Opinion
No. CV04-4000684
January 14, 2005
MEMORANDUM OF DECISION RE MOTIONS FOR INSPECTION AND TESTING OF PROPERTY
These two cases require the court to balance the exigencies of municipal responses to potential environmental hazards against the rights of the municipality's citizens to be free from unwarranted intrusions upon their property in the context of a statute that purports to give the court authority to authorize municipalities to conduct such "inspection, survey, borings and other tests" as may be necessary to permit municipalities to address such hazards. It is undisputed that the Town of Clinton has been found to have certain ground water pollution problems which are in need of remediation. As a result of a Consent Order entered into with the Connecticut Department of Environmental Protection (DEP) on July 22, 1997, the Town was required to undertake studies of its neighborhoods in order to determine which areas of the Town are not able to support on-site waste water treatment and require the conveyance of waste water to an off-site facility for treatment and disposal. The Consent Order also required the Town to develop plans for the remediation of these conditions and to build facilities to handle the treatment of waste water. The system to be developed would be a municipal facility owned and operated by the Town.
The Town had established a Water Pollution Control Commission (WPCC) pursuant to the Connecticut General Statutes § 7-245, et seq. by virtue of an Ordinance dated September 9, 1980, and amended by an Ordinance dated March 8, 1983. The WPCC is charged with developing waste water treatment facilities and with compliance with the orders of the DEP, including the Consent Order previously mentioned.
Pursuant to the obligations outlined above, the Town contracted with a professional engineering firm, Camp, Dresser and McKee, to undertake studies and to propose, design and implement solutions for waste water disposal and remediation. Among the areas identified by the engineers as possible sites were three parcels of land in the Long Hill Road section of the Town, an area deemed to have a waste water disposal problem. The lots in question include two belonging to the Sciongays and shown as Lots #1 and #32 on Clinton's assessor's Map #75, and a lot belonging to Schrempp and shown on Clinton's assessor's Map #74 as Lot #4A.
The properties in question comprise nearly 2,000 acres in toto. Donald Freeman, a professional engineer with Camp, Dresser and McKee, testified that no more than about five acres would be necessary to answer the Town's needs. The present problem is that there is no way to tell which five acres, if any, would be suitable for the waste water removal project without significant investigation and testing. Although some of the investigation would involve simply walking the properties, if these preliminary steps were to suggest that the property is suitable for the purpose at hand, then additional, and far more invasive, testing would need to follow. Freeman testified that likely potential sites would be tested by the digging of approximately six test holes, followed by percolation tests to narrow down the choices. These test holes would likely be six feet deep, six feet wide and six feet long. The excavations would require the use of a backhoe, which would have to be brought to whatever portion of the property was selected for testing by trailer, and this in turn would result in significant disruption of the land. If these preliminary tests were to bear fruit, an additional three or four tests holes would be necessary, and, in addition, the engineers would need to conduct borings some 20 to 50 feet deep to sample the soil and ground water levels. The borings would require bringing in a suitable drill that would have to be hauled to the site on a six-wheel truck or all terrain vehicle.
The properties in question are undeveloped forested land which the owners would like to keep that way. The Sciongay properties are in a residential, R-80 zone, and the Schrempp property is in a residential R-30 zone. Buildings, uses and facilities of the Town of Clinton are permitted uses in these zones, however, either by site plan review or special exception. Public utility and water treatment facilities are also permitted uses in these zones by special exception, in the R-80 and R-30 zones.
The Town has attempted to gain the permission of Schrempp and the Sciongays to conduct the investigation and testing described above, but such consent has not been forthcoming. The Town has therefore brought these actions, in which they seek a court order permitting inspection and testing, pursuant to Gen. Stats. § 48-13, which provides:
Upon filing a notice of condemnation of a condemning authority, either before or after the institution of a condemnation proceeding and after reasonable notice to the property owner or owners affected, the Superior Court or any judge thereof may authorize such condemning authority to enter upon and into land and buildings sought or proposed for public uses for the purpose of inspection, survey, borings and other tests. Such condemning authority shall be responsible to the owner or owners of such property for any damage or injury caused by such entrance and use, and such court or judge may require the filing of a bond or deposit of surety to indemnify the owner or owners of property for such damage. This Sec. shall not limit or modify rights of entry upon private property otherwise provided for by law.
