Town of Darien v. Estate of F. Francis D'Addario, et al.

This appeal concerns General Statutes § 48-
13, 1 and whether the trial court properly granted the
application of the plaintiff, the town of Darien (town),
to enter the property of the intervening defendant AvalonBay
Communities, Inc. (AvalonBay), to conduct an
environmental inspection prior to initiating condemnation
proceedings to take the property. AvalonBay contends
that the trial court improperly granted the town’s
application to gain access to the property before the
town had taken any official action to condemn. AvalonBay also claims that § 48-13 is unconstitutional
under the United States and Connecticut constitutions
because it authorizes the taking of property without
just compensation,3 and that the trial court improperly
declined to address whether the town’s proposed
access to the property prior to condemnation constituted
an unconstitutional warrantless administrative
search.

The record contains the following facts. The property
at issue in this case is 137–139 Hollow Tree Ridge Road
(property), a vacant parcel of approximately 33 acres
located in the town. In June, 1999, the town 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
. . . .’’ The town served on the D’Addario
defendants, the owners of the property at that time;
see footnote 2 of this opinion; the notice of the proposed
condemnation advising them of its desire to test the
property prior to making a formal decision about
whether to condemn the property. In its application
and notice of the proposed condemnation, the town
requested that the trial court order the D’Addario defendants
to appear and show cause as to why the trial
court should not grant the town’s application to inspect
and test the property under § 48-13. The trial court
granted that request.

At the show cause hearing held on July 26, 1999, the
trial court granted AvalonBay’s motion to intervene as
a defendant. AvalonBay had maintained a contract, contingent
upon certain development approvals, to purchase
the property from the D’Addario defendants.
Although AvalonBay had obtained preliminary approvals,
an appeal was pending at the time of the hearing
in this case, and it had not yet purchased the property.
Both the D’Addario defendants and AvalonBay were
represented by counsel at the show cause hearing.

Robert F. Harrel, Jr., first selectman for the town,
testified that he had first discussed purchasing the land
on behalf of the town with the D’Addario defendants
in 1997. The town, through the board of selectmen,
had identified several public purposes for which the
property could be put to use, including a multi-genera-tional
center, a low income senior housing develop-ment,
community athletic facilities, and a commuter
parking facility. Neither the board of selectmen nor the
representative town meeting had voted definitively to
pursue any one of the identified potential public uses.
In January, 1999, however, the board of selectmen
adopted a resolution authorizing Harrel, as the town’s
first selectman, to investigate and take appropriate
steps to condemn the property.

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Click the case caption above for the full text
of the Court's opinion.

The appeal is dismissed.

Unknown

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Reported by Kent Morlan