Petition for Writ of Certiorari — Bugryn v. City of Bristol

~*~ Supreme Court, U.S

(VY) FILED

Bi 407 SEP 0> 2001

No. @QEACE OF THE OLER.

In The

Supreme Court of the United States

*

FRANK W. BUGRYN, JR., MARY DUDKO,

MICHAEL DUDKO AND JOHN BUGRYN,

Petitioners,

CITY OF BRISTOL, PLANNING COMMISSION OF

THE CITY OF BRISTOL AND THE BRISTOL

DEVELOPMENT AUTHORITY,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Appellate Court Of The

State Of Connecticut

+

PETITION FOR WRIT OF CERTIORARI

*

Westey W. Horton

Counsel of Record

Danie J. KrisCH

Horton, SHietps & Cormier, P.C.

90 Gillett Street

Hartford, CT 06105

(860) 522-8338

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

z

QUESTION PRESENTED

1. When a municipality exercises its condemnation

authority in such a manner as to directly benefit a specific

and identifiable private interest, do the Fifth and Four-

teenth Amendments to the United States Constitution

require the application of a heightened standard of

review in determining whether the condemnation is

being carried out for a valid public use?

ll

LIST OF PARTIES AND AFFILIATES

The names of all parties to the proceedings before the

Connecticut Appellate Court appear in the caption of the

case. Bristol is a city in the state of Connecticut. There are

no corporate petitioners.

ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ....-----+-+++2s+2eeeee0e: i

LIST OF PARTIES AND AFFILIATES......--------- ii

TABLE OF AUTHORITIES .........------+eeeeeee5: iv

OPINIONS BELOW........----e-seeee eter rte eeeees 1

JURISDICTION .......--0 20sec eee eee eee e eee c ness 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

STATEMENT OF THE CASE.......-------++eeee55: 3

REASONS FOR GRANTING THE WRIT .....-----. 8

CONCLUSION ...... ccc ccccccccccccccccceccccccces 18

iv

TABLE OF AUTHORITIES

Page

Cases

AMSAT Cable Ltd. v. Cablevision Ltd. Partnership, 6

Fe ee CU GE SOEs Kosa cd edccdaccucsanseeces 14

Bugryn v. Bristol, 63 Conn. App. 98, 774 A.2d 1042

EY 6a ccd bb dba Vagsnpecnsewissavediasientaes 1, 6, 14

City of Atlantic City v. Cynwyd Investments, 148 N.J.

ap Geet MA. CER QUPON Ps nocd kesacnanescdstnesshens 13

City of Cleburne v. Cleburne Living Center, 473 U.S.

432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)...... 16

City of Lansing v. Edward Rose Realty, 442 Mich.

G26, SUZ N.W2G GSB (IGGS) 6 ws cc ccescccseses 9, 10, 14

Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50

ee ee EEUU ecu cnavedaudadbaveekec anne 16

Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct.

23509, 129 L. Ed. 2d 304 (1994).............. seaeen 17

Duluth v. State, 390 N.W.2d 757 (Minn. 1986)........ 15

Fishman v. Stamford, 159 Conn. 116, 267 A.2d 443,

cert. denied, 399 U.S. 905, 90 S. Ct. 2197, 26

Ses Ss Se ND SOOOUN 6 6a kdauncteecussaceasdeeoase aes 7

Gohld Realty Co. v. Hartford, 141 Conn. 135, 104

Pie SP REPO 6K Gone nerd kneedussovesetiaunwneoes 7

Hawaii Housing Authority v. Midkiff, 467 U.S. 229,

104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984)..... 9, 14, 15

Hawley v. South Bend, Dept. of Redevelopment, 270

Ind. 109, 363 N.E.2d 333 (1978) .........0.s20.. 52, 13

Vv

TABLE OF AUTHORITIES - Continued

Minneapolis Comm. Dev. Agency v. Opus Northwest,

LLC, 582 N.W.2d 596 (Minn. App.), review

denied, 1998 Minn. LEXIS 779 (1998) ..........

National Railroad Passenger Corp. v. Boston & Maine

Corp., 503 U.S. 407, 112 S. Ct. 1394, 118 L. Ed. 2d

We FOUN ss icon sesscevesentaeeoe

Palazzolo v. Rhode Island, 533 U.S. __, 121 S. Ct.

2448, 150 L. Ed. 2d 592 (2001).................

Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80

Te” Me” Pei Rs. | | Peeererrrerrerrrr ce errr

Poletown Neighborhood Council v. Detroit, 410 Mich.

616, 304 N.W.2d 455 (1981)..... 10, 11, 12, 13,

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535,

62 S. Ct. 1110, 86 L. Ed. 2d 1655 (1942)........

Tolksdorf v. Griffith, 464 Mich. 1, 626 N.W.2d 163

1 OI er ee

Township of West Orange v. 769 Associates, LLC, 341

N.J. Super. 580, 775 A.2d 657 (N.J. App. Div.

y | | PPPOE PP reree reer Tere rer. re tre

Wilmington Parking Authority v. Land With Improve-

ments, 521 A.2d 227 (Del. 1987)............ 11,

Page

12, 13

PETITION FOR A WRIT OF CERTIORARI

The petitioners respectfully request that a writ of

certiorari issue to review the judgment of the Connecticut

Appellate Court.

OPINIONS BELOW

The order of the Connecticut Supreme Court denying

the petitioners’ petition for certification was issued on

June 7, 2001, and is reported at 256 Conn. 927, ___ A.2d

__. (2001). It is reprinted in the appendix to this petition

(“Pet. App.”) at 48.

The opinion of the Connecticut Appellate Court is

reported at 63 Conn. App. 98, 774 A.2d 1042 (2001). It is

reprinted in the appendix to this petition at Pet. App.

1-20.

The opinion of the Connecticut Superior Court

(Kremski, J.T.R.), dated January 31, 2000, is unreported. It

is reprinted in the appendix to this petition at Pet. App.

21-47.

JURISDICTION

The Connecticut Supreme Court denied the peti-

tioners’ petition for certification on June 7, 2001. The

Connecticut Appellate Court entered judgment on April

24, 2001.1

This Court has jurisdiction to review the judgment of

the Connecticut Appellate Court pursuant to 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the interpretation of the Takings

Clause of the Fifth Amendment to the United States Con-

stitution. The Fifth Amendment provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property with-

out due process of law; nor shall private prop-

erty be taken for public use, without just

compensation.

U.S. Const. AMEND Vv.

1 Pursuant to Section 71-1 of the Connecticut Rules of

Appellate Procedure, judgment automatically entered on April

24, 2001, the date on which the opinion of the Connecticut

Appellate Court appeared in the Connecticut Law Journal.

ln ct! i Si OT Ct Diet

bch) ala ANG De WAAL MY Aa

The Fifth Amendment applies to the states through

the Due Process Clause of the Fourteenth Amendment.

The Fourteenth Amendment provides, in relevant part:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

U.S. Const. AMEND xiv, § 1.

STATEMENT OF THE CASE

The petitioners are four? elderly individuals who

own two residential properties in Bristol, Connecticut.°

Pet. App. 3, 23 n.2. Beginning in October of 1996, the

respondent city of Bristol (“city”) had a series of meetings

and discussions with the petitioners regarding the volun-

tary sale of the petitioners’ properties* to the city. Id. at 23

n.5. The purpose of these discussions was to allow the

city to acquire the properties for use in the development

2 The fifth plaintiff, Nellie Fillipetti, is not a party to this

Petition.

3 The facts set forth below are drawn from the opinions of

the Connecticut Appellate Court and the Connecticut Superior

Court.

4 The properties are located at 269 Middle Street and 299

Middle Street in Bristol. Id. at 4 n.3.

4

of the Southeast Bristol Mini-Industrial Park. Id. at 4. At

each of those meetings, the petitioners stated their

unequivocal lack of interest in selling their homes. Id. at

23 n.5. On May 15, 1998, the city tended its final settle-

ment offers to the petitioners, which duly were refused.

Id. at 23-24 n.5.

On May 21, 1998, the petitioners filed an action in the

Connecticut Superior Court (“the trial court”) seeking

temporary and permanent injunctive relief to restrain the

respondents from acquiring the properties through emi-

nent domain. Id. at 4. On March 25, 1999, the respondent

Bristol Development Authority (“BDA”) unanimously

adopted the plan to acquire the properties as a part of the

overall industrial park plan, and the Bristol city council

unanimously voted to acquire the properties through con-

demnation. Id.

On May 25, 1999, after the failure of court-sponsored

mediation between the parties, the city initiated formal

condemnation proceedings by filing two statements of

compensation for the properties with the trial court.> Id.

at 5. On June 4, 1999, the petitioners filed motions for

temporary and permanent injunctive relief in the two

condemnation cases to restrain the respondents from tak-

ing any further action concerning their properties. Id. The

city subsequently served notice of the taking by eminent

domain and filed the required record of notice with the

trial court clerk. Id. The trial court then consolidated the

5 The statements reflected that the city had deposited

$1,200,000 as compensation for the 299 Middle Street property,

and $90,000 as compensation for the 269 Middle Street property

with the trial court clerk. Id. at 24-25 n.8.

three pending proceedings related to this dispute.® Id. at

5-6.

The trial court held hearings on the three motions in

late September and early October of 1999. Id. at 27 n.15.

At those hearings, the petitioners claimed that they were

entitled to injunctive relief for five reasons: (1) the city’s

acquisition of their properties was not for a valid public

use; (2) the acquisition was not for the purposes stated in

the notice of May 25, 1999; (3) the acquisition of all of the

properties was not necessary to effectuate the industrial

park plan; (4) the city failed to make reasonable efforts to

negotiate; and (5) the petitioners resided on the proper-

ties and were elderly. Id. at 22-23. The first of these

claims, namely, that the city’s acquisition of their proper-

ties was not for a valid public use, was the main focus of

the petitioners’ federal constitutional arguments. The

petitioners alleged that the city had formulated the indus-

trial park plan for the primary purpose of keeping a

particular private company, Yarde Metals, in Bristol, and

that the proposed condemnation therefore would directly

benefit a specific private entity, Yarde Metals. As such,

the petitioners argued that the condemnation was not for

a valid public use. Id. at 33-36.

The trial court rejected this contention. The court

concluded that

[a]lthough the city had numerous discussions

with and made plans to have Yarde Metals as an

6 The three actions were: (1) the petitioners’ May 21, 1998,

action for injunctive relief; (2) the condemnation proceedings

for 299 Middle Street; and (3) the condemnation proceedings for

269 Middle Street. Id. at 6 n.6.

anchor tenant in the proposed industrial park,

no agreement or contract, written or oral, was

made with Yarde Metals. Furthermore, and

more telling, the evidence shows the city plans

on developing the industrial park whether or

not Yarde Metals indeed becomes a tenant. This

court notes that even if Yarde Metals becomes

the hoped-for anchor tenant, it will have to com-

ply with the developmental plan as approved by

the [sic] Bristol’s Developmental Board and City

Council. Therefore, this court finds that the

homeowners’ claims of constitutional right vio-

lations are without merit.

Id. at 35. The trial court then considered and rejected the

petitioners’ other claims, and denied their requests for

injunctive relief. Id. at 47.

The Connecticut Appellate Court affirmed the trial

court’s decision. Bugryn v. Bristol, 63 Conn. App. 98, 774

A.2d 1042 (2001). The petitioners raised two federal con-

stitutional issues before the Appellate Court: (1) that the

condemnation violated their rights under the Fifth

Amendment because it conferred a “substantial benefit

upon [a] private party”; and (2) that the trial court

improperly failed to apply a heightened level of scrutiny

to their claim that the condemnation would confer such a

benefit.? Pet. App. at 6-7 n.7. As to the first issue, the

7 The petitioners also raised three state law claims: (1) that

the respondents acted in excess of the authority conferred on

them by the Economic Development and Manufacturing

Assistance Act, Conn. Gen. Stat. § 32-220 et seq.; (2) that the

defendants acted unreasonably, in bad faith, or in abuse of their

power by seeking to acquire all of the properties for the

industrial park plan; and (3) that the trial court improperly

Oe

Appellate Court concluded that the trial court’s evalua-

tion of the testimony concerning Yarde Metals, and the

city’s plan to develop the industrial park, was reasonably

supported by the record. Id. at 8-9. The Court therefore

affirmed the trial court’s finding of a valid public use. Id.

at 9. As to the second issue, the Court simply noted, in a

footnote, that

[t]he [petitioners] have failed to cite any Con-

necticut authority to support this argument,

and, to the contrary, our [Connecticut] Supreme

Court has not applied a heightened standard of

review in previous disputes concerning the

nature of a taking, even where the resale of the

subject property to private entities is contemplated.

