Opinion
No. CV 04 0092630
January 7, 2005
MEMORANDUM OF DECISION RE MOTION FOR ORDER ( # 102) — APPLICATION FOR EXECUTION OF EJECTMENT
This is a condemnation action in which the plaintiff, the state of Connecticut department of transportation, acquired through its power of eminent domain, a certain parcel of land located in New Milford, Connecticut (property) belonging to the defendant, the Heirs of Alan P. Gereg. The property is improved with a wood frame building. The plaintiff makes the following representations. On March 10, 2004, the plaintiff filed notice of condemnation and assessment of damages against the property. The damages were assessed at $211,800, which were deposited with the Superior Court for the judicial district of Litchfield. One of the heirs of Alan P. Gereg, Alan P. Gereg, Jr., occupied a portion of the property prior to the taking and continues to occupy the property despite repeated demands made by the plaintiff that he vacate the property and remove his belongings. The plaintiff maintains that its plan to demolish the building and prepare the property for improvements to Route 7 will be hindered and it could lose federal construction funding if Gereg does not vacate the property and remove his belongings.
The acceptance of the assessment of damages was approved by the court on November 26, 2004.
On September 29, 2004, the plaintiff filed a condemnor's verified application for execution of ejectment. During short calendar proceedings held on November 8, 2004, Gereg objected to the execution of ejectment and testified that he disputed the assessment of damages. For the foregoing reasons, the court grants the application for execution of ejectment.
The plaintiff filed the notice of condemnation against the property and an assessment of damages on March 10, 2004. General Statutes § 13a-73(b) provides, in part, that "[u]pon filing an assessment with the clerk of the superior court, the commissioner shall forthwith sign and file for record with the town clerk of the town wherein such real property is located a certificate setting forth the fact of such taking, a description of the real property so taken and the names and residences of the owners from whom it was taken. Upon the filing of such certificate, title to such real property in fee simple shall vest in the state of Connecticut . . ." (Emphasis added.) The statute also provides that "at any time after such assessment has been made by said commissioner, the physical construction of such layout, alteration, extension, widening, . . . change of grade or other improvement may be made. General Statutes § 13a-73(b)." Title to the property is, therefore, vested in the state of Connecticut and the improvements to Route 7 can be made.
Gereg, however, continues to occupy the structure on the property. The state has moved for an order ejecting him from the property. General Statutes § 48-23 provides in relevant part: "When, under the provisions of any statute authorizing the condemnation of land in the exercise of the right of eminent domain, an appraisal of damages has been returned to the clerk of the Superior Court . . . and when the amount of appraisal has been paid or secured to be paid or deposited with the State Treasurer . . . any judge of the Superior Court may, upon application and proof of such payment or deposit, order such clerk to issue an execution commanding a state marshal to put the parties entitled thereto into peaceable possession of the land so condemned." See also Kelo v. New London, 268 Conn. 1, 152, 843 A.2d 500, cert. granted, 125 S.Ct. 27, 159 L.Ed.2d 857 (2004) (Zarella, J., concurring in part and dissenting in part). Although Gereg objects to the execution of ejectment, his objection is primarily based on the amount of damages assessed.
A procedure does exist where the court can review the amount of damages assessed for the taking of property. General Statutes § 13a-76 provides in relevant part that "[a]ny person claiming to be aggrieved by the assessment of such special damages or such special benefits by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court for the judicial district within which such land is situated for a reassessment of such damages or such benefits so far as the same affect such applicant." Even if a court does, however, reassess the amount of damages, "[t]he pendency of any such application for reassessment shall not prevent or delay the layout, extension, alteration, widening, change of grade or other improvement of any such highway." General Statutes § 13a-76. Section 13a-76 provides "a statutory mechanism to effectuate the common-law right to just compensation for a taking by the government — [it] applies when the transportation commissioner exercises the state's power of eminent domain by taking property for highway development purposes." Commissioner of Transportation v. Kahn, 262 Conn. 257, 268, 811 A.2d 693 (2003). "[T]he six month period for filing an application for reassessment under § 13a-76 is not jurisdictional. Rather, it is like a statute of limitations, requiring the commissioner to raise timely the property owner's failure to comply with that provision; failure to do so constitutes a waiver of the defense." Id., 268. The Superior Court has recognized an exception to the six-month limitation in cases where notice of the condemnation was not timely received by the property owner. "[T]he time in which an appeal [requesting reassessment of damages] may be taken does not begin to run until the plaintiff receives notice of the condemnation." Commissioner of Transportation v. Oil Barons, Inc., Superior Court, judicial district of New Haven, Docket No. CV 00 0438538 (May 1, 2002, Berdon, J.T.R.) ( 32 Conn. L. Rptr. 97).
See also Zupaniotis v. Commissioner of Transportation, Superior Court, judicial district of Stamford at Stamford-Norwalk, Docket No. CV 01 0185037 (October 9, 2002, D'Andrea, J.T.R.) ( 33 Conn. L. Rptr. 221); Commissioner of Transportation v. Capone, Superior Court, judicial district of New Haven, Docket No. CV 96 0393289 (September 29, 2000, Silbert, J.) ( 28 Conn. L. Rptr. 274); Newberry v. Frankel, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 0512453 (September 9, 1992, Aurigemma, J.) ( 7 C.S.C.R. 1237) ( 7 Conn. L. Rptr. 406).
In the present case, the notice of condemnation and assessment of damages was filed with the court on March 10, 2004. No application for reassessment of damages has been filed, however, and there is nothing before the court wherein the court needs to decide the timeliness of any appeal or the adequacy of the assessment of damages. The application for execution of ejectment is granted.
BY THE COURT,
Bozzuto, J.