Opinion
HHDCV156063300S
06-21-2019
KENMORE ROAD ASSOCIATION, INC. v. TOWN OF BLOOMFIELD
UNPUBLISHED OPINION
OPINION
PECK, JTR
On November 12, 2015, the plaintiff, Kenmore Road Association, Inc. (the "plaintiff" or the "association"), commenced this declaratory judgment action seeking a declaration by the court that Kenmore Road has been accepted as a public street in the defendant, town of Bloomfield ("the town"). A court trial was held on January 23, 2018. Thereafter, simultaneous briefs and reply briefs were filed. Oral argument on the briefs was held on May 23, 2018, and July 30, 2018. The association is a non-stock not for profit corporation, organized and existing under the laws of the state of Connecticut. The association is the owner in fee simple of Kenmore Road, Berkshire Road and Hillside Drive (collectively, "the road"), a system of roads in the town. The members of the association are the residents whose properties abut the road ("the residents"), and who use numerical designations followed by "Kenmore Road," "Hillside Drive" or "Berkshire Road," as their addresses. While the association owns the road, the residents abutting the road are not members of a common interest community.
Although the defendant introduced into evidence a memorandum, dated December 30, 2013 (Defendant’s Exhibit MM), to the Town Manager Phillip Schenck from John P. Lawlor, Jr., Director of Public Works, which purports to set forth a chronology of events relating to Kenmore Road based on land records dating back to 1968, which allegedly reflects that, in 2007, the president of the association, Tollie Miller, quitclaimed "the property" to a woman by the name of Elizabeth Sciarra. The plaintiff unequivocally denies that this transfer involved anything more than small portion of the property owned by the association and not the entire road as suggested by the defendant. There is no credible evidence in the record that suggests that the association does not own Kenmore Road.
I
THE PLAINTIFF’S CLAIM
From the plaintiff’s perspective, the following are the pertinent facts of the case. The road was acquired by the association by deed dated July 8, 1966, and recorded at Volume 112 at Page 20 of the town land records. Since its inception, Kenmore Road has been a private road, the original fee of which was owned by the developer, Samuel Tychsen. The original layout and profile of Kenmore Road was approved by the Town of Bloomfield Planning Commission ("the commission") on August 27, 1929. On June 24, 1937, the commission gave "full approval to alteration of streets and lots in that fraction of ‘Kenmore’ situated between Simsbury Road on the east and Hillside Drive on the west." The map of the road referred to by the commission is entitled, "Kenmore Estates," and was dated October 1928, and revised to March 25, 1937. See Defendant’s Exhibits AA and BB. An additional portion of the road was approved by the commission on November 6, 1947. The road is fifty (50) feet wide. It is about a mile in length from the bottom to the top, and is the sole means of ingress and egress for persons residing in the 43 residences which abut the road and who designate their respective addresses as Kenmore Road, Hillside Drive or Berkshire Road, with a preceding numerical designation. The entry to the road is not now, and has never been, gated and no barrier prevents public entry and the association has not taken any formal steps to prevent non-residents from accessing Kenmore Road. The road is paved for its entire length from Simsbury Road to the top, including the side road except for an unused portion known as the lower loop. Kenmore Road has no outlet. Traffic proceeds around a circle at the top of the road and back over the same path as its entry.
There is no reference in the record of any road standards for the town prior to January 18, 1951. See Plaintiff’s Exhibit 4.
No residents access the road over the unpaved portion. All the homes abut both the paved portion and some portion of the unpaved portion.
The circle at the top of the road is sometimes known as the "upper loop."
At various times in the past, and continuing to the present, the association and the residents have offered the road to the town expressly indicating their intention to dedicate the road to public use, and have permitted public access and use of the road without interference. See Plaintiff’s Exhibits 7, 8, and 9. In the mid-1990s and again in 2014-2015, the association asked that the road be public and sought a determination from the town as to what it would require to formally accept the road. See Plaintiff’s Exhibits 8 and 9. Although the association did not accept the preconditions proposed by the town, it made clear its desire to have the town make the road public.
At different times, after 1929, the town provided various services to the residents of Kenmore Road. For a number of years, the association was billed by the town and paid for some of the services. The most significant services provided by the town were snowplowing and sanding the road in winter, rubbish and trash removal, transportation for the elderly and school bus pickup for children at their homes on the road. There were other periodic services such as downed tree removal, tree trimming and bus transportation for the elderly. From 1969 to 1995, the town charged the association for oiling and sanding the road, tree trimming and removal, street sweeping, road repairs, snowplowing and sanding, usually at very moderate cost. No charge was ever made for rubbish pickup, elderly pickup, school bus transportation or police services. From sometime in 1995 to 2014, the town plowed the snow and sanded the road in winter without billing or charging the residents or the association.
