Leo Gold, et al. v. Town of East Haddam

The plaintiffs, Leo Gold, Joan S. Levy and
Harold Bernstein and Joseph Lieberman, executors of
the estate of Bernard Manger, filed this action seeking
to enjoin the defendant, the town of East Haddam,
from acquiring their property by eminent domain on
the ground that the defendant did not timely file its
statement of compensation with the trial court. The
plaintiffs appeal from the summary judgment the trial
court rendered in favor of the defendant. On appeal,
the plaintiffs contend that the court improperly found
that the defendant sought to take their property for
solely school purposes and, therefore, was not bound
by the time limitation for the acquisition of property
as set forth in General Statutes § 48-6. Because an issue
of fact exists as to the purpose of the taking, we conclude
that the court improperly rendered summary
judgment.

The court found the following undisputed facts. ‘‘[The
plaintiffs] were . . . the owners of real property in the
town of East Haddam. On June 17, 2004, the [defendant]
held a special meeting for the purpose of considering
and discussing the acquisition by purchase or eminent
domain of the plaintiffs' property. On June 24, 2004,
the governing body of the condemner by town meeting
voted to acquire the plaintiffs' property. The referendum
vote was, in relevant part, on the question of: ‘1.
Shall the Town of East Haddam appropriate $24,500,000
for the New Middle School Project including, but not
limited to, (a) the acquisition by purchase or eminent
domain of approximately 226 ± acres of real property
located off Clark Gates Road, East Haddam on the following
parcels: Map # 74, Lot 3, Map # 73, Lot 20-1,
Map # 74, Lot 009A, provided, however approximately
30 ± acres be used for the New Middle School Project,
approximately 50 ± acres be used for general purposes
and the remaining real property of approximately 146
± acres be designated as open space, (b) the construction
of a new middle school of approximately 96,000
square feet to house grades 4-8, (c) the construction of
parking areas and drives, ball fields and soccer fields,
(d) site improvements and (e) all alterations, repairs
and improvements in connection therewith . . . and
authorize the Board of Selectmen to acquire such real
property.' On or about January 6, 2006, the [defendant]
filed a statement of compensation in the Superior Court
. . . by which it seeks to take by condemnation the
plaintiffs' real property.''

By complaint dated February 6, 2006, the plaintiffs
filed this action, claiming that the defendant failed to
commence the condemnation proceeding within six
months after the vote authorizing the acquisition of
the property as required by § 48-6 and that the vote,
therefore, was void.1 The defendant subsequently filed
a motion for summary judgment, claiming that General Statutes § 10-241a,2 which does not have a time limitation,
governs the acquisition of property by condemnation
for school purposes, and, because the defendant
was taking the plaintiffs' property to build a school, the
six month time limitation did not apply. The plaintiff
filed a cross motion for summary judgment, claiming
that, because the voters approved the land acquisition
not only for school purposes but also for other municipal
and open space purposes, § 48-6, and not § 10-241a,
applied. The court found that the plaintiffs' property
was being acquired solely for school purposes and that
the time limitation of § 48-6 therefore did not apply.
Accordingly, the court granted the defendant's motion
for summary judgment and denied the plaintiffs' motion
for summary judgment. This appeal followed.

Here, the defendant claims that it sought to take
the plaintiffs' property solely for the school project.
In opposition to the defendant's motion for summary
judgment, the plaintiffs submitted the referendum question
put before the voters that stated that part of the
plaintiffs' property would be used for the school project, a larger part would be used for general municipal purposes
and the majority would be designated as open
space. In support of its motion for summary judgment,
the defendant presented affidavits from James Ventres,
the defendant's land use administrator, and Bradley
Parker, the first selectman. In his affidavit, Ventres
stated that the plaintiffs' property was sought for ‘‘the
sole purpose of development of the middle school facility
project and accessories thereto.'' He stated that the
project, as currently planned, would consume approximately
sixty-one acres, including building location,
access roadways, necessary sloping and fill along the
access ways at the school site, and for septic fields and
playing fields. He stated that another approximately
twenty-two acres constituted land that might be developed
into additional playing fields or related school
facilities in the future. Ventres stated that ‘‘the entire
balance of the site is either not subject to development
or is substantially constrained by the location of wetlands,
ponds, steep slopes and other similar constraints.''

In his affidavit, Parker reiterated that the only
planned use for the plaintiffs' property was the school
project. Parker explained that ‘‘[t]he [r]esolution put
before the voters . . . by [r]eferendum describes three
elements of the property to be acquired for purposes
of the school project simply as a way to inform the
voters . . . of how the property acquired would be
adapted to the use for the public school project and
future expansion and buffer of adjacent neighborhoods.''
Although the affidavits submitted by the defendant
support the claim that it sought the plaintiffs'
property solely for the school project, the language of
the referendum question submitted to the voters, when
viewed in a light most favorable to the plaintiffs, suggests
that only a portion of the property was being
taken for school purposes and other portions were
being taken for general purposes or designated as open
space. The affidavits, read together with the referendum
notice, create a factual question as to whether the taking
was intended solely for school purposes or also
included general municipal purposes. In the face of this
unresolved issue, we conclude that there was a question
of material fact and that summary judgment was, therefore,
inappropriate.