The Town candidly acknowledges that it does not yet know what, if anything, it ultimately wants to do with the subject properties and whether they will be found suitable for the waste removal project that the Town wishes to undertake. Under these circumstances, it understandably has no desire to initiate condemnation proceedings in order to take property that it might never need or be able to use. The Town contends that the procedure provided for in § 48-13 provides a measured approach to addressing the obligations the Town undertook in its Consent Order with the DEP and that the statute provides safeguards, in the form of damages provisions, bond or other surety, for example, to provide adequate protection to the property owners.
The property owners disagree, characterizing the Town's efforts as "an unconstitutional government occupation of the [defendants'] property without payment of just compensation, in fact, without any compensation at all." They appear less concerned about "borings," if that word is defined as "the making of a hole by or as if by drilling," than about the larger test pits, but they are also concerned about the disruption to the land that would be necessitated by bringing heavy equipment onto undeveloped land, including the equipment needed to transport the drill for performing the borings. They also contend that to the extent that "other tests" are permitted, they urge the court to confine such tests to those that are comparable to borings in terms of the degree of their intrusiveness. If, however, "other tests" is not understood to mean "other relatively minimally intrusive tests," but rather to include the digging of test pits, then, the defendants argue, the statute is an unconstitutional taking of private property.
The fifth amendment to the United States Constitution provides in pertinent part that "private property [shall not] be taken for public use, without just compensation," and the Connecticut Constitution also provides that "the property of no person shall be taken for public use, without just compensation therefore." Conn. Const. Art. I, § 11. A physical taking without just compensation is therefore forbidden. "Physical occupation (takings) cases are those where the government physically intrudes upon private property either directly or by authorizing others to do so." Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 640 (1988). Even a statute that required landlords to allow a cable company to install television cable in apartment buildings has been held to be a physical taking, for which compensation had to be paid. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-41 (1982).
When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. United States v. General Motors Corp., 323 U.S. 373 (1945), United States v. Petty Motor Co., 327 U.S. 372 (1946). Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for apartment tenants or when its planes use private airspace to approach a government airport, it is required to pay for that share no matter how small.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 321-23 (2002) (citations omitted); Brown v. Legal Found., 538 U.S. 216, 233-34 (2003).
Both permanent and temporary takings require payment of just compensation under the U.S. Constitution. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318 (1987); United States v. General Motors Corp. 323 U.S. 373, 382 (1945); Commissioner v. Gillette Motor Transport, Inc., 364 U.S. 130, 135 (1960).
The U.S. and Connecticut constitutions also require compensation for the taking of an easement. In Kaiser Aetna v. United States, 444 U.S. 164 (1979), for example, the Supreme Court held that the Government's imposition of a permanent navigational easement requiring public access to a pond was a taking, emphasizing that the easement took away the landowner's right to exclude, which is "one of the most essential sticks in the bundle of the rights that are commonly characterized as property." Id. At 176. The Court explained:
This is not a case in which the Government is exercising its regulatory power in a manner that will cause an insubstantial devaluation of petitioners' private property; rather, the imposition of the navigational servitude in this context will result in an actual physical invasion of the privately owned marina . . . And even if the Government physically invades only an easement in property, it must nonetheless pay just compensation.
Id. at 180; see Portsmouth Harbor Land Hotel Co. v. United States, U.S. 327 (1922).
The Town contends that even if this effort to inspect and to test the property were held to amount to a taking of the property, the statute still meets the Fifth Amendment requirements in that it provides a process for ultimately determining compensation due the landowner. The Defendants, however, claim that because § 48-13 is not phrased like other condemnation statutes and does not provide for payment of damages or compensation before entry onto the property, it cannot meet Fifth Amendment standards. Nothing in the Fifth Amendment, however, requires payment of compensation before or at the time of the taking.
