Posted by: Patricia Salkin | March 16, 2016

CT Appeals Court Holds Demolition of Owner’s Building Pursuant to City’s Police Power Did Not Amount to a Taking

Plaintiff, Edgewood Street Garden Apartments, LLC, owned the land and building at 270–272 Edgewood Street in the city of Hartford, which was built in 1925. The plaintiff planned on performing renovations to the building with the intent of renting out its apartments. On February 6, the fire department for the city was dispatched to the subject property after it received a report that the roof had collapsed. David Viens, a state of Connecticut certified building inspector who worked in the city’s department of licenses and inspection, arrived at the property and saw cracks at some areas in the sidewalls of the subject property and above two windows. He determined that the roof had collapsed, which was causing the cracks in the side walls as well as bowing of the walls, and was concerned that due to the snow load on the roof the building could come down at any minute, endangering the adjoining property. He spoke with Allen Gaudet, the general contractor on the construction of the building, and Gaudet informed Viens that there was a temporary pitched roof on the building and that the roof pitch had changed. Viens made a determination that the building was to be demolished. Edgewood brought action against city, alleging denial of equal protection under § 1983, denial of substantive due process under § 1983, denial of procedural due process under § 1983, inverse condemnation under § 1983, inverse condemnation under the Fifth Amendment, and inverse condemnation under State Constitution. The Superior Court, found in favor of city, and the building owner appealed.

As to the issue of how much of the renovations were actually performed, while the record contained testimony regarding work that already had been performed on the building, there was also testimony that on that date, significant improvements had yet to be performed. Thus, the court’s finding was not clearly erroneous. Likewise, the court found adequate evidence was presented supporting the determination that Viens was a certified building inspector. Next, Edgewood challenged Viens’ determination. As the outset, the court noted that the record supported the superior court’s finding that there had been a roof and that the roof had collapsed prior to ordering demolition of the building. There was also evidence that the snow could have caused the building to collapse. Viens completed a “Notice Violation/Emergency and Order to Abate.” On that form, Viens described the condition warranting emergency action as “snow load has affected the stability of the structure.” Because it was supported by evidence in the record, the court’s finding that Viens was concerned that snow load on the building’s roof could cause the building to collapse was not clearly erroneous.

Next, the court properly found that the plaintiff did not establish a cause of action under § 1983 because it did not prove the required causal link between the defendant’s policy and the constitutional violations the plaintiff claims to have suffered. Since the identified municipal policy itself was not unconstitutional, the plaintiff was required to prove more than a single exercise of Viens’ discretion to impose liability on the defendant. Edgewood also contended that the demolition was a taking because it deprived the plaintiff of the opportunity to resell the building or rent the apartments therein. The court noted that the police power, which regulates for the public good the uses to which private property may be put and requires no compensation, must be distinguished from the power of eminent domain, which takes private property for a public use and requires compensation to the owner. Here, because the defendant’s exercise of its police power was neither unreasonable nor confiscatory, the trial court properly concluded that there was no taking. Lastly, the court found there was sufficient evidence in the record, to support the court’s decision not to draw an adverse inference from the City not taking photographs and measurements.

Edgewood Street Garden Apartments, LLC v. City of Hartford, 2016 WL 597557 (CT App. 2/23/2016)

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