See Fishman v. Stamford, 159 Conn. 116, 267 A.2d

- 443, cert. denied, 399 U.S. 905, 90 S. Ct. 2197, 26

L. Ed. 2d 560 (1970) (land condemned under

redevelopment plan later sold to church); Gohld

Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d

365 (1954) (land condemned under redevelop-

ment plan offered for sale or lease at fair value

to redevelopers).

Id. at 7 n.7 (emphasis added). The Appellate Court there-

fore held that heightened scrutiny was not a requirement

in this case.

The petitioners subsequently filed a petition for certi-

fication — limited to the heightened scrutiny issue — with

the Connecticut Supreme Court. The Connecticut

admitted certain testimony concerning the fair market value of

their properties. Pet. App. at 3-4. Those claims are not at issue in

this Petition.

Supreme Court denied the petition on June 7, 2001. Id. at

48.

¢

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE CONNECTICUT APPEL-

LATE COURT THAT A HEIGHTENED DEGREE OF

SCRUTINY IS NOT REQUIRED UNDER THE

FIFTH AMENDMENT WHEN A PROPOSED CON-

DEMNATION WILL DIRECTLY BENEFIT A SPECI-

FIC AND IDENTIFIABLE PRIVATE ENTITY

CONFLICTS WITH THE DECISIONS OF SEVERAL

OTHER STATE COURTS OF LAST RESORT.

This case presents this Court with an opportunity to

resolve a dispute between several state courts of last

resort as to the proper level of scrutiny to which trial

judges should subject municipal claims of public use if

the proposed taking will result in a direct benefit to a

specific and identifiable private entity. The highest courts

of Michigan and Delaware have held that the United

States Constitution mandates that such claims be sub-

jected to a heightened degree of scrutiny. However, sev-

eral other courts, including, in the present case, the

Connecticut Appellate Court, have taken the opposite

position. A definitive answer by this Court as to the

degree of scrutiny required by the Fifth Amendment will

resolve this split in authority, and will serve to clarify this

Court’s Takings Clause jurisprudence.

It is black-letter law that “(t]he Takings Clause of the

Fifth Amendment, applicable to the States through the

Fourteenth Amendment . . . prohibits the government

from taking private property for public use without just

ee oe Ee

compensation.” Palazzolo v. Rhode Island, 533 U.S. __, 121

S. Ct. 2448, 2457, 150 L. Ed. 2d 592 (2001) (citation omit-

ted). Although this Court has defined the term “public

use” as being “coterminous with the scope of a sover-

eign’s police powers”; Hawaii Housing Authority v. Midkiff,

467 U.S. 229, 240, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984);

and has therefore generally been deferential to municipal

claims of public use, this Court also has noted that in

evaluating such claims “each case must turn on its own

facts.” Id. at 239. While this Court has decided a number

of cases - including the Hawaii Housing Authority case —

which involve a taking of one sort or another with some

benefit to a private entity, none of those opinions

expressly announce the proper constitutional degree of

scrutiny that courts should apply in future cases involv-

ing a direct benefit to a specific and identifiable private

entity. See, e.g., National Railroad Passenger Corp. v. Boston

& Maine Corp., 503 U.S. 407, 422, 112 S. Ct. 1394, 118

L. Ed. 2d 52 (1992).

In the absence of a definitive holding by this Court,

two lines of cases have arisen. The first holds that “where

a proposed government action confers a benefit on a

private interest, unless that benefit is merely incidental, a

reviewing court will inspect with heightened scrutiny the

assertion by the governmental entity of a public pur-

pose.” City of Lansing v. Edward Rose Realty, 442 Mich. 626,

639, 502 N.W.2d 638 (1993). In the Lansing case, the Michi-

gan Supreme Court considered a Lansing city ordinance

that provided for “mandatory access to private property

by the grantee of a city franchise for the provision of

10

cable television services.” Id. at 627. If any private prop-

erty owner refused to provide such access to the fran-

: chisee, the ordinance allowed the city to institute

condemnation proceedings against the property owner.

Id. at 628. After first noting that the case raised questions

under both the Michigan and United States Constitutions;

id. at 631; the Michigan Supreme Court pointed out that,

pursuant to the ordinance, a private entity, namely, the

cable television franchisee, would “receive more than an

incidental benefit.” Id. at 639. The court therefore held

that application of a heightened degree of scrutiny was

warranted in order to protect the constitutional rights of

private property owners, and, pursuant to that height-

ened standard of review, invalidated the ordinance

because the benefit to the cable franchisee “predomi-

nate[d] over the asserted public benefits.” Id. at 644.

The holding of Lansing echoed that of an earlier

Michigan Supreme Court case, Poletown Neighborhood

Council v. Detroit, 410 Mich. 616, 304 N.W.2d 455 (1981).

The issue in Poletown was the constitutionality of a set of

Michigan statutes, Mich. Stat. Ann. § 5.3520, et seq.,

which authorized the municipal condemnation of private

property in order to allow the expansion of privately-

owned industrial and commercial facilities. Id. at 634.

Although the Michigan Supreme Court ultimately upheld

the statute (based largely on the devastating economic

blight afflicting Detroit at that time), it did so only after

issuing a significant cautionary proviso:

Our determination that this project falls within

the public purpose, as stated by the Legislature,

does not mean that every condemnation pro-

posed by an economic development corporation

ee Or eae

11

will meet with similar acceptance simply

because it may provide some jobs or add to the

industrial or commercial base. If the public ben-

efit was not so clear and significant, we would

hesitate to sanction approval of such a project.

The power of eminent domain is restricted to

furthering public uses and purposes and is not

to be exercised without substantial proof that

the public is primarily to be benefitted. Where,

as here, the condemnation power is exercised in

a way that benefits specific and identifiable pri- -

vate interests, a court inspects with heightened

scrutiny the claim that the public interest is the

predominant interest being advanced. Such pub-

lic benefit cannot be speculative or marginal but

must be clear and significant if it is to be within

the legitimate purpose as stated by the Legisla-

ture.

Id. at 634-35.8

The emphatic language of the Poletown case has not

fallen on deaf judicial ears. Rather, it has led several other

courts to adopt the heightened standard of review

favored by the Michigan Supreme Court. The most nota-

ble of the Poletown progeny is the decision of the Dela-

ware Supreme Court in Wilmington Parking Authority v.

Land With Improvements, 521 A.2d 227 (Del. 1987). The

Wilmington case dealt with a decision by the Wilmington

Parking Authority (WPA) to condemn a piece of property

8 The Michigan Supreme Court recently has reaffirmed its

commitment to heightened scrutiny in condemnation cases

involving a direct benefit to specific and identifiable private

interest. See Tolksdorf v. Griffith, 464 Mich. 1, 9, 626 N.W.2d 123

(2001).

12

in order to build a public parking garage on a small

portion of the condemned land. The rights to the remain-

der of the property were to be conveyed to a private

newspaper company, Gannett Co., Inc., which operated a

facility on the adjacent block. Id. at 229.

The Delaware Supreme Court, relying expressly on

Poletown, held that the condemnation was not for a valid

public use, as required by the Delaware and U.S. Consti-

tutions, and therefore fell outside the WPA’s statutory

condemnation authority. Id. at 234-35. In fact, the Wilm-

ington opinion refined the Poletown test by noting that a

trial court should “examine the ‘underlying purpose’ of

the condemning authority in proposing a project as weil

as the purpose of the project itself.” Id. at 231. The Court

held such a searching examination to be necessary

because municipal claims of public use based on eco-

nomic necessity “could be carried to dangerous

extremes... . ” Id.

The decision of the Indiana Supreme Court in Hawley

v. South Bend, Dept. of Redevelopment, 270 Ind. 109, 383

N.E.2d 333 (1978), also is worthy of note. Hawley con-

cerned a challenge to a municipal condemnation of land

in South Bend that was carried out “with a view toward

redevelopment by private investment.” Id. at 111.

Although the Indiana Supreme Court ultimately upheld

the condemnation, it did state that “the inquiry of the

courts . . . is not only the use which the City purports to want

to make of the property to be acquired, but also all of the

surrounding facts and circumstances tending to show what is

the actual, principal and real use to be made of the property.”

Id. at 120 (emphasis added). The Court never actually

employed the term “heightened scrutiny” in its opinion,

13

but, to paraphrase the Immortal Bard, heightened scru-

tiny by any other name would smell as sweet. Certainly,

the Indiana Suprerne Court, in Hawley, seemed willing to

look beyond mere municipal protestations of valid public

use in order to ascertain the “actual, principal and real

use” of the condemned property.’

Although a number of state and federal cases have

applied a deferential standard of review in condemnation

cases involving some benefit to a private entity, the peti-

tioners have found only three cases that have expressly

9 Although Michigan and Delaware are the only state

courts of last resort expressly to adopt the heightened scrutiny

standard, the New Jersey Supreme Court has favorable dicta on

the subject. In City of Atlantic City v. Cynwyd Investments, 148

N.J. 55, 689 A.2d 712 (1997), the New Jersey Supreme Court

approvingly quoted the language of the Poletown and

Wilmington cases in order to emphasize that the role of the

judiciary in condemnation cases often is to provide a check on

“one of the most awesome powers of government.” Id. at 73.

Although the actual issue in Cynwyd involved Atlantic City’s

compliance with a number of the procedural requirements of

New Jersey’s condemnation statutes, the Court, after quoting

Poletown and Wilmington, cautioned future condemnors that

“(t]he power of eminent domain must always be exercised in the

public interest and without favor to private interests.” Id.

Following the issuance of Cynwyd, the New Jersey

Appellate Division of the Superior Court expressly held that the

federal constitution requires the application of heightened

scrutiny in cases involving a substantial benefit to a private

entity. Township of West Orange v. 769 Associates, LLC, 341 N.J.

Super. 580, 583-84, 775 A.2d 657 (N.J. App. Div. 2001). The

Appeliate Division issued the West Orange opinion on July 2,

2001. As of the date of this Petition, the New Jersey Supreme

Court has not offered any further guidance as to its position on

the issue.

14

considered and rejected heightened scrutiny. One of

these, of course, is the decision of t! ie Connecticut Appel-

late Court in the present case. See Bugryn, 63 Conn. App.

at 102, n.7. The other two are AMSAT Cable Ltd. v. Cablevi-

sion Ltd. Partnership, 6 F.3d 867, 875 (2nd Cir. 1993), and

Minneapolis Comm. Dev. Agency v. Opus Northwest, LLC,

582 N.W.2d 596, 599 (Minn. App.), review denied, 1998

Minn. LEXIS 779 (1998).

In AMSAT Cable, the plaintiffs claimed that a Con-

necticut statute that guaranteed cable television com-

panies access to apartment complexes amounted to an

unconstitutional taking because its primary purpose was

to benefit privately-owned cable companies. AMSAT

Cable, 6 F.3d at 875. The Second Circuit not only rejected

the plaintiffs’ claim, but also expressly refused the plain-

tiffs’ request that it adopt the heightened scrutiny stan-

dard employed by the Michigan Supreme Court in

Lansing. The Second Circuit did so based on its reading of

this Court’s opinion in Hawaii Housing Authority, which

the Second Circuit viewed as mandating a more deferen-

tial standard.'° Id.

The Minnesota Court of Appeals reached the same

result in the Minneapolis case, which concerned an

attempt to condemn two pieces of property in downtown

Minneapolis in order to build “a mid-priced retail store,

parking complex, extended skyway access, and an office

‘0 The Second Circuit also incorrectly characterized the

Lansing test as arising solely under the Michigan Constitution.

