed by Cecil Rizvi, Inc. On December 17, 1997, the Agency passed a resolution approving amendments and revisions to the Reed Putnam Plan, thereby adopting the Amended Reed Putnam Plan. On February 10, 1998, the Common Council of the City of Norwalk passed a resolution approving the Amended Reed Putnam Plan. Accordingly, the Reed Putnam Plan was amended and restated in 1998 (the "Amended Reed Putnam Plan").
The Amended Reed Putnam Plan stated the reasons for amending the Reed Putnam Plan, as follows:
The Reed Putnam Plan was initially approved in 1983. Since that time there have been significant changes in the regulations pertaining to environmental controls on development as well as in the regional economy affecting the area real estate markets. The original [Reed Putnam] Plan has been revised and restated herein to provide a better fit between the goals of the community and the development opportunities available. This includes not only matching development parcels with prospective users, but also a better articulation of objectives relating to urban design and landscape requirements, in order to ensure development of a high quality environment consistent with the long-term planning goals of the City of Norwalk.
The Amended Reed Putnam Plan stated the scope of the amendments to the Reed Putnam Plan as follows:
In general, the overall approach and structure of the original Plan as established by State statute have been maintained. However, changes have been introduced to the parcelization patterns, land use plan, urban design guidelines, and regulations on development. These revisions are intended to capitalize on the current development potential of the area without losing sight of the general objectives originally identified by the Plan, and the best interests of the City.
The Amended Reed Putnam Plan stated the goals of the amendments to the Reed Putnam Plan as follows:
The general objectives identified by the original Plan remain valid as today's goals. They are:
Create development opportunities for an appropriate mix of uses, including office, retail, residential, hotel and non-profit institutions.
Increase the tax base of Norwalk.
Enhance public access to and enjoyment of the Norwalk waterfront.
Increase housing opportunities for the residents of Norwalk.
Additional planning and design objectives to be accomplished through the Plan include the following:
Identify solutions to the traffic and parking issues generated by new development . . .
Consider visibility and views from the different development parcels, as well as views of the project area both from I-95 and the local streets . . .
Promote a high-quality urban environment . . .
Accordingly, the only change in goals in the Amended 1998 Plan was the deletion of the goal of increasing low and moderate income housing.
Plaintiffs' own expert acknowledged that there is a valid public purpose for the Amended Reed Putnam Plan. There was no new finding made that the proposed redevelopment area was blighted when the Plan was amended in 1998.
D. The City of Norwalk and the Agency, from 1983 to the present, have not achieved all of the objectives but have taken meaningful steps to implement the Reed Putnam Plan.
As of the adoption of the Amended Reed Putnam Plan, a significant part of the objectives of the Reed Putnam Plan had not been achieved. Specifically, none of the major office development had been created and, in particular, no office development had been created on the west side of the Danbury branch of the railroad tracks. Access to the Norwalk River generally, and to the Aquarium and its parking, remained inadequate via substandard railroad underpasses at Ann Street, at Marshall Street and at North Water Street.
The objective of creating public access to and enjoyment of the Norwalk waterfront had occurred, and the landfill had been closed and made into Oyster Shell Park. In sum, the following additional actions have been taken to carry out the Redevelopment Plan and the Amended Plan:
The City acquired property for the Aquarium (early 1980s);
The City guaranteed bonds to fund construction of the Aquarium (1985);
The Agency began discussions with developers (mid-1980s);
French started acquiring properties in the mid-1980s, and by 1990 had acquired 60% of Assessor's block 20 (substantially the same as parcel 1 in the Amended Plan);
After two years of construction, the Aquarium opened (1988);
The Heritage Park Master Plan was adopted (1994);
The City reacquired former City Hall at North Main Street and Marshall Street and conveyed it to Norwalk Museum Partnership;
The City obtained from the State of Connecticut ISTEA pass-through) money for construction of walkways and Riverside Drive (mid-1990s);
The "outboard" route for Riverside Drive was selected and Riverside Drive and walkways were constructed (mid-1990s);
The landfill, which became Oyster Shell Park, is capped (mid to late 1990s).
