Opinion
No. FST CV 07 4010884 S
August 20, 2008
MEMORANDUM OF DECISION RE TEMPORARY INJUNCTION
Background
The plaintiffs are individuals and organizations which own or represent owners of condominium units at 64-84 North Main Street, a commercial condominium building in Norwalk, Connecticut.
The plaintiffs own and utilize a common element of the property, namely, a parking lot containing fifteen spaces. There is no charge imposed by plaintiffs for parking in the lot. At one time there were seventeen spaces in the parking lot.
The defendant, the city of Norwalk, through its Parking Authority and its agents and contractors, operates property as a public parking lot known as the Webster Street Lot. The Webster Street Lot contains about 600 spaces and is immediately adjacent to the plaintiffs' parking lot. The defendant charges for parking in its public lot.
Sometime between July 1969, but before May 3, 1995, the defendant removed a driveway or curb cut which was owned by the plaintiffs and the defendant, from the area where the Webster Street Lot meets the plaintiffs' parking lot. That opening/driveway had previously provided the plaintiffs and their patrons with access to and from the plaintiffs' parking lot onto the public street. It is alleged that the defendant did not have permission from the plaintiffs or the State of Connecticut prior to removing the plaintiffs' driveway.
Since the removal of the driveway, the plaintiffs, their employees and customers have had to access the plaintiffs' parking lot via the defendant's Webster Street Lot. For a time, the defendant did not impede the plaintiffs' access to the condo business lot in question. Sometime prior to December of 2006, the access was regulated by a parking booth for which the plaintiffs were given credits or "clamshells" to access their own lot via the Webster Lot. In December of 2006, the machines were removed and all persons parking in the plaintiffs' lot or the defendant's lot had to pay when exiting the Webster parking lot.
It is alleged that this situation caused a drop in customers for the businesses in the plaintiffs' building.
The plaintiffs filed a complaint in January of 2007. The Amended Complaint of June 3, 2008, seeks Injunctive Relief (Count 1), Declaratory Judgment of Right of Way (Count 2), Inverse Taking (alternatively) (Count 3), Unfair Trade Practices (Count 4), and Constitutional Deprivation (Count 5). The plaintiffs seek injunctive relief, declaratory judgment, damages, fees and costs. The court made a site visit on July 9, 2007. Hearings were held on February 5, February 25, March 3, and April 29, 2008. The parties provided briefs/proposed findings at the request of the court as of June 13, 2008. The plaintiffs' brief was first seen by the court on August 5, 2008.
Law
A prayer for injunctive relief is addressed to the sound discretion of the court. Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 807-08, 894 A.2d 946 (2006). The courts have fashioned a four-part test for the issuance of a temporary injunction. The plaintiffs must prove they have no adequate legal remedy; they will suffer irreparable injury absent the injunction; they have a likelihood of success on the merits; and the balance of the equities favors the temporary injunction. Waterbury Teachers Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). "`Adequate remedy at law' means a remedy vested in the complainant, to which he may, at all times, resort, at his own option, fully and freely without let or hindrance." Wheeler v. Bedford, 54 Conn. 244, 249, 7 A. 22 (1886).
In D'Addario v. Truskoski, 57 Conn.App. 236, 749 A.2d 38, cert. denied, 253 Conn. 918, 755 A.2d 214 (2000), the Appellate Court discussed easements by necessity and by implication. In affirming a decision of the Stamford court, the Appellate Court stated: "The terms easement of necessity and easement by implication seem to have come together in an opinion written in the early part of the twentieth century. `The basis of this right is the presumption of grant arising from the circumstances of the case. Necessity does not of itself create a right . . . but it is evidence of the grantor's intention to convey one, and raises an implication of a grant.' (Internal quotation marks omitted.) Marshall v. Martin, 107 Conn. 32, 36, 139 A. 348 (1927) . . .
