New Haven v. East Haven , 35 Conn. Super. Ct. 157 ( 1977 )

These consolidated cases are a continuance of the saga of the bitter conflict between the city of New Haven and the town of East Haven over Tweed-New Haven Airport (hereinafter referred to as the airport).¹ The airport is owned by the city of New Haven and is located within the city of New Haven and the town of East Haven. East Haven has been hostile toward the development of the airport and has for years sought its containment.

The defendants, the town of East Haven and the East Haven economic development commission² (sometimes hereinafter collectively referred to as East Haven), on November 19, 1976, instituted eminent domain proceedings to take three parcels of land, containing a total of seventy-two acres, located in East Haven, which are owned by New Haven and which are part of the airport's property. East Haven wishes to take this land as part of a 228-acre site it seeks to develop as an industrial park under the provisions of chapter 132 of the General Statutes, entitled "Municipal Development Projects."³ Pursuant to this chapter, a municipality is authorized to "acquire by eminent domain" real property for this purpose. General Statutes § 8-193.

It is clear that the industrial park, if successful, could be important for the economic development of the town of East Haven and improve its tax base. The town has little industry and high unemployment. To date approximately $1,500,000 has been spent on the industrial park; the state has contributed one half of this amount and the town the remaining half. It is also clear that an industrial park adjacent to an airport is a compatible use.

The plaintiffs, the city of New Haven, the board of airport commissioners of the city of New Haven, and James E. Malarky, manager of the New Haven's department of airports (sometimes hereinafter collectively referred to as New Haven), have brought these present actions seeking to enjoin East Haven from taking the three parcels.⁴ These three parcels, containing seventy-two acres, lie in the southeasterly portion of the airport property. During the trial of this case and for purposes of this memorandum of decision, these parcels of land are described as "parcel A," "parcel B," and "parcel C."⁵

None of the parcels of land are presently being utilized by New Haven for actual airport operations, except for parcel B which is required for clear zone purposes and parcel C which is required for transition zone purposes.⁶ East Haven seeks to take these parcels subject to clear zone and other height restrictions imposed by federal and state statutes and regulations.⁷

Before the merits of these actions are further explored, it would be helpful to review the history of the airport, the available facilities, and the services it presently provides. New Haven was authorized to establish an airport by the state legislature pursuant to the provisions of Special Acts 1927, No. 267 as amended by Special Acts 1929, No. 266. These special acts provided in part for the following: "The city of New Haven is authorized to establish and maintain an airport within the limits of said city and the town of East Haven and to acquire property as a site for such airport, either by purchase or by condemnation proceedings under the provisions of the general statutes."⁸

The airport commenced its operations in 1931 as a turf airport without paved runways or navigational aids other than a few lights. It now consists of two paved runways which were constructed in 1941. The major runway, designated as runway2-20,⁹ is instrument controlled and runs in a southerly-northerly direction. This runway has been enlarged twice to its present length of 5600 feet, which was accomplished in 1967. The secondary runway, designated as runway 14-32, runs in a northwesterly-southeasterly direction. It has not been enlarged since its original construction and remains 4116 feet in length. The airport also consists of six taxiways, a control tower, aprons, a passenger terminal, an aircraft shop and hangar, a former military hangar used as a maintenance building, aircraft parking areas, and automobile parking areas.

The properties designated as parcels A and B and a portion of parcel C were acquired by the airport prior to 1940. The remainder of parcel C was purchased in 1967 in connection with the last extension of runway 2-20.¹⁰

The airport serves the greater New Haven area which contains approximately 750,000 people. It forms a part of the National Airport System Plan for the development of public airports in the United States which is prepared by the Federal Aviation Administration (hereinafter referred to as the "FAA") pursuant to the Airport and Airway Development Act of 1970, 49 U.S.C. § 1701 et seq. The airport's operating costs are financed out of the municipal budget of the city of New Haven. The capital improvements, land acquisition, and planning are financed by a combination of federal, state, and municipal revenues and grants. As of 1971 the federal government had invested in excess of $3,000,000 in developing the airport, the state of Connecticut in excess of $1,450,000, and the city of New Haven in excess of $3,500,000. The control tower at the airport is now directed by the FAA's personnel.

