2005 Connecticut Real Property Law Developments
| Publication year | 2021 |
| Pages | 39 |
80 CBJ 39. 2005 CONNECTICUT REAL PROPERTY LAW DEVELOPMENTS
I. INTRODUCTION
The many important developments in Connecticut real property law during 2005 may be drowned out by Kelo v. City of New London(fn1) and the reverberations being felt in legislatures here and elsewhere, but such a result would be unfortunate. Within the broad category of "real property", many important statutory and common law developments occurred last year. The intent of this Review is to highlight at least some of these developments, whether they suggest emerging trends or address significant discrete issues. Of course, significance is in the eye of the beholder and defining what does and does not fit under the real property tent is a subjective exercise. This is a modest effort, despite these limitations, to reflect some of the breadth and depth of the year's highlights in matters concerning eminent domain, zoning, conveyances, wetlands and other environmental issues, easements, common interest communities, real estate brokers, title insurance companies, leasing, adverse possession, real property liens and sovereign immunity.(fn2)
A. Eminent Domain
Only time will tell whether Kelo will have the far-reaching effects that the dissenting justices predict. For Connecticut, the issues underlying Kelo will almost certainly continue to be debated in the public sphere. New legislation at local, state and federal levels may also be pursued to resolve the
* Of the Hartford Bar. This article would not have been possible without the invaluable research assistance of Joel Norwood and David Recht, the kind support of Dwight H. Merriam and Steven L. Elbaum and the tireless assistance of Susan Kline.
1 125 S. Ct. 2655 (2005).
2 Within the space constraints of this Review, I have tried to include some of the important cases decided by the superior court in recognition of the importance of these unreported cases in practice at the trial court level. Unless otherwise noted, however, all cases referenced in the Review are reported cases.
competing interests. Draft legislation was introduced during the 2005 special session to restrict the use of eminent domain powers and to revise the process through which municipalities exercise such powers for redevelopment and economic development purposes. (fn3) While neither of these bills was enacted, additional legislative efforts are likely during the 2006 session. Although a proper treatment of Kelo and its context is beyond the scope of this Article, it would be impossible to survey the significant developments in real property law in 2005 without providing at least a brief treatment of the case.
The underlying facts of the case are undoubtedly familiar. The City of New London, which has wrestled with decades of economic and population decline, had, by 1998, an unemployment rate almost twice that of the rest of the state and its lowest population since 1920. Fifty-five percent of the property in the city is tax exempt, severely restricting the city's capacity to invest in economic development and attract new businesses and residents given the critical role of property taxes on local budgets in the state. In 2000, following a planning process supported by state funds and reviewed by various city and state agencies, the city approved a development plan targeting redevelopment in the Fort Trumbull area to create over 1,000 jobs, increase taxes and other city revenues and revitalize the local economy. The New London Development Corporation ("NLDC"), a private nonprofit corporation, was chosen to act as the development agent for the plan. The nine plaintiffs collectively owned fifteen properties in the Fort Trumbull area, none of which was claimed to be blighted or otherwise in poor condition. The area within the development plan's scope is located immediately north of Pfizer Inc.'s new $300 million research facility. Proposed development agreements negotiated by NLDC included potential terms providing developers with 99-year ground leases for portions of the site for nominal rent.