AMSAT Cable, 6 F.3d at 875. However, as discussed supra,

Lansing clearly refers to both the Michigan and U.S.

Constitutions. City of Lansing, 442 Mich. at 631.

15

building. . . . ” Minneapolis, 582 N.W.2d at 598. The

Minnesota Court of Appeals noted that the Poletown line

of cases was “out of touch with the national trend[,]” and

that prior Minnesota cases had adopted a deferential

standard of review in condemnation cases. The Court

therefore refused to apply heightened scrutiny.” Id. at

599.

The conflict between these two schools of thought

presents this Court with the opportunity to clarify the

meaning of its holding in Hawai Housing Authority with

respect to cases involving a direct benefit to a specific and

identifiable private entity. The petitioners urge the Court

to follow the Michigan and Delaware courts and hold that

the Takings Clause requires the application of heightened

level of scrutiny in such situations. There are several

reasons for such a course of action.

First, adoption of heightened scrutiny would be in

keeping with other facets of this Court’s constitutional

jurisprudence. In the area of equal protection, for exam-

ple, this Court has long employed varying levels of scru-

tiny depending on the nature of the claim advanced by

the petitioner. See, e-g., Palmore v. Sidoti, 466 U.S. 429,

432-33, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984) (violations

11 It is not clear from the Minneapolis opinion whether the

Minnesota Court of Appeals decided the issue based on the

United States Constitution, or the Minnesota Constitution, or

both. However, the decision of the Minnesota Supreme Court on

which the Minneapolis opinion primarily relies. Duluth v. State,

390 N.W.2d 757 (Minn. 1986), expressly discusses the United

States Constitution in its analysis of the public use requirement.

ld. at 762.

~ 16

of equal protection based on race subject to strict scru-

tiny); Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 50

L. Ed. 2d 397 (1976) (violations of equal protection based

on gender subject to intermediate scrutiny); City of

Cleburne v. Cleburne Living Center, 473 U.S. 432, 441-42,

105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (violations of equal

protection based on mental retardation subject to rational

basis review). This Court also has adopted a higher

degree of scrutiny in cases that involve the alleged viola-

tion of a fundamental right or liberty. See, e.g., Skinner v.

Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct.

1110, 86 L. Ed. 2d 1655 (1942) (the right to have children).

These cases embody this Court’s sensible recognition of

the fact that gradations exist in the level of constitutional

scrutiny to which a person is entitled depending on the

nature of the alleged constitutional violation. Therefore,

courts examine certain legislative actions - e.g., those that

classify based on race, or those that impinge a fundamen-

tal right - very closely, while subjecting certain others -

e.g., Classifications based on profession — to a less exact-

ing examination.

This logic should be applied to the present case.

Certainly, not every municipal decision to condemn prop-

erty requires heightened scrutiny - indeed, the peti-

tioners freely concede that most condemnations do not.

However, where a proposed condemnation will result in

a direct benefit to a specific and identifiable private

entity, a trial court cannot fulfill its constitutional duty to

ensure that the property is being taken for a truly public

use without a more thorough and searching examination.

Cases in which this type of direct benefit exists present

the significant possibility of allowing private enterprise

ee

Pe ee ee ee ee ee ee ee eee

17

to take privately-owned property while hiding behind the

thin veil of municipal power - a charade that the Consti-

tution cannot tolerate. Establishing such a two-tiered sys-

tem of review in Takings Clause cases simply is the

logical extension of this Court’s well-settled equal protec-

tion and due process jurisprudence, and will guard

against this potential evil.

Second, the rapid pace of economic development,

and the attendant appetite for land to facilitate that

development, also warrants the adoption of heightened

scrutiny. In our haste to build and grow, to create jobs

and opportunities for capital investment, courts should

not lose sight of the fact that land that is condemned to

further economic growth has a condemnee as well as a

condemnor - and that the burden of such growth often is

placed on the shoulders of the former. As Chief Justice

Rehnquist has noted, “[o]ne of the principal purposes of

the Takings Clause is to bar Government from forcing

some people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as a

whole.” Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S. Ct.

2309, 129 L. Ed. 2d 304 (1994).

Here, the burden of economic growth in Bristol has

been placed, in large measure, on the shoulders of the

Petitioners. Economic growth is often desirable, but, as

the Michigan Supreme Court warned, “[that] does not

mean that every condemnation proposed by an economic

development corporation will meet with similar accep-

tance simply because it may provide some jobs or add to

the industrial or commercial base.” Poletown, 410 Mich. at

634. In order to ensure that we do not allow the power to

condemn private property to become a tool of private

18

entities in the name of jobs and industrial expansion, this

Court should require a heightened standard of scrutiny in

cases involving a direct benefit to a specific and identifia-

ble private entity.

CONCLUSION

For the foregoing reasons, the petitioners respectfully

request that a writ of certiorari issue to review the judg-

ment of the Connecticut Appellate Court.

Respectfully submitted,

Wes.ey W. Horton -

Counsel of Record

Danie J. KriscH

Horton, SHIELDS & Cormier, P.C.

90 Gillett Street

Hartford, CT 06105

(860) 522-8338

Counsel for Petitioners

App. 1

Page 100A . April 24, 2000

CONNECTICUT LAW JOURNAL

98 APRIL, 2001 63 Conn. App. 98

Bugryn v. Bristol

FRANK W. BUGRYN, JR., ET AL. v. CITY OF

BRISTOL ET AL.

CITY OF BRISTOL v. FRANK W. BUGRYN, JR., ET AL.

CITY OF BRISTOL v. FRANK W. BUGRYN, JR.

(AC 20511)

Lavery, C. J., and Foti and Peters, Js.

Syllabus

The plaintiffs in the first case, who owned certain prop-

erty in the city of Bristol, appealed to this court from

the trial court’s denial of their requests for injunctive

relief to prevent the defendants in the first case, the

city and certain municipal agencies, from taking fur-

ther action to acquire the plaintiffs’ properties under

the power of eminent domain. They claimed, inter alia,

that the underlying purpose of the city’s plan to create

an industrial park was to retain a particular manufac-

turer within the city and that, therefore, the taking was

unconstitutional in that it impermissibly benefited a

private entity. Held:

. The plaintiffs’ claim that the taking of their property

violated their constitutional rights was unavailing in

light of the trial court’s determination that the indus-

trial park constituted a public use; that court’s factual

finding that the purpose of the taking was to create an

industrial park was amply supported by the evidence,

and the possibility that the manufacturer would

App. 2

become an anchor tenant in the park did not under-

mine that finding.

2. Contrary to the claim made by the plaintiffs, the trial

court had ample evidence before it to support its deter-

mination that the defendants did not exceed the broad

authority conferred on them by the Economic Develop-

ment and Manufacturing Assistance Act (§ 32-220 et

seq.).

3. The plaintiffs could not prevail on their challenge to

the trial court’s finding that the defendants did not act

unreasonably, in bad faith or in abuse of their power in

seeking to acquire all of the property in dispute; the

record revealed that all of that property was necessary

to the implementation of the industrial park plan.

4. The plaintiff’s failed to demonstrate that they were

prejudiced by the trial court’s admission of evidence

concerning the fair market value of their properties

and prior mediation between the parties; those eviden-

tiary matters were-not material to that court’s decision.

Argued February 22 - officially released April 24, 2001

Procedural History

Action, in the first case, to enjoin the defendants from

taking further action to acquire certain of the plaintiffs’

real property, and actions, in the second and third cases,

to take certain real property by eminent domain, brought

to the Superior Court in the judicial district of New

Britain, where the cases were consolidated; thereafter, the

defendants in the second and third cases filed motions to

enjoin the plaintiff in the second and third cases, named

defendant in the first case, from taking possession of the

property; subsequently, the matter was tried to the court,

App. 3

Hon. Julius J. Kremski, judge trial referee; judgments deny-

ing the injunctions in each case, from which the plaintiffs

in the first case, defendants in the second and third cases,

filed a consolidated appeal with this court. Affirmed.

Bridget C. Gallagher, with whom, on the brief, was

Anthony A. Denorfia, for the appellants (plaintiffs in the

first case, defendants in the second and third cases).

Brian T. Henebry, for the appellees (defendants in the

first case, plaintiff in the second and third cases).

Opinion

FOTI, J. The plaintiffs,1 owners of certain parcels of

land in the city of Bristol, appeal from the trial court’s

judgments denying their requests for injunctive relief

against the defendants.? The plaintiffs sought to enjoin

the defendants from exercising the state’s power of emi-

nent domain to condemn their properties as part of a plan

to construct an industrial park. The plaintiffs claim that

the court improperly (1) concluded that the defendants

did not violate the plaintiffs’ state and federal constitu-

tional rights, (2) concluded that the defendants did not

act in excess of the authority conferred on them by the

1 The plaintiffs in the first case, defendants in the second

and third cases, are Frank W. Bugryn, Jr., Nellie Fillipetti, Mary

Dudko, Michael Dudko and John Bugryn. For convenience, we

refer in this opinion to the property owners as the plaintiffs.

2 The defendants in the first case are the city of Bristol, the

Bristol development authority and the planning commission of

the city of Bristol. The city is the plaintiff in the second and third

cases. We refer to the defendants in the first case as the

defendants in this opinion.

App. 4

Economic Development and Manufacturing Assistance

Act, General Statutes § 32-220 et seq., (3) concluded that

the defendants did not act unreasonably, in bad faith or

in abuse of their power in seeking to acquire all of the

subject property by eminent domain and (4) prejudiced

their case by admitting into evidence certain testimony

concerning the fair market value of the property and

mediation efforts between the parties. We affirm the judg-

ments of the trial court. -

The following facts underlie the plaintiffs’ claims: As

early at 1996, the defendant city of Bristol (city) began

developing a plan to create the Southeast Bristol Mini-

Industrial Park. Various city entities contacted the plain-

tiffs in an attempt to achieve the voluntary sale to the city

of property owned by the plaintiffs to satisfy the plan’s

requirements.? The plaintiffs repeatedly indicated their

lack of interest in selling their property. In May, 1998, the

city made final settlement offers to the plaintiffs. On May

21, 1998, the plaintiffs filed the present action seeking

temporary and permanent injunctive relief to restrain the

defendants from acquiring their properties by eminent

domain. On March 25, 1999, the defendant development

authority of the city of Bristol unanimously adopted the

plan to acquire the subject property as part of the indus-

trial park plan, and the members of the city council of the

city of Bristol unanimously voted to acquire the plaintiffs’

property through condemnation. The commissioner of

the Connecticut department of economic and community

development subsequently approved the development

3 The subject properties are located at 269 Middle Street

and 299 Middle Street in Bristol.

\

\

App. 5

plan. The court granted the city’s application for media-

tion, and the parties attended mediation proceedings

before a court-appointed mediator in April, 1999; those

efforts did not resolve the dispute. On May 25, 1999, the

city filed two statements of compensation for the proper-

ties with the Superior Court.

_On June 4, 1999, the plaintiffs filed motions for tem- —

porary and permanent injunctive relief in the two con-

demnation cases to restrain the defendants from taking

further action concerning their property. The city served

notice of the taking by eminent domain, pursuant to

General Statutes § 8-129, and subsequently filed the

required record of notice with the clerk of the Superior

Court.5> The court consolidated the three pending

4 The mediator’s report reflects that the plaintiffs would

not accept fair offers of compensation because they did not want

to leave their homes.

5 Pursuant to General Statutes § 32-224 (g), the imple-

menting agency may condemn property in accordance with

sections 8-128 and 8-133. General Statutes § 8-129 provides in

relevant part: “The redevelopment agency shall determine the

compensation to be paid to the persons entitled thereto for such

real property and shall file a statement of compensation,

containing a description of the property to be taken and the

names of all persons having a record interest therein and setting

forth the amount of such compensation, and a deposit as

provided in 8-130, with the clerk of the superior court for the

judicial district in which the property affected is located. Upon

filing such statement of compensation and deposit, the

redevelopment agency shall forthwith cause to be recorded, in

the office of the town clerk of each town in which the property is

located, a copy of such statement of compensation, such

recording to have the same effect as and to be treated the same

as the recording of a lis pendens, and shall forthwith give

App. 6

proceedings related to this dispute.* With that action

pending, the defendants properly refrained from taking

any further steps to acquire the subject property. The

plaintiffs brought the present appeal after the court

denied the injunctive relief.