The "Fifth Amendment does not proscribe taking of property; it proscribes taking without just compensation." See Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). No constitutional violation occurs until just compensation has been denied. Id. Just compensation need not be paid in advance of, or contemporaneously with the taking. Id. All that is constitutionally required is the existence of an adequate provision for obtaining compensation at the time of the taking. Id.
Come Rosado v. Serrano Rodriguez, 196 F.Sup.2d 117, 121-22 (D.Puerto Rico, 2002).
Thus, "if the government has provided an adequate process for obtaining compensation, and if resort to that process `yield[s] just compensation,' then the property owner `has no claim against the Government' for a taking." Williamson County, 473 U.S. at 194-95, 105 S.Ct. At 3121 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018 n. 21, 104 S.Ct. 2862, 2878, 2881 n. 21, 81 L.Ed.2d 815 (1984)).
John E. Long, Inc. v. Borough of Ringwood, 61 F.Sup.2d 273, D.N.J. 1998.
The defendants appear to accept the notion that if the Town wishes its representatives walk the property to get a sense of its suitability, taking only photographs and leaving only footprints, this minimal intrusion would not be construed as a "taking" and would not offend either them or the state and federal Constitutions. If, however, what the Town proposes to do is to enter on land for the purpose of bringing in heavy equipment in order to dig six foot by six foot by six foot pits and fifty-foot-deep borings, even with the promise of filling them in later and paying for any damage, such an action is a full fledged "taking" that requires the Town, no matter how squeamish it may be about condemning a property for which it may ultimately have no use, to proceed with eminent domain proceedings, with all the obligations, costs and risks associated with that procedure. Such a view is consistent with the language of the statute that permits its invocation "either before or after the institution of a condemnation proceeding," such that these minimal intrusions may be authorized under conditions deemed appropriate by the court even when no condemnation proceeding has been initiated. Under these circumstances, such intrusions may also be authorized by the court after the initiation of condemnation proceedings, but more extensive and destructive intrusions are not authorized by this statute.
The issue of the constitutionality of General Statutes § 48-13, as applied, was preliminarily addressed in a Superior Court decision, Town of Darien v. Estate of D'Addario, Docket No. CV99-0172714, judicial district of Stamford, December 21, 1999, (Mintz, J.), appeal dismissed on grounds of mootness, 258 Conn. 663 (2001). There, the court was faced with a similar effort by a town to invoke § 48-13, without having first initiated condemnation proceedings, in order to perform certain tests on property which it might subsequently seek to acquire through condemnation. The court took a cautious approach, noting, first, that on its face, General Statutes § 48-13 was constitutional:
An overwhelming majority of courts have held that authorizing an inspection and tests on land does not deprive the owner of his private use and possession, especially when the owner receives compensation for damages. See Melvindale v. Trenton Co., 506 N.W.2d 540, 541 (Mich.App. 1993); Root v. Kamo Electric Co-op, Inc., 699 P.2d 1083, 1090-91 (Okla. 1985); Oglethorpe Power Corp. v. Goss, 322 S.E.2d 887, 89-91 (Ga. 1984). see also P. Guthrie Annotation, Eminent Domain; Right to Enter Land for Preliminary Survey or Examination, 29 A.L.R.3d 1104, 1115-17; 9 Nichols on Eminent Domain (3rd. Ed. Rev. 1999) § 32.06. Additionally, inspecting land for the purposes of condemnation fails to cause the landowner irreparable harm. See Trumbull v. Ehrsam, 148 Conn. 47, 53, 166 A.2d 844 (1961) ("When public improvements are contemplated in a particular community, there may be some inconvenience or hardship imposed upon a landowner because of an uncertainty as to whether his land may be taken to promote the improvement, but this inconvenience attends all such proceedings and is incident to the ownership of property"). With respect to General Statutes § 48-13, the statute only authorizes a condemning authority to inspect, not take the land. Furthermore, General Statutes § 48-13 specifically provides "[s]uch condemning authority shall be responsible to the owner or owners of such property for any damage or injury caused by such entrance or use . . ."
