author: KATZ, J.

text:
    TOWN OF DARIEN v. ESTATE OF F. FRANCIS D’ADDARIO ET AL.
    (SC 16350)
    McDonald, C. J., and Borden, Norcott, Katz and Vertefeuille, Js.

    Argued January 16
    officially released December 4, 2001

      Jay H. Sandak, with whom were Gary S. Klein and, on the brief, Timothy S. Hollister, for the appellant (intervening defendant).

      John Wayne Fox, with whom, on the brief, was Patricia M. Gang, for the appellee (plaintiff).

       Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion was officially released, his continued participation on this panel is authorized by General Statutes § 51-198 (c).
      The listing of justices reflects their seniority on this court as of the date of argument.

   Opinion

KATZ, J.

This appeal concerns General Statutes § 48-13, and whether the trial court properly granted the application of the plaintiff, the town of Darien (town), to enter the property of the intervening defendant AvalonBay Communities, Inc. (AvalonBay), to conduct an environmental inspection prior to initiating condemnation proceedings to take the property. AvalonBay contends that the trial court improperly granted the town’s application to gain access to the property before the town had taken any official action to condemn. AvalonBay also claims that § 48-13 is unconstitutional under the United States and Connecticut constitutions because it authorizes the taking of property without just compensation, and that the trial court improperly declined to address whether the town’s proposed access to the property prior to condemnation constituted an unconstitutional warrantless administrative search.

The record contains the following facts. The property at issue in this case is 137-139 Hollow Tree Ridge Road (property), a vacant parcel of approximately 33 acres located in the town. In June, 1999, the town filed in the Superior Court an application and “Notice of Proposed Condemnation” seeking an order authorizing it to enter and inspect the property and to conduct “testing associated with a Phase I and Phase II environmental assessment . . . The town served on the D’Addario defendants, the owners of the property at that time; see footnote 2 of this opinion; the notice of the proposed condemnation advising them of its desire to test the property prior to making a formal decision about whether to condemn the property. In its application and notice of the proposed condemnation, the town requested that the trial court order the D’Addario defendants to appear and show cause as to why the trial court should not grant the town’s application to inspect and test the property under § 48-13. The trial court granted that request.

At the show cause hearing held on July 26, 1999, the trial court granted AvalonBay’s motion to intervene as a defendant. AvalonBay had maintained a contract, contingent upon certain development approvals, to purchase the property from the D’Addario defendants. Although AvalonBay had obtained preliminary approvals, an appeal was pending at the time of the hearing in this case, and it had not yet purchased the property. Both the D’Addario defendants and AvalonBay were represented by counsel at the show cause hearing.

Robert F. Harrel, Jr., first selectman for the town, testified that he had first discussed purchasing the land on behalf of the town with the D’Addario defendants in 1997. The town, through the board of selectmen, had identified several public purposes for which the property could be put to use, including a multi-generational center, a low income senior housing development, community athletic facilities, and a commuter parking facility. Neither the board of selectmen nor the representative town meeting had voted definitively to pursue any one of the identified potential public uses. In January, 1999, however, the board of selectmen adopted a resolution authorizing Harrel, as the town’s first selectman, to investigate and take appropriate steps to condemn the property.

John Adams, a state licensed environmental professional, also testified at the hearing. Adams testified that a Phase I environmental assessment would involve a visual inspection of the property, as well as an historical investigation and records search, to gauge the likelihood that the site had been exposed to soil, groundwater, or other environmental contamination. Adams described a Phase II study as more “intrusive” than a Phase I assessment. The Phase II study would investigate the issues raised by the Phase I assessment and attempt to determine, through the testing of soil and groundwater samples, whether contamination existed, and the nature and extent of that contamination.

The trial court granted the town’s application to conduct a Phase I assessment pursuant to § 48-13. The court did not authorize the town to conduct a Phase II assessment, however, and indicated that the town would be allowed to proceed with Phase II sampling and testing “only if it demonstrate [d] a need for the testing” and “receivefd] judicial permission . . . .”