The Agency commissioned the Allan Davis Traffic Study (1998);
The City and Agency negotiated Land Disposition Agreements with French and Spinnaker (1998-2002);
The City obtained passage of a public act authorizing conveyance by the State of Connecticut to the City of the railroad yards (2000) (DX 103);
Environmental work was done on Parcels 1, 2 and 4 (late 1990s through early 2000).
E. Condemning the Properties is necessary to implement reasonable redevelopment goals and legitimate public purposes.
The location of the roadways and railroad crossings in the Amended Plan were based on the conclusions of the Greiner and Urbitran/Hardesty Studies. Stephen Cecil, the urban designer, architect, and landscape architect that the Agency retained in connection with planning that led up to the Amended Reed Putnam Plan, did not perform any new traffic studies. Instead, Cecil reviewed the Intermediate Studies described above, and met with, among others, Martin Overton, Assistant Director, Department of Public Works, for the City of Norwalk, in determining the location of the roadways in the Reed Putnam Area. Cecil challenged the assumptions and conclusions of the Traffic Studies and the location of the roadways and railroad crossings. Cecil testified credibly that the end result of those meetings led "the engineering department, the traffic folks" to conclude that good engineering practices substantiated the conclusions of the Traffic Studies and therefore the location of roadways and crossings. Specifically, Cecil determined that the Reed Street extension and underpass are key aspects of planning the Reed Putnam Area, and that there is no other reasonable or practicable location to cross the railroad tracks other than by the Reed Street extension and underpass.
In 1999, Allan Davis Associates ("Davis") was engaged to provide traffic engineering, parking consulting and civil engineering services for the Reed Putnam development. Specifically, they were retained to determine the roadway improvements which would be necessary to accommodate the amount of development which was anticipated in the Amended Plan. Davis subsequently submitted a plan to the State Traffic Commission which was ultimately approved.
Based on all of the evidence presented, the court finds the proposed improvements to the roadways are reasonable and necessary. It is reasonable and necessary to widen West Avenue to implement a reasonable level of service. To widen West Avenue on the westerly side, as plaintiffs propose, it would be necessary to condemn all or part of several properties outside the boundaries of the Reed Putnam Area.
Under the original 1983 plan, the crossing of the railroad tracks had been contemplated to occur at grade at Crescent Street. The Crescent Street crossing at grade cannot occur, for a number of reasons, including state and federal prohibition of at-grade railroad crossings. Connecticut's statutory prohibition with respect to at-grade crossings became effective on October 1, 1989. Conn. Gen. Statute § 13b-268 (b).
It was also reasonable and necessary to seek a study and decide upon alternative crossings of the Danbury branch of the railroad tracks. The existing underpasses under the Danbury branch of the railroad in the Reed Putnam Area are at Ann Street, Marshall Street and North Water Street. All of them are substandard in height and width in that they cannot accommodate large vehicles, such as 18-wheel trucks and full-sized tour buses.
It is therefore reasonable and necessary to cross the railroad tracks at Reed Street as extended, by means of an underpass that will accommodate large vehicles. The City has already obtained a grant from the Connecticut Department of Economic and Community Development fully finding the Reed Street extension and underpass.
It is reasonable and necessary to deepen Reed Street to implement traffic improvements at a reasonable level of service. It is reasonable and necessary for the deepening of Reed Street to be five feet down at the driveway for Motors' service area in order for the Reed Street underpass to be a full height crossing.
Plaintiffs' own expert witness acknowledged the reasonableness of the traffic plan for the Reed Putnam Area, as follows:
It was reasonable and prudent for the Agency to conduct traffic studies, and to follow the advice of experts who conducted those studies, in the design and construction of roads in the Reed Putnam Area, including the design and construction of the Reed Street underpass.
There is a legitimate public purpose, and it is a reasonable goal of redevelopment to provide for vehicular and pedestrian circulation as set forth in the Amended Reed Putnam Plan.
There is a legitimate public purpose, and it is a reasonable goal of redevelopment, to provide access to and from the Aquarium, Oyster Shell Park, and the walkway by the Norwalk River, all of which are on the east side of the Danbury branch of the railroad tracks.
