Opinion
No. CV 09-501394S
January 20, 2010
MEMORANDUM OF DECISION RE REQUEST FOR TEMPORARY INJUNCTION (#100.35)
PROCEDURAL BACKGROUND
This action was filed by writ, summons and verified complaint dated November 12, 2009. An ex parte temporary restraining order was entered by the court, Adams, J., on November 18, 2009 enjoining the demolition, removal or destruction of the property referred to as the St. Andrew's Rectory (rectory). The rectory is listed on the National Register of Historic Places. The rectory is only one of the buildings in the complex of St. Andrew's Protestant Episcopal Church (St. Andrew's) located at 1231 Washington Boulevard, Stamford, Connecticut. The church building is also listed on the National Register of Historic Places. Other than the fact that the buildings are owned by St. Andrew's, the historic nature of the buildings are unconnected. The plaintiffs named two separate defendants, St. Andrew's and RMS Washington Boulevard, LLC (RMS). A hearing for the temporary injunction was scheduled before this court on December 14, 2009. The court allowed counsel to present testimony and evidence on this date. The court conducted the hearing of this matter on a number of separate dates, December 18, 23, 30, and 31, 2009 and January 5, 6 and 7, 2010.
The court allowed counsel to file simultaneous memoranda and set a filing date of January 13, 2010 at the close of business. The parties have submitted memoranda of law to the court.
FACTUAL FINDINGS
The building that is the subject of this action is the former rectory for the Parish of St. Andrew's located in Stamford, Connecticut. It is believed that the structure was designed by the noted architect Henry Holly Hudson and built in the 1870s. It is one of the remaining examples of the Henry Holly Hudson Victorian architecture of the period. Sometime in 1983, St. Andrew's agreed to have this building along with the church building placed upon the National Register of Historic Places. (Defendant's Exhibits [Exhs.] D and E.) This was done in part to make available "opportunities for saving the rectory by unlocking avenues to grants and advantageous tax treatment." (Defendant's Exh. D.) St. Andrew's Parish has not received any assistance to recognize the historic nature of the rectory. For a number of years, the parish has been under a financial strain. In May 2007, Father Alton accepted the assignment to the Parish of St. Andrew's. Prior to his work at St. Andrews, he had experience working with financially distressed churches. He was successful in assisting a financially distressed parish located in Philadelphia. Since his assignment at St. Andrew's, he has been involved in the task of balancing the many needs of the parish with the limited resources available. The November 2009 income and expense report indicates that the year to date income is $244,241.52 and the expenses are $267,820.52. (Defendant's Exh. H.) The income includes $20,000 per month paid by the defendant, RMS, as a part of the agreement to purchase the property at issue.
The operation of the parish involves more than the use and maintenance of the rectory. There is a parish church that dates back to the 1860s and is also of historical significance. In addition, there is a building that is called the parish house that is utilized as a school building with a Creative Care Nursery School, a daycare program, and the Alternative Routes to Success (ARTS) as a program for school children in the Stamford School System, and various neighborhood programs including Alcoholics Anonymous along with other church related functions. The rectory building has not been utilized as a rectory since 1999. In May 2007, when Father Alton arrived, he learned that a homeless person was living in the rectory house and because of safety and other concerns Father Alton asked him to leave. The rectory as it exists today is not safe for any use whether residential or offices. The windows have been boarded up and the electrical and heating systems have been shut off.
After his arrival in 2007, Father Alton attempted to address the concerns of the maintenance and use of the parish buildings by recommending to the vestry that the parish hire an architect to perform an assessment of the church property. The architect hired was Mr. Peter Jennewein. His duties were to review and inspect the facilities and provide a master plan to address all of the structural and maintenance concerns for all of the parish buildings including the rectory. Mr. Jennewein was diverted from the task of a long-term plan because he was confronted with emergency projects and code violations in various buildings including a building code violation in the building that is used for the daycare program. This required his immediate attention.
As part of the overall assessment, Mr. Jennewein did an inspection of the former rectory, not only because of the emergency repairs but because it was part of the overall investigation to determine what renovations were necessary to address the use of the rectory. At some point, Mr. Jennewien was also involved with the investigation of the possible relocation of the rectory.
During this entire time period, Father Alton was involved in finding ways to keep the parish fiscally sound as well as addressing the maintenance and structural concerns of the buildings. The parish received an offer from The Alliance Group, LLC, to build an office on the site where the rectory is located. This arrangement included, at some point, the incorporation of the rectory into an office project by relocation. However, this project collapsed according to Father Alton with no definitive explanation as to why.