The airport was required to adopt an airport layout plan as a condition for receiving federal grants.¹¹ The latest plan was adopted by New Haven and approved by the state of Connecticut (by the then department of aeronautics) and by the FAA in 1968. This airport layout plan shows that parcels A, B, and C are to be used in the future for the extension of runway 14-32, for clear zones, and for future general aviation development. As a prerequisite to receiving federal grants (and as recently as June 19, 1975), New Haven entered into agreements with the FAA which provided in part that all amendments, revisions, and modifications to the airport layout plan would be subject to the approval of the FAA. These agreements further provided that New Haven would not make or permit the making of any change other than in conformity with the airport layout plan if such change might adversely affect the safety, utility, and efficiency of the airport.¹²

Allegheny Airlines, an airline holding a certificate of convenience from the Civil Aeronautics Board, provides flight service to and from Washington, D.C. (through Islip, Long Island) and Boston. Pilgrim Airlines provides commuter service to Kennedy, LaGuardia, Boston, and Bradley Airports. New Haven Airways is the fixed-based operator at the airport which provides charter flights, service for private aircraft, sales, and other services. Eastern Airlines also presently holds a certificate of convenience issued by the Civil Aeronautics Board for service at the airport but Eastern suspended this service in 1974.

During 1976 the airport served the following needs of the community: 28,000 passengers enplaned and deplaned on the certified airline, Allegheny; 20,700 passengers enplaned and deplaned on the commuter airline, Pilgrim; 600,000 pounds of air freight and over 1,000,000 pounds of air mail were handled through the airport; 75 to 80 aircraft were parked at the airport.

These consolidated cases seeking to enjoin East Haven are brought on several grounds, but the thrust of New Haven's major argument is that the real property cannot be taken by condemnation because it is already being devoted to a public use. It is a general rule of statutory construction, long recognized in Connecticut and most other jurisdictions, that property already devoted to a public use by one municipality cannot be taken under eminent domain by another municipality "where the proposed use will either destroy such existing use or interfere with it to such an extent as is tantamount to destruction . . . unless the legislature has authorized the acquisition either expressly or by necessary implication." 1 Nichols, Eminent Domain (3d Ed.) § 2.2; Hiland v. Ives, 154 Conn. 683, 689;¹³Canzonetti v. New Britain, 147 Conn. 478, 481;Water Commissioners v. Johnson, 86 Conn. 151,163-64; Starr Burying Ground Assn. v. North Lane Cemetery Assn., 77 Conn. 83, 88; Evergreen CemeteryAssn. v. New Haven, 43 Conn. 234, 242; annot., "Condemnation — Of Public Entity's Land," 35 A.L.R.3d 1293, 1334. This rule of statutory construction has been at times referred to as the prior use doctrine.

It is also a rule of long standing in this state that the authority to take property by eminent domain will be strictly construed in favor of the owner and against the condemnor. "Authority to take by condemnation will be construed in favor of the condemnee and against the condemnor." Torrington v. Coles, 155 Conn. 199, 201; State v. McCook,109 Conn. 621, 630.

The determination of whether a use is a public one is a judicial question which must be resolved by the court, but in this decision great weight must be given to the legislature's determination. GohldRealty Co. v. Hartford, 141 Conn. 135, 141. "A public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation. McSorley v. Fitzgerald, 359 Pa. 264,270 . . .; 37 Am. Jur. 734, § 120. Courts as a general rule, instead of attempting judicially to define a public as distinguished from a private purpose, have left each case to be determined on its peculiar circumstances. . . . The modern trend of authority is to expand and liberally construe the meaning of `public purpose.' The test of public use is not how the use is furnished but rather the right of the public to receive and enjoy its benefit."Barnes v. New Haven, 140 Conn. 8, 15.

