Opinion
CV136011951.
12-20-2012
RADIO COMMUNICATIONS CORP. v. WEST HAVEN.
UNPUBLISHED OPINION
HILLER, J.
The plaintiff, Radio Communications Corp. (RCC), seeks temporary injunctive relief to restrain and prohibit the defendants, the city of West Haven and the West Haven city clerk, Deborah Collins, from taking any further steps to exercise the power of eminent domain with respect to three parcels of property currently owned by RCC. RCC premises its right to injunctive relief on three accusations: first, that West Haven's exercise of eminent domain is invalid because the ultimate recipient failed to first obtain the necessary approvals; second, that West Haven did not negotiate in good faith prior to instigating eminent domain proceedings; and third, that allowing West Haven to proceed with the eminent domain on the subject property for the its stated reasons would violate RCC's constitutional rights. For the reasons set forth within, the court denies RCC's demands for temporary injunctive relief.
I
FINDINGS OF FACT
A
The Parties
The plaintiff, Radio Communications Corp. (RCC), is a Connecticut stock corporation. It develops and manages cellular real estate and other telecommunications functions. It owns three parcels of real property located at 506 and 516 Orange Avenue and 23 Daytona Street in West Haven, Connecticut, which are the subject of the present dispute. In addition, it owns a parcel located at 24 Rockdale Road, which houses its corporate headquarters and a tower smaller than the one proposed for the disputed property.
A few facts have been established regarding the current business operations of RCC and its intended use for the disputed parcels. Under the exclusive jurisdiction of the Connecticut Siting Council (Siting Council), RCC's tower in West Haven currently carries three cellular providers and provides a number of " accessory functions" such as broadcast television and propane monitoring. Although convenient to the current and proposed towers, the office headquarters can be located anywhere; the towers, however, must be located in or near specific geographic zones to prevent overlaps and gaps in cellular coverage from developing. RCC's current tower was constructed with only three sides. Although nearing capacity, RCC's tower has not yet achieved full capacity nor has RCC entered into any new contracts which would cause it to fill or exceed its current capabilities.
RCC has consistently sought to construct a larger tower on the parcels in dispute. Its goal is to increase the number of sides from three to four and the size of each side from thirty to eighty feet while keeping the height of the tower the same. By doing so, RCC would increase potential mounting space for antennas, subsequently increasing both the number of carriers it can accommodate and its earnings therefrom. The desired modifications could also be achieved on the 24 Rockdale Road property, although it would require the demolishment of both the existing tower and their corporate offices in order to achieve the necessary dimensions. Part of RCC's plans for the proposed tower involved installing wind power generators as a potential additional income stream. RCC has, however, conducted no official studies into the amount of wind available and has neither constructed nor had any prior professional experience with generating power through wind turbines.
The defendant, the city of West Haven, is a Connecticut municipality.
B
The Engineering and Science University Magnet School
The Engineering and Science University Magnet School (ESUMS) is an interdistrict magnet school created in accordance with the laws of the State of Connecticut. ESUMS opened in the fall of 2008. It currently enrolls sixth, seventh, eighth and ninth graders and will add an additional grade level each year as the existing students graduate to the next grade until reaching its full enrollment of six hundred sixteen students in grades six through twelve, expected to occur in 2014.
ESUMS focuses on a specialized college preparatory curriculum emphasizing the study of science, technology, engineering and mathematics. As proposed, the University of New Haven (UNH) and ESUMS plan to operate programs to benefit ESUMS students in the following ways. ESUMS students would have access to courses taught by UNH faculty and graduate students, receive access to UNH's facilities and can get college credits through UNH at no cost. Additionally, graduates receiving their high school diplomas from ESUMS who later attended UNH would get scholarships equivalent to 50% or more of UNH's tuition.
ESUMS is currently housed in temporary " swing spaces." As a result of outgrowing its initial swing space, ESUMS is currently housed in two separate swing space locations. The first is located at St. Stanislaus, 804 State St, New Haven, and houses grades six through eight; the second, 130B Leeder Hill, Hamden, houses grade nine. ESUMS's current location in these swing spaces does not allow it to contain science or engineering labs as planned within the permanent location. ESUMS will be located in these swing spaces until a permanent home can be constructed in West Haven. The proposed final location seeks to place ESUMS campus near or abutting the UNH, for the purpose of facilitating a close relationship between ESUMS and the engineering school at UNH. Alternative locations for ESUMS near but not directly abutting UNH have been explored; however, these options are significantly less desirable, either because of the necessity of shuttling students from one campus to the other or because of the potential risks to ESUMS students forced to cross the significant traffic on U.S. Route 1 in order to reach the UNH campus.
There are numerous public benefits that West Haven stands to achieve from its partnership with the New Haven Board of Education (NHBOE) and ESUMS. First, increased access to education in science, technology, engineering and mathematics would benefit not only West Haven, but all surrounding districts. Second, under the memorandum of understanding, West Haven students are guaranteed 20% of all available seats in ESUMS; the remaining seats would go to students from New Haven or other districts. Third, West Haven students in ESUMS benefit from access to better facilities and to UNH's resources. Fourth, West Haven would benefit from the revenues generated from the permit fees associated with ESUMS, although the property involved would no longer be producing taxable income as it is currently. The creation of the school was an important issue to West Haven residents.
Finally, RCC similarly admitted that public schools such as ESUMS provide public benefits.
C
The Present Dispute
On March 4, 2009, RCC through counsel submitted a request to the Siting Council, seeking to replace its current tower located on 24 Rockdale Road with one possessing increased capacity on the parcels subject to the current dispute. After filing a notice of a proposed modification, the Siting Council can accept or reject the proposal as an " exempt modification" to existing property; if the proposed changes are not considered an exempt modification, a party can either seek a declaratory ruling before the Siting Council or start a separate and new application for approval of the proposed changes. West Haven submitted two objections to RCC's proposed modifications: the first on March 13, 2009, and a second on March 20, 2009. On March 19, 2009, a member of the Siting Council responded, opining that the requested construction on the new property was not an exempt modification, as exempt modifications are normally only authorized for replacement towers when the replacement would be sited on the same parcel of land. RCC challenged the decision of the Siting Council through a mandamus action, seeking to have its plans treated as an exempt modification. RCC, however, lost its mandamus action.
Subsequent to its failed mandamus action, RCC has not received permission for its proposed expansion plans by the Siting Council. It has also not examined other lots within the area surrounding U.S. Route 1 to see if there were any feasible alternatives to the parcels on which it had wished to expand. For all times relevant to this complaint, RCC has not had or received as-of-right approval from the Siting Council to build the proposed tower on the disputed parcels and offered no evidence that such approval would be forthcoming.
Starting on or about August 16, 2010, and continuing into 2011, NHBOE attempted on multiple occasions to negotiate with RCC to purchase real property located at 506 and 516 Orange Avenue and 23 Daytona Street in West Haven, Connecticut. The negotiations were requested in a letter from the NHBOE chief operating officer, William Clark, and continued by outside counsel, attorney Timothy Yolan, on behalf of NHBOE.
In the negotiations, NHBOE made numerous written and oral attempts to meet with or speak with the plaintiff and negotiate a price for the parcels. NHBOE's value for the parcels was consistent with two professional appraisals placing the value of the real estate at either roughly $250,000 or $270,000. The NHBOE's efforts to negotiate were either ignored or rebuffed and were ultimately unsuccessful.
NHBOE also sought permission from the plaintiff for the NHBOE to file application for the necessary local zoning permits necessary to build ESUMS using the parcels to avoid delays while the parties negotiated. RCC rejected this request.
RCC rejected NHBOE's offers to negotiate for the sale of the parcels. Although RCC claimed that its primary interest was in retaining the property for the purposes of constructing the proposed cellular tower, it did indicate in its various discussions with NHBOE, UNH and later West Haven that it would sell the parcels for $2 million.
Subsequently, in 2011, UNH met and spoke with RCC on several occasions to negotiate to purchase the plaintiff's parcels. UNH used the same professional appraisals as NHBOE to estimate the value of the parcels as well as considerations from its experience purchasing other parcels in the area.
UNH's negotiations were not successful. RCC again sought approximately $2 million. RCC advised UNH, like NHBOE, that it intended to stick with its claim of value based on the use of the parcels for a cellular tower, despite the lack of approval by the Siting Council.
On or about July 18, 2012, West Haven's mayor, John M. Picard, sent a letter to the West Haven City Council regarding the effort to locate and build the ESUMS facility on the site abutting UNH for the benefit of West Haven and its students. The letter sought authorization for West Haven to attempt to purchase the necessary parcels from RCC, among others, and enter into a memorandum of understanding with NHBOE and UNH to achieve permanent home for ESUMS and the benefits that it would entail. Specifically, Picard urged the City Council to " take advantage of this unique opportunity to benefit the city and the students who reside here" because " the ESUM[S] project will provide unprecedented opportunities for our students [and] generate needed income for the City of West Haven ..."
The City Council received and approved Picard's request on July 23, 2012.