The court then went on to allow "Phase One Environmental Testing" which, it found, did not constitute an unconstitutional taking of the property. It required, however, that any "Phase Two Environmental Testing" be approved by the court before being undertaken in order to assure the proposed second round of testing did not rise to the level of an unconstitutional taking.
The "Phase Two Environmental Testing" in that case was described as collecting water and soil samples. The testing for which approval is sought in this case, once the engineers determine that a particular portion of one or more of the properties is suitable for further investigation, has been described as far more invasive than the mere taking of samples.
In general, the out-of-state cases cited in D'Addario and by the parties to this case provide little guidance to this court on the constitutional issues that have been raised here, although they are illustrative of a thoughtful and measured approach to balancing the interests of governmental entities and private owners of land. For example, the court in Melvindale v. Trenton Warehouse Co., 201 Mich.App. 497, 506 N.W.2d 540, 541 (Mich.Ct.App. 1993) (per curiam), affirmed a lower court order permitting unspecified testing, holding that the statute did not require the governmental entity to specify a public purpose for the intrusion. The opinion did not address constitutional issues, if, indeed, any such issues were in fact raised. Similarly, in Root v. Kamo Elec. Co-op., Inc., 1985 Okla. 8, 699 P.2d 1083, 1090-91 (Okla. 1985), the Court held only that damages for trespass could be awarded against a utility company conducting a pre-condemnation survey without proper approval. The case was limited to simple trespass, not the invasive procedures proposed by the Town in this case, and the court did not address the constitutional aspects of the dispute. Finally, Oglethorpe Power Corp. v. Goss, 253 Ga. 644, 322 S.E.2d 887, 890-91 (Ga. 1985), expressly limited its ruling to a "preliminary minimally invasive entry," holding that the plaintiff could not go further than a simple survey or mapping inspection:
A taking may not be allowed under the guise of a preliminary survey; the right to entry does not include the right to make permanent appropriation or cause more than minimal or incidental damage to property; . . . Permissible entry cannot amount to other than such innocuous entry and . . . examination as would suffice for making of surveys or maps [or other similar purposes] . . .
Id. at 890 (ellipses and brackets in original), quoting Kane County v. Elmhurst, 111 Ill.App.3d 292, 443 N.E.2d 1149, 1153-54 (1982).
The court in Kane County, rather like the court in D'Addario, found the statute constitutional and permitted the entry onto the property to make the preliminary assessments. "The basic purpose of such statute is to enable the prospective condemner to determine whether and how much of the land is suitable for eventual condemnation and thus to facilitate an intelligent, economical condemnation proceeding . . . There is no language in [the Illinois statute] which can reasonably be read to require the prospective condemner to institute condemnation proceedings before entering the land of others for preliminary surveys and appraisals . . . Given the purpose of the statute, to facilitate a decision on whether to condemn, it would not be logical to require the Plaintiff to institute condemnation proceedings before making a preliminary minimally intrusive entry." Id. At 1153.
The statute in Kane is quite similar to Sec. 48-13: "Entry on Lands to make surveys for the purpose of making subsurface soil surveys, preliminary surveys and determination of the amount and extent of such land, rights, or other property required, the Department, or any County, by its officer, agents, or employees, after notice to the owner and in the case of subsurface soil surveys, written consent by the owner, may enter upon the lands or waters of any person, but subject to responsibility for all damages which shall be occasioned thereby." Ill. Rev. Stat. 1981, Chap. 121, Par. 4-803.
The defendants contend that what the Town in fact seeks is an actual physical taking of the Sciongay and Schrempp properties that will substantially interfere with both their right to use their properties and their right to exclude others from doing so. They urge the court to construe § 48-13 so as not to permit such interference with the defendants' property without instituting condemnation proceedings and paying just compensation. Because § 48-13 purports to authorize nothing more invasive than "borings," they suggest that the statute must either be found unconstitutional if it is to be applied in the manner suggested by the Town or must be interpreted so as to prohibit the type of physical invasion of property that the Town requests.
