EDGEWOOD STREET GARDEN APARTMENTS, LLC v. CITY OF HARTFORD
AC 36946
Appellate Court of Connecticut
February 23, 2016
DiPentima, C. J., and Sheldon and Mullins, Js.
Submitted on briefs September 14, 2015
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(Appeal from Superior Court, judicial district of New Britain, Swienton, J.)
Clifford S. Thier filed a brief for the appellant (plaintiff).
Jonathan H. Beamon, senior assistant corporation counsel, filed a brief for the appellee (defendant).
Opinion
MULLINS, J. The plaintiff, Edgewood Street Garden Apartments, LLC, appeals from the judgment of the trial court rendered in favor of the defendant, the city of Hartford, on the plaintiff‘s complaint. On appeal, the plaintiff claims that the court erred when it (1) made various findings of
The following facts, as found by the trial court, inform our consideration of the plaintiff‘s claims on appeal. “On February 6, 2011, the plaintiff owned the land and building at 270–272 Edgewood Street (subject property) in the city of Hartford, which was purchased in August, 2009, for $65,000. The building on the property was built in 1925. The plaintiff planned on performing massive renovations to the building with the intent of renting out its apartments.
“On February 6, the fire department for the city was dispatched to the subject property after it received a report that the roof had collapsed. David Viens, a state of Connecticut certified building inspector who worked in the city‘s department of licensеs and inspection, was called to go to the subject property. Upon his arrival, he saw cracks at some areas in the sidewalls of the subject property and above two windows. He determined that the roof had collapsed, which was causing the cracks in the side walls as well as bowing of the walls, and he was concerned that due to the snow load on the roof, the building could come down at any minute, endangering the adjoining property. He spoke with Allen Gaudet, the general contractor on the construction of the building, and Gaudet informed Viens that there was a temporary pitched roof on the building and that the roof pitch had changed.
“Viens made a determination that the building was to be demolished. He spoke with Louis Lawson, Jr., the [plaintiff‘s] vice president . . . and informed him that he had ordered the building to be taken down. After Viens spoke with Lawson [Jr.‘s] father, Louis Lawson, Sr., Lawson, Jr., asked Viens if he could call his structural engineer as well as his insurance adjuster. Neither one was available to come out that day (which was a Sunday), but Viens stated he would not wait until the next day to have the building demolished.
“Neither Lawson, Jr., nor Lawson, Sr., is an engineer or a licensed building inspector with the state of Connecticut. After discussion with his supervisor, Viens made the decision to begin the demolition that day, and ordered the city‘s subcontractor to begin.3 The construction company
“No licensed engineer examined the building prior to the demolition. George Torello, a structural engineer and forensic investigator with an impressive baсkground, testified on behalf of the plaintiff. However, his examination was done based upon the photos which were taken that day. Based on his examination, he opined that there was not enough information to conclude that the building would collapse.
“There was a dearth of evidence as to damages . . . .” (Footnote in original.)
The following procedural history also informs our review. The plaintiff filed a six count complaint alleging the following: (1) denial of equal protection under
I
The plaintiff first claims that the trial court made various findings of fact that were “unsupported, or even contradicted, by the evidence presented at trial.” The plaintiff challenges factual findings by the court regarding (1) the extent to which the plaintiff had completed renovations to the building on the day it was demolished, (2) Viens’ credentials, and (3) Viens’ various determinations concerning the building that led to his conclusion that it should be demolished. On the basis of our review of the record, we conclude that none of these findings was clearly erroneous.
We first set forth the standard of review. “Because a trial court is afforded broad discretion in making its factual findings, those findings will not be disturbed by a reviewing court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . . In applying the clearly erroneous standard of review, [a]ppellate courts do not examine the record to determine whether the trier of fact could have reached a different conclusion. Instead, we examine the trial court‘s conclusion in order to determine whether it was legally correct and factually supported. . . . This distinction accords with our duty as an appellate tribunal to review, and not to retry, the proceedings of the trial court.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) O‘Connor v. Larocque, 302 Conn. 562, 574–75, 31 A.3d 1 (2011). “[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 65, 931 A.2d 237 (2007).
A
The plaintiff first challenges the court‘s finding as to the extent to which the plaintiff had completed renovations to the building as of the day it was demolished. The plaintiff argues that the court‘s finding that on February 6, 2011, the plaintiff “planned on performing massive renovations to the building” was erroneous because the plaintiff in fact already had completed most of its renovations, including structural reinforcements. We are not persuaded.
To be sure, the record does contain testimony regarding work that already had been performed on the building as of February 6, 2011. Nevertheless, there was also testimony that on thаt date, significant improvements had yet to be performed. In particular, Gaudet, the plaintiff‘s general contractor, testified that the building still lacked a permanent roof, which could not be installed until other work had been performed. In light of this
B
The plaintiff next challenges the court‘s findings regarding Viens’ credentials. The plaintiff argues that the court‘s finding that Viens was a “certified building inspector” was in error. We disagree. In support of its argument, the plaintiff relies on copies of e-mails entered into evidence in which Viens’ signature indicates that he was a heating inspector. There is nevertheless evidence in the record to support the court‘s finding that Viens was a certified building inspector. At trial, Viens testified on cross-examination that he was a certified building inspector and/or a certified building official with the state. That Viens’ e-mail signature indicates his title is heating inspector does not lead us to conclude that the court‘s finding was clearly erroneous. The court was entitled to credit Viens’ testimony regarding his credentials.5 Accordingly, we conclude that the court‘s finding that Viens was a certified building inspector was not clearly erroneous.
C
Finally, the plaintiff challenges the court‘s findings regarding Viens’ various determinations concerning the building that led to his conclusion that it should be demolished—specifically, that “[Viens] determined that the roof had collapsed, which was causing the cracks in the side walls as well as bowing of the walls, and he was concerned that due to the snow lоad on the roof, the building could come down at any minute, endangering the adjoining property.” The plaintiff divides this challenge into three arguments.
First, the plaintiff argues that the court erroneously “accepted that there had been a roof on the building at the time of the snowfall . . . .” This was error, the plaintiff argues, because although Viens believed the building had a roof just prior to the snowfall, the roof previously had been removed during renovations. We disagree.
Viens testified repeatedly that he determined that the roof had collapsed. Thus, the record supports the court‘s finding that Viens had made a determination that there had been a roof and that the roof had collapsed prior to ordering demolition of the building.6 Accordingly, the court‘s finding was not clearly erroneous.
Second, the plaintiff argues that the court erroneously concluded that a roof collapse caused cracks and bowing in the building‘s walls. This was error, the plaintiff argues, because no evidence corroborated Viens’ determination to that effect. Again, we disagree.
Viens testified that there were cracks and a bow on the building‘s left side. In response to a question posed by the plaintiff‘s counsel as to what distinguished the plaintiff‘s building from other buildings exhibiting bowing and cracking that he had not ordered demolished, Viens responded: “One thing was, this building, the roof
Finally, the plaintiff argues that there is no evidence in the record to support the court‘s finding that Viens was concerned that snow on the roof could bring the building down. We disagree. The record contains ample support for this finding. On February 6, 2011, at 10:30 a.m., Viens completed a “Notice Violation/Emergency and Order to Abate.” On that form, Viens described the condition warranting emergency action as “snow load has [a]ffected the stability of the structure.” At trial, Viens testified that “[s]now load was a concern” in determining whether the building was unsafe and needed to be torn down.
The presence in the record of conflicting testimony is insufficient to undermine the court‘s finding that Viens believed the snow‘s weight could cause the building‘s collapse. Although Viens did testify that “[i]f snow went into the building, no, the building would not collapse,” the court, as the trier of fact, was free to resolve this conflicting testimony as it saw fit. Clennon v. Hometown Buffet, Inc., 84 Conn. App. 182, 187–88, 852 A.2d 836 (2004). Because it was supported by evidence in the record, the court‘s finding that Viens was concerned that snow load on the building‘s roof could cause the building to collapse was not clearly erroneous.
