Date: 11-26-2001

Case Style: Town of Darien v. Estate of F. Francis D'Addario, et al.

Case Number: SC 16350

Judge: Katz

Court: Supreme Court of Connecticut

Plaintiff's Attorney: John Wayne Fox, with whom, on the brief, was Patricia M. Gaug, for the appellee (plaintiff).

Defendant's Attorney: Jay H. Sandak, with whom were Gary S. Klein and, on the brief, Timothy S. Hollister, for the appellant (intervening defendant).

Description: This appeal concerns General Statutes § 48- 13, 1 and whether the trial court properly granted the application of the plaintiff, the town of Darien (town), to enter the property of the intervening defendant AvalonBay Communities, Inc. (AvalonBay), to conduct an environmental inspection prior to initiating condemnation proceedings to take the property. AvalonBay contends that the trial court improperly granted the town’s application to gain access to the property before the town had taken any official action to condemn. AvalonBay also claims that § 48-13 is unconstitutional under the United States and Connecticut constitutions because it authorizes the taking of property without just compensation,3 and that the trial court improperly declined to address whether the town’s proposed access to the property prior to condemnation constituted an unconstitutional warrantless administrative search.

The record contains the following facts. The property at issue in this case is 137–139 Hollow Tree Ridge Road (property), a vacant parcel of approximately 33 acres located in the town. In June, 1999, the town filed in the Superior Court an application and ‘‘Notice of Proposed Condemnation’’ seeking an order authorizing it to enter and inspect the property and to conduct ‘‘testing associated with a Phase I and Phase II environmental assessment . . . .’’ The town served on the D’Addario defendants, the owners of the property at that time; see footnote 2 of this opinion; the notice of the proposed condemnation advising them of its desire to test the property prior to making a formal decision about whether to condemn the property. In its application and notice of the proposed condemnation, the town requested that the trial court order the D’Addario defendants to appear and show cause as to why the trial court should not grant the town’s application to inspect and test the property under § 48-13. The trial court granted that request.

At the show cause hearing held on July 26, 1999, the trial court granted AvalonBay’s motion to intervene as a defendant. AvalonBay had maintained a contract, contingent upon certain development approvals, to purchase the property from the D’Addario defendants. Although AvalonBay had obtained preliminary approvals, an appeal was pending at the time of the hearing in this case, and it had not yet purchased the property. Both the D’Addario defendants and AvalonBay were represented by counsel at the show cause hearing.

Robert F. Harrel, Jr., first selectman for the town, testified that he had first discussed purchasing the land on behalf of the town with the D’Addario defendants in 1997. The town, through the board of selectmen, had identified several public purposes for which the property could be put to use, including a multi-genera-tional center, a low income senior housing develop-ment, community athletic facilities, and a commuter parking facility. Neither the board of selectmen nor the representative town meeting had voted definitively to pursue any one of the identified potential public uses. In January, 1999, however, the board of selectmen adopted a resolution authorizing Harrel, as the town’s first selectman, to investigate and take appropriate steps to condemn the property.

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Click the case caption above for the full text of the Court's opinion.

Outcome: The appeal is dismissed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan