28 Conn. App. 622 | Conn. App. Ct. | 1992
This appeal comes to us on a reservation of legal issues pursuant to General Statutes § 52-235
For purposes of this reservation, the parties stipulated to the following facts. The town of East Haven is a Connecticut municipality, and a subdivision of the
The industrial park consists of approximately 228 acres of land and is dedicated to building a strong tax base for the town of East Haven by appealing to certain businesses to locate there. In order to enable East Haven and the commission to achieve the objectives of an industrial park, the state has undertaken to provide, and has provided, substantial aid and assistance to the commission to meet the net project costs for obtaining the land and development of the industrial park in the form of bond moneys allowing the town of East Haven and the commission to buy out or to foreclose on various parcels to create the 228 acre industrial park. The industrial park development has added jobs and increased the tax base of East Haven and has done so particularly with respect to parcel eighteen purchased by the New Haven Tobacco Company (Tobacco).
Tobacco, a privately held corporation, entered into the commission’s standard land disposition agreement (agreement) with the town of East Haven and the commission on March 10,1987. Within the confines of the restrictions placed on it by the agreement, Tobacco’s business was and is operated exclusively by the private entity and consists of manufacturing and storing goods for its own private profit. The structure built on parcel eighteen is not open to the general public and no governmental functions are conducted on its premises.
The agreement specified that the town of East Haven and the commission would sell parcel eighteen of the
The foundation construction condition is written into the standard agreement to safeguard against land speculation by potential redevelopers. The commission was wary of nonconstruction by the redeveloper and then a resale of the parcels because the parcels were sold by the commission at a price somewhat below the fair market value. The construction of the foundation before conveyance was intended to have the redeveloper fulfill its commitment to construct its proposed building.
Tobacco entered into a construction contract with Long Construction Company (Long) for the construction of its proposed office and manufacturing building on parcel eighteen. In accordance with the agreement, all plans and specifications with respect to the construction of improvements were reviewed by the commission to ensure its conformity with industrial
After the recording of the agreement on the East Haven land records and after Tobacco and Long had entered into their construction agreement, a foundation was erected on parcel eighteen. The plaintiff, L. Suzio Concrete Company, Inc. (Suzio), supplied the materials for the foundation erected on parcel eighteen to Long from September 10,1987, to March 23,1988. Suzio was left a total unpaid balance of $35,896.27 plus interest for materials delivered to the parcel eighteen foundation. Between May 16 and May 26,1988, Suzio sought to place a mechanic’s lien on parcel eighteen, but its search of title on the East Haven land records showed parcel eighteen was owned by the municipality. Between May 16 and May 26,1988, Suzio inquired of the town and of the commission if a bond had been obtained and was advised that no bond had been obtained regarding parcel eighteen. On May 27,1988, Suzio made demands on Long, Tobacco, the town of
Suzio brought this civil action against Tobacco, the town of East Haven, its mayor, the commission and its chairman for entering into a public works contract without first obtaining a bond in accordance with the mandates of General Statutes § 49-41. All claims against Tobacco have been withdrawn by both Suzio and the East Haven defendants. The town of East Haven, by agreement, will indemnify the mayor and the commission chairperson against any judgment rendered against them in this action.
The first question reserved for our advice requires us to determine whether the agreement here was a contract for the construction of a “public work” of the town of East Haven within the meaning of General Statutes § 49-41. At the time that the agreement was signed, § 49-41 (a) provided, in pertinent part, that “[bjefore any contract exceeding one thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, that person shall furnish to the state or the subdivision a bond in the amount of the contract . . . .” Neither § 49-41 nor the case law interpreting it provides any definition of what constitutes a “public work” of a town which
The Miller Act, like § 49-41, does not define the term “public work.” The United States Supreme Court has concluded, however, that public works under the Miller Act are “projects of the character heretofore constructed or carried on . . . with public aid to serve the interests of the general public.” United States Use of Noland Co. v. Irwin, 316 U.S. 23, 30, 62 S. Ct. 899, 86 L. Ed. 1241 (1942). While the cases applying the Miller Act and its counterparts under state statutes have identified various factors that are used in determining whether a particular construction project qualifies as a public work; see generally annot., 48 A.L.R. 4th 1170, 1182-85; no one factor is determinative. The application of the Irwin definition is necessarily made on a case-by-case basis, and where a project involves publicly assisted construction of buildings for private use, such as is at issue in this case, the determination of whether the project is a public work turns on “the facts determining the degree of intimacy of the [governmental] connection with the particular project.” Id., 1202.