Although each member of the association pays property tax on his or her residence, the association is not taxed for the road as a separate parcel. In 2014, the town notified the association and the residents that it would no longer provide snowplowing and sanding without payment. Since that time, the association has been required to pay substantial sums of money for snowplowing and street maintenance while the cost to other members of the public is included in the services provided by the town for taxpayers. The association has continuously opened the road and allowed its use for the convenience of the public. When the association has requested that the town accept the road as a public highway, the town has considered the request and provided a response containing information on what must be done as a prerequisite to making the road public.
Residents testified that nonresident bicyclists, dog walkers, joggers, skateboarders and others use the road to access the MDC reservoir for training and recreation. Cars have parked at the top of the road to access the reservoir. Town school buses pick up and transport children to public, magnet and parochial schools. The gate to the reservoir is not locked and does not prevent access. The association has not imposed any restriction on public use. The road appears on various maps with no indication that it is private or not open to public use.
In 2014, the association appeared before the town council to seek a resumption of the plowing and sanding. In its presentation, the association indicated that if it were turned down, it would have to look to whether the road had, in fact, become a public street. At that time, the association stated that the road was a private road but now maintains that a road can be dedicated and accepted without formal action by the town. Essentially, the association seeks acceptance of the road by the town in order to obtain the services attendant thereto, and necessary for the convenience, safety, health and welfare of the residents and the public using it. Despite its proffer to the town, the association has not been able to accept the financial obligations upon which the town has conditioned its acceptance. Nonetheless, the association has kept the road open to public use and has continued to request that the town to take it over. The association maintains that if the road were a public street, the town can be reimbursed for maintenance expenses by the state of Connecticut.
The association argues that the road has become a public street by virtue of the fact that it has been continuously available to public use and the public has accepted it by its use. It further believes that actions by the town coupled with public use allowed by the association, constitute an implied dedication and acceptance of Kenmore Road.
Currently, the town does not maintain the road and is not obligated to repair or resurface it. It is not responsible for tree cutting or drainage. Those expenses are paid by the association. Members contribute approximately $800/year for these purposes, in addition to collectively paying $473,061, annually, to the town for real estate taxes.
The plaintiff seeks a judicial determination, pursuant to General Statutes § 52-29, as to whether Kenmore Road has been accepted by the town and is a public road.
II
THE DEFENDANT’S CLAIMS
From the defendant’s perspective, the following are the pertinent facts of the case. The Kenmore Road development was created as an exclusive private community in the late 1920s by the developer, Samuel Tychsen. The community is connected to the public road system of the town at Simsbury Road. All the land, including the roads and utilities are privately owned, and lead nowhere other than the homes included within the community. Kenmore Road loops back around and Hillside and Berkshire Roads are cul-de-sacs. Tychsen was the sole owner and operator of the development until the mid-1960s, when he transferred his interest to the then newly formed association. The bylaws of the association define its purpose to include maintenance of the asphalt roadway leading to the homes.
In the late 1960s, the association considered upgrading the asphalt roadway to meet town standards and thereafter asked the town to accept the road as a public road. The association chose not to perform the road upgrade and the road remained private. In the late 1990s, the association again considered bringing the road up to town standards and asking the town to accept it as a public road. At that time, the estimated cost of bringing the road within minimum compliance of town requirements was $960,000. The association voted not to expend the money. The road has continued to be a private road to the present time.
Over the years, the town performed some maintenance activity in exchange for a fee paid by the association. There was never a time when the association dedicated the road for acceptance by the town as a public road. Further, there was never a time when the town accepted the road as a public road either expressly or impliedly. For decades dating back to the late 1960s, the town worked as a contractor for the association, performing services for payment. During this time, there were many years when, as a result of confusion internally, the town did not invoice the association for snow removal services. The association expected to receive a bill and did not say anything when no bill arrived, and thus received "free" services for a period of years until the oversight was discovered in 2014.
The evidentiary record does not reflect any record of charges to the association for winter maintenance and miscellaneous services between 1995 to 2014.
After discovering the omission, on February 25, 2014, the town presented the association with a proposal for winter snowplowing services in the amount of $31,350, annually. As expressed at subsequent meetings with town officials, the association found the proposal to be excessive given the amount of property taxes paid by the residents to the town. The town subsequently revised its proposal to $25,462.50, annually. In a letter to the mayor and statement to the town council presented at the October 27, 2014 meeting, the association acknowledged that the roads owned by association were private roads. The association’s true purpose in seeking the meetings was to negotiate more favorable terms from the town to plow the association’s private roads.