II
Next, the plaintiff claims that the court erred when it did not find that provisions of the municipal and state building codes that the defendant violated constituted a “policy” supporting a claim of municipal liability under
The following portions of the court‘s memorandum of decision inform our review of this claim. In concluding that the plaintiff did not prove a cause of action under
We set forth the legal principles applicable to a claim of municipal liability pursuant to
“[I]t is not enough for a
Against the backdrop of these principles, we place our discussion of the court‘s claimed error within the proper frame. We disagree with the plaintiff‘s con-tention that the court found that the provisions of the municipal and building codes were not policies. The court acknowledged the existence of
The court implicitly concluded, however, that the identified municipal policy was not the “moving force” behind the constitutional violations the plaintiff claimed arose from Viens’ order to demolish the building.11 In finding that the municipal and building code provisions did not mandate Viens to demolish the plaintiff‘s building, “but rather . . . directed [him] to evaluate the condition of the property and make a determination of its safety,” and, therefore, left the decision to demolish to his discretion, the court concluded that there was simply no policy or custom directing building officials to demolish buildings. Thus, our resolution of the plaintiff‘s claim turns on the propriety of the court‘s conclusion concerning causation. See Board of County Commissioners v. Brown, supra, 520 U.S. 404.
We conclude, on the basis of the record and the relevant case law, that the court properly found that the plaintiff did not establish a cause of action under
III
Next, the plaintiff claims that the court improperly concluded that the defendant‘s actions did not consti-tute a taking of property for which the plaintiff was entitled to just compensation. In counts five and six of its complaint, the plaintiff asserted inverse condemnation claims under the federal and state constitutions,14 alleging that the defendant‘s demolition of its building constituted a taking of property for which it was entitled to just compensation. The court, in ruling in the defendant‘s favor, concluded that “there was no taking of the property, but a demolition of a building evaluated to be unsafe.” On appeal, the plaintiff contends that the demolition was a taking because it deprived the plaintiff of the opportunity to resell the building or rent the apartments therein, and, therefore, “the execution of [the] defendant‘s regulations has interfered with [the] plaintiff‘s reasonable investment-backed expectations.” (Internal quotation marks omitted.) We disagree.
“[F]or this constitutional claim, we review the trial court‘s factual findings under a clearly erroneous standard and its conclusions of law de novo.” Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 298, 947 A.2d 944 (2008). The plaintiff‘s claim implicates a long-standing tension between two important principles: the right of a property owner to be free from an uncompensated government encroachment on its property interest and “the imperative of рrotecting the public from dangerous conditions posed by decrepit structures.” Brown v. Hartford, 160 Conn. App. 677, 680, A.3d , cert. denied, 320 Conn. 911, A.3d (2015). Although both the federal and state constitutions provide for just compensation when property is taken, “[n]either the constitution of the United States . . . nor the constitution of Connecticut . . . den[ies] the state the power to regulate the uses to which an owner may devote his property.
“All property is held subject to the right of government to regulate its use in the exercise of the police power, so that it shall not be injurious to the rights of the community, or so that it may promote its
In the present case, оur resolution of the plaintiff‘s challenge turns on the second of these two issues:15 “whether the application of [the challenged] ordinance to the plaintiffs’ property amounts to an unconstitutional deprivation of their property without compensation. In this context, it has often been noted that the police power, which regulates for the public good the uses to which private property may be put and requires no compensation, must be distinguished from the power of eminent domain, which takes private property for a public use and requires compensation to the owner. . . . The difference is primarily one of degree, and the amount of the owner‘s loss is the basic criterion for determining whether a purported exercise of the policе power is valid, or whether it amounts to a taking necessitating the use of the power of eminent domain. . . . A regulation which otherwise constitutes a valid exercise of the police power may, as applied to a particular parcel of property, be confiscatory in that no reasonable use may be made of the property and it becomes of little or no value to the owner.” (Citations omitted; internal quotation marks omitted.) Id., 210–11.