When the Alliance agreement failed, the parish with the help of their attorney Mr. Frank Baker approached Randall Salvatore from RMS Washington Boulevard, LLC (RMS) to determine if his business had any interest in developing the property where the rectory is located. These discussions took place sometime in February 2009. By April 2009, the parties entered into an agreement which would permit RMS to purchase the property. This purchase agreement was a purchase with a lease provision. (Plaintiff's Exh. 2.) This lease includes extensive provisions regarding the method of payment to the parish. Additionally, Section 7.4 of the lease states: "Rectory Relocation and Upgrade. (a) Tenant shall, within, eighteen (18) months after the Commencement Date (unless extended by mutual written agreement), commence the process to relocate or reconstruct the rectory and any necessary utility and municipal service lines (together, the "Rectory Relocation") to the location on Landlord's abutting property as specifically shown on Exhibit "D" attached hereto . . . In conjunction with the Rectory Relocation, Tenant shall upgrade or reconstruct the rectory ("Rectory Upgrade") in accordance with the specifications generally described in Exhibit "E" attached hereto. Landlord and Tenant, and representatives of each, if any, shall, within thirty (30) days after the Commencement Date and on a mutually agreed ongoing basis thereafter, meet to determine the exact scope of work and budget necessary for the Rectory Relocation and Rectory Upgrade . . ."
The parish through its' representatives and the representatives from RMS met on a number of occasions to discuss the relocation and restoration of the rectory.
During the course of the ongoing negotiations with RMS, St. Andrew's investigated the relocation of the rectory and requested proposals for different locations from Nicholas Bros. to move the rectory. Two of the sites were in the immediate area of the present location of the rectory and the third was off-site. For various reasons, none of the sites were suitable for the relocation of the rectory. The cost of the relocation ranged from originally $325,000 to $400,000. This cost does not include the excavation needed for the building, the removal of the front porch, the removal of the fire escape, the removal of the old foundation and a special carrier policy determined by the value of the building. (Defendant's Exh. N.) Nicholas Bros. did not provide a proposal for the proposed off-site relocation because a narrow bridge would not allow sufficient space for their equipment to move the rectory to the location. The proposal for an off-site move will cost substantially more than the $400,000 proposed by Nicholas Bros. because there are additional tasks and expenses involved such as tree cutting or temporary relocation of utility lines and additional equipment to move the structure.
In preparing for the performance of the RMS agreement, Mr. Jennewein received the assistance of Mr. Lynn Temple from Turner Associates to estimate costs. Mr. Temple is a project manager and senior estimator who has gained experience by working directly in the field and spends ten to fifteen percent of his work providing estimates for work to be done on older buildings. In December 2009, he completed an inspection and assessment of the rectory and provided two reports outlining the estimated costs and work necessary to restore and renovate the rectory. (Defendant's Exhs. B and C.) The first analysis was for the renovation as a residential building and the second analysis was for a renovation as a commercial building. Neither of the estimates included the costs of relocation. His estimate for the cost of restoration to use as a residential building is $1,584,000. His estimate for the cost to restore and use as a commercial building is $2,177,000.
As a result of the figures for restoration and the roadblocks to relocating the property, the defendants decided that is not feasible to save the rectory if the project with RMS is to go forward. The RMS project is a four-floor, ninety-four-unit residential building that will overlap with 50 percent of the land now occupied by the rectory.
The plaintiffs have provided testimony from Mr. Richard Bergmann and Mr. James Grant concerning the structural components of the rectory and the costs for the restoration. Mr. Bergmann, who is an architect with a background in historical renovations, offered his opinion regarding the costs to renovate based upon his work experience. His estimate for the repairs and renovation he deems necessary after his inspection of the building is approximately $500,000. Mr. James Grant, a structural engineer, has examined the building and found it to be in good condition. After conducting a brief inspection, he concluded that there are no structural impediments that would prevent the defendants from moving the building to another site.
Throughout the time of this litigation, St. Andrew's has been searching for a way to preserve the rectory. Both defendants contacted officials from the city of Stamford. The new mayor was recently approached in an effort to obtain assistance from the city of Stamford. In response to the latest inquiry, the city through correspondence outlining its review and considerations, declined any involvement in helping the church. In doing so, the Director of the Office of Economic Development, Mr. Michael Freimuth, cited many reasons why such assistance could not be provided including the financial hardship, the difficult and expensive relocation costs, the sustainability without an endowment to underwrite the costs for operations including utilities, security, maintenance and long-term capital needs. Mr. Freimuth summarized the City's efforts and position as follows: "There has been quite a bit of effort at the municipal level to come up with solutions for St. Andrews and its cottage over the last few years. Unfortunately, these efforts at the planning department level as well as at the zoning board have not been fruitful as they have confronted many of the problems noted above. The situation at the moment is even less favorable as dollars are tighter than ever and there is no clear relocation site (even the overall church site is no longer an option due to parking, day care and new construction plans as approved this past summer). In spite of all these efforts including those of the recent weeks, a viable long term plan remains difficult to secure." (Defendant's Exh. T.)
Further efforts by St. Andrews have continued up to and after the defendants made a decision to demolish. There were discussions with the Mill River Collaborative and also the University of Connecticut. St. Andrews has also offered to quit claim the rectory to any private citizen or group interested in taking the rectory for $1.00 if they are willing to undertake the cost of relocation and restoration. (Defendant's Exhs. D and T.)