The town has resisted the idea of accepting Kenmore Road as a public road without substantial improvements to the roadway, drainage, other perceived hazards and concerns about ongoing maintenance dating back to 1969. Concerns about the impact on town policy also have repeatedly been expressed by town officials. Nevertheless, although much of the work that the town has done in connection with Kenmore Road has been on a contract basis, other work and services have been provided directly to the association. See Defendant’s Exhibits N, O, P, and Q. These activities have contributed to the confusion of the relationship between the parties. On January 23, 1997, the town planning and zoning commission voted to recommend to the town council that Kenmore Road not be accepted as a public road. It did recommend, however, that the town council establish an "assessment procedure ... whereby the roadways could be improved over time and accepted into the Town system." Defendant’s Exhibit Q. On July 14, 1997, the town council approved a resolution setting forth numerous conditions that must be met before Kenmore Road could be accepted as a public road. Other evidence suggests that in 1981, based on a request from the then association president, T.P. Stephens, the town also refused to accept Kenmore Road as a public road. Most recently, on April 13, 2015, the town engineer issued a report entitled "Inquiry Into Possible Acceptance of Roads in Kenmore Estates," outlining a procedure to be followed and improvements that must be made to Kenmore Road before the engineering department could recommend that it be accepted by the town as a public road.
The defendant argues that the association’s admission in October 2014, that the roads owned by it are private roads, is fatal to a claim that the town had impliedly accepted the association’s roads as public roads. If the association believed the town had impliedly accepted the association roads as public roads, the statement of association members to the town council and the letter from their attorney, Mark Shipman, dated September 5, 2014, would not have focused on trying to secure a lower contract price for winter snowplowing services. For the past four winters, the association has retained a private contractor to perform snowplowing services for Kenmore Road.
Years back, members of the association prevailed upon the MDC to install a gate in the fence to the MDC reservoir property that had a combination lock. The combination was provided to association members. There are other ways to access the MDC reservoir property including an entrance off of Avon Mountain, Route 44, where there is a large public parking lot allowing members of the public to park and access the grounds for walking, jogging or biking. Members of the public walking on Kenmore Road have been occasionally spotted by witnesses; however, there is no evidence that any person walking on the road was not either a homeowner in the development or a friend or relative of someone who lived there. Occasionally, former homeowners in the development return to the road and walk the street.
The town takes the steadfast position that it has not impliedly accepted the road and neither has the general public because the evidence of public use is insufficient. In fact, there is scant evidence of continuous use of the road by the unorganized public. Rather, the evidence presented by the residents reflects random use. Because there has been no acceptance of Kenmore Road, it cannot be held to be a public street.
III
FINDINGS
Based on all the evidence, the case law recited by counsel and the legal arguments presented, the court makes the following findings. "From early times, under the common law, highways have been established in this state by dedication and acceptance by the public ... [T]wo elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public ... No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied ... Whether there has been a dedication and whether there has been an acceptance present questions of fact ... Likewise, the determination of the extent to which there has been an acceptance of a street involves a question of fact ..." Vernon v. Goff, 107 Conn.App. 552, 556-57, 945 A.2d 1017, cert. denied, 289 Conn. 920, 958 A.2d 154 (2008). "Under common-law principles of dedication, the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public." (Internal quotation marks omitted.) A & H Corporation v. Bridgeport, 180 Conn. 435, 439, 430 A.2d 25 (1980). Both the intent to dedicate and the acceptance may be either express or implied. Kent v. Pratt, 73 Conn. 573, 578, 48 A. 418 (1901).
There is no question that, up to and including the present time, Kenmore Road has neither been expressly dedicated by the association as a public road, nor accepted by town as a public road. The remaining issues to be resolved by the court are whether the evidence presented supports the plaintiff’s claim of implied dedication and implied acceptance by the town or the public.
"An implied dedication may arise by operation of law where the conduct of a property owner unequivocally manifests his intention to devote his property to public use; but no presumption of an intent to dedicate arises unless it is clearly shown by the owner’s acts and declarations, the only reasonable explanation of which is that a dedication was intended." A & H Corporation v. Bridgeport, supra, 180 Conn. 439-40. "Acquiescence of the property owners to its use by some members of the public does not conclusively establish its dedication to the borough for public use ... [Mere permission on the part of the owner to the public to use the land as a way, without more, will not constitute an intention to dedicate, since a temporary right to use a private way is in the nature of a license, revocable at pleasure, and does not in any sense establish the requisite intent." (Citation omitted; internal quotation marks omitted.) Mihalczo v. Woodmont, 175 Conn. 535, 542-43, 400 A.2d 270 (1978). "Absent ... unequivocal conduct, the existence of an intent to dedicate is a question of fact." A & H Corporation v. Bridgeport, supra, 440.
