Opinion
No. CV 05 4002169 S
March 30, 2005
MEMORANDUM OF DECISION ON THE PLAINTIFF'S APPLICATION FOR AN INJUNCTION
STATEMENT OF THE CASE
This is an action instituted by the plaintiff, Wiacek Farms, LLC, seeking an injunction to preclude the defendant, city of Shelton (City), from condemning property through eminent domain proceedings. The property is known as Wiacek Farms in Shelton, Connecticut. The plaintiff claims that the City has failed to take reasonable efforts to obtain the property by agreement and has acted in bad faith. For the following reasons, the plaintiff's request for injunctive relief is denied.
Pursuant to a stipulation of the parties, the hearing on the plaintiff's application for a preliminary injunction was made the final hearing on the plaintiff's complaint seeking a permanent injunction.
The property consists of approximately forty-one acres and has been owned by members of the Wiacek family for many years. The plaintiff successfully applied to subdivide the property, and by July 2004, the plaintiff had satisfied all the conditions for a twenty-four-lot subdivision.
In January 2004, the City's board of alderman voted to authorize Mayor Mark Lauretti to initiate negotiations for the City's purchase of the Wiacek Farms. Between January 2004 and July 2004, there were several meetings between the mayor and the plaintiff. These meetings involved general discussions about the value of the property and whether the entire parcel would be purchased. Because the plaintiff expressed unwillingness to sell all of the property, the parties discussed the city's purchase of a portion of the property, but the parameters of any such sale were only discussed in general terms. During this time period, neither party made any specific offers. Nevertheless, the court finds that these discussions indicated that the plaintiff was not interested in selling the entire parcel, and the City was interested in either buying the entire parcel, or buying more of the parcel than the plaintiff was willing to sell.
In August 2004, the mayor and the City's assistant corporation counsel met with the plaintiff's counsel and presented an offer for the City to purchase a portion of the property for $2.3 million. The City's offer was presented as nonnegotiable. The plaintiff rejected the offer. On September 30, 2004, the City's board of aldermen passed a resolution to condemn 35.99 acres of the property. On or about January 7, 2005, the City instituted a condemnation action by filing a statement of compensation in the Milford Superior Court. The statement of compensation indicated that the property's value was $2.5 million. Additional facts will be discussed below in order to address the parties' positions.
DISCUSSION
"It is a fundamental principle of law that the power to appropriate private property for public use is an attribute of sovereignty and essential to the existence of government. It attaches to every man's land and is paramount to his right of ownership." (Citations omitted.) Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 586, 87 A.2d 139 (1952). Furthermore, "[t]he 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." (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 600, 790 A.2d 1178 (2002). Nevertheless, despite the deference which must be given by the court to a legislative body's decision to exercise its power of eminent domain, "[t]he authority to condemn is to be strictly construed in favor of the owner and against the condemner." Id., 601.
In the present case, under the applicable condemnation statutes, the City's authority to condemn the property is conditioned on the City's inability to acquire the property through an agreement with the owner. General Statutes § 48-6 provides that a city or town may proceed to condemn property for municipal purposes if it "cannot agree with any owner upon the amount to be paid . . ." See also, General Statutes § 48-7 (when a municipality desires property for a public square, common or park, condemnation procedures may be instituted when the municipality "cannot obtain such land by agreement with the owner thereof"). General Statutes § 48-12 identifies the procedures to be used by a municipality to condemn land, and this statute also provides that such procedures are available when the parties cannot agree on the terms of the purchase. Consequently, our Supreme Court has indicated that prior to seizing property, "[i]t is incumbent upon the condemnor to exhaust all reasonable efforts to obtain the land it desires, by agreement." (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, supra, 259 Conn. 601.
General Statutes § 48-6(a) provides: "Any municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property, within the corporate limits of such municipal corporation, and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void."
General Statutes § 48-7 provides: "When any town, borough or fire district votes to acquire any tract of land within its limits for the purpose of a public square, common or park, and cannot obtain such land by agreement with the owner thereof, it may take the same for such purpose in the manner provided by sections 48-3 and 48-12, provided no land occupied for church or cemetery purposes shall be taken under the provisions of this section."
General Statutes § 48-12 provides: "The procedure for condemning land or other property for any of the purposes specified in sections 48-3, 48-6, 48-8 and 48-9, if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken, shall be as follows: The Comptroller in the name of the state, any town, municipal corporation or school district, or the trustees or directors of any state institution in the name of the state, shall proceed in the same manner specified for redevelopment agencies in accordance with sections 8-128, 8-129, 8-129a, 8-130, 8-131, 8-132, 8-132a and 8-133."