The defendant, RMS, through its president, Randall Salvatore, has spent time talking to people about doing something with the rectory building. Mr. Salvatore testified that he has been involved in successful preservation efforts on other projects but he cannot get anyone to step in to help. Mr. Salvatore testified that if the rectory stays on the site he cannot go forward with his project. Even though he has already invested about $500,000 he will abandon the project.
The application for the use of the property including the intention to demolish the rectory has been the subject of public hearings before the zoning board of the city of Stamford. All approvals have been granted, and the defendants have received a permit for demolition. The demolition was to take place after the mandatory waiting period, which was scheduled for December 1, 2009. The plaintiffs filed an ex parte request for a temporary injunction that was granted and scheduled for a hearing date on December 14, 2009.
The plaintiffs are a non-profit organization that was incorporated in September or October 2009. To date, the organization has two donors, one of whom has donated $100,000 to be used to "assist in its efforts to preserve and protect the rectory of St. Andrews Episcopal Church located at 1231 Washington Boulevard in Stamford, Connecticut." (Plaintiff's Exh. 8.)
At the hearing conducted by the court, the plaintiffs presented testimony from a structural engineer regarding his inspection of the property to determine structural integrity and some of the costs related to the restoration. They also elicited testimony from Mr. Bergmann concerning his involvement in historic structures such as the Lockwood Mansion and his analysis of the restoration of the property. Mr. DeNicholas of Nicholas Bros. also testified about the three contacts to provide estimates for the relocation of the building, including one unworkable off-site location. The defendants introduced testimony from Father Alton and Ms. Wabuda about the church finances and efforts to preserve the rectory as well as from Mr. Jennewein and Mr. Temple concerning the structural and restoration aspects of the rectory.
LEGAL DISCUSSION
The plaintiff has filed this action to prevent the demolition of the rectory that was listed on the National Register of Historic Places pursuant to General Statutes § 22a-19a. This section provides in pertinent 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 ( 16 U.S.C. § 470a, as amended) or (2) which are a 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."
This statute permits the preservation of historic properties. Courts have utilized a statutory analysis to determine whether an injunction should be entered. The first consideration by this court is whether a prima facie case has been made by the plaintiff that the property is a historic listing and whether the plaintiff proves that the effect that the "defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state . . ." General Statutes § 22a-17. Upon the making of a prima facie case, the burden of production shifts to the defendant. The defendant may rebut the showing of unreasonable pollution or destruction. If the plaintiff has satisfied this burden and there is not sufficient evidence by the defendant to rebut such a finding, the burden then shifts to the defendant to prove their affirmative defense that "considering all relevant surrounding circumstances and factors, there is [no] feasible and prudent alternative" to the intended demolition. General Statutes § 22a-19.
The defendant argued that the standard for injunctive relief recognized in our courts, that is, irreparable injury, probability of success and the balancing of the equities, applies in the present action. The plaintiff has argued in its memorandum that this is not the standard. The court agrees with the plaintiff. In an action that is premised upon a statute authorizing injunctive relief, the applicant does not need to prove irreparable harm if that applicant has established a prima facie case under the statute. Connecticut Historical Commission v. 89 Main Street Associates Limited Partnership, Superior Court, judicial district of New Britain, Docket No., CV 88 352822 (January 20, 1989, Freed, J.) 4 C.S.C.R 208, 209; Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984); Connecticut Historical Commission v. 250 Waldemere Avenue Associates, Superior Court, judicial district of Fairfield, Docket No. CV 86 232984 (March 6, 1987, Jacobson, J.).
The court heard testimony and received evidence over a period of eight days from the parties in an effort to determine whether, based upon the totality of the testimony and evidence, and consistent with the burden of proof, a temporary injunction should issue. In this regard, the court carefully observed the witnesses and exhibits and listened to the testimony of each of the witnesses including a number of experts from each party as to the factors involved with the demolition and whether there are feasible and prudent alternatives to the demolition of this building.
A. STATUTORY BURDEN OF REASONABLENESS
The plaintiff has the burden to demonstrate that it has satisfied the statutory requirements for granting of the injunction. The court follows two separate superior court decisions that have established the standards to be applied in determining if the temporary injunction should be granted. Norwalk Preservation Trust, Inc. v. Norwalk Inn and Conference Center, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 07 4010609 (February 6, 2008, Nadeau, J.) [ 44 Conn. L. Rptr. 872]; Connecticut Historical Commission v. 250 Waldemere Avenue Associates, supra, Superior Court, Docket No. CV 86 232984. Each of these decisions have opposite results but provide the proper analysis to review the testimony and evidence as it applies to this request for a temporary injunction. The court weighed the specific facts, testimony and evidence presented to determine whether this building satisfies the statute for preservation of a historic building and if so, is the conduct of the defendant "reasonably likely . . . to . . . impair or destroy the public trust in a historic structure." General Statutes § 22a-17. Although the plaintiff introduced minimal evidence of the historic nature of the rectory and the significance of the site, the court finds that the testimony and evidence satisfies the plaintiff's burden. The defendant introduced into evidence exhibits that demonstrate the inclusion of the property as a historic site in 1983. (Defendant's Exhs. D, O, and T.) Clearly, the proposed action of the defendant to demolish the building will destroy it. Therefore, the plaintiff has met its legal burden of establishing a prima facie case. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 441 A.2d 68 (1981).