West Haven, UNH and NHBOE thereafter entered into a cooperative memorandum of understanding to achieve their shared goal of building ESUMS at the proposed location. As part of the agreement, the parties agreed to attempt to acquire several properties, which included RCC's parcels. If the properties could not be purchased through negotiations, the agreement provides that West Haven will acquire the parcels using its eminent domain powers. Under this agreement, once West Haven acquires the titles to the applicable properties, regardless of the means of acquisition, it is to convey " immediately" the title of said properties to NHBOE. This memorandum of understanding makes NHBOE's obligations strictly contingent on, inter alia, NHBOE " acquiring each and every parcel of real property it deems necessary for the ESUMS project."
To date, NHBOE has not held a referendum in West Haven receiving permission for the acquisition of any parcels that would ultimately comprise the proposed permanent location for ESUMS.
On August 10, 2012, with the authorization of West Haven, Yolan sent a letter to RCC on behalf of West Haven, offering $310,500 to purchase RCC's parcels for the purpose of constructing a permanent facility for ESUMS. Yolan also invited the plaintiff to contact him to negotiate regarding his proposal to " see if we can reach an agreement ..." On that day or soon thereafter, he also provided the plaintiff with copies of the professional appraisals for the parcels showing that the price offered by West Haven exceeded both appraisals.
Based on his earlier negotiations with the plaintiff on behalf of the NHBOE, Yolan was well aware of the history of negotiations with the plaintiff.
West Haven made additional attempts to advance the negotiations both in writing and on the telephone but those efforts were either ignored or rebuffed.
RCC rejected West Haven's offer of $310,500 and again claimed the parcels should be valued based on RCC's intended use of the property to build a cellular tower, despite lacking the necessary approvals and being in possession of an advisory opinion from the Site Council rejecting RCC's claim that it could build a tower on the parcels. RCC claimed that it was preparing an appraisal of its own based on the tower.
At no time has RCC received or possessed an appraisal prepared by a third party validating its proposed sales price of $2 million. RCC had initially retained the services of one Mulready (the appraiser) in early 2009 to get an appraisal of the proposed property so that RCC could borrow against it during development. After the offers by Yolan in August 2012, RCC contacted the appraiser again, seeking to have the appraisal conducted " post haste." No further action was taken by the appraiser and, despite assertions that the appraisal would be finished within a month, RCC cannot point to a written contract between it and the appraiser and has not established that a firm deadline for the appraisal had ever been set. Further, despite the consistent inaction of the appraiser and the overtures to purchase the property and impending eminent domain action of West Haven, RCC never reached out to another appraiser to have the disputed property appraised. Therefore, over a period of two years of negotiations regarding the parcels, RCC never provided an appraisal to NHBOE, UNH or West Haven supporting its proposed sales price of approximately $2 million for the parcels.
RCC never contacted West Haven to indicate that RCC's appraisal would be delayed or that it was still forthcoming.
On November 13, 2012, West Haven filed a Statement of Compensation with the Court to acquire the plaintiff's parcels by eminent domain pursuant to General Statutes §§ 48-5, § 48-6 and 48-12. West Haven served the Notice of the Statement of Compensation on RCC as required by statute.
On December 12, 2012, RCC applied to the Court for an ex parte temporary injunction, temporary injunction and permanent injunction. On the same day, West Haven filed its objection to RCC's application.
On December 13, 2012, the Court denied RCC's ex parte temporary injunction application.
D
Potential Harm to ESUMS if Temporary Injunction Were Granted
There are significant harms that ESUMS would suffer if a temporary injunction were granted.
First, the project for a permanent home for ESUMS is scheduled to be finished in 2015. In order to reach that date, several steps have to be met. Geotechnical and survey teams will have to have access to the property where the school will be sited to examine the area. After that occurs, NHBOE will need to apply to the applicable zoning board and wetlands commissions to get approval of the plans before NHBOE can submit the necessary documents to the proper state agencies. After those documents are submitted, NHBOE will seek bids from contractors to begin construction. A temporary injunction against West Havens's eminent domain action would delay the preliminary step, access of survey and geotechnical teams to the sites, and result in delays in each subsequent step.
Second, ESUMS is currently housed in two leased swing spaces and could only be moved to a new facility during a suitable break. Delays in construction resulting in the delayed opening of the permanent ESUMS facility beyond the beginning of the 2015-2016 school year would mean that the students could not be moved until, at earliest, winter break of that year. This would force the parties to likely pay, at minimum, a full year's lease, even if the permanent location would be finished and opened halfway through the 2015-2016 school year.
Third, if the preliminary steps are delayed, ESUMS would be forced to spend additional sums in construction costs for materials and labor beyond those already budgeted.
II
STANDARD FOR TEMPORARY INJUNCTIONS
" The standard for granting a temporary injunction is well settled. In general, a court may, in its discretion, exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law ... A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm without an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tips in its favor ... The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation ... Moreover, [t]he extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, 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." (Citations omitted; internal quotation marks omitted.) Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97-98, 10 A.3d 498 (2010).
III
DISCUSSION
A
Adequacy of RCC's Legal Remedy
" 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 ... If the plaintiffs have an adequate remedy at law then they are not entitled to the injunction." (Citations omitted; internal quotation marks omitted.) Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967). " Section 8-129 [of the General Statutes] fails to provide [a] property owner with an opportunity to contest the taking of his property ... Thus, being without an adequate remedy at law, [a] property owner is required to seek equitable relief to obtain a review of the taking agency's actions." (Citation omitted .) Simmons v. State, 160 Conn. 492, 501-02, 280 A.2d 351 (1971).
In the present case, West Haven is relying upon §§ 48-5, 48-6 and 48-12 in the proposed exercise of eminent domain. Section 48-12 provides that an exercise of eminent domain for those purposes detailed in § 48-6 " shall proceed in the same manner specified for redevelopment agencies in accordance with [General Statutes §§ ] 8-128, 8-129, 8-129a, 8-130, 8-131, 8-132, 8-132a and 8-133." Because the use of eminent domain pursuant to § 8-129 does not offer an opportunity to challenge the taking of its property, RCC has met its burden of proving that it has an inadequate legal remedy.
B
Potential of Irreparable Harm to RCC
" The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, 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." (Internal quotation marks omitted.) Wallingford v. Werbiski, 274 Conn. 483, 494, 877 A.2d 749 (2005). " Irreparable harm arises when there exists no legal remedy 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." (Internal quotation marks omitted.) CTTFB, Inc. v. Municipal Tax Services, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 06 4014830 (July 3, 2006, Ford, J.T.R.). " [W]hether damages are to be viewed by a court of equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary loss suffered." (Internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 90, 527 A.2d 230 (1987).
" In order for a claim of deprivation of a constitutional right to constitute irreparable harm, a plaintiff must allege, and at a hearing, show that there is an infringement on a constitutional right ..." Vegliante v. East Haven, Superior Court, judicial district of New Britain, Docket No. CV 06 4021562 (March 29, 2007, Skolnick, J.T.R). " Such infringement would be irreparable harm." Id. Specifically, eminent domain proceedings commenced without proper statutory authority is " [a]n illegal taking of private property by a government agency [which] constitutes an infringement on a constitutional right to due process of law." Id.
In the present case, RCC has failed to demonstrate that the eminent domain action constitutes irreparable harm. It currently has a tower in place that, though nearing capacity, is capable of meeting its present needs. Wishing to construct a new tower so that it could expand to serve new customers (though currently lacking the proper authorization from the Siting Council to do so) and required by business realities to operate within a fairly narrow geographical area, RCC has failed to demonstrate that there are no other available lots in the area capable of fulfilling its needs. RCC has at least one lot capable of supporting its proposed tower, although it would require relocating the corporate offices to do so. The many options that RCC has or might potentially have, but has failed to fully explore, make it difficult to label any harm it has suffered as sufficiently serious enough such as to be " irreparable."
Finally, RCC argues that the instigation of condemnation proceedings by West Haven are invalid because the city failed to fulfill the applicable statutory requirements and failed to fulfill its duty to negotiate in good faith; both for these and separate reasons, RCC claims that the proposed taking constitutes a violation of its constitutional rights. However, as addressed in greater detail in the next section, RCC has failed to prove these claims.
For these reasons, RCC has failed to carry its burden of proving that it would suffer irreparable harm if West Haven's eminent domain proceedings were to continue.
C
RCC's Likelihood of Prevailing on the Merits
" In ... a temporary injunction to preserve the status quo until the rights of the parties can be determined after a full hearing on the merits, we have said that the court is called upon to balance the results which may be caused to one party or the other, and if it appears that to deny or dissolve it may result in great harm to the plaintiff and little to the defendant, the court may well exercise its discretion in favor of granting or continuing it, unless indeed, it is very clear that the plaintiff is without legal right." Griffin Hospital v. Commission on Hospital & Health Care, 196 Conn. 451, 457, 493 A.2d 229 (1985) (analyzing the proper standard for granting a stay by examining analogous case law concerning temporary injunctions). " This criterion necessarily requires consideration of the probable outcome of the litigation. Decisions of our trial courts have frequently referred to the burden of an applicant to show a reasonable degree of probability of success before a temporary injunction to preserve the status quo may be granted. Connecticut State Medical Society v. Connecticut Medical Service, Inc., 29 Conn.Supp. 474, 477-78, 293 A.2d 794 (1971); Hopkins v. Hamden Board of Education, 29 Conn.Supp. 397, 417, 289 A.2d 914 (1971); Torrington Drive-In Corporation v. I.A.T .S.E.M.P.M.O. Local 402, A.F.L., 17 Conn.Supp. 416, 418 (1951)." Id., at 457-58. Therefore, " [t]o demonstrate that she is likely to prevail on the merits, the plaintiff must present enough evidence to make her right clear, but need not put on a full trial on the merits." Taylor v. Hoffman Ford, Inc., Superior Court, judicial district of Tolland, Docket No. CV 04 4000390 (September 22, 2005, Scholl, J.) (40 Conn. L. Rptr. 49, 50).
" 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." (Internal quotation marks omitted.) Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 821, 894 A.2d 946 (2006). " Strict compliance with each of the enumerated steps in the statute is a condition to the validity of the entire proceeding concerning a redevelopment plan." Sheehan v. Altschuler, 148 Conn. 517, 523, 172 A.2d 897 (1961).
In the present case, the crux of RCC's demand for injunctive relief lies within its claims that West Haven's proposed exercise of eminent domain is illegal because it does not comply with all relevant statutory requirements, the city failed to conduct good faith negotiations to agree on a sale price prior to instituting its eminent domain action and it is unconstitutional. Specifically, RCC argues that it has a likelihood of succeeding on the merits of these claims because: (1) West Haven's taking is illegal because NHBOE, the ultimate intended recipient of the property, failed to comply with General Statutes § 10-49a; (2) West Haven failed to exhaust good faith negotiations prior to initiation of its eminent domain proceedings; and (3) West Haven's proposed taking violates RCC's fifth and fourteenth amendment rights under the United States Constitution. Each argument is addressed in turn below.
1
West Haven's Failure to Comply with § 10-49a
RCC's first argument that it will likely be successful on the merits in demonstrating the proposed taking is illegal is that the proposed taking does not comply with the applicable statutory requirements. Specifically, RCC argues that it is the intention of West Haven and its agents to " immediately" transfer the property acquired from RCC to NHBOE for the purposes of creating ESUMS. RCC argues that, in order for NHBOE to acquire the property in this manner, it must first hold a referendum pursuant to § 10-49a, made applicable in the present case by General Statutes §§ 10-241a, 48-5 and 48-6. As NHBOE has not held this referendum yet, RCC argues, this subsequent transfer violates § 10-49a and therefore makes the August 27, 2012 authorization by West Haven's City Council for the proposed taking invalid. West Haven disagrees, claiming that § 10-49a is inapplicable to the present case for one of two reasons. First, West Haven contends that § 10-49a would only apply, if at all, to any subsequent transfer of the property from itself to NHBOE and not to the initial action of acquiring the property by eminent domain. Second, West Haven argues that § 10-49a does not apply at all because § 10-49a only applies to regional boards of education acquiring property in other towns and not to local boards of education or municipalities such as West Haven acquiring land by eminent domain.
Section 48-6(a) provides in relevant part: " Any municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property, within the corporate limits of such municipal corporation, and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void."
Section 48-5 provides: " Towns shall have the same powers and be subject to the same regulations as school districts, in taking land for schoolhouses and other school purposes."
Section 10-241a provides in relevant part: " Any local or regional school district may take, by eminent domain, land which has been fixed upon as a site, or addition to a site, of a public school building, and which is necessary for such purpose or for outbuildings or convenient accommodations for its schools, upon paying to the owner just compensation, provided such taking is with the approval of the legislative body of the town, and in the case of regional school districts, subject to the provisions of section 10-49a , and in each case in accordance with the provisions of sections 8-129 to 8-133 , inclusive. The board, committee or public officer empowered to acquire school sites in such school district shall perform all duties and have all rights prescribed for the redevelopment agency in said sections with respect to such taking." (Emphasis added.)
Section 10-49a
provides in relevant part: " Any school district may acquire real property upon which to build a school in a town not within such school district, provided such town approves such acquisition by referendum. Those eligible to vote at town meetings under section 7-6 shall be eligible to vote on such question. Any school district proposing to acquire such property shall so notify the town clerk of the town in which such property is located, and such town shall hold a referendum within sixty days after receipt of such notice. The school district giving such notice shall bear the cost of such referendum."
