on Briefs September 14, 2015.
[Copyrighted Material Omitted]
to recover damages for, inter alia, the alleged violation of
the plaintiff's federal and state constitutional rights,
and for other relief, brought to the Superior Court in the
judicial district of New Britain and tried to the court,
Swienton, J.; judgment for the defendant, from which the
plaintiff appealed to this court.
plaintiff brought this action to recover damages as a result
of the defendant city's demolition of an apartment
building that the plaintiff owned after the roof had
collapsed and a certified building inspector for the
defendant had determined that the snow load on the roof could
cause the building to come down, thereby endangering the
adjoining property. The trial court rendered judgment for the
defendant, from which the plaintiff appealed to this court.
The plaintiff claimed, inter alia, that the trial court made
various factual findings that were unsupported by the record,
and that the court failed to find that certain provisions of
the municipal and state building codes constituted a policy
that supported the plaintiff's claim of municipal
liability under federal law (42 U.S.C. § 1983).
Contrary to the plaintiff's claim that various findings
were unsupported or contradicted by the evidence, the trial
court's factual findings were not clearly erroneous:
although the plaintiff claimed that it had completed
renovations to the building as of the day it was demolished,
the court properly characterized those renovations as "
planned," the plaintiff's general contractor having
testified that the building lacked a permanent roof, which
could not be installed until other work had been performed;
moreover, although copies of certain of the certified
building inspector's e-mails identified him as a heating
inspector, the court was entitled to credit his testimony
that he was a certified building inspector and/or a certified
building official; furthermore, the evidence supported the
court's findings that the building inspector had
determined that the building had had a roof prior to the
snowfall, that it collapsed prior to his order to demolish
the building, that the roof collapse had caused cracks and
bowing in the building, and that he had been concerned that
the snow load on the roof could cause the building to
trial court properly determined that the plaintiff had failed
to establish a basis for the defendant's liability under
any of the plaintiff's claims under 42 U.S.C. §
1983; although the court found that certain provisions of the
municipal and state building codes constituted policies,
those code provisions did not mandate that the building
inspector order the demolition of the building and, thus, the
plaintiff did not prove the required causal link between the
defendant's policy and the violations the plaintiff
claimed to have suffered.
plaintiff could not prevail on its claims of inverse
condemnation, which were based on its assertion that the
trial court improperly concluded that the defendant's
actions did not constitute a taking of the plaintiff's
property for which the plaintiff was entitled to just
compensation; the demolition of the building pursuant to the
defendant's police power was not unreasonable or
confiscatory and did not amount to a taking, as the
plaintiff's owner testified that he owned the building
and had wanted to rent apartments in it, and there was no
testimony or other evidence that indicated that no reasonable
use could be made of the property or that the plaintiff was
prevented from rebuilding.
plaintiff's claim that the trial court improperly
assigned it the burden of proof at trial was unavailing, the
plaintiff having failed to present any authority for its
argument that its civil action against the defendant was a
substitute administrative hearing in which the defendant
should have borne, and failed to carry, the burden of proof.
trial court did not abuse its discretion in failing to draw
an inference in the plaintiff's favor on account of the
defendant's having demolished the building without having
taken measurements or photographs, which the plaintiff
alleged would have disproved the defendant's claim that
the building had been in imminent danger of collapsing.
S. Thier filed a brief for the appellant (plaintiff).
H. Beamon, senior assistant corporation counsel, filed a
brief for the appellee (defendant).
C. J., and Sheldon and Mullins, Js. MULLINS, J. In this
opinion the other judges concurred.
Conn.App. 221] MULLINS, J.
plaintiff, Edgewood Street Garden Apartments, LLC, appeals
from the judgment of the trial court rendered in favor of the
defendant, the city of Hartford, on the plaintiff's
complaint. On appeal, the plaintiff claims that the court
erred when it (1) made various findings of
fact that were unsupported by the evidence introduced at
trial, (2) did not find that provisions of the municipal and
state building codes that the defendant violated constituted
a " policy" supporting a claim of municipal
liability under 42 U.S.C. §
1983, (3) [163 Conn.App. 222] concluded that
the defendant's actions did not constitute a taking of
property for which the plaintiff was entitled to just
compensation, (4) placed the burden of proof on the
plaintiff, and (5) did not draw an inference in the
plaintiff's favor on account of the defendant's
failure to preserve evidence critical to the plaintiff's
case. We disagree and affirm the judgment of the trial court.
following facts, as found by the trial court, inform our
consideration of the plaintiff's claims on appeal. "
On February 6, 2011, the plaintiff owned the land and
building at 270-272 Edgewood Street (subject property) in the
city of Hartford, which was purchased in August, 2009, for
$65,000. The building on the property was built in 1925. The
plaintiff planned on performing massive 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, was called
to go to the subject property. Upon his arrival, he 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 he 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.
Conn.App. 223] " Viens made a determination that the
building was to be demolished. He spoke with Louis Lawson,
Jr., the [plaintiff's] vice president . . . and informed
him that he had ordered the building to be taken down. After
Viens spoke with Lawson [Jr.'s] father, Louis Lawson,
Sr., Lawson, Jr., asked Viens if he could call his structural
engineer as well as his insurance adjuster. Neither one was
available to come out that day (which was a Sunday), but
Viens stated he would not wait until the next day to have the
Neither Lawson, Jr., nor Lawson, Sr., is an engineer or a
licensed building inspector with the state of Connecticut.
After discussion with his supervisor, Viens made the decision
to begin the demolition that day, and ordered the city's
subcontractor to begin. The construction company
tore down 75 percent of the building on Sunday, and completed
the demolition of the building the next day.
No licensed engineer examined the building prior to the
demolition. George Torello, a structural engineer and
forensic investigator with an impressive background,
testified on behalf of the plaintiff. However, his
examination was done based upon the photos which were taken
that day. Based on his examination, he opined that there was
not enough information to conclude that the building would
There was a dearth of evidence as to damages . . . ."
(Footnote in original.)
following procedural history also informs our review. The
plaintiff filed a six count complaint alleging [163 Conn.App.
224] the following: (1) denial of equal protection under
§ 1983; (2) denial of substantive due process under
§ 1983; (3) denial of procedural due process under
§ 1983; (4) inverse condemnation under § 1983; (5)
inverse condemnation under the fifth amendment to the United
States constitution; and (6) inverse condemnation under
article first, § 11, of the Connecticut constitution.
After a bench trial, the court issued a memorandum of
decision in which it found in favor of the defendant on all
six counts of the complaint. The court concluded that (1)
with respect to counts one through four, there were no causes
of action under § 1983 because the plaintiff did not
submit evidence of a policy that directed Viens to demolish
the building, and (2) with respect to counts five and six,
" there was no taking of the property, but a demolition
of a building evaluated to be unsafe." The court then
found that even if it had found in favor of the plaintiff on
any count of the complaint, the plaintiff would not have
prevailed because of its failure to establish actual
damages. [163 Conn.App. 225] Accordingly, the
court rendered judgment in favor of the defendant. This
appeal followed. Additional facts will be set ...