B. FEASIBLE AND PRUDENT ALTERNATIVES
Once a prima facie case is shown by the plaintiffs, the burden of proof shifts to the defendants. General Statutes § 22a-17, Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 60. The defendants have pled the affirmative defense and submitted testimony and evidence in an attempt to demonstrate that "there are no feasible and prudent alternatives to its conduct and that such conduct is consistent with the reasonable requirements of the public health, safety and welfare." General Statutes § 22a-17. There is no established criteria as to what is a feasible or prudent alternative. Norwalk Preservation Trust, Inc. v. Norwalk Inn and Conference Center, Inc., supra., Superior Court, Docket No. CV 07 4010609.
In evaluating the position of the parties as to whether there is a "feasible and prudent alternative," the court examined each of the specific factors set forth by the parties including: 1) the condition of the building for purposes of relocation; 2) an available and suitable site for relocation of the building; 3) the overall physical and structural condition of the building; and 4) the costs and the adaptability of the building for other uses (including an assessment of the costs and funds available for the renovation, conversion and maintenance of the building).
The parties have diametrically differing views as to whether there are feasible and prudent alternatives for the restoration, relocation or use of the former rectory. The one fact that all parties agree to in theory is that the rectory, as it now stands, is not usable. There has been a great deal of testimony as to the physical condition of the rectory and the safety of the building for any use. All parties agree that work is necessary, although they disagree as to the extent and costs associated with the work necessary to restore the building to any use.
"Feasible" means "as a matter of sound engineering" or those that do not present unique problems. (Internal quotation marks omitted.) Manchester Environmental Coalition v. Stockton, supra, 184 Conn., 62, (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 410 U.S. 402, 411, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). "Prudent" alternatives are "those which are economically reasonable in light of the social benefits derived from the activity." Id., 63. While economics may not be of paramount importance to this determination, cost may be considered in deciding what is "prudent." Id., 62-63.
1. CONDITION OF THE BUILDING FOR RELOCATION
The condition of the building and the capability of moving the building to another site was greatly disputed by the parties. The plaintiff's expert, Mr. James Grant, contends that the building is structurally sound and could be moved without concern for the destruction of the building itself. The defendant's expert, Mr. Peter Jennewein, who is not a structural engineer, opines that the building is in extreme disrepair and has severe and extensive damage caused by water that may have created an unstable condition, which could cause great damage and even total destruction if the building is moved to another location. Mr. Jennewein included as background information to support his opinion the report of Mr. Joseph Pellicione, a structural engineer, who stated, "Any attempt to re-locate this building could cause extensive damage to the plaster ceilings, walls and to the stone veneer." (Defendant's Exh. N.) This opinion provided in July 2009 does not state that the building will collapse. In fact, although this is the position of Mr. Jennewein, he also testified that a more detailed structural analysis should be done before attempts to move the building are made. He estimated, this further analysis would cost approximately $25,000. The plaintiff's expert, Mr. Grant, testified that based upon his forty-five minute inspection he believed the building was sound and safe to move. Mr. Grant testified that he does not believe there is a need for further review as to the structural integrity of the rectory, but if this were undertaken, the estimated cost is approximately $4,000.
The defendants submitted a number of photographs that depict water damage, mold, mildew, cracks and other difficulties but there was no specific evidence of a structural deficiency that would cause the building to collapse. (Defendant's Exh. U1-31.)
Of great significance in determining the capability for movement of the rectory, is the testimony of the expert in the field of moving buildings, Mr. John DeNicholas. Mr. DeNicholas is the president of Nicholas Bros. and has been in the business of moving buildings for 26 years. The court finds his testimony to be highly credible, not only because of his many years of experience but also his independence as a witness in this matter. He provided a strong opinion that the rectory could be moved to a new location without collapsing. He testified that he would guarantee the move without a collapse. This weighs heavily in support of a finding by this court that the rectory can be moved.
A determination that the rectory could be moved is not, however, a finding that there are feasible and prudent alternatives. Other factors related to the availability of a location, as well as the condition of the building and the costs and adaptability of the rectory demonstrate that there is not a feasible and prudent alternative in this case.