" The process of statutory interpretation involves a reasoned search for the intention of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ..." (Internal quotation marks omitted.) Canty v. Otto, 304 Conn. 546, 557, 41 A.3d 280 (2012). " When construing a statute, we first look to its text, as directed by General Statutes § 1-2z, which provides: The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes." (Internal quotation marks omitted.) Id., at 558.
In the present case, there have been no arguments raised by RCC that West Haven's eminent domain has not complied with §§ 48-5 or 48-6, or those components of § 10-241a not incorporating § 10-49a; the entirety of its argument rests on the premise that § 10-49a is applicable in this case and the ultimate, but later, transfer of the condemned property from West Haven to NHBOE requires that the referendum be held prior to West Haven's condemnation action. It is undisputed that NHBOE has not yet held a referendum of West Haven voters, seeking their permission to acquire the property at issue here. RCC, however, makes two errors regarding its interpretations of the statutes in issue. First, § 10-241a by its plain language only applies § 10-49a to eminent domain takings by regional school districts. In this instance, no evidence has been presented to suggest that the parties are operating a regional school district that would necessitate the compliance of the parties with this component of § 10-241a. Second, even if § 10-49a were applicable in the present case, RCC mistakenly attempts to condense two necessary and distinct steps into one: first, the use of eminent domain by West Haven to take the property from RCC; and second, a later transfer of the property from West Haven to NHBOE. Therefore, to whatever degree § 10-49a is applicable to any subsequent transfer from West Haven to NHBOE, it is not relevant until after the eminent domain at issue here. For these reasons, RCC has failed to demonstrate that § 10-49a must be complied with prior to West Haven being legally able to take the property by eminent domain and cannot rely on it to demonstrate a likely success on the merits.
2
West Haven's Failure to Conduct Good Faith Negotiations
RCC's second argument is that it will likely be successful on the merits in demonstrating that the proposed taking is illegal on the ground that West Haven failed to negotiate in good faith with RCC to acquire RCC's property by agreement. RCC argues that General Statutes §§ 48-6 and 48-12 both provide that the power to take property by eminent domain may be exercised if the condemnor cannot agree with the owner the amount to be paid; therefore, an inability to agree between the parties, RCC contends, is a condition precedent to the power to take. Because West Haven only made one offer to purchase, with all prior negotiations occurring only between RCC and UNH or NHBOE, RCC argues that this demonstrates that West Haven has not met its obligation to negotiate in good faith that was incumbent on it as a party seeking to take the land. West Haven disputes RCC's contentions on two grounds. West Haven argues, first, that there is no requirement in either General Statutes §§ 10-241a or 48-5 that it negotiate at all with RCC prior to taking the land. Second, West Haven argues that it did attempt to negotiate with RCC, albeit unsuccessfully. As the parties were too far apart in their proposed offers and RCC was relying on unsupported claims for its intended use of the tower, West Haven contends it had no duty to negotiate further.
Two of the applicable statutes contain language noting that the procedures to acquire property by eminent domain are to be used if the parties cannot agree as to price. Section 48-6(a) provides in relevant part: " Any municipal corporation having the right to purchase real property for its municipal purposes which has ... voted to purchase the same shall have power to take or acquire such real property ... and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote ..." (Emphasis added.) Section 48-12 contains similar language, providing in relevant part: " The procedure for condemning land or other property for any of the purposes specified in sections 48-3, 48-6, 48-8 and 48-9, if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken, shall be as follows ..." (Emphasis added.)
" Section 48-12 of the General Statutes authorizes the condemnation of land if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken. Thus, inability to agree with the owner of property sought to be condemned is a condition precedent to condemnation under the statute ... Inability to agree may be shown by any testimony evincive of the fact ... The condemnor must exhaust all reasonable efforts to obtain the land by agreement ... But the law does not require the performance of a useless and futile act ." (Citations omitted; internal quotation marks omitted.) Darien v. Kavookjian, 151 Conn. 659, 661, 202 A.2d 147, cert. denied, 379 U.S. 840, 85 S.Ct. 77, 13 L.Ed.2d 46 (1964).