None of the parties questions the fact that an airport facility is a public use; § 13b-43 of the General Statutes; Special Acts 1929, No. 266; Town ofDanbury v. Danbury Airport Corporation, 9 Conn. Sup. 317,318; or the fact that an industrial park developed by a municipality is also a public use. Section 8-186 of the General Statutes;¹⁴ see Wilson v. Connecticut Product Development Corporation,167 Conn. 111, 114-19.

It is also crystal clear that the statute granting to East Haven the power to take property by eminent domain for an industrial park does not expressly or implicitly authorize the condemnation of property already devoted to a public use. General Statutes §§ 8-193 and 8-129 through 8-133; seeTorrington v. Coles, supra, 202-203. Such legislative authority "must be clearly and unequivocably expressed"; Bridgeport v. N.Y. N.H. R. Co.,36 Conn. 255, 265; or such authority must "be clearly inferred from the nature and situation of the proposed work, and from the impracticability of constructing it without encroaching on land already used by the public . . . ." 1 Nichols, Eminent Domain (3d Ed.) § 2.2; see Canzonetti v. NewBritain, supra, 481.

East Haven argues that it has authority to take the land by condemnation because its taking will not interfere with the land's present public use, i.e., the taking will not interfere with the clear zones and other height requirements for the present operation of the airport. East Haven further contends that any other use that is proposed for the future will not prevent it from taking the property because there was no evidence of conduct on the part of New Haven "which practically guarantees its speedy consummation"¹⁵ for such other public use.

The facts in the present case compel the court to conclude that parcels A, B, and C are being held not only to guarantee clear zones and other height requirements, but also for the public use of expansion of the airport facilities within the reasonably foreseeable future.¹⁶ Even though the takings are subject to clear zones and other height restrictions required for the present operation of the airport, the condemnations by East Haven of parcels A, B, and C would still destroy an existing public use, that is, a reserve for the future expansion of the airport. Therefore, such a taking by East Haven would violate the prior use doctrine.

It has long been held that property "may be appropriated or devoted to a public use within the law of eminent domain without being actually put to such use." Vermont Hydro-Electric Corporation v. Dunn, 95 Vt. 144, 149.¹⁷ "The prior use doctrine applies to land held . . . to accommodate reasonably foreseeable future demands . . . although a mere naked possibility that it will be so used will not immunize it from condemnation under a general power." Weehawken v. Erie Railroad Co., 20 N.J. 572,583; Chicago v. Vaccarro, 408 Ill. 587;¹⁸ Ridgewood v. Glen Rock, 15 N.J. Misc. 65; In re 221stStreet in City of New York, 116 Misc. 506; In reSeneca Avenue in City of New York, 98 Misc. 712;Richmond Heights v. Board of County Commissioners,112 Ohio App. 272; Scranton Gas WaterCo. v. Delaware Lackawanna Western RailroadCo., 225 Pa. 152; Pittsburgh Junction Railroad Co.'sAppeal, 122 Pa. 511; Memphis State Line RailroadCo. v. Forest Hill Cemetery Co., 116 Tenn. 400;Vermont Hydro-Electric Corporation v. Dunn, supra; Falkner v. Northern States Power Co.,75 Wis.2d 116; annot., "Eminent Domain — Property Not Used," 12 A.L.R. 1502, 1506; 1 Nichols, Eminent Domain (3d Ed.) § 2.2(5).

"In determining whether the . . . property is necessary for public use not only the present demands of the public, but those which may be fairly anticipated in the future, may be considered."Rindge Co. v. Los Angeles, 262 U.S. 700, 707. The test to protect the property from condemnation under the prior use doctrine is not absolute certainty that it will be used for that purpose in the future. Such a standard would be "too extreme to be sustained. There will always be some possibility that a planned improvement will not be completed and put to the use intended. The test cannot be whether it is possible, whether it is conceivable that the project would fail. The test must be whether there is a reasonable assurance that the intended use will come to pass." Falkner v. Northern StatesPower Co., supra.

