Opinion
No. CV00 037 44 97 S
May 11, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The issue before this court is the defendant's motion to dismiss a supplemental reference in a condemnation proceeding.
This matter began as an appeal by the property owner, Allen Haight (Haight) who challenged the defendant commissioner's taking of a permanent easement and a temporary easement of portions of property known as 1535, 1565 Railroad Avenue and 340 Cherry Street in Bridgeport, Connecticut. Pursuant to Connecticut General Statutes § 13a-73(b), the commissioner filed a notice of condemnation and assessment of damages with the clerk of the Superior Court in the Judicial District of Fairfield. On September 18, 2000, Haight filed an appeal pursuant to Connecticut General Statutes § 13a-76.
Connecticut General Statutes § 13a-73(b) provides in relevant part:
The commissioner may take any land he finds necessary for the layout, alteration, extension, widening, change of grade or improvement of any state highway or for a highway maintenance storage area or garage and the owner of such land shall be paid by the state for all damages and the state shall receive from such owner the amount or value of all benefits resulting from such taking, layout, alteration extension, widening, change of grade or other improvement . . . The assessment of such damages and of such benefits shall be made by the commissioner and filed by him with the clerk of the superior court in the judicial district in which the land affected is located, and such clerk shall give notice of such assessment to each person having an interest of record therein by mailing to each a copy of the same, postage prepaid, and, at any time after such assessment has been made by said commissioner, the physical construction of such layout, alteration, extension, widening, maintenance storage area or garage, change of grade or other improvement may be made . . . Upon filing an assessment with the clerk of the superior court, the commissioner shall forthwith sign and file for record with the town clerk of the town wherein such real property is located a certificate setting forth the fact of such taking, a description of the real property so taken and the names and residences of the owners from whom it was taken. Upon the filing of such certificate, title to such real property in fee simple shall vest in the state of Connecticut except that, if it is so specified in such certificate, a lesser estate, interest or right shall vest in the state. The commissioner shall permit the last owner of record of such real property upon which a residence is situated to remain in such residence, rent free, for a period of one hundred twenty days after the filing of such certificate. CT Page 7650
Connecticut General Statutes § 13a-76 states:
Any person claiming to be aggrieved by the assessment of such special damages or such special benefits by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court for the judicial district within which such land is situated for a reassessment of such damages or such benefits so far as the same affect such applicant. The court, after causing notice of the pendency of such application to be given to the commissioner, may appoint a judge trial referee to make such reassessment of such damages or such benefits. The court or such judge trial referee, after giving at least ten days' notice to the parties interested of the time and place of hearing, shall hear the applicant and the commissioner, may view the land, and shall take such testimony as the court or such judge trial referee deems material and shall thereupon reassess such damages and benefits so far as they affect such applicant. The reassessment by the court or such judge trial referee shall take into account any evidence relevant to the fair market value of the property, including evidence of required environmental remediation by the Department of Transportation. The court or such judge trial referee shall make a separate finding for remediation costs, and the property owner shall be entitled to a set-off of such costs in any pending or subsequent legal action to recover remediation costs for the property. If the amount of the reassessment of such damages awarded to any such property owner exceeds the amount of the assessment of such damages by the commissioner for such land, the court or such judge trial referee shall award to such property owner such appraisal fees as the court or such judge trial referee determines to be reasonable. If no appeal to the Appellate Court is filed within the time allowed by law, or if one is filed and the proceedings have terminated in a final judgment finding the amount due the landowner, the clerk shall send a certified copy of the assessment of the commissioner and of the judgment to the Comptroller, who shall, upon receipt thereof, draw an order upon the Treasurer in favor of the landowner for the amount due the landowner as damages. The pendency of any such application for reassessment shall not prevent or delay the layout, extension, alteration, widening, change of grade or other improvement of any such highway."
The presiding judge, Sheedy J., granted the commissioner's motion to refer the condemnation appeal to a judge trial referee. Judge Edward F. Stodolink, who rendered a decision on November 1, 2002, heard the appeal. In his decision Judge Stodolink noted:
The court has not determined the value of the loss of the twenty-foot right of way to Cherry Street since that issue was not referred to the court. Upon proper referral that issue would be entertained by the undersigned.
Pursuant to Connecticut Practice Book section 19-6 the defendant filed a motion for supplemental reference "referring the valuation of the loss of the 20 foot right of way to Cherry Street to Honorable Edward F. Stodolink, for all further proceeding, including hearing, determination and judgment." The presiding judge granted that motion on January 30, 2003. On that date the same court denied Haight's motion for revocation, Judge Sheedy noted "referral is made and this motion for revocation is denied. As a matter of judicial economy, all matters arising out of or related to case already heard by a judge should be heard by this judge. All questions of law shall also be heard by Stodolink, J." This motion to dismiss followed.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ." (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13, 668 A.2d 1314 (1995). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 620 A.2d 1243 (1996).