"[C]ommon-law acceptance of property dedicated to the public for a public way may be established by the public’s actual use of the property or by the actions of the municipality." Id. To constitute acceptance by public use, "[t]he public’s use of the property must continue over a significant period of time ... and be of such a character as to justify a conclusion that the way is of common convenience and necessity." (Citation omitted; internal quotation marks omitted.) Id., 441. "While it is true that actual use need not necessarily be constant or by large numbers of the public ... it can hardly be said that the slight use made of the disputed property, coupled with evidence that certain use by neighbors was with the permission of the plaintiff, constituted acceptance by the public. The use to which the public puts the subject property must continue over a significant period of time ... and be of such a character as to justify a conclusion that the way is of common convenience and necessity." (Citations omitted; internal quotation marks omitted.) Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 282, 429 A.2d 865 (1980). A private road may become a public road "no matter how narrow or tortuous it may be, and no matter whether or not it has been in any way improved." (Internal quotation marks omitted.) Reed v. Risley, 151 Conn. 372, 376, 198 A.2d 55 (1964). The numbers of people using the road and frequency of public use is not necessarily determinative. The test is "if the dedication appears to be one of common convenience and necessity, and therefore beneficial to the public," the conditions for acceptance will "more readily be regarded as satisfied ..." Phillips v. Stamford, 81 Conn. 408, 412, 71 A. 361 (1908). The term "beneficial" is often used in the case law to inform what is meant by the often used phrase, "common convenience and necessity." See Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 17, 48 A.3d 107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012) ("[t]he principles of acceptance of a highway under the common law ... presume an acceptance by the public where it is shown to be of common convenience and necessity, and therefore beneficial to them" [Emphasis altered]). It also appears that the acceptance of the road by the public, even by implication, has to be within a reasonable time of its dedication. See Phillips v. Stamford, supra, 81 Conn. 411.
The association took title to Kenmore Road, as a private road, on April 20, 1966. The evidence reveals that in 1969, and 1996-1997, and, again in 2014-2015, the association engaged with the town about accepting Kenmore Road as a public highway, and the town considered the terms of such a possibility. There is no evidence of a manifest intent by the association to dedicate its roads to public use or of the town’s intent to accept such a dedication without a plan and a process in place to achieve substantial improvements in conformity with road standards outlined by town officials. See Plaintiff’s Exhibits 7 and 9; Defendant’s Exhibits N, O, P, Q, and MM.
By any measure, the condition of the roadway of Kenmore Road is substandard in that it does not meet the required minimum standards for public streets in the town. It has poor drainage. The requisite minimum width for a town road is 26 feet curb to curb. The width of Kenmore Road varies from 14 feet wide to 23 feet. For reasons that are well stated in Thompson v. Portland, 159 Conn. 107, 115, 266 A.2d 893 (1970), an association such as the plaintiff, or a group of homeowners cannot by an act of will impose the repair and maintenance of a substandard roadway on a municipality when it is not in the best interest of the town to assume such an obligation. Although the court recognizes that Thompson was not a case of either implied dedication or acceptance, the reasons for the reluctance on the part of the town of Bloomfield to accept Kenmore Road are the same policy concerns expressed by the court in Thompson .
The plaintiff argues that the services provided by the town as a means of protecting the health, safety and welfare of town residents amount to an implied acceptance of Kenmore Road as a public road. These services have included trash pickup, snow removal, oiling, sanding and sweeping of sand off the road to be stored in an environmentally secure area, per order of the state DEP, trimming tree limbs, clearing downed trees, which would interfere with the efforts of first responders from getting to residents in need of emergency assistance, and transportation services for school children and the elderly. Some of these services have been performed on a contract basis while others have been volunteered. Many of these services have been provided on the same basis to residents of other private roads of the town. In any event, the provision of these services alone to members of the association on a voluntary or contractual basis cannot reasonably be said to constitute an implied acceptance of the roadway by the town as a public highway particularly in light of the substantial evidence indicating that the town has consistently and repeatedly rejected the residents’ historical requests to accept the road for public use absent substantial improvements. Thus, the weight of the evidence is that the town cannot be said to have impliedly accepted Kenmore Road for public use.
As the plaintiff has repeatedly pointed out and as the case law reflects, it is unusual for the owner of a fee to seek to dedicate a private road for public use where it is denied. Also, it does seem unfair that a private road, the plan for which was accepted by the town when established by the developer at a time prior to the adoption or implementation of regulations governing specifications for town roads, is thereafter denied public status and town services because it does not meet modern town standards for public roads.
