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Edgewood Street Garden Apartments, LLC v. City of Hartford

Appellate Court of Connecticut

February 23, 2016

EDGEWOOD STREET GARDEN APARTMENTS, LLC
v.
CITY OF HARTFORD

         Submitted on Briefs September 14, 2015.

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[Copyrighted Material Omitted]

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          Action 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.

          SYLLABUS

         The 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). Held :

         1. 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 collapse.

         2. The 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.

         3. The 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.

         4. The 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.

         5. The 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.

         Clifford S. Thier filed a brief for the appellant (plaintiff).

         Jonathan H. Beamon, senior assistant corporation counsel, filed a brief for the appellee (defendant).

         DiPentima, C. J., and Sheldon and Mullins, Js. MULLINS, J. In this opinion the other judges concurred.

          OPINION

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          [163 Conn.App. 221] MULLINS, J.

          The 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

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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[1] under 42 U.S.C. § 1983,[2] (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.

         The 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.

          [163 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 building demolished.

         " 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.[3] The construction company

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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 collapse.

         " There was a dearth of evidence as to damages . . . ." (Footnote in original.)

         The 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.[4] [163 Conn.App. 225] Accordingly, the

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court rendered judgment in favor of the defendant. This appeal followed. Additional facts will be set ...


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