The Norwalk River and its waterfront are major components of the Amended Reed Putnam Plan, and access to the Norwalk River and its waterfront are legitimate goals of the Amended Reed Putnam Plan.
The majority of visitors to the Aquarium arrive from the west on I-95, taking Exit 14 in Norwalk to arrive at the Aquarium.
It is reasonable to connect the east side of the Reed Putnam Area to I-95 and route 7.
It serves a legitimate public purpose to have direct access from I-95 to the Aquarium and to have parking adjacent to the Aquarium.
The building that Motors occupies at 51 West Avenue, unlike the buildings in the Preservation Area, does not warrant preservation.
In planning a redevelopment of an urban area, it is important to preserve buildings that feature uniqueness, specialty, and cachet.
There is no uniqueness, specialty, or cachet of the building which Motors occupies at 51 West Avenue, and no uniqueness, specialty, or cachet of the parking lot where Motors parks its cars at 31 Putnam Avenue.
The Reed Street underpass serves a reasonable redevelopment goal.
The Reed Street underpass serves a legitimate public purpose.
Plaintiffs are correct that certain assumptions made in the Urbitran/Hardesty traffic studies are not contained in the 1998 Amended Plan and the Davis Plan. Specifically, the existence of Crescent Street north of Putnam to West Avenue, the existence of the connection of Putnam Avenue south to Pine Street to West Avenue and the construction of a new northbound entrance to I-95 from Putnam Avenue were all eliminated in the 1998 Amended Plan. However, the defendants were not obligated to follow every recommendation of the traffic studies. More importantly, the plaintiffs have failed to demonstrate that the elimination of these assumptions makes the proposed road improvements contained in the 1998 Plan and the Davis Plan invalid and/or unreasonable. Instead, based on the foregoing findings, the court finds that the proposed extensions and improvements to Reed Street and improvements and widening of West Avenue are based on reasonable engineering and redevelopment considerations and are a reasonable means to achieve the goals of the Amended Plan.
F. Ventures Purchased and Motors Leased Knowing that the Properties Were in the Reed Putnam Area, and that the Properties Were To Be Acquired For Development.
Ventures and Motors knew prior to acquisition and lease of the Properties that the Properties were part of the Reed Putnam Area and were designated for acquisition by negotiated purchase or condemnation as part of the Reed Putnam Plan. As early as 1998, Morley, a principal of both Ventures and Motors, was familiar with the Reed Putnam Plan and the effect it would have on the Properties.
Before Ventures purchased and Motors leased the Properties from Ventures, Morley discussed with Timon Malloy, a principal of French, that French would be redeveloping the area, including the Properties, that French had advised Mr. Pellitteri that French wanted to purchase the Properties, that French "was going to end up with the property [the Properties] one way or another," and that if Ventures bought the Properties they would be condemned.
Before Ventures purchased and Motors leased the Properties from Ventures, Motors engaged in about ten months of negotiations with French about leasing the Properties from French if French purchased the Properties from Mr. Pellitteri.
Ventures and Motors retained an attorney, Vincent Seadale, in connection with the purchase of the Properties. Before Ventures purchased the Properties, Mr. Seadale was aware of the possible condemnation of the Properties and so advised Morley. On November 17, 1998, on behalf of Ventures, Mr. Seadale had advised Pellitteri's lawyer, that Ventures was not purchasing the properties in part because they were in a redevelopment area. Subsequently, in April of 2000, Ventures decided to purchase the Properties, and Motors then leased the Properties from Ventures, with full knowledge that the Properties were in the Reed Putnam Area and subject to condemnation.
Since Ventures purchased the Properties, the plaintiffs have made some improvements including exterior painting, roof repairs, installation of new doors and windows, replacement of the heating system, modernization of the systems, and refurbishment of the customer lounge. Ventures has not made more extensive improvements because of the possibility of the condemnation.