I

The plaintiffs first claim that the court improperly

failed to conclude that the defendants violated the plain-

tiffs’ state and federal constitutional rights. We disagree.

The plaintiffs claim that “the underlying purpose of

the subject condemnation was to retain a particular man-

ufacturer, Yarde Metals, within the city of Bristol. The

evidence presented clearly supports a conclusion that the

condemnation would confer a substantial benefit upon

said private party.” although the plaintiffs state this claim

in constitutional terms, it arises out of the court’s factual

determinations.’ “It is fundamental that as an attribute of

notice, as hereinafter provided, to each person appearing of

record as an owner of property affected thereby and to each

person appearing of record as a holder of any mortgage, lien,

assessment or other encumbrance on such property or interest

therein....”

6 The first matter was the plaintiffs’ action for injunctive

relief, the second matter was the condemnation proceeding filed

by the city for 299 Middle Street and the third matter was the

condemnation proceeding filed by the city for 269 Middle

Street.

7 The plaintiffs claim that because a specific and

identifiable private interest would benefit because of the taking

by eminent domain, the taking violated their rights under the

fifth amendment to the United States constitution, made

App. 7

sovereignty, the state government or any properly desig-

nated agency thereof may take private property under its

power of eminent domain if the taking is for a public use

and if just compensation is paid therefor.” Gohld Realty

Co. v. Hartford, 141 Conn. 135, 141, 104 A.2d 365 (1954).

We must ascertain whether the courts’ factual finding

that the industrial park constitutes a public use and that

this taking was not to benefit a private entity was clearly

erroneous.

applicable to the states through the fourteenth amendment to

the United States constitution. The fifth amendment to the

United States constitution provides in relevant part that private

property shall not “be taken for public use, without just

compensation.” They also claim that it violated their rights

under the constitution of Connecticut, article first, § 11, which

provides: “The property of no person shall be taken for public

use, without just compensation therefor.”

The plaintiffs further claim that the court improperly failed

to apply a heightened level of scrutiny to their claim. The

plaintiffs argue, in this regard, that courts should employ

heightened scrutiny “[w]here condemnation authority is

exercised in a way that benefits a specific and identifiable

private interest” to ascertain whether the public interest is the

predominant interest being advanced. The piaintiffs have failed

to cite any Connecticut authority to support this argument, and,

to the contrary, our Supreme Court has not applied a heightened

standard of review in previous disputes concerning the nature

of a taking, even where the resale of the subject property to

private entities is contemplated. See Fishman v. Stamford, 159

Conn. 116, 267 A.2d 443, cert. denied, 399 U.S. 905, 90 S. Ct.

2197, 26 L. Ed. 2d 560 (1970) (land condemned under

redevelopment plan later sold to church); Gohld Realty Co. v.

Hartford, 141 Conn. 135, 104 A.2d 365 (1954) (land condemned

under redevelopment plan offered for sale or lease at fair value

to redevelopers).

App. 8

“An appellate court’s review of a trial court’s deci-

sion is circumscribed by the appropriate standard of

review. As we have often stated: The scope of our appel-

late review depends upon the proper characterization of

the rulings made by the trial court. To the extent that the

trial court has made findings of fact, our review is limited

to deciding whether such findings were clearly erro-

neous.” (Internal quotation marks omitted.) Powers v.

Olson, 252 Conn. 98, 104-105, 742 A.2d 799 (2000). “The

trial court’s findings are binding upon this court unless

they are clearly erroneous in light of the evidence. .. . We

cannot retry the facts or pass on the credibility of the

witnesses. ... 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 review-

ing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”

(Internal quotation marks omitted.) Melillo v. New Haven,

249 Conn. 138, 151, 732 A.2d 133 (1999).

The plaintiffs argue that the evidence adduced before

the court “establishe[d] a clear chronology of events

which supported a finding that the condemnation and

contemplated redistribution of the property would bene-

fit a specific and identifiable private interest, Yarde Met-

als. The trial court erred in failing to make this finding.”

Our careful review of the record reveals more than ample

evidence supporting the court’s finding that the city

“approached the homeowners with the intention to pur-

chase their properties for the purpose of building an

industrial park. Although the city had numerous discus-

sions with and made plans to have Yarde Metals as an

App. 9

anchor tenant in the proposed industrial park, no agree-

ment or contract, written or oral, was made with Yarde

Metals. Furthermore, and more telling, the evidence

shows [that] the city plans on developing the industrial

park whether or not Yarde Metals indeed becomes a

tenant.”

The plaintiffs seek to have us reevaluate the evi-

dence, viewing it harmoniously with their theory that the

defendants seek to condemn their property primarily to

benefit Yarde Metals. Even if the taking would later pro-

vide a site for Yarde Metals, a consequence that would be

neither undesirable to the defendants nor adverse to the

goals that the park plan seeks to achieve, that fact would

not support the plaintiffs’ claim in light of the ample

evidence in the record concerning the plan as a whole.

“(Where the public use which justifies the taking of the

area in the first instance exists, an element over which

there is no controversy in the present case, that same

public purpose continues even though the property is

later transferred to private persons.” Broadriver, Inc. v.

Stamford, 158 Conn. 522, 533-34, 265 A.2d 75 (1969), cert.

denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270

(1970).

Given the soundness of the court’s factual determina-

tions and the fact that it is not disputed that the develop-

ment of an industrial park constitutes a public use, we

can discern no violation of the plaintiffs’ constitutional

rights.

App. 10

II

The plaintiffs next claim that the court improperly

concluded that the defendants did not exceed the author-

ity conferred on them by the Economic Development and

Manufacturing Assistance Act, General Statutes § 32-220

et seq. (act). This claim rests on the plaintiffs’ factual

argument that the city sought to condemn the plaintiffs’

property to prevent “losing Yarde Metals to the town of

Southington or the town of Cheshire. ...” They argue

that this purpose behind the taking conflicts with the

legislative objectives in the act and that, therefore, the

defendants’ action is not for a valid public use for pur-

poses of the Act. We disagree.®

We first note our standard of review. Under the act,

the legislature has vested those agencies authorized to

exercise the state’s power of eminent domain “to promote

the retention and expansion and increase the competitive-

ness of manufacturing and other economic base busi-

nesses.” in Connecticut. General Statutes § 32-221. The

legislature sought to maintain and to develop the state’s

manufacturing sector, as well as to maintain and to create

the jobs that accompany that sector of the economy. See

General Statutes § 32-221. The act permits municipalities

to designate implementing agencies to exercise the

powers delegated under the act, including the power to

condemn property. General Statutes § 32-224 (a). “Such

8 We disagree, as well, with the defendants’ assertion that

the plaintiffs failed to provide us with an adequate record to

review this claim. Although the court discussed the issue with

relative brevity, we find ample support for the court’s

conclusion in other portions of its memorandum of decisions.

App. 11

authority having been reposed in the agency, the agency’s

decision is conclusive unless, on judicial review, it is

found to be unreasonable, or the result of bad faith, or an

abuse of the power conferred.” Pet Car Products, Inc. v.

Barnett, 150 Conn. 42, 51, 184 A.2d 797 (1962); see also

Graham v. Houlihan, 147 Conn. 321, 328, 160 A.2d 745, cert.

denied, 364 U.S. 833, 81 S. Ct. 70, 5 L. Ed. 2d 57 (1960)

(question of whether agency properly sought to condemn

certain property under redevelopment act primarily mat-

ter for redevelopment agency, and decision subject to

judicial review only to discover whether agency acted

unreasonably, in bad faith or in abuse of its powers).

As we discussed in part I of this opinion, the court’s

factual finding that the defendants acted for public, not

private, purposes finds support in the record. We, like-

wise, can discern no reason to upset the court’s conclu-

sion that the defendants did not violate the statutory

authority conferred on them by the act. The legislature

intended a broad construction of the provisions of the act.

General Statutes § 32-233 (a) provides that “[t]he powers

enumerated in sections 32-220 to 32-234, inclusive, shall

be interpreted broadly to effectuate the purposes thereof

and shall not be construed as a limitation of powers.”

The plaintiffs urge us to interpret the act as fostering

development of the state’s manufacturing sector at the

expense of, or in competition with, other states and the

international community. In their reply brief, the plain-

tiffs argue that they “do not dispute that the park plan

appears on its face to meet the legislative mandate... . ”

(Emphasis in original.) They claim, instead, that they

introduced evidence that demonstrated that the defen-

dants’ motive, or ulterior purpose, in constructing the

App. 12

park was to compete with neighboring municipalities and

to retain a particular manufacturer, Yarde Metals. Given

the evidence supporting the court’s factual determina-

tions, however, we have little difficulty concluding that

the defendants did not act unreasonably, in bad faith or

outside of their statutory authority in developing their

plan for an industrial park.

The court had ample evidence before it that refuted

the plaintiffs’ arguments that the defendants sought to

condemn their property primarily to compete with sur-

rounding towns for Yarde Metals, or for any other com-

pany.? Evidence adduced before the court demonstrated,

as well, that the state had recognized the city as an

economically disadvantaged community and that the

industrial park would serve the public good by creating

or retaining manufacturing jobs, creating additional

industrial land in the city and increasing the tax base.

In light of the broad powers conferred on the imple-

menting agency under the act and the complex goals

sought to be achieved under the act, the court had ample

9 For example, the court heard testimony from Jonathan

Rosenthal, the executive director of the development authority,

as to what types of businesses the city targeted to relocate, and

which businesses have already committed to locate, in the park.

Rosenthal testified that his office targets and has successfully

lured companies from several other states. “[I]it is well

established that the evaluation of [a witness’] testimony and

credibility are wholly within the province of the trier of fact.”

(Internal quotation marks omitted.) Greene v. Perry, 62 Conn.

App. 338, 342, __ A.2d ___ (2001). No evidence demonstrated

that the park was even contingent on Yarde Metals’ plans.

App. 13

evidence before it that demonstrated that the condemna-

tions were for a public use as set forth in the act.

ITI

The plaintiffs next claim that the court improperly

failed to find that the defendants acted with unrea-

sonableness, bad faith or in abuse of their power in

seeking to acquire all of the subject property by eminent

domain. We disagree.

It is well settled that “[t]he determination of what

property is necessary to be taken in any given case in

order to effectuate the public purpose is, under our con-

stitution, a matter for the exercise of the legislative

power. When the legislature delegates the making of that

determination to another agency, the decision of that

agency is conclusive; it is open to judicial review only to

discover if it was unreasonable or in bad faith or was an

abuse of the power conferred.” Gohld Realty Co. v. Hart-

ford, supra, 141 Conn. 146.

The act permits a municipality to designate an imple-

menting agefhcy to exercise the powers conferred under

the act. General Statutes § 32-224 (a). Once the agency’s

development plan is approved in accordance with the act,

the agency may “by purchase, lease, exchange or gift

acquire or rent real property necessary or appropriate for

the project as identified in the development plan... . ”

General Statutes § 32-224 (g). The agency may also “with

the approval of the legislative body of the municipality,

and in the name of the municipality, condemn .. . any

real property necessary or appropriate for the project as

/

App. 14.

identified in the development plan. .. .” (Emphasis added.)

General Statutes § 32-224 (g).

As a reviewing court, we are bound to determine

whether the court’s factual determination that the defen-

dants did not act unreasonably in seeking to acquire all of

the plaintiffs’ property was clearly erroneous. Our

Supreme Court has stated that the appropriate standard

in determining whether a certain parcel of land is neces-

sary for purposes of this type of inquiry is whether the

taking is “reasonably necessary” given the approved

development plan. West Hartford v. Talcott, 138 Conn. 82,

91, 82 A.2d 351 (1951).

The plaintiffs’ claims in this regard are threefold.