2. AVAILABLE AND SUITABLE SITE FOR RELOCATION
While concluding that the building may be capable of relocation, the defendants have argued that there is no appropriate site for relocation. The testimony and evidence demonstrates that the defendants have actively pursued a number of sites for relocation in an effort to save the rectory. The defendant, St. Andrew's, has provided convincing evidence and testimony that there is not a feasible relocation alternative for the rectory. In his testimony, Father Alton relayed the efforts of St. Andrew's to find a suitable site for relocation. The original plan was to relocate it to a site within the property owned by St. Andrew's. The most recent agreement for the sale of the parcel with the rectory includes a specific provision to relocate. (Plaintiff's Exh. 2.) Upon a complete review of proposed sites, St. Andrew's learned that none of the sites were suitable because of differing problems aside from the significant costs to relocate and then restore. These included difficulty with the ground conditions that would not suit relocation, zoning issues, costs and adaptability issues if relocated and the inability to physically relocate. The failure to relocate the building on its own did not end the inquiry of St. Andrew's. There is testimony and evidence that efforts were made to gain interest in the rectory. Ms. Renee Kahn met with a representative from the Mill River Collaborative to ask that they move the rectory. That did not yield any positive result. Mrs. Goldstein, a member of the Mill River Collaborative, stated at the July 27, 2009 public zoning hearing that the Collaborative would not be able to move the rectory to the Mill River Park and that "the Collaborative had no funds to move and restore the building." (Defendant's Exh. O.) Mr. Jack Condlin from the Stamford Chamber of Commerce commented at the same hearing that "he had participated in putting a number of downtown properties on the National Register, but that it had not proved to be beneficial." He also indicated that the University of Connecticut was contacted to determine if they had any use for the rectory and the university had no interest. (Defendant's Exh. O.) Lastly, having failed in its efforts to relocate the building, the defendant offered the rectory for $1.00 to "any citizen, non-profit organization or commercial venture willing to move it off-site." (Defendant's Exh. D.) Needless to say, there were no offers to take the rectory. (Defendant's Exh. T.)
The city of Stamford was also approached and declined any assistance including the relocation of the rectory. (Defendant's Exh. T.) The defendants have demonstrated that these multiple efforts support their defense that relocation is not feasible.
With all of this testimony and evidence, the plaintiffs rebut the testimony and the evidence of the defendants by presenting the testimony of Mr. Bergmann that the building can be relocated. Mr. Bergmann also testified that the present location is the best alternative because of its placement and aesthetic appearance on Washington Boulevard. In support of his suggestion to move it to the site that is being considered for Holly House, neither Mr. Bergmann nor the plaintiff provided any plans, documents, or other evidence that a relocation at this site is feasible. The mere suggestion that the rectory could be relocated to this site is speculative. Other than the suggestion of Mr. Bergmann there is no testimony or evidence to demonstrate that the site is appropriate for the placement from an aesthetic, zoning and engineering respect. Additionally, the Plaintiff ignores the cost and use aspects of the relocation and restoration by arguing the costs are similar to Holly House. This is simply not the evidence that was before this court. Assuming there is a relocation of the rectory on this site or any site, the testimony and evidence clearly demonstrates that the cost to the defendant, St. Andrew's, is not similar to the cost of a new parish center, the Holly House. The costs to restore at the very least are more than the $500,000 estimated by Mr. Bergmann. However, based upon the lack of supporting documentation and complete analysis, the court does not give deference to this figure. The court accepts as credible the estimate of Mr. Temple for $1,584,000. This cost does not include the partial proposal for the move by Nicholas Bros. The cost provided by Nicholas Bros. is $400,000 without including costs for the foundation, porch and fire escape removal and special carrier insurance. The estimate for the foundation alone is $150,000. Therefore, when accounting for these costs, the projection of a cost to relocate a building that does not fit the needs of the parish is approximately $2,184,000.
There were also a number of other factors noted by Father Alton with placement of the rectory at this site, including the cost differential of estimates of $900,000 to $1,000,000 versus $1,400,000 to $2,000,000; and the space needed for the rectory would take up 7 parking spaces as well as it would be larger and more conspicuous because of the greater height; and not offer the same or needed handicap accessibility as well as the other obvious distinctions.
The defendants have satisfied their burden of demonstrating to the court that there is no feasible alternative for relocation of the rectory at this time. The plaintiff failed to offer evidence or testimony that rebuts this finding.