"A court does not truly lack subject matter jurisdiction if it has the competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 442-43, 797 A.2d 1081 (2002). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).
Haight's principal argument in support of his motion to dismiss is that because the notice of condemnation in the present case did not provide a "basis for the formal taking and compensation . . . of the . . . Cherry Street property," there, cannot be a proper referral. The commissioner contends that the judge trial referee had the authority to reform the underlying documents.
"The right to take private property for public use is one which is inherent in the State as an independent sovereign. It attaches to every man's land, and is paramount to his right of ownership. All titles are held subject to it. The Constitution is not its source, but the source of its limitations." (Citations omitted.) Board of Water Commissioners of the City of Norwich v. Johnson, 86 Conn. 151, 164, 84 A. 727 (1912).
The owner is entitled to know with exact certainty what the condemning authority seeks to appropriate from his ownership of the property. Such accuracy is essential for the protection of the rights of the parties, as well as of the public for whose use the condemnation has been undertaken. Any uncertainty in the description or in the degree of interest to be acquired will render the proceeding null and void, or if undetected, may result in an injustice or future corrective litigation. The certificate of taking and "taking map" referred to or annexed thereto must definitely identify the property and all rights, easements and interests taken, and leave no room for doubt or conjecture. See A.D. Jahr, Law of Eminent Domain, section 225. "The fact that the description is incomplete or unintelligible without consultation with a map or plan is not objectionable if the map is referred to in the description and is filed with it, and, taken together, the map and the description make clear what property is intended to be included in the taking." 6 Nichols, The Law of Eminent Domain, (Rev.3d Ed.), Section 26.112, pp. 26-72.
Hunt v. Commissioner of Transportation, Superior Court Judicial District of Tolland at Rockville (January 28, 1991, Bieluch, J.T.R.); see also Capuano v. Commissioner of Transportation, No. 35866, Superior Court, Judicial District of Hartford — New Britain at Hartford, (October 25, 1991, Bieluch, Stoughton, Cohen, JTRs).
Haight contends that the commissioner's failure to initially include the additional strip of property strips this court of any jurisdiction. While it is true that our Supreme Court has stated that "[a] statutory right to appeal maybe taken advantage of only by strict compliance with the statutory provisions by which it is created"; Chestnut Realty, Inc. v. Commission on Human Rights Opportunities, 201 Conn. 350, 514 A.2d 749 (1986); a condemnation proceeding, although in the nature of an administrative appeal, has its origin in the common law and is not therefore bound by the strictures that Haight would have this court apply.
"Under our law, a state referee sitting as a court on appeals in condemnation cases is more than just a trier of fact or an arbitrator of differing opinions of witnesses. He is charged by the General Statutes and the decisions of this court with the duty of making an independent determination of value and fair compensation in the light of all the circumstances, the evidence, his general knowledge and his viewing of the premises." Birnbaum v. Ives, 163 Conn. 12, 21-22, 301 A.2d 262 (1972). The trier of fact must reach a result that gives the plaintiff, as nearly as possible, a fair equivalent in money as just compensation for the property taken. Mathis v. Redevelopment Agency, 165 Conn. 622, 623, 345 A.2d 33 (1973); Hunt v. Commissioner of Transportation, Superior Court Judicial District of Tolland at Rockville (January 28, 1991, Bieluch, J.T.R.)
"The judicial proceedings instituted to condemn the plaintiff's property did not end with the appointment of the committee to assess the damages and the filing of its report with the clerk of the court. Ordinarily, the judgment appointing appraisers closes the judicial part of the proceedings, what remains to be done being of an administrative character, as the appraisers discharge only a quasi-judicial function . . . But in certain classes of cases a final judgment may be followed by a further judgment." (Citations omitted.) Antman v. Connecticut Light Power Co., 117 Conn. 230, 237-38 (1933). "As a general rule, jurisdiction once acquired is not lost or divested by subsequent events . . . As for the amended notice of condemnation, the amended complaint and the answer, the defendant cannot be heard to complain if the plaintiffs and the court treated the pleadings in the precise manner in which they were proffered, viz., as a continuation of a pending matter. Nor does the court lose the power to permit reasonable amendments merely because the proceeding involves the exercise of the power of eminent domain." See Rice v. Ives, 27 Conn. Sup. 25-26, 228 A.2d 153 (1966) (citations omitted).
In the present case, the commissioner's failure to include the twenty-foot right of way in its notice of condemnation and assessment of damages does not deprive the court of subject matter jurisdiction, but operates only as a limitation on the referee's authority to reassess the commissioner's award. "To ignore these circumstances and refuse to consider them . . . would be to edify form and submerge substance." Housing Authority, City of Bridgeport v. Peznik, 9 Conn. Sup. 483 (1941).
The motion to dismiss is denied.
DEWEY, J.