DocketNumber: File No. 156431
Citation Numbers: 409 A.2d 153, 35 Conn. Super. Ct. 303, 35 Conn. Supp. 303
Judges: BERDON, J.
Filed Date: 4/4/1979
Status: Precedential
Modified Date: 1/12/2023
The plaintiff Connecticut Light and Power Company seeks to exercise its power of eminent domain by taking an easement over land owned by the defendant Wanda L. Huschke for the purpose of constructing a 115 kilovolt electric transmission line from Branford to Old Saybrook. The application of the plaintiff seeks the appointment of three disinterested citizens to serve as a committee to assess damages for its proposed taking under the charter granted to the plaintiff by the legislature. 14 Spec. Laws 860 (Approved June 22, 1905).
The property of the defendant on which the plaintiff seeks to take an easement is located on Notch Hill Road in the town of North Branford. It consists of four building lots which are used by her for a personal residence and for other incidental uses, including a stable and fields for horses.
The easement the utility seeks is 150 feet in width and traverses three of the four lots owned by the defendant, including a small portion of the lot on which her home is situated. The proposed easement will destroy the use of two of the lots for building purposes.
The defendant objects to the taking and she has filed several special defenses including the defense *Page 305
that the plaintiff does not have authority to take the easement by eminent domain.1 Raising special defenses to a petition for the appointment of a committee is a proper procedure to test the validity of the plaintiff's proposed taking. Bridgeport HydraulicCo. v. Rempsen,
It is fundamental that state government may take private property for public use under its power of eminent domain. Conn. Const., art.
The courts have allowed the utilities to exercise those powers of eminent domain without regard to environmental or social needs of the state, let alone the rights of the individual owner, save only the assurance that just compensation be paid to the owner. See Gohld Realty Co. v. Hartford, supra, 141; Lowenthal, "Prometheus, Meet the Power Facility Evaluation Council," 46 Conn. B.J. 379. It has long been held, however, that the decision of whether a property to be taken is necessary for the public use "is . . . open to judicial review to discover if it was unreasonable, or in bad faith, or an abuse of the power conferred, and . . . the appropriation of the property will be restrained if it be found that such was the character of the decision."Water Commissioners v. Johnson,
The legislature in 1971 severely circumscribed the powers of the utilities to take interests in land for their public purposes. In its concern for "the quality of the environment, the ecological, scenic, historic and recreational values of the state" and "the welfare and protection of the people of the state"; General Statutes §
The rules of statutory construction require the court, when construing legislation, to consider its *Page 307
history and the purposes it was designed to serve.Cassidy v. Tait,
The act restricts a utility company in exercising its powers of eminent domain in contemplation of constructing a facility (which includes an electric transmission line of a design capacity of sixty-nine kilovolts or more).2 Section
The plaintiff argues that the PFEC authorized a transmission line and the taking of an easement of 150 feet in width for that purpose. It is correct that the PFEC authorized a single transmission line and in doing so took into consideration when making its findings the environmental impact of the line. It is also true that the plaintiff represented to the PFEC in its application that the easement "would generally be up to 150 feet wide." As it pertains to this case, however, the PFEC's authority under the Public Utility Environmental Standards Act is limited to the approval of a transmission line by issuing a certificate of environmental compatibility and public need. General Statutes §
In the present case in order to accommodate the single transmission line which was authorized by the PFEC, a cleared area of only eighty feet in width is required, forty feet on each side of the transmission line. Some of the witnesses for the plaintiff attempted to justify an easement of 150 feet in width over the property of the defendant on the following grounds: (1) the plaintiff requires access to install the line,5 (2) the additional width may be required for location flexibility,6 (3) there was a need for a buffer zone.7 Notwithstanding those claims, none of which have any validity to the defendant's property, it was admitted that the dominant reason for the easement of 150 feet was to accommodate a second transmission line in the future. The court concludes that the sole reason for an easement of the width of 150 feet through the property of the defendant is to accommodate a second transmission line to be constructed in the future. *Page 310
Since the purpose of taking the additional seventy feet in width for the easement across the property of the defendant is to accommodate a second transmission line which has not been approved by the PFEC, this proposed condemnation violates the provisions of the Public Utility Environmental Standards Act. The taking of this easement for a future facility is therefore an abuse of the powers of eminent domain granted to the plaintiff by the legislature. See Northeastern Gas Transmission Co. v.Collins,
Not only is the plaintiff, along with other utilities, prohibited from taking property by eminent domain for a future facility without approval of the PFEC, but it is also prohibited from acquiring property by purchase for a possible future transmission facility unless certain conditions are met. Subsection (a) of §
Although the word "acquire" has previously been construed to be "broad enough to include property taken by condemnation proceedings as well as that obtained by purchase"; Stevens v. New York, N.H. H.R. Co.,
First, §
Even if the word acquire as used in §
The petition in its entirety must be denied for failure of the plaintiff to comply with the requirements of the Public Utility Environmental Standards Act. In the application it seeks the condemnation of the entire 150 foot easement; that specific relief requested must be denied. Even though it is clear that the plaintiff is authorized to proceed to purchase, or upon failure of a voluntary sale, to take by eminent domain an easement eighty feet wide, this court should not be put in the position of determining the exact metes and bounds of the easement; this is a matter within the discretion of the plaintiff subject to judicial review. Furthermore, the parties must be given an opportunity to negotiate the purchase of the eighty feet prior to allowing the plaintiff to take the property by eminent domain. See West Hartford v. Talcott,
Accordingly, the petition of the plaintiff is hereby denied, and the matter dismissed.
Adams v. Greenwich Water Co. , 138 Conn. 205 ( 1951 )
City of New Haven v. United Illuminating Co. , 168 Conn. 478 ( 1975 )
Simmons v. State , 160 Conn. 492 ( 1971 )
Town of West Hartford v. Talcott , 138 Conn. 82 ( 1951 )
Cassidy v. Tait , 140 Conn. 156 ( 1953 )
Gohld Realty Co. v. City of Hartford , 141 Conn. 135 ( 1954 )
New Haven Water Co. v. Russell , 86 Conn. 361 ( 1912 )
Stevens v. New York, N.H. H.R. Co. , 83 Conn. 603 ( 1910 )
State v. McCook , 109 Conn. 621 ( 1929 )
Bridgeport Hydraulic Co. v. Rempsen , 124 Conn. 437 ( 1938 )
Connecticut Light & Power Co. v. Costello , 161 Conn. 430 ( 1971 )
Miller v. Board of Education , 166 Conn. 189 ( 1974 )
Northeastern Gas Transmission Co. v. Collins , 138 Conn. 582 ( 1952 )