Whether the demolition of the plaintiff‘s building in this case was confiscatory “must be determined in the light of [its] particular circumstances as they have been shown to exist. . . . In regulating the use of land under the police power, the maximum possible enrichment of a particular landowner is not a controlling purpose. . . . It is only when the regulation practically destroys or greatly decreases the value of a specific piece of property that relief may be granted, provided it promotes substantial justice. . . . The extent of that deprivation must be considered in light of the evils which the regulation is designed to prevent.” (Citations omitted; internal quotation marks omitted.) Id., 211–12.
On the basis of
IV
Next, the plaintiff claims that the court improperly assigned it the burden of proof. In support of this claim, the plaintiff argues that the burden of proof at an administrative hearing—of which the plaintiff was deprived because of the emergent nature of the demolition—is on thе agency seeking to act. Because, the plaintiff argues, the present action is a “substitute” for the administrative hearing it should have received, the defendant should have borne the burden of proof at trial. Alleging various evidentiary shortcomings, the plaintiff argues that the defendant did not carry its burden. We conclude that the court properly assigned the plaintiff the burden of proof.
“When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Zabaneh v. Dan Beard Associates, LLC, 105 Conn. App. 134, 142, 937 A.2d 706, cert. denied, 286 Conn. 916, 945 A.2d 979 (2008). “The general burden of proof rests upon the plaintiff in civil actions. . . . The defendant‘s failure to present any evidence in contradiction of that offered by the plаintiff gives no support to the claim that the truth of all the essential allegations of the complaint was established. A plaintiff prevails not by reason of the weakness of the defendant‘s case but because of the strength of his own.” (Internal quotation marks omitted.) Suresky v. Sweedler, 140 Conn. App. 800, 807, 60 A.3d 358 (2013).
The plaintiff cites no supporting authority for its argument that the present action is a “substitute” administrative hearing rather than a plenary civil action. Cf. Brown v. Hartford, supra, 160 Conn. App. 692 (§ 9-54 not unconstitutional despite its lack of administrative appeal provision; aggrieved party may bring postdeprivation civil action). Accordingly, the cases cited by the plaintiff noting that the burden of proof is on an agency in an administrative action; e.g., Wisniowski v. Planning Commission, 37 Conn. App. 303, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995); are inapposite. We conclude that the court
V
Finally, the plaintiff claims that the court erred when it did not draw an inference in the plaintiff‘s favor on account of the defendant‘s failure to preserve evidence critical to the plaintiff‘s case—namely, the defendant‘s demolition of the building without taking any measurements or detailed photographs. We disagree.
“In Beers v. Bayliner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829 (1996), our Supreme Court adopt[ed] the rule of the majority of the jurisdictions that have addressed the issue [of spoliation of evidence] in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it. . . . To be entitled to this inference, the victim of spoliation must prove that: (1) the spoliatiоn was intentional, in the sense that it was purposeful, and not inadvertent; (2) the destroyed evidence was relevant to the issue or matter for which the party seeks the inference; and (3) he or she acted with due diligence with respect to the spoliated evidence. . . . [The court] emphasized that the adverse inference is permissive, and not mandatory . . . .” (Emphasis in original; internal quotation marks omitted.) Williams v. State, 124 Conn. App. 759, 767, 7 A.3d 385 (2010).
Contrary to the plaintiff‘s argument that the court “should have drawn an inference that the missing evidence would have disproved [the] defendant‘s arguments that the building was in imminent danger of collapsing,” whether to draw an adverse inference was left to the court‘s discretion. The court was not obligated to draw an adverse inference merely on the basis of the defendаnt‘s failure to take measurements and photographs that the plaintiff deemed satisfactory. See Williams v. State, supra, 124 Conn. App. 767 (“even if we assume, without deciding, that the plaintiff produced evidence sufficient to permit the [workers’ compensation] commissioner to draw an adverse inference, the decision as to whether or not to draw such an inference was within the discretion of the commissioner“). There was sufficient evidence in the record, in the form of Viens’ testimony regarding his predemolition assessment of the building and his determination that it posed an imminent danger, to support the court‘s decision not to draw an adverse inference. We will not second-guess the court‘s assessment of Viens’ credibility. Accordingly, we reject the plaintiff‘s claim that the failure to draw an adverse inference was аn abuse of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
MULLINS, J.
JUDGE