In the present case, it is reasonable to conclude that there will be an increase in the demand for the services of the airport because of a predicted substantial growth in air traffic. This is due to an anticipated growth of the population in the area serviced by the airport.¹⁹ Evidence was offered that by the years 1985 to 1995 there will be substantial increases in the number of enplaned passengers, in the amount of air freight movement, and in the number of aircraft based at the airport.²⁰

These increases in the demands on the airport will require the expansion of airport facilities. Accordingly, it is anticipated that the land which East Haven seeks to condemn will be used for the following airport purposes within the reasonably foreseeable future (all of which are consistent with the approved airport layout plan):

(a) It will be required that a new terminal be built by 1995 to increase the size of the present terminal from 6000 square feet to 80,000 square feet. This building is planned for the area where there is presently parking for based aircraft. Parcels A and B would, therefore, be required for parking the displaced aircraft as well as those additional aircraft which in the reasonably foreseeable future will seek parking at the airport.

(b) It is anticipated that runway 14-32 will be lengthened and as a result will require in part the use of parcel B. This will increase the airport capacity required to accommodate the demand for air traffic in the reasonably foreseeable future. Although it would be more desirable to increase the length of runway 2-20, under present circumstances (as will be explained in this memorandum of decision) the extension of 14-32 is the only viable option open to New Haven in order to increase the capacity of the airport.

(c) Parcel C is required for future general aviation purposes. For example, there will be need for additional hangars to house corporate aircraft.

(d) Parcels B and C are presently used for clear and transition zones. Notwithstanding the fact that East Haven seeks to take this property subject to these clear zone and other height requirements, it is apparently more desirable for the airport to own the land under these zones in fee simple. The airport, by federal regulations, is authorized to acquire land to maintain airport approach zones, including clear and transition zones. 14 C.F.R. § 152.85 (d). The desirability of owning the fee simple to the land underlying the zones was clearly emphasized when East Haven clarified its position that it was seeking to subject its taking to the existing clear zones and height requirements and not what may be required by the airport in the future.²¹

What is reasonably necessary to accommodate the future needs of the public use is also to be tested by the nature of the use. So, for example, if the public use is park land, future additional requirements of a municipality would not necessarily require that additional park land be contiguous to existing park land. But, on the other hand, if the public use is an airport and the anticipated future requirement is aircraft parking, it is, of course, essential that property contiguous to the present operating airport be available for this future need. Under such circumstances, there must be a liberal consideration of the future needs of the public use.

Of course, in the present case, it is necessary that the land for the future expansion be contiguous to the airport's present operation. It is of particular importance that New Haven be able to retain this property for its future airport needs inasmuch as it is improbable that other land will be available in East Haven. The legislature has made it clear that no land can be acquired in the future for the establishment, expansion, or improvement of an airport, either by condemnation or purchase, without the consent of the municipality in which the land lies.²² General Statutes § 13b-43; East Haven v.New Haven, 159 Conn. 453, 467. And it has been made crystal clear that East Haven's hostility to any expansion of the airport will make the obtaining of its consent an improbability.

At one point in the seemingly improved relationship between the municipalities with respect to the airport, New Haven assumed that East Haven would cooperate in granting permission for certain improvements and expansion of the airport. Specifically, New Haven was under the impression that East Haven would give its consent to the condemnation or purchase of properties located in East Haven which have thereon certain obstructions that prohibit the effective use and extension of the length of runway 2-20,²³ to the purchase of certain land owned by East Haven which is necessary to improve the safety and reliability of the service at the airport by the completion of an approach light system, and to the acquisition of certain property on Twiss and Burgess Streets in East Haven for the purpose of aircraft parking and expanded accommodations for fixed-based operators. As a result of those assumptions, New Haven, in the preparation of its master plan, took into consideration the conveyance of parcels A, B, and C to East Haven for its industrial park.²⁴ The plan which was clearly subject to the foregoing assumptions was adopted by New Haven. The assumptions on the part of New Haven never came to fruition. As a result, it has become necessary for New Haven to retain parcels A, B, and C in order to accommodate, as best it can, these reasonably foreseeable future needs of the airport.