Kenmore Road has no access to any other road of the town other than Simsbury Road. Without question, it primarily exists to serve its residents. Thus, the public benefit to be derived from public use of the road is not readily apparent. At the "top," of the road, it abuts the MDC Reservoir property. At some point in time, the MDC constructed a fence, which served as a barrier to enter onto the MDC property. Residents of Kenmore Road testified that, at least in recent time, they have taken no action to bar the public’s use and entry onto the road. Occasionally, members of the public have been spotted by witnesses walking on the road. In the past, however, residents have sought to restrict access by the general public. Members of the association prevailed upon the MDC to install a gate in the fence that had a combination lock, the combination for which was provided to association members.
Significantly, there is no specific evidence as of what date, or period of time, the association claims the road may be deemed to have been impliedly dedicated by it to public use. The lack of evidence on this point makes it even more challenging for the court to find implied acceptance by the general public. To the extent there has been use by the public, it has been sparse and irregular. Also, there is scant evidence of continuity of use by the general public. Further, assuming there has been use of Kenmore Road by the unorganized public over time, it is not clear from the evidence how beneficial that use of has been. As noted, there is only one access point to and from Kenmore Road. There is no public parking on Kenmore Road for folks seeking access to the reservoir. The MDC reservoir property has a large public entrance with substantial public parking within a mile of Kenmore Road on Route 44 in Avon. See New London v. Pequot Point Beach Co., 112 Conn. 340, 345, 152 A. 136 (1930) (the principal evidence of acceptance is by the actual use by the public for the purpose which it was dedicated).
Essentially, the plaintiff has failed to establish that at any time prior to the filing of this lawsuit, it "unequivocally" manifested an intention to devote Kenmore Road to public use. See A & H Corporation v. Bridgeport, supra, 180 Conn. 439-40. In fact, the weight of the evidence demonstrates that until the present time, the association has consistently exhibited private control of the road. Thus, the court finds that the plaintiff has failed to prove by a preponderance of the evidence the dedication of Kenmore Road by implication.
The plaintiff also argues that Kenmore Road has been impliedly accepted as a public road by the public’s actual use of the property. See Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 281-83. Even assuming, however, implied dedication by the plaintiff, the evidence of use by the general public is scant, of unclear benefit to the public, and generally insufficient. Basically, there is little or no evidence that the use of Kenmore Road by the unorganized public, i.e., that the use by members of the public who are not residents of the road or their invitees, has continued "over a significant period of time," and can be said to be "of such a character as to justify a conclusion that the way is of common convenience and necessity." (Citation omitted; internal quotation marks omitted.) A & H Corporation v. Bridgeport, supra, 180 Conn. 441. In addition, as stated, implied acceptance by public use must occur within a reasonable time after dedication. See Phillips v. Stamford, supra, 81 Conn. 411. Because the timing of both the plaintiff’s purported dedication and acceptance is unclear from the evidence, the court cannot justifiably make this determination.
Although the term "unorganized public" is used in several cases, it does not appear to be precisely defined. The definition herein is based on this court’s understanding of the term. See Phillips v. Stamford, supra, 81 Conn. 412, citing Makepeace et ux. v. Waterbury, 74 Conn. 360, 362, 50 A. 876 (1902). In the more recent case of Montanaro v. Aspetuck Land Trust, Inc., supra, 137 Conn.App. 15-16, cert. denied, 307 Conn . 932, 56 A.3d 715 (2012), the court used the term "unorganized public" synonymously with the term "general public," in concluding that prior to 1730, acceptance of a dedicated highway could only be accomplished through actual use by the "unorganized public," also referred to as "the general public."
Finally, acceptance by the general public must be demonstrated by "actual use." See Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 281-83. As illustrated by the testimony of the residents of Kenmore Road, evidence of the actual use of the road by the unorganized public is weak, uncertain and of unclear benefit. For these reasons, the use of Kenmore Road to the general public, as shown by the plaintiff, cannot be said "to be of common convenience and necessity, and therefore beneficial to them." Montanaro v. Aspetuck Land Trust, Inc., supra, 137 Conn.App. 17.
For all the foregoing reasons, the evidence does not support either dedication by the association or acceptance by the town or the general public.
IV
CONCLUSION
Accordingly, the court finds that the plaintiff has failed to sustain its burden of proving by a preponderance of the evidence that it is entitled to a declaration by the court that it has dedicated Kenmore Road to public use or that the defendant or the general public has accepted it. Therefore, judgment is hereby ordered in favor of the defendant.