By letter dated November 9, 2001, the City of Norwalk informed plaintiff's attorney,
The City of Norwalk (the City) and the Norwalk Redevelopment Agency (the Agency) are in the process of preparing to implement the Urban Renewal Plan for the Reed-Putnam area, in which your client's property is located . . . French Norwalk, L.L.C., the designated redeveloper under the Urban Renewal Plan, will be contacting your client to commence negotiations for the private acquisition of your client's property. If your client and French Norwalk, L.L.C. are unable to come to terms prior to January 10, 2002, the Agency will provide a written offer to purchase your client's property based on the appraisal. Should both French Norwalk, L.L.C., and the Agency's efforts fail to come to an amicable resolution, the City will then proceed to acquire the property through the use of the power of eminent domain in accordance with the provisions of Chapter 130 of the Connecticut General Statutes.
The Agency made one attempt to assist Motors in relocating from the Properties. The Agency showed Morley a potential place to relocate Motors' place of business at a former fire station in the City of Norwalk located on Connecticut Avenue. Morley testified that this relocation was too expensive.
The plaintiff's relocation is restricted by the provisions of its franchise agreement with General Motors Corporation as well as by Connecticut General Statutes. Any relocation of Maritime Motors, Inc.'s new car dealership must be preceded by Maritime Motors, giving "written notice to General Motors Corporation of the proposed change, together with the reasons for the proposal, for General Motors' evaluation and final decision in light of dealer network planning consideration. No change in location . . . will be made without General Motors' prior written authorization pursuant to its business judgment." Accordingly, Maritime Motors may relocate its place of business from the Properties, subject to General Motors' permission after written notice from Maritime Motors to General Motors, and other dealers' protests.
General Motors has two open points for Chevrolet dealerships in the Fairfield County multiple dealer area, which is Maritime Motors' designated area of responsibility. One open point is in Easton, Connecticut. That open point is not subject to protest by any other Chevrolet dealer, however, Easton's zoning laws do not permit commercial enterprises. Another open point is in Stamford, Connecticut. That open point is subject to protest by one other Chevrolet dealer, who is located in Darien, Connecticut.
Defendants' argument that plaintiffs could purchase a dealership in Fairfield is not persuasive. This would not constitute a relocation of the existing Norwalk business.
DISCUSSION OF LAW
Plaintiffs are seeking permanent injunctive relief. "The party seeking the injunction must prove his own case and adduce whatever proof is necessary to show the existence of the conditions or circumstances upon which he bases the right to and necessity for injunctive relief, and he must establish his right thereto by a preponderance of the evidence." Beacon Falls v. Posick, 17 Conn. App. 17, 48 n. 5 (1988), reversed on other grounds 212 Conn. 570 (1989). A party seeking injunctive relief also has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. Pequonnock Yacht Club, Inc. v. City of Bridgeport, 259 Conn. 592, 790 A.2d 1178 (2002).
In an eminent domain case, "The determination of what property is necessary to be taken in any given case in order to effectuate the public purpose is, under our constitution, a matter for the exercise of the legislative power. When the legislature delegates the making of that determination to another agency, the decision of that agency is conclusive . . ." Id., 600. The agency's decision, however, is "open to judicial review only to discover if it was unreasonable or in bad faith or was an abuse of the power conferred." Id.
A. The Norwalk Redevelopment Agency and the City of Norwalk Exhausted Reasonable Efforts to Acquire the Properties by Agreement.
"It is incumbent upon the condemnor to exhaust all reasonable efforts to obtain the land it desires, by agreement." New York, N.H. H.R.R. Co. v. Long, 69 Conn. 424, 438 (1897); West Hartford v. Talcott, 138 Conn. 82, 89, 82 A.2d 351 (1951). The authority to condemn is to be strictly construed in favor of the owner and against the condemnor. State v. McCook, 109 Conn. 621, 630, 147 A. 126 (1929). The statute, however, "should be enforced in such a way as to effectuate the purpose for which it was enacted." West Hartford v. Talcott, supra, 138 Conn. 90; Crawford v. Bridgeport, 92 Conn. 431, 435 (1912). Pequonnock Yacht Club, Inc. v. City of Bridgeport, supra, 259 Conn. 601. The inability to agree with the owner of properly sought to be condemned is a condition precedent to condemnation. West Hartford v. Talcott, supra, 138 Conn. 89. Inability to agree may be shown by any testimony evincive of the fact. Williams v. Hartford N.H.R. Co., 13 Conn. 397, 410 (1840).