First, the plaintiffs claim that the defendants gave prefer-

ential treatment to another manufacturer whose property

is within the project plan area. They claim that the defen-

dants chose not to condemn iand owned by an electric

company although it lies within the project area. They

claim that the defendants intend to build necessary infra-

structure for the park on the property of the electric

company, but intend to allow the company to retain title

to its property. Second, the plaintiffs’ claim that the

defendants seek to acquire more of the plaintiffs’ prop-

erty than is necessary as part of a plan to intimidate or

pressure all of the plaintiffs to sell their property volun-

tarily. Third, the plaintiffs claim that the defendants’

underlying purpose in condemning their properties is to

benefit Yarde Metals.

App. 15

The court rejected the claim that the taking was not

necessary. It concluded that no evidence before it demon-

strated that the defendants acted with “unreasonableness,

bad faith or [in] abuse of their power... . “1°

The arguments advanced by the plaintiffs in this

claim once again rest on their interpretation of conflicting

evidence before the court. Our review of the record dis-

closed that the defendants did not seek to condemn the

electric company’s property because there simply was

never any need to do so. Jonathan Rosenthal,"! the execu-

tive director of the development authority, testified that

electric company officials had always manifested their

willingness to work with the city to develop the park and

had expressed their willingness to sell land necessary to

accommodate neighbor industries and to enter into co-

development agreements with the city in accordance with

the city’s needs concerning the plan for the park. That

- evidence belies the plaintiffs’ claim that the defendants

gave preferential treatment to an adjacent landowner to

the extent such evidence would have helped their claim.

The plaintiffs also argue, essentially, that the defen-

dants should have excluded residential properties from

the proposal and that the condemnation of their proper-

ties was intended solely to benefit Yarde Metals. The

record, however, reflects that the subject property was

10 Given the appropriately deferential standard of review

afforded this type of determination and the fact that court made

adequate determinations concerning the factual issues

presented in this claim, we reject the defendants’ assertion that

the record is inadequate for our review of this claim.

11 See footnote 9.

App. 16

necessary to the defendants’ plan.!2 The plaintiffs’ argu-

ment is that the defendants could have developed the

industrial park without acquiring their land. Again, nei-

ther this court nor the trial court can second-guess the

decision of the agency or the municipality that adopted

the plan. To the extent that the plaintiffs challenge the

action on the basis that it was intended solely to benefit

Yarde Metals, we addressed that claim in parts I and II of

this opinion.

While we recognize that the state should not con-

demn any more property than is necessary to satisfy the

legislative mandate, courts are not well suited to second-

guess determinations of this nature. “Where it appears

that an honest judgment has been reasonably and fairly

exercised after a full hearing, courts should be cautious

12 Frank Nicastro, the mayor of the city of Bristol and the

chairman of the development authority, testified that although

the city council approved the condemnation of forty acres of 299

Middle Street, the defendants sought to condemn only thirty-

two acres of the property so that the plaintiffs could retain some

of their land. Testimony at trial also established that the

defendants sought to condemn the property at 269 Middle

Street because omitting this parcel from the overall park plan

would cause additional acreage to be taken out of productive

use in the park and would cause the park to take on an irregular

shape. Testimony also established that the defendants

determined that the lot was needed to give the park necessary

frontage and visibility for marketing purposes. The defendants ©

also indicated that they were concerned about the risk that the

substandard condition of the structures of 269 Middle Street

would affect the marketability of the industrial park and that

eventually the defendants might have to do grading work on

other areas of the park that might necessitate work on this

parcel.

App. 17

about disturbing the decision of the local authority.”

(Internal quotation marks omitted.) Graham v. Houlihan,

supra, 147 Conn. 329. The defendants justified to the

court their decision to acquire the plaintiffs’ land as part

of their proposed industrial park. Although the plaintiffs

are concerned about their parcels of land, the defendants’

decisions reflected planning and development concerns

regarding the significance of the plaintiff’s land to the

entire project plan. See Broadriver, Inc. v. Stamford, supra,

158 Conn. 534.

IV

The plaintiffs next claim that the judgments should

be reversed because the court improperly admitted into

evidence certain testimony concerning the fair market

value of the property and prior mediation between the

parties. We disagree.

The plaintiffs originally claimed that the city failed to

make reasonable efforts to negotiate with them in deter-

mining the compensation for the proposed taking. The

plaintiffs later withdrew that claim during the hearing.

The plaintiffs claim that the court improperly admitted

certain evidence concerning the fair market value of their

properties on the basis of the defendants’ assertions that

the evidence was relevant to defend the claim of failure to

negotiate. The plaintiffs argue that the evidence was irrel-

evant and that the court should have excluded it.

The plaintiffs also argue that the court improperly

admitted into evidence certain testimony concerning the

prior mediation between the parties, which was used to

determine the fair market value of the property. The

App. 18

plaintiffs cite the long-standing evidentiary rule that

mediation and settlement discussions are generally not

admissible at trial. See Connecticut Code of Evidence

§ 4-8 (2000).

The plaintiffs argue that those evidentiary rulings

prejudiced them because they could have led “the court

to believe that the plaintiffs were fighting over merely

money.” They further claim that the admission of that

eviderice “improperly placed the focus on what the prop-

erty was worth and what the plaintiffs believed it was

worth.”

We review these claims in accordance with a well

established standard of review. “[A] trial court may exer- _

cise its discretion with regard to evidentiary rulings, and

the trial court’s rulings will not be disturbed on appellate

review absent abuse of that discretion. . . . In our review

of these discretionary determinations, we make every

reasonable presumption in favor of upholding the trial

court’s ruling. . . . Evidentiary rulings will be overturned

on appeal only where there was an abuse of discretion

and a showing by the [appellant] of substantial prejudice

or injustice.” (Citation omitted; internal quotation marks

omitted.) Cafro v. Brophy, 62 Conn. App. 113, 127, ___ A.2d

__ (2001).

Furthermore, a party seeking a new trial because of

an improper evidentiary ruling has “the burden of dem-

onstrating that the error was harmful. . . . When deter-

mining that issue in a civil case, the standard to be used

is whether the erroneous ruling would likely affect the

result.” (Internal quotation marks omitted.) Washington v.

Christie, 58 Conn. App. 96, 100, 752 A.2d 1127, cert.

PPR Oe) et ny oa ry

App. 19

denied, 254 Conn. 906, 755 A.2d 884 (2000). The party “is

entitled to relief from an erroneous ruling on the admis-

sibility of evidence only if the error is also harmful... .

[T]he plaintiff [bears the} burden of demonstrating that

the erroneous ruling was likely to affect the result of the

trial.” (Citation omitted.) Chouinard v. Marjani, 21 Conn.

App. 572, 577, 575 A.2d 238 (1990).

After reviewing the record and the court’s memoran-

dum of decision, we conclude that the plaintiffs have

failed to demonstrate that the evidentiary rulings in any

way affected the outcome of the trial. Although the evi-

dence concerning the fair market value of the property

appears to have been relevant to the issue of why the city

needed to acquire all of the plaintiffs’ land and the evi-

dence concerning the mediation efforts appears to have

been elicited.prior to the plaintiffs’ withdrawal of their

claim concerning the city’s failure to negotiate, we need

not reach the issue of whether the court properly admit-

ted the evidence because those evidentiary matters were

not material to its decision. The plaintiffs’ assertions that

the evidence may have lured the court into believing that

the dispute centered on money does not satisfy their

burden of demonstrating to this court that the rulings

likely affected the result.13

13 The plaintiffs presented this court with three additional

claims, namely, that the court improperly determined that (1)

the harms alleged by the plaintiffs did not constitute serious or

material injuries, (2) the plaintiffs would not suffer irreparable

harm if an injunction did not issue and (3) the hardships to the

defendants would outweigh the hardships to the plaintiffs if the

court granted the injunction. While the court addressed those

issues in its memorandum of decision, it did not need to do so.

App. 20

The judgments are affirmed.

In this opinion the other judges concurred.

The issue before the court was whether it should grant the

injunctive relief requested. The plaintiffs claimed, essentially,

that the defendants impending taking was violative of state law

and of the federal and state constitutions. Once the court

resolved those issues in favor of the defendants, its analysis was

complete.

App. 21

DOCKET NO.

CV98-0488051S

FRANK W. BUGRYN, JR.,

ET AL

VS.

CITY OF BRISTOL ET AL

DOCKET NO.

CV98-0495681S

CITY OF BRISTOL

VS.

FRANK W. BUGRYN, JR.,

ET AL

DOCKET NO.

CV99-0495682S

CITY OF BRISTOL

VS.

FRANK W. BUGRYN, JR.

SUPERIOR COURT

JUDICIAL DISTRICT

OF NEW BRITAIN

AT NEW BRITAIN

JANUARY 31, 2000

SUPERIOR COURT

JUDICIAL DISTRICT

OF NEW BRITAIN

AT NEW BRITAIN

JANUARY 31, 2000

SUPERIOR COURT

JUDICIAL DISTRICT

OF NEW BRITAIN

AT NEW BRITAIN

JANUARY 31, 2000

MEMORANDUM OF DECISION

(Filed Feb. 1, 2000)

INTRODUCTION

The plaintiffs, Frank W. Bugryn, Jr., Nellie Fillipetti,

Mary Dudko, Michael Dudko and John Bugryn? brought

1 Technically, the city is the plaintiff in two of the cases in

which the city filed statements of condemnation for the two

properties located at 299 and 269 Middle Street, Bristol,

Connecticut, docket numbers 4956981 [sic] and 495682,

App. 22

this action against the defendant, city of Bristol (the city),

to restrain the city and its duly authorized municipal

agencies, the Bristol Developmental Authority and the

Bristol Planning Commission, from taking, in the name of

the city, their properties located in the State Route 229

corridor of Bristol for the construction of an industrial

park facility pursuant to the Economic Development and

Manufacturing Assistance Act of 1990, General Statutes

§ 32-220, et seq. The homeowners seek temporary and

permanent injunctive relief in their complaint on the

ground that a taking of the homeowners’ property under

the current circumstances is not for a public use and that

the actions taken by the city and the Bristol Development

Authority were illegal, arbitrary and an abuse of public

trust. After the city filed statements of compensation on

the two properties, the homeowners filed motions for

temporary and permanent injunctions in those cases. In

their motions, the homeowners seek to either stay the

proceedings and restrain the city from recording the cer-

tificates of taking or restrain the city from taking posses-

sion of the property due to following reasons: (a) the

acquisition of property is not for a public purpose; (b) the

acquisition is not for the purposes stated in the notice

dated May 25, 1999; (c) the acquisition of all the property

is not necessary for its redevelopment plan; (d) the city

failed to make reasonable efforts to negotiate with the

respectively. For convenience sake, this court will refer to the

homeowners of the aforementioned properties as being the

plaintiffs in all of the cases, even in the two condemnation cases

commenced by the city. Exhibits marked during the course of

this trial list the homeowners as being the plaintiffs and the city

as being defendant.

ilies Weeki arta vated 28.088

App. 23

homeowners in determining the compensation to be paid;

and (e) the plaintiffs currently reside on property and are

elderly.2

BACKGROUND FACTS

The origins of the matter at hand are lengthy and

convoluted. The pertinent background facts are as fol-

lows: On May 21, 1998, the homeowners? made an appli-

cation for temporary and permanent injunctions‘ in

response to a final letter from the city advising the home-

owners it was going to institute condemnation proceed-

ings on the two properties if the homeowners did not

accept its last offer for compensation.5 Thereafter, the

2 In the homeowners’ individual affidavits, filed with their

motions on June 4, 1999, they list their ages as being the

following: Frank W. Bugryn, Jr., 77; Nellie Fillipetti, 76; Mary

Dudko, 74; Michael Dudko, 72; and John Bugryn, 64.

3 Frank W. Bugryn, Jr. resides at 269 Middle Street. The

remainder of the homeowners reside at 299 Middle Street.

4 The homeowners filed a complaint, docket number

488051, requesting temporary and permanent injunctions

restraining the city from taking any action to acquire

homeowners’ property located at 269 and 299 Middle Street,

Bristol, Connecticut.