We conclude that the agreement involving parcel eighteen of the East Haven industrial park was not a contract for a public work within § 49-41. The purpose of the agreement was to promote local economic development pursuant to chapter 132 of the General Statutes through the acquisition and transfer of real property. See General Statutes § 8-193. The agreement
The contract detailing the specifications for the entire building to be constructed on parcel eighteen, including the foundation, was the contract subsequently entered into between Tobacco and Long. This contract for the actual construction of the building was negotiated between Tobacco and Long without municipal involvement. Tobacco and Long determined the payment arrangements, the subcontractors and the various construction specifications. The completed building houses Tobacco’s business and is operated by a private entity for the manufacture and storage of goods for private profit. The completed building is privately owned, not open to the general public, and no governmental functions are conducted on the premises.
The plaintiff stresses the fact that the municipality was the record owner of parcel eighteen when the agreement was signed and when the plaintiff delivered its concrete to the general contractor at the construction site on parcel eighteen. We are not persuaded that this fact alone changes the essentially private nature of the construction work done on parcel eighteen into public work for purposes of § 49-41. At all times relevant to this case, it was expressly contemplated that parcel eighteen would be conveyed by the town to Tobacco once construction of the foundation was com
Under similar circumstances, the Supreme Court of Rhode Island determined that a facility owned and financed by the Rhode Island Port Authority and Economic Development Corporation but operated exclusively by private industry was not a “public work” under a Rhode Island bonding statute similar to § 49-41. James J. O’Rourke, Inc. v. Industrial National Bank, 478 A.2d 195 (R.I.1984). After noting the lack of state involvement in the construction or operation of the meat processing plant at issue, the O’Rourke court concluded that the manufacturing plant there “cannot be classified as a public work. By no stretch of the imagination can the plant be considered a public building; it is not open to the general public and no governmental functions are conducted with public funds, and the necessary private capital was supplied by the bank. Whatever profits result from [the plant’s operations] will be earmarked for [the corporation’s] shareholders rather than the State of Rhode Island.” Id., 198. Likewise, the Minnesota Court of Appeals, in determining whether a bus remanufacturing plant constructed on a parcel developed in part through tax increment financing was a public work for purposes of the Minnesota bonding statute, concluded that such publicly assisted, private development projects “are not even colorably public works. Public works are typified by sewer systems, streets and roads, schools and other projects owned and paid for by the government, exempt from property taxes and put to the common use. A private, commercial, industrial project is simply not the same kind of enterprise.” Judd Supply Co. v. Merchants & Manufacturers Ins. Co., 448 N.W.2d 895, 899 (Minn. App. 1989).
To the first question in the reservation, we answer “No.” The second question will not be answered.
No costs will be taxed to either party.
In this opinion the other judges concurred.
“[General Statutes] Sec. 52-235. reservation of questions of law. (a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.
“(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the supreme court or the appellate court.”
“[Practice Book] Sec. 4147. [RESERVATIONS]--IN general
“A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court or to the appellate court, respectively, had judgment been rendered. Reservations in cases where the proper court for the appeal cannot be determined prior to judgment shall also be taken directly to the supreme court.
“All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
“The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.
“The advice of the appellate court on a reservation may be reviewed by the supreme court only upon the granting of certification as provided by chapter 72.”
The parties to this appeal are the plaintiff and the following defendants: the town of East Haven; its mayor, Robert M. Norman; the East Haven economic development commission; and the commission’s chairperson, Joseph T. Bittner. The named defendant is not a party to this appeal, all claims against that party having been withdrawn prior to this appeal.
“[General Statutes (Rev. to 1987)] Sec. 49-41. public structures. BONDS FOR PROTECTION OF EMPLOYEES AND MATERIALMEN, (a) Before any contract exceeding one thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, that person shall furnish to the state or the subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided that no such bond shall be required to be furnished in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than ten thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than twenty thousand dollars.
“(b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond herein referred to, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than ten thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than twenty thousand dollars.”