The plaintiff argues that the City failed to engage in any reasonable negotiations for the purchase of the property, and therefore, has failed to satisfy a condition necessary for the institution of condemnation proceedings. The court rejects this argument. The evidence indicates that the parties had discussions about the City's interest in purchasing the property over a period of months. These discussions were sufficient for the City to formulate decisions about the portion of the property it wanted to acquire and about the amount it wanted to pay. Based on these decisions, the City made an offer to the plaintiff. The plaintiff rejected this offer. As a result the City was unable to acquire the land through an agreement with the owner, and therefore, this prerequisite for the institution of condemnation proceedings was met.
The plaintiff insists that the City's conduct in making a single, "take-it-or-leave-it" offer indicates its failure to engage in reasonable negotiations to reach an agreement. Although the City's settlement offer was presented in a curt fashion, under the particular facts of this case, the manner of its presentation reflected the reality of the situation: The City wanted to purchase more property than the plaintiff was willing to sell, for an amount which the plaintiff was unwilling to accept. Further negotiations were not going to bridge the gap between the parties' positions. The court rejects the plaintiff's evidence to the contrary as being speculative and lacking credibility.
Alternatively, the plaintiff makes numerous arguments that the City's conduct in some way involved such bad faith as to warrant injunctive relief. The plaintiff bears the "burden of establishing that the taking . . . was unreasonable, in bad faith or an abuse of power." Hall v. Weston, 167 Conn. 49, 66, 355 A.2d 79 (1974).
To support its bad faith claim, the plaintiff points to the fact that the City only offered the plaintiff $2.3 million for the property, but ultimately indicated a willingness to pay $2.5 million in its statement of compensation. It is important to emphasize that this $2.5 million assessment was made after the plaintiff rejected the City's offer to purchase the property and during the legislative process of the board of alderman when they voted to condemn the property. In addition, however, the plaintiff has not indicated that it would have accepted $2.5 million for the condemned property if it had been offered. Indeed, the evidence clearly indicates that the plaintiff believes that the property is worth much more and that the plaintiff would not have sold the property for this amount. The plaintiff did not offer any competent evidence about the value of the property and the court cannot find that the City's offer was so low as to constitute bad faith or pretext. In any event, the value of the property will be addressed in the condemnation proceedings and the plaintiff will have the opportunity to present its position on the issue of value there.
The evidence indicates that the City's positions regarding the value of the property were based on an appraisal it had acquired. Neither party called the appraiser as a witness or offered the appraisal report as evidence. The plaintiff refers to testimony from the mayor where he opines about the possible value of the individual lots of the subdivision. The court places little weight on this testimony particularly because the plaintiff did not offer any foundation evidence indicating that the mayor was a competent witness to give an opinion about property value. See generally, Misisco v. Lamaita, 150 Conn. 680, 684, 192 A.2d 891 (1963).
The plaintiff next argues that the City negotiated in bad faith because its reasons for acquiring the property were varied. The evidence does establish, however, that the City was interested in acquiring the property for public use as open space particularly in light of the property's proximity to Shelton High School. The fact that the City decided not to condemn the part of the parcel closest to the high school as a compromise to reflect Wiacek family members' desire to build personal residences on the property does not negate the municipal interests expressed for the seizure.
Similarly, the fact the City did not have the money for the purchase immediately at hand, and needed to acquire the funds through funding appropriations or bonding, does not suggest bad faith. The board of alderman authorized the mayor to negotiate for the purchase of the property and the board was prepared to take the action necessary to effectuate the acquisition, as it did when the City made the $2.5 million available.
Finally, the plaintiff claims that bad faith is involved in the City's actions because the mayor owns land in the city that has also been identified as a potential area for the City to purchase as part of its open space plan. The plaintiff argues that the "Mayor had a personal interest in seeing the City take the plaintiff's property, and, therefore, preventing the plaintiff from building its 24-lot subdivision. If the Wiacek Farms subdivision was not built, the Mayor's planned subdivision on his River Road property would have less competition. For the Mayor, "open space" was simply a pretext." (Plaintiff's Post-Trial Brief, pp. 10-11.). The court is unpersuaded. As the plaintiff must concede, the board of alderman, not the mayor, expressed an interest in acquiring the property, authorized the mayor to pursue discussions about its purchase, and voted to condemn the property. The mayor was obviously involved in this process, but there is no evidence whatsoever indicating that the mayor misled or pressured the board of alderman in any way. The plaintiff's contentions that he did are without any credible evidentiary support, and are premised primarily on innuendo and conjecture.
CONCLUSION
Therefore, for the foregoing reasons, the court finds in favor of the defendant and against the plaintiff on the plaintiff's complaint seeking injunctive relief and judgment hereby enters accordingly.
So ordered.
STEVENS, J.