3. OVERALL PHYSICAL CONDITION OF THE RECTORY
All of the parties agree that the rectory as it now exists is not in a habitable condition. The degree of disrepair is disputed. The rectory has not been used as the parish rectory since 1999. Since that time the parish at one point allowed a homeless man to stay in the rectory but Father Alton asked him to leave in 2007 because he was concerned with safety and legal issues as a result of the condition of the building. The rectory has not been maintained except for some emergency roof repair to address leaking. The photographs introduced by the defendants depict a building that has water damage, a slate roof that needs to be repaired or replaced, a basement that has obvious water damage, a non-functioning furnace and heating system that needs to be replaced, an outdated electrical system, plumbing that needs to be replaced, floors that in some areas have been damaged by the water, cracks in the plaster and the walls, peeling paint, a porch that is falling off the house, a fire escape that is rusted and needs to be removed, stone work that at a minimum needs repointing and overall disrepair. (Defendant's Exhs. L1-16 and U1-32.) The July 8, 2009 written report of Mr. Joseph Pelliccione states: "The building has been in a state of disrepair for many years and extensive work is required to bring the structure into conformance with the current building code requirements. All mechanical, plumbing and electrical systems appear to be beyond repair . . . Failed mortar joints have allowed water to infiltrate the building. Roof leaks are visible on the third floor ceiling and walls. The extent of damage to the roof and wall framing behind the plaster walls could not be observed. Moisture and mildew has permeated the basement and first floor framing. The exterior wood trim on the building has rotted." (Defendant's Ex. N.) This report is consistent with the photographs presented by the defendants of the interior and exterior of the building. (Defendant's Exhs. L1-16 and U1-31.) The report also paints a picture of a building that is not easily brought up to code. The conclusion of Mr. Pelliccione that, "it may not be economically feasible to restore or re-locate the building" is consistent with much of the testimony and evidence before this court. (Defendant's Exh. N.)
The plaintiffs' experts testified that their investigation and examination revealed a building that was in good repair and in fact refused to concede that there was any major interior disrepair. This testimony is contrary to the physical disrepair that the photographs depict. Their refusal to recognize even some of the most basic destruction leads the court to question their opinions as to the restoration. Their investigation was performed during the course of this hearing and it would appear reasonable there would be more visible signs of disrepair.
This testimony and evidence are similar to the facts found in Connecticut Historical Commission v. 250 Waldemere Avenue Associates, supra, Superior Court, Docket No. CV 86 232984. The court after finding conditions of total disrepair requiring restoration that would cost $1,519,000 weighed against restoration as a "prudent" alternative. This court finds that 250 Waldemere Associates controls the finding of this court that the conditions of the rectory coupled with the findings as to the costs and impact upon the owner of the property weigh against restoration as a prudent alternative.
4. THE COSTS AND THE ADAPTABILITY OF THE BUILDING
The defendant's arguments concerning their financial difficulties are interwoven with the restoration possibilities including the condition of the building with its damage and structural soundness, the financial commitment that is necessary to address these issues, and the ongoing financial distress of the defendant. The financial barriers presented to the court by the defendant are significant. One of the questions, in this regard, for the court, is whether the costs are so overwhelming for the proposed use that the restoration and thereafter the continued maintenance substantially prevents the restoration, relocation or the combination of the two such that there are no feasible and prudent alternatives. In Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 63, the court stated: "Cost may be considered in deciding what is prudent. A mere showing of expense, however, will not mean that an alternative is imprudent. To do so would eviscerate the EPA." Id., 63. The evidence and testimony in this action goes beyond the sheer magnitude of the costs but, as stated above, is interwoven with the operation of the parish within the community and also the insurmountable financial debt that may lead to the closing of the parish to all its members as well as the community. Therefore, in examining the estimated costs for relocation, renovation or restoration, and maintenance, this court recognizes different concerns than were expressed in Norwalk Preservation Trust, Inc. v. Norwalk Inn and Conference Center, Inc., supra, Superior Court, Docket No. CV 07 4010609 or other similar cases where the costs were raised as a defense to permit the demolition. In this respect, all parties seem to agree that there are not unlimited resources available to address the needs of the rectory. If this were so, this court would not be faced with the dilemma of whether the defendants can proceed to demolish the building. In fact, if finances were not at issue, St. Andrews would not be involved in selling the property at all. The testimony of Father Alton clearly establishes that the dismal parish finances prevent not only paying the month to month expenses but prevent renovating or repairing the rectory. (Defendant's Exh. H.) The lack of adequate funds for mere existence of the parish are the driving force behind the need to sell this property upon which this building is located. It is clear from the testimony in this matter, that the defendant, St. Andrews, did not initiate this action in order to make a profit as was the background in Norwalk Preservation Trust, Inc., v. Norwalk Inn and Conference Center, Inc., supra. Superior Court, Docket No. CV 07 4010609. The testimony and evidence offered in this matter are very different than the facts before the court in either the Norwalk Preservation Trust, Inc v. Norwalk Inn and Conference Center, Inc., supra, Superior Court, Docket No. CV 07 4010609 or the Connecticut Historical Commission v. 89 Main Street Associates Limited Partnership, supra, Superior Court, Docket No. CV 88 352822. The factual scenario presented in Norwalk Preservation Trust, Inc v. Norwalk Inn and Conference Center, Inc., involved a very different rationale. Id. The defendants in Norwalk Preservation Trust purchased the property for the express purpose of demolishing the building and replacing it with new upscale luxury hotel rooms to increase the business. Id. There was never any consideration of preserving the building. Id. The financial consideration, unlike the instant action, did not involve the collapse or disruption of an essential community organization, if the project did not succeed. Id. In Connecticut Historical Commission v. 89 Main Street Associates Limited Partnership, the defendants were enjoined from demolition when the estimated costs to a private owner were 1.5 million dollars. Connecticut Historical Commission v. 89 Main Street Associates Limited Partnership, supra, Superior Court, Docket No. CV 88 352822. The distinction in 89 Main Street is that the plaintiff offered a financing proposal utilizing federal tax credits to enable rehabilitation of the building which the defendants refused. Id. The defendants in 89 Main Street did not demonstrate the impact upon them and others like the financial devastation that will occur to the entire parish in this action, if they were unable to proceed with a sale that included the demolition of the property. Id. The credible testimony presented in this action supports a finding that the defendants entered into the agreement not only with RMS but originally with another developer to provide the necessary funds to survive and to serve the Stamford community. The defendants in Norwalk Preservation Trust were attempting to make the most profit possible by adding enough rooms to make it economically a winner. The defendant, St. Andrews, is not selling the property to make a profit or to make more of a profit as the defendants attempted in each of the above cases. Here, the sale was part of an overall plan to reduce costs to the parish and obtain funds to be able to continue with their work in the city of Stamford. The financial difficulties of the parish were the impetus for the decision to try to sell some of its real estate and reduce its financial distress.
The parties have introduced testimony and evidence of the costs for restoration and use of the rectory. Not surprisingly, the estimated costs vary greatly. The defendant, St. Andrews, through its architect had an analysis and estimated cost projections provided by Mr. Lynn Temple of Turner Construction even before deciding how to proceed with the relocation and restoration. The projections of Mr. Temple were one of the factors that was weighed in the decision of St. Andrew's that it was not feasible and prudent to restore the rectory. Mr. Temple provided two estimates addressing the costs for projected residential use at $1,584,000 and the second for projected commercial use at $2,177,000. (Defendant's Exhs. B and C.)
St. Andrews, through the testimony of Father Alton, testified that the costs that were estimated did not provide an ability to utilize the rectory for public assembly unless they incurred the substantially higher estimated costs for the commercial use all weighed into the decision to demolish versus restore. Additionally, using the rectory as an office for the parish did not address the needs of the community, and this contributed to the decision.
The plaintiff's expert, Mr. Bergmann, did a "cursory" review of the estimates of Mr. Temple and determined that they were too high. In response, he testified as to what repairs were needed to restore the building to a usable state. He offered an estimate with no supporting documentation but relied solely on his past experience, his forty-five minute inspection of the building and an opinion that the building could remain on the same site. Having considered this, Mr. Bergmann outlined for the court a number of repairs which he estimated at approximately $500,000 to make the building usable. In comparing the cost estimates of the two experts in conjunction with the photographic exhibits and the testimony of other witnesses concerning the deterioration, however, it is clear that the estimate of Mr. Bergmann fails to take into account a number of glaring problems such as the roof repair, the porch repair, the landscaping, the interior painting and clean up. Additionally, Mr. Bergmann does not provide a cost to restore the building to a use that would allow public assembly and thus require structural changes to address the floor loads as indicated by Mr. Jennewein, the defendant's expert, and Mr. Grant, the plaintiff's expert. The only use projected by Mr. Bergmann was for some offices or small meeting rooms on the first and second floors. Even if the court were to accept Mr. Bergmann's estimated costs, the reality of his estimate is that the rectory would remain on the property. If this occurs, RMS has clearly indicated the agreement will terminate thus leaving St. Andrews in greater financial despair. The parish will lose the $20,000 per month that they receive to keep them from monthly deficits and there would not be any available funds to restore or repair because any funds for this use were received as a part of the agreement with RMS. Therefore, even if the estimates by Mr. Bergmann are realistic, without an agreement for someone to infuse money into the parish, even a meager cost to restore would not be feasible or prudent. The testimony of Ms. Wabuda, senior warden of the vestry, gives a birds eye view to the financial difficulties that will face the parish if the agreement fails, when she said, the failure of this contract will leave the parish "in a very bad place" and the work of the church could not continue nor could St. Andrews survive if the contract fails. The plaintiff has offered no rebuttal to the serious financial state of the parish. Because of the financial distress, the parish does not have a choice to allow RMS to terminate the contract. Without the contract, there are no funds to do the repairs or to pay for the necessary services to operate the parish. No individual, no corporation, no non-profit organization and no government entity are coming forward to accept the financial responsibility for the rectory.
The plaintiff argues in its memorandum that the defendants have other alternatives to raise funds, however, the testimony of Father Alton does not support such an unsupported claim. The defendant has no means of income other than the income noted in the November financial reports. (Defendant's Exh. H.) The plaintiffs argue such but have not provided any substantive evidence or testimony in support of this proposition.