"In construing a statute, the Court must search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." Calfee v. Usman, 224 Conn. 29, 33 (1992); State v. Campbell, 224 Conn. 168, 176 (1992); Morascini v. Commissioner of Pub. Safety, 236 Conn. 781, 804-05 (1996). Thus, even though the statute does not specifically use the word "reasonable," the undersigned concludes that the legislature intended that the court, in exercising its gate-keeper role, may permit reasonable testing and investigation in light of the statute's purposes while bearing in mind that activities that go beyond the reasonable would of necessity bring those activities within the realm of a taking that would implicate the constitution and the need to initiate condemnation proceedings before attempting to conduct further tests.
The defendants also urge the court to compare § 48-13 with the protections provided by other Connecticut statutes permitting government intrusion onto private property for purposes of eminent domain investigations. For instance, except for § 48-13, all Connecticut statutes that allow a condemning power to conduct borings on private property also provide procedural safeguards and an eminent domain process for acquiring the right to conduct such borings. See Gen. Stats. § 32-658 (2003); Gen. Stats. § 13a-60; Gen. Stats. § 17a-27c; Gen. Stats. § 22a-163v. These statutes essentially require that the condemning authority take an easement in order to conduct the proposed testing before going forward, following a specific process: 1) the authority must give reasonable notice to the landowner; 2) the landowner may refuse to permit entry for the purposes of conducting borings; and 3) if the landowner refuses to permit entry, the condemning authority must file an assessment of damages prior to entry, following the same procedures for taking real property; 4) the property owner has the opportunity to accept or appeal the assessment of damages.
General Statutes § 13a-60, for example, provides:
The commissioner (of transportation) or his agent may enter upon private property for the purpose of conducting surveys, inspections or geological investigations for the location, relocation, construction or reconstruction of any proposed or existing highway. After giving reasonable notice to the property owner or owners affected, he or his agent may also enter private property for the purpose of performing borings, soundings or other tests required to accomplish any of the foregoing objectives with respect to such highways. He shall use care so that no unnecessary damage shall result, and the state shall pay damages to the owner of any property from appropriations made to the Department of Transportation for any damage or injury he causes such property by such entrance and use. If entry to any property for the purpose of performing borings, soundings or other tests is refused to the commissioner or his agent after he has given reasonable notice to the owner or owners thereof, the commissioner shall assess damages in the amount provided by statute for the taking of land for highway purposes, and, at any time after such assessment has been made by said commissioner, may enter said property for the purpose of performing borings, soundings or other tests. If the owner accepts such assessment of damages, he shall notify the commissioner in writing, and said commissioner shall pay such sum to said owner within thirty days or, after the expiration of said thirty days, shall pay such sum with interest at six per cent. If the owner is aggrieved by such assessment, he shall notify the commissioner in writing and may appeal to any court within its jurisdiction for a reassessment of such damages within six months from the date said commissioner forwarded such assessment to such owner. This Section shall not limit or modify rights of entry upon property otherwise provided for by law.
The absence of such provisions in § 48-13, however, suggests that by failing to include them, indeed by specifically stating that such investigations could be undertaken whether or not a condemnation proceeding had actually been commenced, the legislature had either specifically determined to abandon constitutional protections in situations such as this, which is unlikely, or, far more likely, had in mind a less invasive entry pursuant to § 48-13 than that contemplated in the other statutes just cited.