It is clear that French Norwalk, LLC, was acting as an agent of the defendant, City of Norwalk, and the defendant, Norwalk Redevelopment Agency, in trying to reach an agreement regarding obtaining the Properties.
The letter from Timon Malloy to Mr. Peter Morley dated May 21, 2001 and the letter from Attorney Marc J. Greiner on behalf of the City to Attorney Charles J. Willinger, Jr. dated November 9, 2001, as well as the testimony regarding other discussions that took place, establishes that the Norwalk Redevelopment Agency did take all reasonable efforts to acquire the Norwalk Site by agreement. Accordingly, defendant has demonstrated that there was an inability to agree on purchasing the Properties despite reasonable efforts to do so.
B. The Norwalk Redevelopment Agency and the City of Norwalk did not need to make a Renewed Finding of Bilght Prior to The Adoption of the Amended Plan.
Neither the resolution of the Common Council nor the resolution of the Norwalk Redevelopment Agency contained a new finding that the proposed redevelopment area was blighted.
Plaintiffs alleged in the First Substituted Complaint that:
The City of Norwalk and the Norwalk Redevelopment Agency have made no legitimate finding that the subject properties comprising the Reed Putnam Area are deteriorated, deteriorating, substandard or are detrimental to the safety, health, morals or welfare of the community.
The Reed Putnam Plan, the Agency's Resolution approving the Reed Putnam Plan, and the Common Council Resolution approving the Reed Putnam Plan all contained these findings. Plaintiffs argue, however, that a new finding of blight was necessary because the 1998 plan is essentially a new plan. Specifically, plaintiffs contend: (1) there are extensive roadway improvements not contemplated in the 1983 plan; (2) uses allowed in the 1983 Plan were eliminated from the 1998 Plan including automobile showrooms and affordable housing, and (3) the density of the development increased.
The issue before the court then is whether there have been enough significant changes since the adoption of the 1983 Plan that the Norwalk Redevelopment Agency was required, prior to approving the 1998 Amended Plan, to make a new finding that the area in which the proposed redevelopment is to be located is a redevelopment area. Redevelopment area is defined by Connecticut General Statutes § 8-125 (b) to mean an area within the state "which is deteriorated, deteriorating, substandard or detrimental to the safety, health, morals or welfare of the community."
A redevelopment agency may not make an initial finding of blight and "rely on that finding indefinitely to amend and extend a redevelopment plan to respond to conditions that did not exist, or to accomplish objectives that were not contemplated, at the time that the original plan was adopted. To do so would confer on redevelopment agencies an unrestricted and unreviewable power to condemn properties for purposes not authorized by the enabling statute and to convert redevelopment areas into their perpetual fiefdoms. For the same reason, a renewed finding of blight cannot be implicit in an amendment to a redevelopment plan approved decades after the original plan was adopted that addresses conditions and seeks to achieve objectives that were not contemplated in that plan. Such an amendment effectively constitutes, and should be subject to the same procedural requirements as, a new redevelopment plan." Aposporos v. Urban Redevelopment Commission, 259 Conn. 563, 576-77 (2002). However, "the requirement for a renewed finding exists only when the agency, long after the original plan was adopted and at a time when the objectives of that plan have been largely achieved, has amended the original plan to address conditions and achieve objectives that did not exist at the time that the original plan was adopted." Id.
Based on the evidence presented, this court finds that the 1998 amendments do relate to the original finding of blight and do not constitute a new Redevelopment Plan. First, there was insufficient evidence presented that the blight eradication objectives of the original plan had largely been achieved. In fact, the objectives and goals of the 1983 and 1998 Amended Plan remained largely the same. The modifications in the 1998 Amended Plan appear intended to address the same conditions as the original plan and the changes adopted in the 1998 Amended Plan were not substantial. Instead they provided detailed road improvements as required under Conn. Gen. Stat. § 8-125 (c), they eliminated land use allowance of an automobile showroom, as well as affordable housing, and they increased the density of the development. The court does not find that these changes were significant changes that were made to address conditions and achieve objectives that did not exist at the time the original plan was adopted. Finally, unlike the facts in Aposporos, the Properties at issue in this case have always been included in the Urban Redevelopment Area and have always been slated for acquisition and demolition.