" It is incumbent upon the condemnor to exhaust all reasonable efforts to obtain the land it desires, by agreement." (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 601, 790 A.2d 1178 (2002). " Thus, the standard in Connecticut is exhaustion of reasonable efforts to come to an agreement. Neither the General Statutes nor Connecticut case law specifically requires good faith negotiations as do some other jurisdictions. Common sense tells us, however, that there is an underlying implication that negotiations between a municipality and a property owner must always be undertaken in good faith, and Connecticut courts have defined what constitutes negotiating in good faith. Good faith negotiations may be described as including honest and sincere efforts to engage in discussions and pursue reasonable possibilities to resolve the matters in dispute, with the parties taking into consideration their own respective needs, requirements and legal obligations." (Internal quotation marks omitted.) Riverfront Future Partners v. Gilbert, Superior Court, judicial district of New Britain, Docket No. CV 10 6003228 (December 2, 2010, Shortall, J.T.R.).
In the present case, the statutes applicable to West Haven's proposed taking make it clear that the city had a duty to negotiate in good faith prior to implementing its condemnation action. West Haven's reliance on the lack of such language in §§ 10-241a and 10-5 is in error, as those statutes, while applicable, are not the only statutes under which its eminent domain action is proceeding.
The court also recognizes, however, that the evidence demonstrates that West Haven fulfilled its duty to negotiate in good faith. RCC accurately notes that the first and only offer that West Haven made was for $310,500. Testimony and emails produced at the hearing, however, demonstrate that West Haven made several attempts to arrange meetings with RCC's counsel to discuss the matter further, provided the two appraisals to support its offer and extended significant additional information such as the other parcels that were being acquired for the ESUMS project. Throughout this period, the parties' respective demands remained consistent with those offers extended in past negotiations: RCC continued to demand $2 million; West Haven's offer remained tied to the two appraisals showing that the value of the land was in the range of $250,000 and $270,000. It would therefore be reasonable for West Haven to consider this significant difference between the parties' expectations of the value of the properties in determining whether further negotiations would be helpful.
Additionally, despite RCC's claim that the court cannot consider the past negotiations between RCC and the other entities involved in the ESUMS project, RCC has provided no case law supporting this assertion. Further, in the context of this case, RCC's demands that the court focus solely on those negotiations from August to November 2012, is not merited since West Haven would have had access to numerous facts regarding prior negotiations with RCC over the subject property. The negotiations at issue were only the most recent attempt to acquire specific property for the purposes of constructing ESUMS. Prior to West Haven's involvement, NHBOE and UNH— parties with which West Haven was working in this endeavor— had attempted, unsuccessfully, to negotiate the purchase of the property. Indeed, Yolan, the attorney acting on behalf of West Haven in the August 10, 2012 offer and the subsequent attempts to negotiate, had previously worked for NHBOE in its efforts in 2010 and 2011 to acquire the property. From this background of negotiations, West Haven could have reasonably concluded that further negotiations would not prove any more successful.
Finally, RCC claims that the time frame in which West Haven's offers to negotiate was not adequate to fulfill the city's burden because this did not permit RCC sufficient time to acquire its own appraisal. The facts, however, suggest otherwise. RCC had only contacted one appraiser to conduct the appraisal of the parcels based on the value if the proposed tower was constructed. It retained this appraiser's services back in 2009 so that it could use the appraisal to support loan applications to fund the project; it was only once RCC was contacted by West Haven on August 10, 2012, regarding the city's interest in the property, however, that RCC apparently contacted the appraiser again. In the two to three years between these dates, RCC had sufficient time to get the appraisal completed, whether by its retained appraiser or by another. Furthermore, at no time following West Haven's demonstration of interest in the property did RCC receive a written contract from its retained appraiser, demand a strict date by which the appraisal must be finished or seek the services of another appraiser. Requiring West Haven to delay its acquisition of the property because of RCC's inability to timely acquire its own appraisal of the property does not, therefore, suggest that West Haven has failed to negotiate in good faith to acquire these properties.
For these reasons, RCC has failed to demonstrate that West Haven did not negotiate in good faith to acquire the property by agreement and cannot rely on this claim to show that it will likely succeed on the merits.
3
Violations of RCC's Constitutional Rights
RCC's third and final argument that it will likely be successful on the merits in demonstrating the proposed taking is illegal is that the taking constitutes a violation of RCC's constitutional rights under the fifth and fourteenth amendments of the United States Constitution. It argues that West Haven only claims two public benefits and that these are either illusory, because the operation of law already guarantees the residents a higher percentage of the seats than the memorandum of understanding provides, or are a disguised private benefit, in that the municipality's acquisition of significant revenue from building fees associated with the project " presumably raises the suspicion that the taking is for a private purpose." Because the intended ultimate recipient, NHBOE, would be a municipality operating inside West Haven's borders and because there is no integrated development plan, RCC further argues, the transfer would qualify in the present case as a transfer to a private party for a private benefit of the nature the United States Supreme Court suggested would be forbidden in Kelo v. New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005).