The affirmative condemnation of temporary easements to allow government occupation is a constitutional way for governments to make ongoing and/or invasive use of private property. See Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582 (1952); United States v. General Motors Corp., 323 U.S. 373, 382 (1945). Connecticut towns that seek to perform invasive subsurface testing have in fact frequently proceeded by eminent domain. See Tilcon Minerals, Inc. v. Town of Southington, No. 357733, 1993 Conn.Super. LEXIS 3451 (Jan. 3, 1994); Albahary v. City of Bristol, 84 Conn.App. 329, 333 (2004). In Tilcon, the Town took by eminent domain for separate easements: one to conduct a geophysical survey, together with a one-year right enter with vehicles and to clear trees and brush. The Town took a second easement for installation, repair and maintenance of monitoring wells; a third for taking water samples and a fourth for ingress and egress. Id. at *3-5 Likewise, in Albahary, the city of Bristol condemned easements over the private property to permit the Town to monitor groundwater under the property, which had become contaminated by the Town landfill. 84 Conn.App. at 333. This approach includes a process for providing proper compensation to landowners while also giving towns a less expensive option than outright condemnation of a property which, in the long run, it might find unsuitable for the intended use.
The defendants further argue that even if § 48-13 is not unconstitutional, either on its face or as the Town proposes to apply it, the town has failed to follow the requisite process for obtaining an order under § 48-13 in that has failed to file a notice of condemnation, as required by the statute, and has not undertaken the required legislative approval processes for the proposed condemnation. They argue that the power of eminent domain must be exercised strictly according to the statutory grant and within the bounds of constitutional restraints. "The authority to condemn is to be strictly construed in favor of the owner and against the condemnor, and the prescribed method of taking must be strictly pursued." Simmons v. State, 160 Conn. 492, 500 (1971); citing Torrington v. Coles, 155 Conn. 199, 201 (1967); West Hartford v. Talcott, 138 Conn. 82, 90 (1951).
The defendants note that the Town has not filed a notice of condemnation, as they claim is required by § 48-13, but the Town responds that this lawsuit itself constitutes a "notice" that condemnation proceedings are contemplated. Because the statute also states that the "notice" of condemnation is to be "filed" whether or not condemnation proceedings have actually been commenced, the Town argues that the filing of a formal statement of condemnation is not required but that this lawsuit serves as the required notification and that the notice procedures outlined in General Statutes § 48-12 and General Statutes § 8-129 are thus not applicable. In D'Addario, supra, the town had filed in the Superior Court an application and "Notice of Proposed Condemnation" seeking an order authorizing it to enter and inspect the property and to conduct "testing associated with a Phase I and Phase II environmental assessment . . ." Copies were served on all affected parties, and the Superior Court rejected the claim that a formal statement of condemnation needed to be filed in order to allow entry under § 48-13. The filing in that case and the one here are functionally the same, and this court agrees with Judge Mintz that they satisfy the requirement of a "notice of condemnation."
As the trial court noted in D'Addario:
[R]equiring a formal notice of condemnation in accordance with § 8-129 to authorize for the inspection would create an irrational result because § 48-13 specifically provides for an inspection "either before or after the institution of a condemnation proceeding . . ." "[P]rinciples of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve." . . . In particular, a condemnation statute "should not be interpreted in such a way as to thwart the purpose for which it was enacted." . . . Construing § 48-13 to require a formal notice of condemnation would frustrate the apparent intent of the legislature to allow inspection of the land prior to condemnation proceedings . . . Accordingly, the court holds that notice required in § 8-129. As such, Darien's failure to comply with § 8-129 does not make its application defective. (Citations omitted.)
Darien v. D'Addario, supra at 5.
The defendants further contend that the procedure adopted by the Town is also flawed because the Town is not a "condemning authority" and has not gone through the necessary steps to obtain the appropriate legislative authorization to proceed with condemnation. It is clear, however, that the Town, though its Water Pollution Control Commission, is a condemning authority. Connecticut Gen. Stats. § 7-148(c)(6)(A)(iii). Moreover, however, § 48-13 has been drafted so as to permit towns to avoid seeking such authorization to condemn until the information sought to be gleaned from the proposed investigation has given the condemning authority a basis upon which to go forward with condemnation proceedings. The statute explicitly permits the process to move forward without first commencing condemnation proceedings.
The defendants also argue that the proposed intrusion violates the Fourth Amendment to the United States Constitution, which protects against unreasonable searches of persons and of both residential and commercial premises. See New York v. Burger, 482 U.S. 691, 699 (1987); Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). "Warrantless searches are generally unreasonable." Marshall, 436 U.S. at 312. The defendants are also concerned about the possibility that the Town's testing could uncover the presence, through no fault of their own, of environmental hazards on their property that could require remediation.
