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United States v. Town of Windsor

June 14, 1985

UNITED STATES OF AMERICA, APPELLEE,
v.
TOWN OF WINDSOR, CONNECTICUT; AND JERRY J. COLUMBUS, BUILDING INSPECTOR AND ZONING ENFORCEMENT OFFICER OF THE TOWN OF WINDSOR AND HIS SUCCESSORS IN OFFICE, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS; GENERAL ELECTRIC COMPANY, AND CUSTOM CONCEPT BUILDERS OF CONNECTICUT, INC., THIRD-PARTY DEFENDANTS



Appeal from a judgment entered in the United States District Court for the District of Connecticut, Clarie, J., granting the United States' motion for a permanent injunction against the enforcement of the permit provisions of the Connecticut Basic Building Code with respect to construction of a federal building on federally owned land in the Town of Windsor, Connecticut. Affirmed.

Author: Meskill

Before: OAKES, MESKILL and PIERCE, Circuit Judges.

MESKILL, Circuit Judge :

Appellants the Town of Windsor, Connecticut and Jerry J. Columbus, the Town's Building Inspector, appeal from a final judgment of the United States District Court for the District of Connecticut, Clarie, J., permanently enjoining them from enforcing the permit provisions of the Connecticut Basic Building Code against the United States or its contractors the General Electric Company and Custom Concept Builders of Connecticut, Inc. Appellants had sought to enforce the permit provisions of the Building Code with respect to construction the United States had undertaken in the Town of Windsor. The district court granted the United States' motion for preliminary and permanent injunctive relief, concluding that enforcement of the permit provisions would violate the Supremacy Clause of the United States Constitution. For the reasons that follow, we affirm.

BACKGROUND

The United States (Government) owns land in the Town of Windsor, Connecticut (Town). On this land the Government build a complex that is part of the Knolls Atomic Power Laboratory. The Knolls Atomic Power Laboratory is in turn part of the Department of Energy's (DOE) Naval Nuclear Propulsion Program. Pursuant to a contract with DOE, the laboratory is managed by General Electric Company (GE). The work performed at the Windsor site involves the research and development of shipboard nuclear rectors and the training of naval personnel. The site and work are classified under DOE and Department of the Navy security regulations.

The Government eventually decided to expand the Windsor facility. Included in the expansion is the construction of two new buildings with interconnecting underground tunnels. One of the buildings is within the area currently designated as classified and the other is outside of that area. However, before the completion of construction the classified area will be expanded to cover both buildings. The construction, the exact nature and purpose of which is classified, was undertaken pursuant to DOE's general construction authority, 42 U.S.C. § 2201(e) (1982), and has been funded by the Department of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1981, Pub. L. No. 96-540, 94 Stat. 3197 (1980).

Pursuant to its contractual obligation and at the direction of the Director of the Naval Nuclear Propulsion Program, GE assumed the function of general contractor for the construction and issued an Invitation to Bid. On February 22, 1983, the construction subcontract was awarded to Custom Concept Builders of Connecticut, Inc. (Custom). Construction began on May 4, 1983.

Thereafter, the Town sent out correspondence to Custom, GE and DOE insisting that under the Connecticut Basic Building Code (Code), Custom was required to obtain a building permit for the construction. On June 22, 1984, the Town building inspector issued to Custom and GE an order to stop work on the Windsor construction. The order advised Custom and GE that under Connecticut law they were required to secure a building permit and that continued work without a permit would result in the imposition of a fine of up to $500 per day. Work on the project continued.

On July 11, 1984, the Town filed a complaint seeking temporary and permanent injunctions in the Connecticut Superior Court for the Judicial District of Hartford/New Britian. It also obtained an order to show cause returnable on July 30, 1984 directing Custom and GE to appear at a hearing on the Town's motion for a temporary restraining order to enforce the stop work order.

On July 17, 1984, the Government commenced the instant action against the Town and its building inspector. It sought both a stay of the state court proceeding and an injunction against enforcement of the Code's permit provisions with respect to the Windsor construction. The district court stayed the state court proceedings on July 26, 1984. The Town then answered the complaint and filed a third-party complaint against GE and Custom, seeking an injunction against further construction without a permit.

After a one day trial, the district court granted the Government a permanent injunction against enforcement of the Code's permit requirement. In so doing, the court rejected the Town's argument that although it may not demand compliance with the Code from the Government, it may demand compliance from the Government's contractors. Recognizing that the Government owned all of the land and buildings at the Windsor site and was financing 100 percent of the construction, the court reasoned that enforcing the permit requirements against the constructors would in effect allow the Town to regulate the activities of the Government. It found that such a result would interfere with a national purpose, specifically, the development of nuclear propulsion and the training of naval personnel.

Discussion

The only aspect of the Code at issue in this case is the permit requirement. Under the Code, an owner, a lessee or an owner's authorized representative must obtain a building permit from the building inspector of the town in which construction will take place. If the application is made by someone other than the owner, it must be accompanied by an affidavit from the owner, it must be accompanied by an affidavit from the owner or his agent stating that the proposed work is authorized by the owner. Code, § 112.3. The application also must be accompanied by at least two copies of the project's specifications and plans. Code, § 112.5. The building inspector must approve the plans, Code, §§ 109, 113.1; he must inspect the site before, during and after construction, Code, § 110; and he has a right of entry onto the construction site for purposes of conducting inspections, Code, § 111. In addition, a fee must be paid before a permit will be ...


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