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HomeMy WebLinkAboutNiederwerfer Road (8) r�iL � SACK, SPECTOR AND BARRETT ATTORNEYS AT LAW 836FAR>1INGTO AVENUE (203)233-5251 REST IIARTFORD,CON ECTICUT 061 10-1 544 FAX(203)232-8736 March 8, 1995 Jean Zurbrigen -- Town Manager Town of South Windsor 1540 Sullivan Avenue South Windsor, CT 06074 Re . Miller v Town of Si-ut- Wind .or Dear Ms . Zurbrigen: I am pleased to report that the court, Klaczak, J. recently granted summary judgment in favor of the Town in the civil action brought by Mr. Miller over revocation of a license agreement entered into between the Town and Mr. Mille.r' s father. As you may recall, this action sought damages for alleged trespass, nuisance and taking without compensation for the Town' s continued drainage subsequent to revocation of the license agreement . Attorney Bruce Tyler, who represents Mr. Miller, has indicated that he intends to file a motion to reargue but I am not optimistic about his chances for persuading the court to reverse itself. For your information and files, I have enclosed a copy of the court ' s memorandum of decision. Should you have any questions, please do not hesitate to contact me. Very truly yours, Nicole D. Dorman NDD/kaf Enclosure U3/Ub/i5 U9:43 T7203 Z91 vzbz LAW UYt'1(;b 6 W A U IL I Z �99� i NO. CV 50042 S ' SUPERIOR COURT KENNETH E. MILLER JT7DICIAL DISTRICT OF TOLLAND, I vs . AT ROCKVILLE I TOWN OF SOUTH WINDSOR FEBRUARY 21, 1995 MEMORANDUM OF DE IS ON GME MOTION FOR SUMMARY JVD--N-r i The plaintiff commenced this action in February 1992 , alleging, faint the torts of trespass, nuisance and and in a three count complain I unlawful taking in connection with a tract of land owned by him. in the Town oj f South Windsor. The located on Niederwerfer Road I plaintiff' s claim for relief includes a temporary and permanent)II injunction, and an order for the removal of water, and damages. Inl I his complaint, the plaintiff alleges the following. From February 25, 1960 to September 30, 1988, pursuant to a' license agreement between it and the owner of the subject property, Ithe Town of South Windsor (the "Town") lawfully discharged storm water over the subject property. On August 8 , 1988, the owner,' i revoked the license, with an effective revocation date of Septembe.ril 30 , 1988 . Despite this revocation, the Town unlawfully continued,) to discharge water over the subject property. As a result, the; I I I I ffi j I I oz i 1'Jllil np0�li0N3411S 1ZU1 I'I MAR 06 '95 09:50 203 291 9282 PAGE.02 03/06/95.� 09:44 %Y203 291 9282 LAW OFFICE B W A I003 ) • I I plaintiff suffered damages from a diminution of the property• s value, which he claims is unsalable and uninhabitable. On May 15, 1992, the Town filed an answer, special defenses and counterclaims . On August 11, 1993, pursuant to General Statutes § 8-129, the Town filed with the clerk of this court a statement of compensation for the taking of the subject property. On August 26, 1993, the clerk of the court issued a certificate of taking in the amount of) $15 , 834 . 00 . The Town deposited the $15, 834. 00 with the court! clerk. . The monies were subsequently delivered to the plaintiff, as� compensation to the plaintiff for the taking of the plaintiff' s) property. On November 7, 1994, the defendant filed a motion for summary) judgment (with regards to the February, 1992 complaint) on the! grounds that the action was barred due to the condemnation) proceeding and that governmental immunity barred the action. On. j January 3 , 1995 the plaintiff filed a memorandum in opposition to the motion for summary judgment. He claims that the `just; i compensation' referred to by the defendant was the fair market! value of that portion of the property taken as of August 11, 1993 . 1 The damages he is seeking in the present action are the damages! based upon the fair market value of his property as of September j 1988 without the defendant' s drainage . On January 13, 1995, thel i defendant filed a reply memorandum in support of the summary! 2 MAR 06 '95 09:50 203 291 9282 PAGE.03 03/06/95 09:44 $203 291 9282 LAW OFFICE B W A 10004 judgment . A. Standard for ,Summary Judament Pursuant to Practice Book § 384, a court will grant a motion for summary judgment " `if the pleadings, affidavits and other proof! submitted show that there is no genuine issue as to any material- fact and that the moving party is entitled to judgment as a matter of. law. "' Haesche v. Kissner, 229 Conn. 213, 217, quoting ScraRchansky v. Plainfield, 226 Conn. 446, 450 (1993) . "The test is whether a party would be entitled to a directed verdict on the same facts. " Haesche v. Kissner, supra, 229 Conn. 217. "-In ldeciding a motion for summary judgment, the trial court must view Ithe evidence in the light most favorable to the non-moving party. " I Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. l 772, 781 (1991) . B. Damages for Nuisance and Trespass_ "Where our statutes provide an efficacious means for assuring just compensation, that procedure will be followed. Only when the 7 statutory procedure is inadequate to achieve this goal does a property owner have recourse to common law remedies. " Russo V. East Hartford, 4 Conn. App. 271, 274 (1985) , see also Karp v. 1Urba Redevelopment Commission, 162 Conn. 525, 529 (1972) . Independent! 3 I iI I� MAR 06 '95 09:51 203 291 9282 PAGE.04 03/06/95 09:46 $203 291 9782 LAW OFFICE B W A 006 Redevelopment Agency, 155 Conn. 86, 103 (1967) . In Fishman, the plaintiff's land was condemned pursuant to General Statutes § 8-129. In that proceeding, the date of the taking was determined to be April 10, 1970 . After appealing the decision, pursuant to General Statutes § 8-130, the plaintiff+ subsequently invoked a collateral proceeding seeking interest from February 9, 1967 to April 10, 1970, the date he alleged the taking took place.' The court denied his motion, in part, because of the "Plaintiff's failure to make a timely claim to the Superior Court challenging the determination of the date of taking. ,, Id. , 269 . The principles enunciated in Section B, supra, apply to a dispute over the "taking" date and therefore the common law remedy sought by the plaintiff is not warranted. In other words, since a diopute regarding the taking date could have been resolved under a General Statutes § 8-132 proceeding, the plaintiff is precluded from "seeking a common law remedy. D. Governmental Immunity h The town also claims it is entitled to summary judg''ment 'Unlike the plaintiff in the instant case, the plaintiff in Fishman did not argue that the damages sustained by the taking should have been measured as of this earlier "taking" date. He only argued that the interest should be paid from the earlier date. Id. , 267. 5 MAR 06 '35 09:52 203 291 9282 PAGE.06