"In each of these early cases the court imposed an easement of necessity where the grantor conveyed to the grantee `a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee.' Hollywyle Ass'n, Inc. v. Hollister, 164, Conn. 389, 398-99, 324 A.2d 247 (1973)." D'Addario v. Truskoski, supra, 57 Conn.App. 245.
The legal requirements for an easement by necessity were also discussed in Collins v. Prentice, 15 Conn. 39, 43 (1842). "[T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity need only be a reasonable one." (Citations omitted.) Hollywyle Ass'n., Inc. v. Hollister, 164 Conn. 389, 399, 324 A.2d 247 (1973).
In Marshall v. Martin, 107 Conn. 32, 37, 139 A. 348 (1927), the court explored "whether the necessity required to create a way of necessity must be absolute, without regard to the difficulties of the ground or the expense of obtaining it, or whether it is only a reasonable necessity taking into account all the elements of the situation. The basis of the right is the presumption of a grant arising from the circumstances of the case."
In the Marshall case, the party claiming the easement had access to the road over property of his own, but claimed it would be prohibitively expensive to create a way over that property. Id., 39. The court found an easement by necessity, stating, "[a]lthough there are cases which hold that the way must be one of strict necessity, the weight of authority supports what seems to us to be the better rule — that the necessity need only be a reasonable one." Id., 37.
In determining the creation of an easement by implication, it is necessary to examine the intention whether such an easement is reasonably necessary for the use and normal enjoyment of the dominant estate. McBurney v. Cirillo, 276 Conn. 782, 800, 889 A.2d 759 (2006), overruled on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 289, 914 A.2d 996 (2007). "The law adopted in this state regarding the creation of easements by implication is well established. Where . . . an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership . . . there arises by implication of law a grant or reservation of the right to continue such use." (Internal quotation marks omitted.) Utay v. G.C.S. Realty, LLC, 72 Conn.App. 630, 636, 806 A.2d 573 (2002). In addition, the court stated in McBurney that "in so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the portion granted . . . The reason that absolute necessity is not essential is because fundamentally such a grant by implication depends on the intention of the parties as shown by the instrument and the situation with reference to the instrument, and it is not strictly the necessity for a right of way that creates it." (Internal quotation marks omitted) McBurney v. Cirillo, supra, 276 Conn. 800.
Finally, General Statutes § 14-311(a) provides: "No person, firm, corporation, state agency, or municipal agency or combination thereof shall build, expand, establish or operate any open air theater, shopping center or other development generating large volumes of traffic, having an exit or entrance on, or abutting or adjoining, any state highway or substantially affecting state highway traffic within this state until such person or agency has procured from the State Traffic Commission a certificate that the operation thereof will not imperil the safety of the public." (Emphasis added.)
Discussion
The properties at issue in this case are both subject to the Urban Renewal Plan. (Plaintiffs' Exhibit 13.) The Urban Renewal Plan provides the parking requirement for a redevelopment property adjacent to a municipal parking facility. (Plaintiffs' Exhibit 13, p. 229.) The Urban Renewal Plan also gives commercial redevelopment properties adjacent to a municipal parking facility the right to have their loading area in the municipal facility. (Plaintiffs' Exhibit 13, p. 230.) These rights run with the land. (Plaintiffs' Exhibit 13, p. 230.)
The plaintiffs also submitted a General Construction Plan dated March of 1965. (Plaintiffs' Exhibit 10.) That drawing shows a twenty-two foot wide concrete driveway ramp in existence on the date of the map. (Plaintiffs' Exhibit 10.) The driveway opened from the redevelopment area onto Flax Hill Road, which is now Dr. Martin Luther King Jr. Drive. (Plaintiffs' Exhibit 10.)
On June 4, 1965, the defendant entered into a Redevelopment Disposition Agreement ("RDA") under which it conveyed certain property to the plaintiffs' predecessor in title, David Katz Sons, Inc. ("Katz"). The old driveway ramp existed before the conveyance to Katz. The RDA prohibits building on the rear portion of the conveyed property. (Plaintiffs' Exhibit 14, p. 643.)