C. The Properties Located at 51 West Street and 31 Putnam Avenue Are Essential to the Overall 1998 Redevelopment Plan.
A redevelopment agency is permitted "to determine, in good faith, what land it is necessary to appropriate in order to accomplish the public purpose. It is proper for a redevelopment agency, acting in pursuance of the act, to fix, within reasonable limits, the area of redevelopment and to include in a taking all property which is in a deteriorated area, even though certain of the properties are not in themselves substandard." Gohld Realty Co. v. Hartford, 141 Conn. 135, 147, 104 A.2d 365 (1954).
"The legislature . . . has prescribed in the definition of a redevelopment area that the agency `shall include [only] properties `which are found to be essential to complete an adequate unit of development." Gohld Realty Co. v. Hartford, supra, 141 Conn. 149. "Therefore, property that is not substandard and that is the subject of a taking within a redevelopment area must be essential to the redevelopment plan in order for the agency to justify its taking." Pequonnock Yacht Club, Inc. v. City of Bridgeport, supra, 259 Conn. 600-01.
In providing meaning to the statutory, but undefined, phrase "adequate unit of development," the Connecticut Supreme Court has consistently defined the phrase in terms of the complete redevelopment plan, and not individual component parcels of the entire project area. "Thus it is clear that the legislature has delegated to each redevelopment agency the power to determine, within certain limits, what property it is necessary to take in order to effectuate a complete redevelopment plan which the agency has adopted." Gohld Realty Co. v. Hartford, supra, 141 Conn. 146.
"[I]n determining whether property that is not substandard is essential to the plan of redevelopment, it is the condition obtaining as to the entire area and not as to individual properties which is determinative." Pequonnock Yacht Club, Inc. v. City of Bridgeport, supra, 259 Conn. 601.
Parcel 4 was derived by discontinuing a portion of Putnam Avenue south of Reed Street and combining it with properties to the east and west of Putnam. The realignment of Putnam Avenue is proposed to maximize the development possibilities of adjacent parcels. On the south side of Reed Street a segment of Putnam Avenue and the adjacent parcels are combined into a single development site (Parcel 4) since each of the separate lots by itself would be too small to allow for substandard development volumes and the necessary ancillary parking.
The 1998 Plan provided for 720,000 square feet of office space on Parcels 1 and 2, and 178,000 feet of space on Parcel 4, for a total of 898,000 square feet of space. The Land Disposition Agreement with French provides for an increase in total square footage to 1,129,000 square feet with 881,000 feet of space proposed for Parcels 1 and 2, and a additional 16,000 square feet designated for retail, and 248,000 square feet of office space proposed for Parcel 4. Parcel 4 in the Reed Putnam Area has significant advantages for office use: it is highly visible and highly accessible in terms of the regional roadway network and there are very few large sites along Route I-95 available for such use.
The court finds the evidence presented was credible and persuasive that the Properties are necessary to complete an adequate unit of development within the Reed Putnam Area.
The location of the roadway improvements and railway crossing as delineated in the Amended Plan are based upon reasonable engineering and redevelopment considerations, are based upon the public necessity for road improvement and cannot be configured without substantially impacting on the Properties. The determination of the Norwalk Redevelopment Agency was not unreasonable, arbitrary and capricious regarding the proposed location of the roadways and railway crossing as delineated in the 1998 Plan. Accordingly, the Properties are essential to the Redevelopment Plan.
