146 Conn. 237 | Conn. | 1959
These appeals in separate cases were combined by order of the court in accordance with the provisions of § 382 of the Practice Book. The Bahr Corporation, hereinafter referred to as the plaintiff, brought the first action in October, 1958. Five of the six defendants in that case are the members of the New Haven Redevelopment Agency, hereinafter referred to as the agency. The complaint as amended contained six counts. The plaintiff sought an injunction restraining the agency from taking further action in the condemnation of the plaintiff’s property and from interfering with the use of the property by the plaintiff or its tenants; a judgment declaring that the Redevelopment Act, §§ 979-988 of the 1949 Revision of the General Statutes as amended (Rev. 1958, §§ 8-124r-8-139), is unconstitutional; a judgment declaring that the acts of the agency described in the amended complaint were “arbitrary, unreasonable, discriminating, an abuse of the powers conferred upon it, a violation of public policy, a deprivation of property without due process of law and therefore invalid and void”; and other relief. By their answer the defendants admitted some of the allegations contained in the amended complaint and denied others. The answer contained three special defenses. In and by a counterclaim the agency sought a declaratory judg
In the second case the agency, by a written application addressed to Judge Joseph W. Bogdanski of the Superior Court, sought an order directing the clerk of the Superior Court within and for the county of New Haven to issue an execution putting the city of New Haven and the agency, as its agent, into peaceable possession of the plaintiff’s premises as of February 1,1959. An order directing the plaintiff and its tenants, The Savitt Company and Waldorf System, Inc., to appear on November 5, 1958, to show cause why the application should not be granted was issued. By its judgment dated November 13, 1958, the court found the issues in the first action for the defendants on the amended complaint and the counterclaim. The plaintiff’s appeal from that judgment was filed on November 26,1958. Also on November 13,1958, Judge Bogdanski ordered the clerk of the court to issue, on February 1, 1959, an execution to put the city and the agency, as its agent, into peaceable possession of the plaintiff’s property. The plaintiff and its tenants appealed from that order on November 28,1958.
The finding, so far as it is not attacked, sets forth the following facts: The plaintiff is the owner of business property at 86-96 Church Street in New Haven. The Savitt Company and Waldorf System, Inc., conduct retail businesses on the premises. The agency was created pursuant to § 980 of the 1949 Revision (Rev. 1958, §8-126). The building on the plaintiff’s property is a modern two-story one. It is situated in a choice retail location in downtown New
Agreements for the disposition of certain land within the redevelopment area have been entered into by the agency with the Stevens New Haven Development Company, Inc., and the First New Haven National Bank. The only land involved in these agreements is in block A and the other three blocks lying north of the Oak Street connector. Of the ninety-six acres within the redevelopment area, approximately five will be disposed of by the proposed transfer to the Stevens New Haven Development Company of land on Church Street running south from Chapel Street, including substantially all of the plaintiff’s property. The land proposed to be
In August, 1953, a report captioned “New Haven Short Approach Master Plan” was submitted to the mayor by Lloyd B. Reid, traffic consultant, and Maurice E. H. Rotival, planning consultant. The report dealt particularly with highway design and urban redevelopment. This 1953 master plan was the culmination of a number of earlier plans for the city. It included the Gilbert Olmstead plan of 1910, two studies by Rotival — the original master plan of 1941 and a southwest area study in 1943 which embraced the central business district — and two reports to the agency, one in July, 1951, and the other in December, 1951, by Rotival in collaboration with the city plan department. The object of the 1953 plan was to give definite form to the conclusions reached in the reports of July and December, 1951. The Gilbert Olmstead plan, the master plan of 1941 and the southwest area study were part of the administrative record filed in the trial court. One of the advantages of the 1953 plan was stated in it to be “Promotion of the gradual reconstruction, through private initiative, of the entire retail center of the City between the Oak Street feeder and Chapel Street.” The 1953 plan envisioned nine different redevelopment areas within the city, not one of which included block A. It provided that “[t]he major part of new construction, remodeling and
The staff of the agency, the redevelopment administrator, the director of city planning and counsel for the agency determined which exhibits the executive director of the agency, the city planning director and the redevelopment administrator would present when they testified at a public hearing held by the agency on June 28,1957. Other witnesses at this hearing presented exhibits with their testimony. Members of the public were invited to make statements, ask questions and present material as they desired. No person was deprived of any requested opportunity to testify or to cross-examine.