> The city, through Mayor Nicastro and Mr. Rosenthal, the

Executive Director of the Development Authority, met and had

discussions with various members of the Bugryn family

beginning in October of 1996 to discuss the voluntary sale of the

homeowners’ properties to the city for use in the development

of the Southeast Bristol Mini-Industrial Park. The city continued

to make attempts to contact the homeowners to discuss

acquisition while the industrial park plan was being developed,

although the homeowners indicated that they were not

interested in selling. The city made final settlement offers to

App. 24

court, Holzberg, J., issued an order to show cause for a

hearing on the temporary injunctions to be held on June 8,

1998.6 On December 12, 1998, during the pendency of the

hearing for the temporary injunctions, the city filed an

application for court-annexed mediation, which was

granted on January 5, 1999, by the court, Shortall, J. In mid-

April 1999, the parties met for several days with the court

appointed mediator, but the matter remained unsettled.”

Thereafter, the city, pursuant to the statutory provi-

sions of General Statutes § 8-129, filed two statements of

compensation® for the homeowners’ properties on May

acquire the properties in letters dated May 15, 1998, addressed

to Frank W. Bugryn, Jr. for the property located at 269 Middle

Street and to Frank W. Bugryn, Jr., Michael and Mary Dudko,

Nelli Fillipetti and John Bugryn for the entire 39.9 acres of the

property located at 299 Middle Street.

6 On June 8, 1998, the city filed a motion to dismiss the

application for temporary injunctions for lack of ripeness

because the city had not yet filed any statements of

compensation. The city, however, dropped its motion after the

city filed statements of compensation on the two properties on

May 25, 1999.

7 On the mediation report dated April 15, 1999, and filed

with the court July 22, 1999, the mediator, Satter, J., noted that

the attorneys agreed but the plaintiffs could not face the thought

of leaving their homes so they would not accept the defendant's

offer of fair compensation.

§ Docket number 495681 is the condemnation proceeding

for the 32 acre parcel property, including a two story residential

building, located at 299 Middle Street, Bristol, Connecticut.

Pursuant to General Statutes § 8-130, the city deposited

$1,200,000 with the clerk of the Superior Court.

Docket number 495682 is the condemnation proceeding for

the approximately .3-acre parcel property, including a single

~ App. 25

25, 1999.9 As a concession to the Bugryn family, the city

decided to leave the 8 back acres to the 299 Middle Street

property with the homeowners,!° even though the plan

for the Southeast Bristol Mini-Industrial Park, approved

by the Bristol Development Authority and City Council

provides for the taking of the entire approximately 40

acres.'! (See Plaintiffs’ Exhibit C, current plan.) On June

family residence, located at 269 Middle Street, Bristol,

Connecticut. Pursuant to General Statutes § 8-130, the city

deposited $90,000 with the clerk of the Superior Court.

° Prior to filing the statements for compensation,

resolutions to adopt the current plan and acquire the

: homeowners’ land by condemnation passed by unanimous vote

at both the Bristol Development Authority and City Council, at

two separate meetings, both held on March 25, 1999.

10 Between 1993 and 1999 the city, through the Bristol

Development Authority and the City Council, approved three

project plans for the Southeast Bristol Mini Industrial Park. (See

Defendant’s Exhibits A through C, project plans.) The plan

adopted January 7, 1998, was the first to include the

homeowners’ properties at 269 and 299 Middle Street, in their

entireties. (See Defendant’s Exhibit B, previous plan adopted

January 1998.) The current plan dated October 1998 (see

Defendant’s Exhibit C, current plan adopted October 1998),

which also includes both properties in their entireties, was

amended by the Bristol Planning Commission at its regular

meeting on March 25, 1998 (See Plaintiff’s Exhibit 23, Minutes of

Bristol Planning Commission, March 25, 1998). The amendment

excludes from industrial development the back 8 acres of the

299 Middle Street property. (See Plaintiff’s Exhibit 21,

Amendment to Bristol Plan of Development, effective date April

13, 1998).

11 Mr. Rosenthal testified that the city’s plan is still in effect

for the entire approximately 40 acres so designated as city

action, but that for state purposes the 8 acre parcel is excluded.

He further stated that for purposes of approval as a municipal

App. 26

4, 1999, the homeowners filed motions for temporary

injunctions in the two condemnation cases.!? The city

served notice pursuant to General Statutes § 8-129, and

on June 9, 1999, filed the required record of notice with

the clerk of the Superior Court. The homeowners filed a

motion to consolidate on July 6, 1999,}5 and the three

cases pending before this court!* were consolidated for

the purposes of hearing the motions for temporary

development plan for the state the 8 acres are excluded from

use, but not from acquisition.

12 The homeowners’ motions for injunctions included

affidavits from each homeowner, as required by General

Statutes § 52-471(b). These motions each requested two

alternate claims for relief: (1) to stay the proceedings and

restrain the recording of the certificate of taking; or (2) restrain

the city from taking possession of the property due to the

following reasons: (a) the acquisition of the property is not fora

public purpose; (b) the acquisition of all the property is not for

the purposes stated in the notice dated May~-25, 1999; (c) the

acquisition of all the property is not necessary for the city’s

redevelopment plan; (d) the city failed to make reasonable

efforts to negotiate with the plaintiffs in determining the

compensation to be paid; (e) the plaintiffs currently reside on

the property and are elderly; and (f) no adequate remedy at law

exists and irreparable harm will incur on the plaintiffs if an

injunction is not issued.

13 Also on June 9, 1999, the homeowners filed a motion to

add Michael Dudko as a plaintiff on docket number 495681,

granted on July 19, 1999 by the court, Shortall, J., and a request

to leave to amend their complaint together with an amended

complaint. During trial, on October 6, 1999, the homeowners

withdrew count four of their amended complaint.

14 See supra, footnotes 4 and 8.

— ee

App. 27

injunctions regarding the condemnation proceedings.'5

With the hearing action pending, the city refrained from

taking any further steps under § 8-129.16

DISCUSSION *

“An injunction is a harsh remedy . . . and when an

equitable injunction is the specific relief claimed, it is

incumbent upon the party seeking relief to allege facts

showing irreparable damage and the lack of an adequate

remedy at law.” (Citation omitted; internal quotation

marks omitted.) Stoker v. Waterbury, 154 Conn. 446, 449,

226 A.2d 514 (1967). “ ‘Adequate remedy at law’ means a

remedy vested in the complainant, to which he may, at all

times, resort, at his own option, fully and freely, without

let or hindrance.” Id. “If the plaintiffs have an adequate

remedy at law then they are not entitled to the injunc-

tion.” Id.

1S Hearings on the application for temporary injunctions

(docket number 488051) were marked over several times, due to

scheduled negotiations, never having been heard prior to the

city filing the statements of condemnation and the homeowners’

subsequent motions for temporary injunctions in those two

cases (docket numbers 495681 and 495682). Thereafter, several

other hearing dates were marked over, including dates of June

21, 1999 and July 6, 1999, whereupon the cases were

consolidated, and the motions were all heard as one proceeding

commencing on or around September 26, 1999 and continuing

through early October 1999. |

16 Namely, the proposed certificates of taking were not

completed or filed by the court clerk following the city’s return

of notice filed on June 9, 1999; therefore, the city did not record

any certificates of taking in the appropriate town clerk’s office.

See infra, footnote 19, General Statutes § 8-129.

App. 28

The Economic Development and Manufacturing

Assistance Act of 1990, § 32-220, et seq., expressly pro-

vides that the condemnation must be conducted in accor-

dance with General Statutes §§ 8-128 to 8-133, the

Redevelopment Act.!7 Sections 8-128 through 8-133 deal

with the taking of land by redevelopment agencies.1§

Under § 8-129, title to the property and the right to

immediate possession vest in the agency immediately

upon the recording of the certificate of taking with the

office of the town clerk in which the property is located.19

17 Redevelopment Act, General Statutes § 8-124, et seq.

18 General Statutes § 8-128 provides, in part, that “[t]he

redevelopment agency may acquire real property by eminent

domain with the approval of the legislative body of the

municipality and in accordance with sections 8-129 to 8-133,

inclusive, and this section.”

19 General Statutes § 8-129 provides: “The redevelopment

agency shall determine the compensation to be paid to the

persons entitled thereto for such real property and shall file a

statement of compensation, containing a description of the

property to be taken and the names of all persons having a

record interest therein and setting forth the amount of such

compensation, and a deposit as provided in section 8-130, with

the clerk of the superior court for the judicial district in which

the property affected is located. Upon filing such statement of

compensation and deposit, the redevelopment agency shall

forthwith cause to be recorded, in the office of the town clerk of

each town in which the property is located, a copy of such

statement of compensation, such recording to have the same

effect as and to be treated the same as the recording of a lis

pendens, and shall forthwith give notice, as hereinafter

provided, to each person appearing of record as an owner of

property affected thereby and to each person appearing of

record as a holder of any mortgage, lien, assessment or other

encumbrance on such property or interest therein. . . . Not less

than twelve days nor more than ninety days after such notice

App. 29

Because the provisions of § 8-129 fail to provide the

property owner with an opportunity to contest the tak-

ing, the plaintiffs are without an adequate remedy at law.

See Broadriver, Inc. v. Stamford, 158 Conn. 522, 527, 265

A.2d 75, cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26

L. Ed. 2d 270 (1969). :

The plaintiffs, however, must also show they will

suffer irreparable harm if injunctions are not issued.

“[I]rreparable harm arises when there exists no legal rem-

edy furnishing full compensation or adequate redress for

a wrong done to or sustained by an individual. The injury

or wrong complained of must be serious or material and

not adequately reparable by damages at law in that, such

damages will not restore the complaining party to the

position in which the party formerly stood.” Allshouse v.

Farmer, Superior Court, judicial district of Stamford-Nor-

walk at Stamford, Docket No. 153327 (March 10, 1997)

(Tierney, J.). “Although absolute certainty is not required,

and such statement of compensation have been so served or so

mailed and first published, the redevelopment agency shall file

with the clerk of the superior court a return of notice setting

forth the notice given and, upon receipt of such return of notice,

such clerk shall, without any delay or continuance of any kind,

issue a certificate of taking setting forth the fact of such taking, a

description of all the property to so taken and the names of the

owners and of all other persons having a record interest therein.

The redevelopment agency shall cause such certificate of taking

to be recorded in the office of the town clerk of each town in

which such property is located. Upon the recording of such

certificate, title to such property in fee simple shall vest in the

municipality, and the right to just compensation shall vest in the

person entitled thereto.

(Emphasis added.)

App. 30

it must appear that there is a substantial probability that

but for the issuance of the injunction, the party seeking it.

will suffer irreparable harm.” Silitschanu v. Groesbeck, 12

Conn. App. 57, 65, 529 A.2d 732 (1987), aff’d, 208 Conn.

312, 543 A.2d 737 (1988). “Whether damages are to be

viewed by a court at equity as irreparable or not depends

more upon the nature of the right which is injuriously

affected than upon the pecuniary measure of the loss

suffered.” ‘Internal quotation marks omitted.) Patry v.

Board of Trustees, 190 Conn. 460, 472, 461 A.2d 443 (1983).

