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
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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
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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
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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,'
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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;
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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;
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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
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defendant filed a reply memorandum in support of the summary!
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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
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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!
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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.
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