Finally, a further public use test is to determine what the owner under the law is required to do with the property and whether a public trust is impressed upon it. Vermont Hydro-Electric Corporation v.Dunn, 95 Vt. 144. This standard is clearly set forth in a 1917 decision of the Supreme Court of Connecticut in the case of East Hartford Fire District v.Glastonbury Power Co., 92 Conn. 217. Although East Haven relies upon the language of this case to support its position,²⁵ its reliance is misplaced.

In the East Hartford Fire District case the power company which owned the water rights, which the court allowed to be taken by eminent domain, was authorized to perform not only public service functions but also purely private functions such as operating mines and quarries and carrying on any other kind of manufacturing. Although the power company had been chartered for more than twelve years, it had not commenced any of its public service activities; it had not started to construct its railway, to generate electricity, or to develop the water rights for public use. The court, in allowing the fire district to take the water by eminent domain, pointed out that the power company was not obligated in the future to use the water for the public uses for which it was in part chartered. The court stated: "But in this case there is also another and more important uncertainty as to the use which the respondent [power company] may finally elect to make of its water-power when developed. True, it now intends to use it for the purposes alleged; but when this allegation of intent is referred to the respondent's charter, as it must be in order to ascertain its legal effect, it appears that the respondent is fully authorized to form a different corporate intent, and to use its water-power, whether translated into electric energy or not, for carrying on mining, quarry or manufacturing business of a purely private nature, in case it should hereafter seem more profitable to do so." East Hartford Fire District v.Glastonbury Power Co., supra, 225. Of course, the present case is materially different. In this case the land is owned by the city of New Haven and is being held for the public purpose of future reasonable expansion of airport facilities. The parcels of land are part of the airport's layout plan which has been approved by the FAA and the state of Connecticut. New Haven is obligated to use this land for airport purposes pursuant to certain grant agreements it entered into with the FAA.²⁶ The land in question is certainly impressed with a public trust.

The court is also of the opinion that the taking of parcels A, B, and C is not necessary for East Haven to have a successful industrial park.²⁷ It seeks the fee to those parcels for the purposes of constructing a road and installing utilities for the park. The utilities can be brought to the property through Silver Sands Road and the proposed road is not essential for the development of the park.²⁸

East Haven's engineer also points out that parcel B is absolutely necessary because East Haven plans to use the materials it removes from a cliff located thereon as fill for the marsh lands of that portion of the industrial park presently owned by East Haven. He contends that without these vast quantities of fill available in close proximity to the site, the industrial park would not be economically feasible. On the other hand, East Haven argues that it is not economically feasible for New Haven to remove this same cliff which would be required for the purpose of extending runway 14-32. Under such circumstances, if East Haven's motive in attempting to condemn the three parcels was solely the development of an industrial park (and not the containment of the airport, as New Haven claims),²⁹ it would appear that East Haven should seek to acquire from New Haven this property for the sole purpose of removing this cliff. By limiting its acquisition, East Haven would serve its purpose of providing fill for the remainder of the industrial park and at the same time accommodate New Haven by removing the cliff and making the extension of runway 14-32 more economically feasible. Certainly the taking of the cliff on parcel B for the purpose of removing it for fill would not conflict with the present public uses of the land in question.

In sum, the court finds (1) that parcels A, B, and C, which East Haven seeks to take under eminent domain are already devoted to an existing public use, that is, they are being held for the reasonably foreseeable future expansion of the airport; (2) that the proposed use of these parcels of land as part of an industrial park, for which East Haven seeks to take them in fee simple, would destroy such existing public use; (3) that the legislature of the state of Connecticut did not expressly, or by implication, authorize East Haven to take such land already devoted to a public use; and (4) that if the court does not issue permanent injunctions restraining East Haven from proceeding further in its attempt to acquire parcels A, B, and C, New Haven will be irreparably injured.³⁰

Accordingly, the court does hereby issue permanent injunctions prohibiting the defendants, the town of East Haven and the East Haven economic development commission, from taking by condemnation parcels A, B, and C, as prayed for in each of the complaints; and, further, the defendant clerk of the Superior Court of the state of Connecticut in and for the county of New Haven is permanently enjoined from issuing certificates of taking with respect to these parcels of real property.

Judgment may enter accordingly.