This argument has no merit. Schools in general provide significant public benefits to municipalities: " [S]chools are an important socializing institution, imparting those shared values through which social order and stability are maintained ... Schools bear central responsibility for inculcating [the] fundamental values necessary to the maintenance of a democratic political system ... When children attend racial and ethnically isolated schools, these shared values are jeopardized: If children of different races and economic and social groups have no opportunity to know each other and to live together in school, they cannot be expected to gain the understanding and mutual respect necessary for the cohesion of our society ... [T]he elimination of racial isolation in the schools promotes the attainment of equal educational opportunity and is beneficial to all students, both black and white." (Citations omitted; internal quotation marks omitted.) Sheff v. O'Neill, 238 Conn. 1, 34, 678 A.2d 1267 (1996). In the present case, ESUMS provides additional clear public benefits, both for West Haven residents and for those residents of New Haven and other districts that might later participate, through greater access to education in science, technology, engineering and math as well as access to UNH's courses, facilities and personnel.
Further, RCC's argument that the guarantee that 20% of ESUMS seats will be reserved for West Haven residents is illusory because any one district is limited to 75% of the total enrollment in an interdistrict program is flawed. General Statutes § 10-264l(a) provides in relevant part: " The governing authority for each interdistrict magnet school program that begins operations on or after July 1, 2005, shall restrict the number of students that may enroll in the program from a participating district to seventy-five per cent of the total enrollment of the program ..." Though at present only two districts have been shown to be participating in ESUMS, nothing in evidence suggests that other districts could or would not, at a later date, be invited to participate in ESUMS. The guarantee of 20% seats therefore does not constitute an illusory public benefit to the residents of West Haven.
For these reasons, RCC has failed to demonstrate that the proposed transfer lacks clear public benefits and therefore violates its constitutional rights, and cannot rely on this claim to show that it will likely succeed on the merits.
D
Balancing the Equities between RCC and West Haven
" [I]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction." (Internal quotation marks omitted.) Wallingford v. Werbiski, supra, 274 Conn. at 494. " In considering the equities, the court must weigh whether the harm likely to occur to the defendant if a temporary injunction is granted is greater or less than the harm likely to occur to the plaintiff if the injunction is denied." POP Radio, LP v. News America Marketing In-Store, Inc., 49 Conn.Supp. 566, 579, 898 A.2d 863 (2005) [ 40 Conn. L. Rptr. 332].
In the present action, even a quick weighing of the equities favors West Haven. West Haven and its residents stand to reap significant benefits from its involvement with the construction of ESUMS' permanent location in its city. These benefits include: better education for its students in math, science, engineering and technology; 20% of the seats in ESUMS would be guaranteed to students from West Haven; access to the UNH's resources, facility and students; and the accrual of fees to West Haven's coffers. Granting the desired temporary injunction not only delays the realization of those benefits but also creates significant additional costs and risks for West Haven. First, delaying construction of ESUMS' permanent location means the continued necessity of housing the students in swing spaces, which means its students, including those currently or in the future from West Haven, are split between two different facilities, located less conveniently relative to UNH and do not have access to the planned science or engineering labs. Second, delaying construction would delay West Haven's acquisition of the building fees related to the construction of ESUMS' permanent location. Third, as defined by the memorandum of understanding, NHBOE's obligations to provide the requisite 20% seats to West Haven students is contingent on NHBOE acquiring " each and every parcel it deems necessary for the ESUMS project." Therefore, there are risks that injunctive relief would not only delay West Haven residents of the full enjoyment of the benefits related to a permanent facility for ESUMS within its borders, but possibly could deny them completely.
The equities favoring RCC's position are significantly less defined. It has been unable to demonstrate that the harm that it claims it would suffer— specifically, a potentially temporary loss of its land and inability to prospectively expand would be either material or not addressable by damages, both prerequisites to finding the harm " irreparable." Additionally, given that the property is not currently being used for those business activities in which RCC is engaged, there are no plans to expand that are more than speculative or have the necessary approvals and RCC has no current contracts that presently require an immediate expansion, the only definite harm of denying the injunction would be the transfer of title to West Haven prior to a full hearing on RCC's allegations. This harm could easily be compensated by damages for any harm it might suffer from the temporary deprivation of its property. Finally, RCC has not adequately demonstrated any deprivation of its constitutional rights in the current taking which might sway the equities in its favor.
For these reasons, RCC has failed to carry its burdens of showing the equities in this case favor it over West Haven.
CONCLUSION
For the foregoing reasons, the court denies RCC's requests for a temporary injunction.