Our Supreme Court has repeatedly held that “the

issuance of an injunction rests within the sound discre-

tion of the trial court.” Anderson v. Latimer Point Manage-

ment Corp., 208 Conn. 256, 262, 545 A.2d 525 (1988). “An

injunction is an extraordinary remedy which is not man-

datory, but is left to the court’s sound discretion even if

there is a proper showing of irreparable harm.” Demers

Exposition Services, Inc. v. Porter, Superior Court, judicial

district of Hartford-New Britain at New Britain, Docket

No. 466718 (September 12, 1995) (Goldberg, J.); see also

Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 165, 510 A.2d

440 (1986) (such relief may be denied even when irrepar-

able harm has been shown). “In exercising this discretion

the trial court must balance the competing interests of the

parties ... and the relief granted must be compatible with

the equities of the case.” (Citations omitted; internal quo-

tation marks omitted.) Dukes v. Durante, 192 Conn. 207,

225, 471 A.2d 1368 (1984). “[T]he exercise of discretion by

the trial court [is] in light of the totality of the relevant

circumstances.” Doublewal Corp. v. Toffolon, 195 Conn. 384,

392, 488 A.2d 444 (1985). “Injunctive relief may not lie

where it is predicated on the fears and apprehensions of

App. 31

the party applying for it or where it would be incompat-

ible with the equities of the case... . ” (Citations omit-

ted.) Karls v. Alexandra Realty Corp., 179 Conn. 390, 402,

426 A.2d 784 (1980). “Where the granting of the injunc-

tion would cause damage to the defendant greatly dispro-

portionate to the injury of which the plaintiff complains,

it may be held inequitable to grant a mandatory injunc-

tion and the plaintiff may be remitted to her remedy by

way of damages.” Moore v. Serafin, 163 Conn. 1, 6-7, 301

A.2d 238 (1972); see also Housing Authority v. Water Pollu-

tion Control Authority, Superior Court, judicial district of

New London at Norwich, Docket No. 3311 (April 19,

1996) (Teller, J.) (16 Conn. L. Rptr. 496) (a party seeking

injunctive relief has the burden of showing a balancing of

the equities in its favor over the hardships to the defen-

dant). “Injunctions should not be issued when damages

can adequately protect the injured party.” Harvey v. Dad-

dona, 29 Conn. App. 369, 377, 615 A.2d 177 (1992).

The plaintiffs requested temporary and permanent

injunctions, by their complaint and by their motions in

the condemnation cases. “A temporary injunction is a

preliminary order of the court granted at the outset or

during the pendency of an action, forbidding the perfor-

mance of the threatened acts described in the original

complaint until the rights of the parties respecting them

shall have been finaily determined by the court.” Deming

v. Bradstreet, 85 Conn. 650, 659, 84 A. 116 (1912). “The

principal purpose of a temporary injunction is to preserve

the status quo until the rights of the parties can be finally

determined after a hearing on the merits.” (Internal quo-

tation marks omitted.) Clinton v. Middlesex Mutual Assur-

ance Co., 37 Conn. App. 269, 270, 655 A.2d 814 (1995); see

App. 32

also Gattoni v. Zaccaro, 52 Conn. App. 274, 282, 727 A.2d

706 (1999). .

Because a certificate of taking was not recorded, the

condition of the parties has remained as it was before the

commencement of any of the actions. Therefore, because

the status quo has been preserved, temporary injunctions

are no longer in issue. The homeowners, however, also

requested permanent injunctions restraining the city from

taking the properties.

“Permanent injunctions can be granted only after a

final hearing on the merits and last indefinitely.” 42

Am.Jur.2d, Injunctions § 9 (1969); see also Doublewal Corp.

v. Toffolon, supra, 195 Conn. 391 (a court cannot issue a

permanent injunction unless the pleadings are closed).

“(T]he trial court does not have authority to render per-

manent judgments [injunctions] on pending claims where

the pleadings are not yet closed.” (Internal quotation

marks omitted.) Gattoni v. Zaccaro, supra, 52 Conn. App.

281. Herein, a trial was held regarding the plaintiffs’

claims; thus, consideration of permanent injunctions is

proper.

I

IRREPARABLE HARM

This court has determined that. the homeowners are

without an adequate remedy at law, thereby meeting the

first prong for the issuance of an injunction. The home-

owners, however, must also meet the second prong by

showing that they will suffer irreparable harm if injunc-

tions are not issued. Here, the homeowners allege that

App. 33

they are elderly, reside on the premises, have held these

properties in their family for generations and that they do

not want to leave their homes.

While this court is sympathetic to the homeowners’

situation, this court, in its discretion, does not find the

harms the homeowners allege constitute serious or mate-

rial injuries. Also, this court does not find that there is a

substantial probability that but for the issuance of the

injunctions, the homeowners will suffer irreparable harm.

However sympathetic the homeowners and their con-

cerns might be, this court notes that injunctive relief may

not lie where it is predicated on the fears and apprehen-

sions of the parties applying for it.

The homeowners also claim federal and state consti-

tutional rights violations due to the city’s use of eminent

domain allegedly to benefit a private individual or entity,

thereby constituting an abuse of the public trust and a

taking of privately owned property for a private pur-

pose.?° It is well established that the takings clause of the

20 The homeowners also claim the taking of their properties

is not “necessary.” Our Supreme Court has held that “[t]he

determination of what property is necessary to be taken... in

order to effectuate the public purpose is . . . a matter for the

exercise of the legislative power.” Gohld Realty Co. v. Hartford,

141 Conn. 135, 146, 104 A.2d 365 (1954). “Necessary, in

legislative acts . .. does not mean an absolute or indispensable

necessity, but only that the taking provided for is reasonably

necessary.” (Internal quotation marks omitted.) West Hartford v.

Talcott, 138 Conn. 82, 91, 82 A.2d 351 (1951). “When the

legislature delegates the making of that determination [what

property is necessary] to another agency, the decision of that

agency is conclusive; it is open to judicial review only to

discover if it was unreasonable or in bad faith or was an abuse

App. 34

Fifth Amendment to the United States Constitution, as

applied to the states via the Fourteenth Amendment, and

section 11 of Article First of the Connecticut Constitution

provide protections against the taking of private property

for public use?! without just compensation.?? “Authority

to take by condemnation will be construed in favor of the

condemnee and against the condemnor.” Torrington v.

Coles, 155 Conn. 199, 201, 230 A.2d 550 (1967). Our

Supreme Court has held that the “public purpose is not

affected by the agency’s subsequent resale of the property

to private redevelopers with the requirement, . . . [under

the applicable statute effectuating the taking], that the

land be used according to the redevelopment plan.” Fish-

man v. Stamford, 159 Conn. 116, 125, 267 A.2d 443, cert.

denied, 399 U.S. 905, 90 S. Ct. 2197, 26 L. Ed. 2d 560

(1970); see also Gohld Realty Co. v. Hartford, 141 Conn. 135,

143, 104 A.2d 365 (1954). Furthermore, our Supreme

Court has held that “where the public use which justifies

of the power conferred.” Gohld Realty Co. v. Hartford, supra, 141

Conn. 146. Because there is no evidence that the city’s duly

authorized municipal agencies acted with unreasonableness,

bad faith or abuse of their power, this court may not further

examine this claim.

21 It is undisputed that “there is no right to condemn land

for a private purpose.” Fishman v. Stamford, 159 Conn. 116, 125,

267 A.2d 443, cert. denied, 399 U.S. 905, 90 S. Ct. 2197, 26

L. Ed. 2d 560 (1970).

22 At trial, the homeowners testified that they did not

believe the amount of compensation for the two properties is

fair. That is not the issue before this court at this time.

Subsequent to this trial, the homeowners filed appeals for

review of the statements of compensation for the properties

located at 269 and 299 Middle Street, docket numbers 498772

and 498773, respectively.

App. 35

the taking of the area in the first instance exists, an

element over which there is no controversy in the present

case, that same public purpose continues even though the

property is later transferred to a private person.” Broad-

river, Inc. v. Stamford, supra, 158 Conn. 533; see also Gohld

Realty Co. v. Hartford, supra, 141 Conn. 143.

Even construing authority to condemn in the home-

owners’ favor, based on the evidence presented, this

court finds the city’s condemnation of the homeowners’

properties is not in violation of any constitutional right.

The evidence shows the city approached the homeowners

with the intention to purchase their properties for the

purpose of building an industrial park.2 Although the

city had numerous discussions with and made plans to

have Yarde Metals as an anchor tenant in the proposed

industrial park, no agreement or contract, written or oral,

was made with Yarde Metals. Furthermore, and more

telling, the evidence shows the city plans on developing

the industrial park whether or not Yarde Metals indeed

becomes a tenant. This court notes that even if Yarde

Metals becomes the hoped-for anchor tenant, it will have

to comply with the developmental plan as approved by

the Bristol’s Developmental Board and City Council.

Therefore, this court finds that the homeowners’ claims of

constitutional right violations are without merit.

This court finds the homeowners do not meet the

second prong alleging irreparable harm and this court

finds that damages at law by way of fair compensation

23 The homeowners do not dispute that the development of

an industrial park is a public use.

App. 36

for their properties can adequately restore the home-

owners. Even assuming, however, that the homeowners’

allegations constitute irreparable harm or demonstrate a

substantial likelihood thereof, granting the homeowners’

requests for injunctions must be compatible with the

equities of the case. In the following section, this court

undertakes a review of the competing interests of the

parties with particular focus on the hardships to the city

should the homeowners’ injunctions be granted. After

balancing the equities, this court comes to the same con-

clusion that the homeowners’ injunctions should be

denied.

I

BALANCING THE EQUITIES

Although the issuance of an injunction rests within

the sound discretion of this court, a “trial court must

balance the competing interests of the parties . . . and the

relief granted must be compatible with the equities of the

case.” (Citations omitted; internal quotation marks omit-

ted.) Dukes v. Durante, supra, 192 Conn. 225. In particular,

this court notes that a party seeking injunctive relief has

the burden of showing a balancing of the equities in its

favor over the hardships to the defendant. See Housing

Authority v. Water Pollution Control Authority, supra, Supe-

rior Court, Docket No. 3311. This court recognizes that

the hardships to the homeowners are that they are

elderly, reside on the property which has been in their

family for generations and that they do not want to leave

App. 37

their homes. In contrast, this court recognizes the follow-

ing hardships to the city if it were to grant the home-

owners’ injunctions: (a) no other suitable industrial

properties in Bristol; (b) no bond posted by the home-

owners; (c) the city’s monies are tied up in deposits not

earning interest; (d) an increased burden on the city’s

services if the homeowners’ properties are developed

residentially, as currently zoned; and (e) the need for new

jobs in Bristol due to the city’s high manufacturing unem-

ployment rate and the large number of shutdowns and

downsizings of companies in the last few years. These

hardships to the city will each be addressed separately.

A. No Other Suitable Industrial Property in Bristol.

Our courts have consistently reaffirmed the principle

that each parcel of real property is recognized to be in

some way unique. See French v. Clinton, 215 Conn. 197,

200, 575 A.2d 686 (1990). The uniqueness of the home-

owners’ two parcels is precisely that which creates the

conflict with the city. At the trial, the city provided evi-

dence of the unique suitability of the two tracts of land, at

269 and 299 Middle Street, for industrial park develop-

ment. Specifically, the city cites to the following as mak-

ing the homeowners’ properties uniquely suitable for the

proposed industrial park: (1) direct access to Interstate 84

and other major routes; (2) adjacent location to an already

existing industrial development allowing for combined

development; (3) visibility of the proposed park from

State Route 229 (Middle Street); and (4) city services

already accessible. These aspects of suitability will be

discussed separately.

App. 38

1. Direct Access to Interstate 84 and Other Major

Routes

Evidence was presented that the location of the

homeowners’ properties location on Middle Street (also

known as State Route 229) provides direct motor vehicle

access to Interstate Route 84. (See Defendant’s Exhibit C,

current plan, existing conditions; site description.) Access

to Interstate Route 84 is critical because the city expects

that proposed tenants at the industrial park will be

involved in manufacturing, thereby utilizing large trucks.

Evidence shows the homeowners’ properties also have

access to State Route 72, approximately one mile north

and U.S. Route 6, approximately 2.2 miles to the north.

Both these routes provide east-west access to the city of

Bristol. State Route 229 provides north-south access to the

homeowners’ properties. The homeowners’ properties are

located approximately 3.5 miles from Interstate 84, as

accessed via State Route 72. Interstate 84 provides east-

west access for central and northern Connecticut.

Evidence shows that there are 290 industrial acres

available in Bristol. Evidence shows some that [sic] of the

290 acres were given to the Nature Conservancy and that

some land is currently in farm use. Although some of

these other industrially zoned acres are of sufficient size

to accommodate the city’s proposed industrial park, evi-

dence shows that none of these other parcels provide

direct highway access. Testimony repeatedly reaffirms the

city’s need for highway access for the proposed industrial

park tenants. None of the other 290 available acres zoned

for industrial development in the city of Bristol provide

such direct access to Interstate 84. This direct access alone

App. 39

makes the homeowners’ properties uniquely suitable for

industrial development.