The Connecticut Supreme Court has also "established that a redevelopment agency must make reasonable efforts to negotiate and consider the integration of the property that is not substandard into the overall redevelopment plan." Id., 603. There was no evidence presented that the defendants considered the integration of the Norwalk Site into the overall redevelopment plan. "[A] peculiar problem exists when takings are done under the auspices of Redevelopment Acts like our own where the goal is to remove slums and blighted areas and permit redevelopment so those conditions will not recur. Under such acts "unified areas" are designated as blighted, but the problem arises because within such an area fine homes in good condition may be located which are unfortunately surrounded by vacant or truly substandard buildings . . . [W]e also have recognized that the agency must consider `whether [the property] could be successfully integrated into the overall plan for the area in order to achieve its objective. If [the property] could not be, then the acquisition of the property was essential to complete an adequate unit of development, even though the property was not, in itself, substandard.'. . . Conversely, if the property can be integrated it is logical to conclude that the acquisition is not essential." Kelo v. City of New London, Superior Court, judicial district of New London, Docket No. 557299 (March 13, 2002, Corradino, J.).
Unlike Pequonnock, where the case does not discuss if the existing land use was precluded by the Plan, the Amended Plan in this case does not allow for a land use of an automobile showroom in the Reed Putnam Area. As of the time the City adopted the Amended Reed Putnam Plan in 1998, Ventures had not yet purchased the Properties. Accordingly, at the time Ventures purchased the Properties it was on notice that the Amended Plan's land uses did not include an automobile dealership. The court has not been provided with and has not found any authority that there is a duty to integrate a business which is not allowed as a permitted land use under an approved Plan.
Since the court has found that the Amended Reed Putnam Plan is reasonable in providing for the Reed Street extension and underpass, and it is essential and appropriate to condemn the Properties for that purpose, the court further finds that the Properties cannot be successfully integrated into the Amended Plan.
The court has not been provided with any legal authority that the Agency has a duty to relocate the plaintiff's business to another location as part of a duty to consider integration.
D. The Agency properly seeks to condemn the Properties for a public purpose.
"It is fundamental that, as an attribute of sovereignty, the state government or any properly designated agency thereof may take private property under its power of eminent domain if the taking is for a public use and if just compensation is paid therefor." Gohld, supra 141 Conn. 141. Public use is broadly defined to include what is "productive of general benefit" so that "any appropriating of private property by the State under its right of eminent domain for purposes of great advantage to the community is a taking for public use." Id. In resolving any issue whether the condemnation is for a public use, "great weight must be given to the determination of the legislature." Id. Public use is equivalent to "public convenience and necessity . . . It means public usefulness, utility or advantage, or what is productive of the public benefit." Peterson v. Norwalk, 150 Conn. 366, 375 (1963).
A public use "defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation . . . Courts as a rule, instead of attempting to define a public as distinguished from a private purpose, have left each case to be determined on its own peculiar circumstances. Promotion of the public safety and general welfare constitutes a recognized public purpose. The modern trend of authority is to expand and liberally construe the meaning of `public purpose.' The test of public use is not how the use is furnished but rather the right of the public to receive and enjoy its benefit." Barnes v. New Haven, 140 Conn. 8, 15 (1953); Katz v. Brandon, 156 Conn. 521, 532-33 (1968). See also Aposporos v. Urban Redevelopment Commission, supra, 259 Conn. 563, and Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. 592, reconfirming these principles.
When a redevelopment agency formulates a plan for the alleviation of blight and takes land pursuant to that plan "it is taking land for a public purpose, namely, the rehabilitation of the area. This public purpose is not affected by the Agency's subsequent resale of the property to private redevelopers with the requirement . . . that the land be used according to the redevelopment plan." Fishman v. Stamford, 159 Conn. 116, 125 (1970), citing Gohld Realty Co. v. Hartford, 141 Conn. 135, 143 (1954). The court finds that the Properties are being condemned for a public purpose.
Conclusion
For all the foregoing reasons, plaintiffs have not proven that the decision of the Agency to acquire the Properties by eminent domain is unreasonable or in bad faith or was an abuse of power. Because plaintiffs have not established the allegations of their complaint by a preponderance of the evidence, it is unnecessary for the court to consider whether plaintiffs have established irreparable harm and lack of an adequate remedy at law. Plaintiffs' claim for temporary and permanent injunctive relief is denied. Judgment shall enter in favor of the defendants.
CHASE T. ROGERS JUDGE OF THE SUPERIOR COURT