Date: 08-21-2007

Case Style: Leo Gold, et al. v. Town of East Haddam

Case Number: AC 27952)

Judge: Bishop

Court: Connectict Court of Appeals on appeal from the Superior Court, judicial district of Middlesex County

Plaintiff's Attorney:

Leo Gold, for the appellants (plaintiffs).

Defendant's Attorney:

John S. Bennet, for the appellee (defendant).

Description:

The plaintiffs, Leo Gold, Joan S. Levy and Harold Bernstein and Joseph Lieberman, executors of the estate of Bernard Manger, filed this action seeking to enjoin the defendant, the town of East Haddam, from acquiring their property by eminent domain on the ground that the defendant did not timely file its statement of compensation with the trial court. The plaintiffs appeal from the summary judgment the trial court rendered in favor of the defendant. On appeal, the plaintiffs contend that the court improperly found that the defendant sought to take their property for solely school purposes and, therefore, was not bound by the time limitation for the acquisition of property as set forth in General Statutes § 48-6. Because an issue of fact exists as to the purpose of the taking, we conclude that the court improperly rendered summary judgment.

The court found the following undisputed facts. ‘‘[The plaintiffs] were . . . the owners of real property in the town of East Haddam. On June 17, 2004, the [defendant] held a special meeting for the purpose of considering and discussing the acquisition by purchase or eminent domain of the plaintiffs' property. On June 24, 2004, the governing body of the condemner by town meeting voted to acquire the plaintiffs' property. The referendum vote was, in relevant part, on the question of: ‘1. Shall the Town of East Haddam appropriate $24,500,000 for the New Middle School Project including, but not limited to, (a) the acquisition by purchase or eminent domain of approximately 226 ± acres of real property located off Clark Gates Road, East Haddam on the following parcels: Map # 74, Lot 3, Map # 73, Lot 20-1, Map # 74, Lot 009A, provided, however approximately 30 ± acres be used for the New Middle School Project, approximately 50 ± acres be used for general purposes and the remaining real property of approximately 146 ± acres be designated as open space, (b) the construction of a new middle school of approximately 96,000 square feet to house grades 4-8, (c) the construction of parking areas and drives, ball fields and soccer fields, (d) site improvements and (e) all alterations, repairs and improvements in connection therewith . . . and authorize the Board of Selectmen to acquire such real property.' On or about January 6, 2006, the [defendant] filed a statement of compensation in the Superior Court . . . by which it seeks to take by condemnation the plaintiffs' real property.''

By complaint dated February 6, 2006, the plaintiffs filed this action, claiming that the defendant failed to commence the condemnation proceeding within six months after the vote authorizing the acquisition of the property as required by § 48-6 and that the vote, therefore, was void.1 The defendant subsequently filed a motion for summary judgment, claiming that General Statutes § 10-241a,2 which does not have a time limitation, governs the acquisition of property by condemnation for school purposes, and, because the defendant was taking the plaintiffs' property to build a school, the six month time limitation did not apply. The plaintiff filed a cross motion for summary judgment, claiming that, because the voters approved the land acquisition not only for school purposes but also for other municipal and open space purposes, § 48-6, and not § 10-241a, applied. The court found that the plaintiffs' property was being acquired solely for school purposes and that the time limitation of § 48-6 therefore did not apply. Accordingly, the court granted the defendant's motion for summary judgment and denied the plaintiffs' motion for summary judgment. This appeal followed.

Here, the defendant claims that it sought to take the plaintiffs' property solely for the school project. In opposition to the defendant's motion for summary judgment, the plaintiffs submitted the referendum question put before the voters that stated that part of the plaintiffs' property would be used for the school project, a larger part would be used for general municipal purposes and the majority would be designated as open space. In support of its motion for summary judgment, the defendant presented affidavits from James Ventres, the defendant's land use administrator, and Bradley Parker, the first selectman. In his affidavit, Ventres stated that the plaintiffs' property was sought for ‘‘the sole purpose of development of the middle school facility project and accessories thereto.'' He stated that the project, as currently planned, would consume approximately sixty-one acres, including building location, access roadways, necessary sloping and fill along the access ways at the school site, and for septic fields and playing fields. He stated that another approximately twenty-two acres constituted land that might be developed into additional playing fields or related school facilities in the future. Ventres stated that ‘‘the entire balance of the site is either not subject to development or is substantially constrained by the location of wetlands, ponds, steep slopes and other similar constraints.''

In his affidavit, Parker reiterated that the only planned use for the plaintiffs' property was the school project. Parker explained that ‘‘[t]he [r]esolution put before the voters . . . by [r]eferendum describes three elements of the property to be acquired for purposes of the school project simply as a way to inform the voters . . . of how the property acquired would be adapted to the use for the public school project and future expansion and buffer of adjacent neighborhoods.'' Although the affidavits submitted by the defendant support the claim that it sought the plaintiffs' property solely for the school project, the language of the referendum question submitted to the voters, when viewed in a light most favorable to the plaintiffs, suggests that only a portion of the property was being taken for school purposes and other portions were being taken for general purposes or designated as open space. The affidavits, read together with the referendum notice, create a factual question as to whether the taking was intended solely for school purposes or also included general municipal purposes. In the face of this unresolved issue, we conclude that there was a question of material fact and that summary judgment was, therefore, inappropriate.

Outcome: The judgment is reversed and the case is remanded for further proceedings in accordance with law.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None