2. Properties Are Located Adjacent to an Already

Existing Industrial Development

The homeowners’ properties are located adjacent to

property of a manufacturer, DANA/Warner Electric

Company (formerly Superior Electric). The DANA/

Warner Electric Company (DANA/Warner) property,

which lies to the south of the homeowners’ properties, is

an industrial use property with room for expansion.

DANA/Warner owns the adjacent industrial zoned prop-

erty encompassing approximately sixty-eight acres.

DANA/Warner is cooperating with the city allowing for

combined development of approximately fourteen of its

acres with the homeowners’ properties. (See Defendant's

Exhibit C, current plan.) The homeowners’ properties are

located in the southeast part of Bristol, one of the major

industrial areas of the city where there is much develop-

ment. There are no comparable quality parcels to the

homeowners’ properties when combined with DANA/

Warner’s parcel for purposes of development.

Also, evidence shows that the homeowners’ proper-

ties, in combination with the DANA/Warner property,

are of sufficient width and depth to provide adequate

access for large trucks. Testimony reveals that the city

expects to have tenants involved in manufacturing who

will utilize large trucks for distribution. These trucks

need adequate room to maneuver, and incoming, outgo-

ing and handling sections are needed for these trucks.

The homeowners’ properties are uniquely suitable for

App. 40

industrial development because they are located adjacent

to an already existing industrial development with room

for expansion of sufficient width and depth to provide

adequate access for large trucks.

3. Visibility of the Proposed Park from Middle

Street

Testimony shows that prospective tenants to indus-

trial parks regard visibility of their expensive facilities as

important, and that visibility is part of the total setting of

the industrial park. The homeowners’ properties front

Middle Street, a four lane bi-directional principal arterial

road. (See Defendant’s Exhibit C, current plan, existing

conditions.) There are visibility constraints to the north

by approximately thirty single family homes and a well

treed area. Testimony shows that taking the homeowners’

properties and removing all the residential structures

located along the Middle Street frontage provides for

better, unimpaired visibility of the industrial park. Fur-

thermore, testimony reaffirms the importance of frontage

in creating an attractive and visible industrial park and

increasing its marketability.

Also, the city is concerned with the present and

future appearance of the property, including landscaping,

and having control over the property in order to properly

maintain its appearance. Currently the homeowner’s

properties are zoned residential. A ranch-style residential

home rests on the approximately .3 acre plot at the 269

Middle Street location. Testimony shows that the resi-

dence at 269 Middle Street is currently in good condition.

If this relatively small property is not taken along with

App. 41

the 299 Middle Street property, there is evidence prob-

lems would arise with carving out a piece of the indus-

trial park. Such problems include the city’s need to

provide adequate buffer zones because the state requires

a fifty foot buffer zone around the industrial park. Buffer

zones in turn implicate issues of landscaping and grading

of the area. Zoning issues would also arise relating to

nonconforming uses within the proposed industrial

zoned area for the park.

The property at 299 Middle Street encompasses

approximately forty acres in a long, narrow rectangular

shape. There is a two story multi-family residence with a

detached three car garage located directly at the Middle

Street entrance; however, the majority of the property is

utilized as a Christmas tree farm.?4 The city is proposing

to take thirty-two acres of the property beginning at the

narrow end of the rectangle shape of the property front-

ing Middle Street. (See Exhibit C, current plan; see also

Exhibit G, aerial view photograph with overlay.) The

house at 299 Middle Street is not in the best of condi-

tions.2> As with the other parcel, the 299 Middle Street

frontage provides needed visibility to the proposed

industrial park, and the same issues of appearance, con-

trol thereof and marketability of the park arise here.

Visibility of the proposed park contributes to making the

24 Under Act 490, a forestry exemption, this use provides a

substantial tax break on the property.

25 The city, concerned with the appearance of the street

entrance to its proposed industrial park, submitted eight

photographs of the subject premises to show the condition of

the structures on the homeowners’ property at 299 Middle

Street. (See Defendant’s Exhibits H1 through H8, photos.)

App. 42

homeowners’ properties uniquely suitable for industrial

development.

4. City Services Already Accessible

Evidence shows that both the homeowners’ proper-

ties already have access to major utilities, including city

water and sanitary sewers, storm sewers, gas, telephone

and electric. (See Defendant’s Exhibit C, current plan,

existing conditions.) Therefore, the time involved and the

costs to the city in developing the homeowners’ proper-

ties are both substantially lessened. Also, the home-

owners’ properties are largely vacant, except for the two

houses. The financial savings to the city by accessing

already existing utilities on the homeowners’ properties

also contributes to making the homeowners’ properties

uniquely suitable for industrial development.

Because there is nothing comparable to the home-

owners’ properties within the ci’ of Bristol and their

properties are uniquely suitable for industrial develop-

ment, as discussed above, it would be an inequitable

hardship to the city if homeowners’ injunctions are

granted.

B. No Bond Posted by the Homeowners

In connection with their complaint (docket number

488051) and pursuant to General Statutes § 52-472, on

June 1, 1998, the homeowners filed a request that the

App. 43

court waive the requirement of bond for good causes.*°

Should the homeowners be granted injunctive relief, the

city is left without compensation for its costs, except for

the value of the property, the fate of which is the subject

matter of this action. The lack of compensation for the

city’s costs presents an inequitable hardship to the city if

the homeowners’ injunctions are granted.

C. City’s Monies Are Tied Up in Deposits Not Earning

Interest

On May 25, 1999, the city separately deposited

$90,000 and $1.2 million with the clerk of the Superior

Court, as required by General Statutes § 8-129.2” On Sep-

tember 29, 1999, motions for payment of deposit on the

two properties were made and signed by attorneys for

the city and the homeowners.?8 At trial, the city noted it

has lost investment income on this money since May 25,

1999, because the money was removed from the city’s

26 The homeowners made the request on the basis that the

plaintiffs are elderly and of limited means and that the subject

matter of the action is the real property upon which they all

reside. The homeowners further asserted that such real estate is

ample surety to answer all damages in case they fail to

prosecute the action to effect.

27 These funds are the city’s fair compensation offers for the

properties located at 269 and 299 Middle Street, respectively.

See supra, footnote 8.

28 The motions requested the monies for both properties be

deposited in interest bearing accounts, with the monies to go to

the record owner of the properties once these matters are

resolved. This court determined that court policy holds a

condemnation case is removed from the docket if the deposit is

removed. Thereafter, these motions were abandoned.

App. 44

coffers and the money is not in an interest bearing

account. The city noted that even on a simple interest

basis of approximately five percent, the city is losing

approximately five thousand dollars per month on the

deposited amount for the 299 Middle Street property

alone. If the homeowners’ injunctions are granted, the

absence of the funds from the city’s coffers with no

acquisition to show for it and the loss of interest income

present an inequitable hardship to the city of Bristol.

D. Increased Burden-on City Services if Properties

Developed Residentially

Testimony shows the majority of the 299 Middle

Street property is used as a Christmas tree farm, which

allows for reduced taxes. Taxes for the 299 Middle Street

property (the house and the remaining approximately

thirty-nine acres) are assessed at $2100 per year. The

property as currently zoned allows for development of

small, relatively inexpensive homes. Testimony shows

that if the properties are developed as currently zoned,

without a counterbalance of industrial development,

there would be a net loss to the city because of costs of

providing services, particularly schools. If the properties

are developed under the proposed industrial zoning by

building an industrial park, testimony shows the park

would provide the city with acquisition monies from

selling the park lots to private entities as well as provide

the city with a substantial increase in tax base. If the

homeowners’ injunctions are granted, the city would suf-

fer inequitable hardship by the increased burden on city

App. 45

services if the properties are developed as currently

zoned.

E. Need for New Jobs

Manufacturing employment has steadily declined in

Bristol since 1979. The rate of decline from 1990 to 1996

was sixteen percent.2? Unemployment rates in Bristol in

the 1990s have been consistently greater than state and

regional averages. (See Defendant’s Exhibit C, current

plan, employment overview.) Also, there have been many

shutdowns and downsizings of companies since the

1970s, many in the last few years,2° which decreased the

number of manufacturing jobs in Bristol.

The Economic Development and Manufacturing

Assistance Act of 19903! distinguishes between the level

of funding that might be available for particular catego-

ries of cities and towns within the State based on their

financial status. Under the Act, the city of Bristol qualifies

as a “targeted investment community” because of its

poverty criteria. The city of Bristol has an Enterprise

Zone, so under the Act it is eligible for up to ninety

29 Statewide decline for the same period was nineteen

percent.

30 Mr. Rosenthal testified as to the loss of manufacturing

employers in the city of Bristol. Specifically, he testified that the

General Motors plant closed in 1995, wherein 500 jobs were lost,

that Nestle closed its distribution facility with a loss of

approximately 80 jobs, and that Barnes, a spring manufacturing —

company, had declined from 500 employees down to 300

employees.

31 General Statutes § 32-220, et seq.

App. 46

percent of funding from the State. Without this status, the

maximum amount of funding the State could provide for

the proposed industrial park project is fifty percent. Fur-

thermore, the city of Bristol is a public investment com-

munity within the State of Connecticut because it is

among the twenty-five percent poorest Connecticut

towns.

Evidence shows the proposed industrial park would

provide the city of Bristol with a needed increase in jobs

and tax revenues. Evidence also shows the city currently

has poverty status and that the Economic Development

and Manufacturing Assistance Act could provide the city

with a substantial boost in funding the proposed project.

These factors, combined with the lack of other suitable

industrial development property comparable with the

homeowners’ properties, would make it an inequitable

hardship for the city if the homeowners’ requests for

injunctions are granted.

CONCLUSION

This court sympathizes with the homeowners’ con-

cerns over losing their homes; however, the fears and

apprehensions of the parties applying for injunctive relief

are not sufficient to constitute a showing of irreparable

harm. This court does not find the disruption to the

homeowners that the taking of their property would

cause them evinces an irreparable injury. Furthermore,

this court finds, based on the evidence submitted, that the

homeowners’ federal or state constitutional rights have

and will not be violated by the taking of their property;

App. 47

and as such, the homeowners have not made their requi-

site showing of irreparable injury if permanent injunc-

_ tions are not issued.

Also, as discussed herein, this court finds, based on

the evidence submitted, that the balancing of equities

does not justify granting the homeowners injunctive

relief over the hardships to the city of Bristol due to the

unique suitability of the homeowners’ properties for

development as an industrial park and because the dam-

age to the city by the granting of the injunctions would be

greatly disproportionate to the homeowners’ injuries.

This court determines that just compensation for the two

properties to be taken provides an adequate remedy for

the homeowners. Therefore, the homeowners’ requests

for permanent injunctive relief are hereby denied.

- /s/ Kremski, J.T.R.

Kremski, J.T.R.

App. 48

SUPREME COURT

STATE OF CONNECTICUT

NO. PSC-00-0492

Frank W. Bugryn, Jr., et al. v. City of Bristol et al.

City of Bristol v. Frank W. Bugryn, Jr., et al.

City of Bristol v. Frank W. Bugryn, Jr.

ORDER ON PETITION FOR

CERTIFICATION TO APPEAL

On consideration of the petition by the Frank W.

Bugryn, Jr., John Bugryn, Nellie Fillipetti, Michael Dudko

and Mary Dudko for certification to appeal from the

Appellate Court (63 Conn. App. 98 [AC 20511], it is

hereby ordered that said petition be, and the same is

hereby denied.

Sullivan, C.J. did not participate in the consideration

or decision of this petition for certification.

BY THE COURT,

/s/ Alan M. Gannuscio

ASSISTANT CLERK-APPELLATE

Dated: June 7, 2001

Notice sent: 6/7/01

Clerk, Superior Court, New Britain, CV98 488051/CV99

495681/CV99 495682

Clerk, Appellate Court

Reporter of Judicial Decisions

SAO

Carmody & Torrance

Denorfia & Gallagher

Bridget C. Gallagher in support of petition: Brian T.

Henebry in opposition.