The plaintiffs' expert civil engineer, Marc Goodin, drew the boundaries of the plaintiffs' property onto the plaintiffs' exhibit ten, thus creating the plaintiffs' exhibit eleven. The result reveals that the boundary between the plaintiffs' property and the defendant's properties bisects the old driveway shown in the plaintiffs' exhibit ten. Most of the driveway belongs to the plaintiffs' property. (Goodin Transcript, March 3, 2008, pp. 32-33.) Goodin measured the same distances, and came to the same conclusion on the plaintiffs' exhibit twelve, an As Built Survey, dated 1969. (Goodin Transcript, March 3, 2008, pp. 41-43.)
Katz completed the redevelopment project as required in the RDA, which was the construction of the ten-unit building. Katz filed a Declaration of Common Ownership on July 31, 1979, which is the plaintiffs' exhibit four. Articles VII and VIII of the Declaration provide that each unit includes a share of the undivided interest in the common areas. The parking lot is a common area of the condominium.
Domenic Sammarco, Condominium Association president, testified that he has been familiar with the property since 1984; along with the other owners and their customers, Sammarco regularly used the common driveway for access to the plaintiffs' parking lot. (Sammarco Transcript, February 25, 2008, pp. 50-51.) The plaintiffs have never charged for the use of their parking lot as a commercial lot, and it is not their intent to use it as a commercial lot. It has been their intention to provide free parking in their lot to persons doing business at their building. (Sammarco Transcript, February 25, 2008, pp. 48-49.)
The defendant removed the common driveway without notice or compensation to the plaintiffs at some time after 1984. (Sammarco Transcript, February 25, 2008, p. 51.) The defendant's counsel stated on the record that "[t]hat driveway curb cut was closed off by the City . . ." (Transcript, July 9, 2007, p. 11.) Goodin testified that the driveway was not there in 1986. (Goodin Transcript March 3, 2008, p. 28.)
Since the defendant's removal of the mutual driveway, the only vehicle access to the plaintiffs' parking lot is through and over the Webster Street Lot. (Sammarco Transcript, February 25, 2008, p. 56.) The defendant's response to the plaintiffs' Request for Admissions, in item twenty-three, stated in part that "[t]he only access to those spaces that has existed since the condominium was declared has been through the municipal parking lot." While the plaintiffs assert the removal was later, the defendant has admitted the continued use of the Webster Street Lot by the plaintiffs and the lack of other access.
After removing the driveway, the defendant did not impede the plaintiffs' access until the installation of a booth. Even after that installation, the City minimized the impediment by giving the plaintiffs parking validation machines, called "clamshells." In December of 2006, the defendant unilaterally removed the machines. (Sammarco Transcript, February 25, 2008, pp. 57-58.) After the machines were removed, all persons parking in the plaintiffs' lot had to pay to exit the parking lot. This allegedly caused a drop in the number of customers for the businesses in the condominium building. (Sammarco Transcript, February 25, 2008, pp. 58-59); (Hilleman Transcript, March 3, 2008, pp. 53-68.)
The plaintiffs' parking lot is bounded on one side by the street. Goodin testified that a new driveway leading from the plaintiffs' lot onto the street would not be safe or lawful. Goodin explained that the plaintiffs' lot would be treated as one with the Webster Street Lot, totaling over 600 cars. Under § 14-311(a), "large volumes of traffic" means more than 200 cars. He also testified that "substantially affecting state highway traffic" means having proximity to state and interstate highways. In his opinion, despite the fact that the plaintiffs' lot is small, it would be subject to the § 14-311(a). The combined size, together with the proximity of Interstate 95, State Route 1 and State Route 136, would substantially affect traffic. It is claimed that these facts trigger the jurisdiction of the State Traffic Commission over the creation of any driveway leading from the plaintiffs' lot. (Goodin Transcript, February 25, 2008, pp. 33-36.)
In his expert opinion, Goodin testified that the State Traffic Commission would not allow a new driveway because it would not be able to meet state and local standards. Among other reasons, Goodin testified that the exiting sight lines and the intersection sight lines at that location are inadequate and dangerous even under the most conservative local rules. In addition, the stopping sight distance is inadequate and dangerous. The proximity of the proposed driveway to the light at the intersection of North Main Street and Dr. Martin Luther King Jr. Drive would cause traffic to queue past the driveway. According to Goodin, the service level would be unacceptable. The time needed to exit would exceed design standards. (Goodin Transcript, February 4, 2008, pp. 21-35.) The congestion that occasionally exists at that intersection, would exacerbate all of these problems.
Goodin testified that if a driveway were built in compliance with radius and width requirements, the plaintiffs' lot "[i]s not wide enough to accompany those three items, the radius, the width of the driveway and the parking spaces . . . You would lose all fifteen spaces." (Goodin Transcript, February 4, 2008, pp. 31-32.)
The plaintiffs claim they have an easement by necessity and/or implication. They argue that defendant created a common driveway by its conveyance to Katz. Thus, the defendant created the implication of mutual rights of way in the common facility. Later, the defendant created the necessity by unilaterally removing the common facility. The plaintiffs' parking lot is effectively landlocked though the actions of the defendant. Under present day state and local rules, a new driveway cannot be built. Present day standards would cause all of the parking spaces to be lost, so that a new driveway would be of no utility. The RDA prohibits building on the rear portion of the plaintiffs' property. It cannot be accessed for parking except through land of the defendant, as it has been since the defendant created the common driveway. Absent a right of way to free unimpeded street access, the plaintiffs are deprived of the beneficial use of the property. Under these circumstances, an easement by necessity is well within the legal standards set out in Marshall and Hollywyle.
The facts of this case also support a finding of an easement by implication. The common driveway existed before the defendant's conveyance to Katz. The property is subject to the conditions in the Urban Renewal Plan, which gives the plaintiffs the right to use the adjacent municipal parking facility for loading, sets out the required amount of parking for such adjacent owners. These rights run with the land. By creating the common ownership of the driveway as part of its redevelopment activity, the defendant set in motion an apparently permanent and obvious servitude for itself as well as for Katz over each other's property for the purpose of vehicle access to the street, and other purposes. Once the defendant removed that mutual facility, it allowed unimpeded access across the Webster Street Lot from 1986 until 2006. Upon the introduction of the booth, defendant recognized the plaintiffs' right of access by providing the clamshell devices. All of these actions by defendant support the implication that at the time of the redevelopment of the property, the defendant's intention was to provide a right of way to the owner of the subject property.
Conclusion
The plaintiffs have shown they have a right to an easement by implication and by necessity to cross over the defendant's lot without impediment, and to determine whether they will charge their visitors or not for parking in the plaintiffs' lot. The defendant conveyed property with a mutual driveway under a redevelopment plan, then removed the driveway without notice or compensation. Construction of a new driveway would not be possible under present day applicable law. The defendant recognized the plaintiffs' access rights in the form of validation machines, then removed the machines. Absent injunctive relief, the plaintiffs have no adequate remedy at law. No other remedy will restore to the plaintiffs their right to offer their parking lot free of charge to their customers, or their right to free and unimpeded access from their lot to the street.
The plaintiffs have a likelihood of success on the merits. They have demonstrated that their parking lot has been effectively landlocked by the actions of the defendant. They have demonstrated the elements of easements by implication and by necessity. The equities favor the temporary injunction.
The defendant has been the principal architect of this problem. Since the defendant will not voluntarily solve the problem it created, the court will order it to do so. A temporary order will not require the defendants to suffer any additional traffic over their lot than has been generated for many years by the plaintiffs' property. The only loss that the defendant will incur will be the loss of parking fees from the plaintiffs and their visitors which the defendant has no right to collect.
Order
Temporary injunction granted. The defendant must allow free access to the plaintiffs' lot over the land of the defendant until further order of this court.
So ordered.