The United States Supreme Court granted certiorari in 2004 following the Connecticut Supreme Court's decision
earlier that year holding that the city's proposed taking of the plaintiffs' property was authorized by state law,(fn4) "reasonably necessary" to effectuate the city's intended public use,(fn5) undertaken for "reasonably foreseeable needs"(fn6) and, therefore, valid. The question before the Supreme Court was whether the city's decision to take property for the purpose of economic development satisfied the "public use" requirement of the Fifth Amendment.(fn7)
Writing for the majority, Justice Stevens opined that Kelo was neither a situation involving the taking of land "for the purpose of conferring a private benefit for a particular private party,"(fn8) nor a taking for use by the general public.(fn9) Instead, Justice Stevens rooted the holding in "the broader and more natural interpretation of public use as "public purpose."(fn10) Relying on Berman v. Parker,(fn11) Hawaii Housing Authority v. Midkiff(fn12) and Ruckelshaus v. Monsanto Co.,(fn13) Justice Stevens asserted that the "public use" doctrine has necessarily evolved over time in response to changed circumstances, which, in the case of Kelo, included the validity of takings in the context of an economic development plan that the city has found will "provide appreciable benefits to the community."(fn14) Justice Stevens refused to exempt economic development from the potential project as a public purpose or to impose a higher standard of review, such as the "reasonable certainty" of the actual accrual of public benefits.(fn15) As to these matters, the majority held, the legislature deserves deference.
In his concurring opinion, Justice Kennedy addressed the issue at the heart of both of the dissenting opinions, namely the possibility that takings may be designed to take property
4 Kelo v. City of New London, 268 Conn. 1, 18-28; 843 A.2d 500, 515-521 (2004) (interpreting CONN. GEN. STAT. § 8-186 et seq. (2004)).
5 Id. at 82.
6 Id.at93.
7 U.S. Const. Amdt. 5.
8 Kelo, 125 S. Ct. at 2661.
9 Id.at 2662.
10 Id.
11 348 U.S. 26 (1954).
12 467 U.S. 229 (1984).
13 467 U.S. 986 (1984).
14 Kelo, 125 S. Ct. at 2665.
15 Id. at 2667.
from one private party and given to another under the guise that such a transfer achieves a public purpose. Justice Kennedy reasoned that such pretextual takings would not pass muster under the Court's rational basis review. According to Justice Kennedy, "a court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose."(fn16) Finding no support for such an invalid purpose in the record, Justice Kennedy concluded that the case survived rational basis review.
The respective dissents of Justices O'Connor and Thomas take different tacks. Justice O'Connor acknowledged that "in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use."(fn17) However, the holdings in Berman and Midkiff, she asserts, are limited to the extent both takings were found by the relevant legislative body to be necessary to remedy a harmful use of the property. In contrast, she opined, the majority's opinion sanctions the taking of a private property being put to ordinary private use "so long as the new use is predicted to generate some secondary benefit for the public."(fn18) Since "nearly any lawful use of real private property can be said to generate some incidental benefit to the public,"(fn19) the Fifth Amendment's public use restriction is rendered meaningless under majority view. Moreover, Justice O'Connor observed, the preoccupation in the majority opinion and Justice Kennedy's concurrence with detecting an invalid intent under the guise of public purpose, is "theoretically flawed" since even such a transfer could produce a salutary public benefit. In other words, if the government can compel the transfer of property from one private party to another to create a public benefit then it should not matter whether the government also
intended to benefit the transferee. Finally, Justice O'Connor, makes the point, echoed by Justice Thomas, that although Kelo opens the door for any private party's property to be taken for the benefit of another, the brunt of such takings will inevitably fall primarily on the politically and economically disempowered.(fn20)
Justice Thomas' dissent asserts that a "natural reading" of the Fifth Amendment requires even stricter limits on eminent domain powers than those accepted by Justice O'Connor. In his view, the "public use" requirement can only be met where the subject property will actually be used by either the general public or the government.
Though far and away the most conspicuous eminent domain case decided in 2005, Kelo was not the only significant case in this area decided last year. Four Connecticut Supreme Court cases are particularly noteworthy.
First, in Town of Wallingford v. Werbiski(fn21) the court addressed the question whether under Connecticut General Statutes Section 7- 148(c)(b)(A)(iii)(fn22) a municipality may enter upon privately owned land to determine the feasibility of creating a "public improvement" thereon. Walter and Joyce Werbiski own a farmland property in an area of Wallingford not served by roads or utilities but which the town was considering developing to allow for the expansion of a nearby...
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