The testimony and the evidence supports the conclusion that the cost to renovate the rectory on site for basic office use is approximately $1,584,000. The evidence of this cost without a contract or other means of accomplishing it weigh against the restoration as a "prudent" alternative. The plaintiffs have introduced testimony that they have secured from a donor $100,000 "to assist in its efforts to preserve and protect the rectory of the Parish of St. Andrews Episcopal Church located at 1231 Washington Boulevard in Stamford, Connecticut." (Plaintiff's Exh. 8.) This contribution while a significant amount, in the context of the work to be done here, is as counsel for the plaintiff described it, "a drop in the bucket." Based upon the evidence and the testimony, this sum cannot even replace the slate roof to prevent future water damage. Additionally, the testimony of Mr. Conetta for Save Old Stamford was clear that none of these funds were to be given to St. Andrews. Thus, the funds offer no substantive support as a feasible and prudent alternative.
In the final analysis as to whether there are prudent alternatives to the demolition of the rectory, it is not the sheer magnitude of the costs that controls, although it weighs heavily in this factual scenario, but it is the impact upon the ability of the parish to offer services to the community and the inability to adapt the rectory to the needs of a community based parish.
The plaintiff argued that an alternative to the demolition is the relocation of the rectory onto the property now designated for a new complex called Holly House. Assuming that the rectory can be physically relocated to that site, although there was no testimony or evidence to support the ability to do so, the plaintiffs have failed to offer testimony or evidence that the projected estimated costs of moving the building and thereafter the adaptability would be a feasible and prudent alternative.
The plaintiff's expert did not provide the court with a credible cost for the relocation of the rectory to same site as is now proposed for the Holly House. Mr. DeNicholas has testified that the basic cost for this relocation is $400,000. However, his proposal and testimony were clear that this does not include many additional expenses such as the costs for excavation, foundation, landscaping, cost to remove the front porch and the fire escape and a special carrier policy. (Defendant's Exh. N.) The only amount that has been identified is $150,000 for the foundation. Therefore, at a minimum the court can determine that the cost for the move without more information is closer to $550,000. The cost for a restoration of the building is estimated to be approximately $1,584,000. This alternative, which does not permit the use of the building for the community outreach and the conference center needed by the parish, provides a nonfunctioning center for approximately one million dollars of added expense. The testimony provided by Mr. Pelliccione, as an expert for the defendants, and Mr. Grant, as an expert for the plaintiffs, was clear that the building does not satisfy the building code for floor loads to use for any type of public assembly. They further testified that in order to address this use the building would need major structural work to the interior of the rectory. Neither projected specific costs, however, the estimate of Mr. Temple accounts for commercial use at a cost of $2,177,000. (Defendant's Exh. B.) This is approximately an additional $500,000 that would be paid by the defendants.
Father Alton testified that the rationale for deciding upon the new structure of Holly House on the site was based not only upon the expense but also the needs of the parish for space that would allow public assembly and not continue to be a financial burden. The comparison of the two structures provided by the defendants support their position that even absent the cost factor, any restoration will not serve the needs of the parish. (Defendant's Exh. R.)
This court finds that the defendants have demonstrated that it is not solely the costs that are involved in the relocation and renovation that support the demolition but it is the impact these costs will have on the ability of the parish to function at all without the funds to pay operating expenses of St. Andrews. Further, any restoration of the rectory as it now exists, in its present site or in a relocated site, does not provide the needed public assembly space that will enable St. Andrews to continue its work with the community. (Defendant's Exh. R.) The plaintiffs have provided little or no credible evidence as to the costs, the impact and the adaptability that would support a finding that there are feasible and prudent alternatives.
The decision of this court is not based solely on the costs that are involved in the restoration but the costs in conjunction with the impact upon the future of St. Andrew and the adaptability of the rectory to uses of the parish.
CONCLUSION
The demolition of a historic building should not be undertaken lightly. Here, the defendants have taken serious and extensive efforts to preserve this building. However, even with those efforts and the legal action filed by the plaintiff to preserve the building, the testimony and evidence produced during the eight dates of hearings simply do not support a feasible and prudent alternative that will prevent demolition.
While the court understands the plaintiff's desire to maintain this building as a historic building, the costs associated with either the restoration or a combination of relocation and restoration is overwhelming for a small parish that can barely break even on income and expenses. Such costs which will be borne by St. Andrews would far exceed the funds available to the parish. The financial impact of the restoration will unduly burden the parish to give precedence to the restoration and maintenance of a historic building above and beyond the daily operations and necessities for the parishioners and the community. The testimony and evidence overwhelmingly demonstrate that there are no feasible and prudent alternatives to the demolition of this building. The plaintiff, although desirous of preserving this building, simply have not provided rebuttal testimony or evidence that will overcome this court's finding that there are no feasible and prudent alternatives to the demolition.
Therefore, the court finds that there is no feasible and prudent alternative to the demolition and that such conduct is consistent with reasonable requirements of public health, safety and welfare and thus, denies the application for a temporary injunction to enjoin the demolition, removal or destruction of the structure of the St. Andrew's Episcopal Church known as the Rectory located at 1231 Washington Boulevard, Stamford, Connecticut.