Under certain circumstances, however, the Fourth Amendment permits warrantless administrative searches of commercial property, where there is a legislative scheme in place that adequately assures that the search will not be unreasonable. See Donovan v. Dewey, 452 U.S. 594, 598-99 (1981). These limitations include properly defining the scope of the access such that it is "carefully limited in time, place and scope," as well as limiting the discretion of the inspecting officers. Burger, 482 U.S. at 702-03; see also Bastian v. DiPaola, No. 980418322, 2002 Conn.Super. LEXIS 2464, *13-14 (July 4, 2002) ( 32 Conn. L. Rptr. 533). The defendants argue, however, that because neither General Statutes Sec. 48-13 nor the Town's requested motion limits the time, place and scope of the proposed inspection, the proposed action is therefore "patently unreasonable."
This argument, however, is, at a minimum, premature. Although the statute does not itself specify limits on the time, place and scope of the proposed inspection, the procedure authorized by the statute, an application to the court for approval of the investigation of the defendants' properties, provides opportunities for the court to set such limits, just as the scope of a search would be limited in a warrant. The question of what would happen if the engineers should inadvertently discover evidence of pollution on the properties is hypothetical at this time and thus not currently before the court.
In summary, § 48-13 is not on its face unconstitutional. As noted in County of Kane v. Elmhurst Nat. Bank, supra, 67 Ill.Dec. at 29, 443 N.E.2d at 1153, most courts:
have recognized a basic conceptual difference between a preliminary entry and a constitutionally compensable taking or damaging of property and have held that because the former is not a variety of the latter, it does not require adherence to condemnation procedures or constitutional provisions for just compensation. (Citations omitted.) Moreover, since the purpose of the right of entry is to facilitate a decision on whether and how much of the subject property to condemn, it would be illogical to require the prospective condemnor to institute condemnation proceedings and pay compensation before making a preliminary minimally intrusive entry.
Nevertheless, the statute, as sought to be used by the Town in this case, carries with it a significant potential for mischief. The legislature has dealt with this potential by significantly limiting the scope of the permissible intrusion and by giving the court significant authority over its implementation: ". . . the Superior Court or any judge thereof may authorize such condemning authority to enter upon and into land and buildings sought or proposed for public uses for the purpose of inspection, survey, borings and other tests." Thus, the burden is now properly upon the Court to examine the scope of the proposed intrusion and to determine which, if any, of the activities proposed by the Town may be authorized under the terms of the statute.
Given the public purpose which the Town seeks to fulfill . . . which, indeed, it is obligated to fulfill pursuant to the Consent Order . . . it is reasonable for the court at least to authorize the Town and/or its agents, pursuant to § 48-13, to enter upon the properties in question for the purpose of inspecting, surveying, and taking measurements and photographs. When, and if, the Town determines that these procedures have narrowed the geographic scope of the inquiry and can justify the authorization of additional tests, including "borings and other tests" (which the court understands to implicate drills and machinery akin to drills, but not backhoes or similar heavy machinery) the Town may apply to the court for additional authorization. Whether, under any circumstances, including determinations made on the basis of inspections, surveys and even borings, further and more intrusive testing would be justified by those results, is a question that must be left for another day.
The Town's motions are therefore granted in part, as limited above, as follows: Upon 72 hours written notice, or less if agreed upon by the parties, the Plaintiff and/or its agents may enter upon the Defendants' properties for the purpose of conducting minimally intrusive surveys, investigation, photography and the like. The Town is not authorized to undertake borings or any more invasive activities without first applying to this court for leave to do so. The court does not believe, in light of the minimally intrusive testing being authorized at this time, that the posting of a bond would be necessary to assure that the Town fulfills its obligations to compensate the defendants for any damages caused by the testing currently authorized.
Jonathan E. Silbert, Judge.