Prior to the action of the agency in July, 1955, the operation of the Gamble-Desmond department store had ceased. G. Harold Welch, individually or through the Harwel Corporation which he controlled, then acquired leasehold interests in the Gamble-Desmond property. Gregson’s Alley was located on it. An archway over the alley would be necessary if a single building occupied all of the property. Welch requested permission from the board of aldermen to close Gregson’s Alley. Its closing was opposed by the owners of stores in the locality, including the plaintiff. Welch’s request was not granted. In the fall of 1954 and the spring of 1955, Welch consulted representatives of the city with respect to the closing of the alley and his leasehold interests in the Gamble-Desmond property. In the spring of 1955, Roger Stevens of New York, a private real estate investor, was approached in
On June 28, 1957, the public hearing on the redevelopment plan was held by the agency. In the engineering report on buildings, including buildings in block A, filed with the agency at the hearing by the director of city planning, it was stated that block A was roughly two-thirds substandard and one-third standard. The members of the agency considered all the material presented at the hearing, toured the redevelopment area afterwards, met in executive session on five different occasions, specifically considering all the questions raised by persons opposing the plan in whole or in part, including the plaintiff, and, on July 10, 1957, decided to approve the plan with some changes.
In September, 1957, the plaintiff instituted an action against the members of the agency for a declaratory judgment determining whether the redevelopment plan was valid. The agency, commencing
In the first count of the amended complaint, the plaintiff alleged that the Redevelopment Act (now Rev. 1958, §§ 8-124-8-139) is unconstitutional because it fails to provide any opportunity for judicial review of the validity of the taking of the plaintiff’s property. “The right of appeal exists only under
The plaintiff claims that the court erred in concluding that the plaintiff was “barred by laches from asserting the claims set forth in its complaint.” The plaintiff concedes that its earlier action was withdrawn in June, 1958. Section 8-128 of the 1958 Revision (Public Acts 1957, No. 13, § 54) provides in part: “The redevelopment agency may acquire real property by eminent domain with the approval of the legislative body of the municipality and in accordance with the provisions of sections 8-129 to 8-133, inclusive, and this section.” Section 8-129 (Public Acts 1957, No. 270, § 1) provides that the agency shall determine the compensation to be paid to the persons entitled thereto for real property and shall file a statement of compensation and a deposit and bond with the clerk of the Superior Court; that upon filing these, the agency shall forthwith cause a copy of the statement of compensation to be recorded in the office of the town clerk, “such recording to have the same effect as and to be treated the same as the recording of a lis pendens”; and that the agency shall forthwith give notice to each person appearing of record as an owner of the property or as having an interest therein. Section 52-325 provides that the plaintiff in any action intended to affect real estate may cause to be recorded in the office
In addition, the court found that the pace of the agency in acquiring property was steady and “completely independent of whether or not there were any lawsuits pending”; that the agency, commencing in May, 1958, and continuing to the time the trial of the instant case was commenced on November 5, 1958, acquired a considerable number of parcels of land within the redevelopment area; that between May, 1958, and June 10, 1958, while the plaintiff’s earlier action was still pending, the agency acquired property in excess of $900,000 in value; and that between October 17,1958, when the instant action was instituted, and the time the trial of it was started, considerable additional property was acquired by
As stated in the plaintiffs brief, the principal question presented by this appeal is whether the court erred in excluding evidence offered by the plaintiff. It had alleged that the taking of its prop
The agency has asserted that an early determination of the questions raised by these appeals is of great importance to the public. If that is true, it is unfortunate that, during the trial, the agency resisted every effort by the plaintiff to introduce evidence to prove that its property was being taken for a private use rather than a publie one or that the taking of it was unreasonable or an abuse of the power conferred upon the agency. Of course, as in any case where a new trial is ordered because the court erred in excluding evidence, we cannot say that if the evidence which was offered had been received the court would have concluded that the plaim tiff had sustained the burden of proving its allegations. The agency, however, must assume at least part of the responsibility for the delay which will be caused by the necessity for a new trial.
Since an order directing the clerk of the Superior Court to issue an execution putting the agency into peaceable possession of the plaintiff’s property cannot be made if upon judicial review it is discovered that the taking of the property was illegal, as claimed by the plaintiff, the granting of the applica
There is error in both cases, the judgments are set aside and the cases are remanded to be proceeded with in accordance with this opinion.
In this opinion the other judges concurred.