In its memorandum of decision, the trial court addressed the constitutionality of § 48-13, concluding that “entering private property to conduct [a Phase I] inspection for a proposed condemnation fails to qualify as a taking.” Although it did not authorize the town to enter the property for any purpose other than the Phase I inspection, the trial court concluded that a more intrusive Phase II assessment, which, potentially, could include the collection of water and soil samples, would not necessarily rise to the level of an unconstitutional taking. In addition, the trial court determined that the formal notice procedure governing condemnation actions did not apply to precondemnation actions under § 48-13, and concluded further that the town was not required by General Statutes (Rev. to 1999) § 48-21 to serve notice on subsequent lienholders in applying for access to the property under § 48-13. Finally, the trial court declined to address whether the proposed testing of the property would constitute an administrative search because, in its view, AvalonBay lacked standing. The trial court reasoned that AvalonBay’s interest in purchasing the property did not give it the requisite “reasonable expectation of privacy” therein necessary to contest the alleged search. See State v. Hill, 237 Conn. 81, 92, 675 A.2d 866 (1996).

AvalonBay appealed to the Appellate Court, which granted its motion to be substituted as the defendant. Thereafter, we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). After oral argument in this appeal, we sua sponte ordered the parties to address the following question in supplemental briefs: “Whether, as a matter of statutory interpretation of ... § 48-13, the [town] was authorized to conduct the environmental inspection involved in the present case.” More specifically, we directed the parties “to address, inter alia: (1) the meaning of ‘notice of condemnation’ as [that phrase is] used in § 48-13; (2) the meaning of ‘a condemning authority’ as used therein; (3) what body or agency [would constitute] the ‘condemning authority’ under the facts of this case; and (4) the relationship, if any, between General Statutes §§ 48-13 and 8-129, between [General Statutes] §§ 48-13 and 48-6, and between § 48-13 and any other relevant statute.”

In response to this order, AvalonBay contends that, in order to survive a constitutional challenge, § 48-13 “must be read in conjunction with the legislative process and the procedural steps outlined in [General Statutes] §§ 48-6, 48-12, [and] 8-128 through 8-133.” As noted previously; see footnote 1 of this opinion; General Statutes § 48-13 provides in relevant part that “[u]pon filing a notice of condemnation of a condemning authority, either before or after the institution of a condemnation proceeding and after reasonable notice to the property owner or owners affected, the Superior Court or any judge thereof may authorize such condemning authority to enter upon and into land and buildings

sought or proposed for public uses for the purpose of inspection, survey, borings and other tests. . . .” AvalonBay contends that, to gain access and conduct inspections and tests under § 48-13, the town first must follow the procedures for condemning the land in accordance with § 48-6, the statute governing municipal condemnation actions. See footnote 9 of this opinion. AvalonBay claims that “a municipality is not authorized to proceed as the condemning authority [under § 48-13] until legislative approval has been granted” in accordance with §§ 48-6 and 8-128. AvalonBay argues that the town may be the condemning authority under § 48-13, “if, and only if, its legislative body . . . voted to condemn the [property] for a specific municipal purpose,” and that, “when a municipality proceeds under ... § 48-13, it must first obtain municipal legislative approval because a municipality’s power to condemn is derived from ... § 48-6, which requires such a vote.” Although AvalonBay acknowledges that under General Statutes § 7-148 (c) (3) (A), the town “is empowered to take or acquire private property for public use or purpose,” it maintains that, because the town must obtain approval in accordance with its charter before exercising the power to condemn, it must also obtain such approval to be the condemning authority under § 48-13.

In response, the town maintains that the trial court properly applied § 48-13 and correctly decided the constitutional questions. Specifically, the town contends that the statutes governing the condemnation procedure upon which AvalonBay relies “are not relevant to § 48-13 . . . .” According to the town: (1) it had not yet exercised its power to condemn the property in this case; (2) the language of § 48-13 does not reference § 48-6 or any other statute, but generally refers to a condemning authority; and (3) as used in § 48-13, condemning authority encompasses those entities to which the state has validly delegated the power of eminent domain, regardless of whether such condemning authority properly has commenced the exercise of that power under the statutory procedures. Essentially, the town contends that it is the condemning authority under § 48-13 by virtue of § 7-148 (c) (3) (A), and that it need not obtain the legislative approval required for formal condemnation proceedings pursuant to § 48-6 prior to seeking authorization from the Superior Court to enter the property under § 48-13. For the reasons that follow, the case that underlies this appeal has become moot, and as a result, this court lacks subject matter jurisdiction.

During the pendency of this appeal, AvalonBay filed a motion to remand the case to the Superior Court for a hearing on subject matter jurisdiction, claiming that intervening events had rendered the appeal moot. AvalonBay claimed that, because the town’s board of selectmen and board of finance had adopted further resolutions to proceed with condemning the property, the town had “abandoned” its plan to enter and conduct tests pursuant to § 48-13. Furthermore, because AvalonBay, in conjunction with its efforts to obtain a building permit, had submitted to the town’s planning and zoning commission, its own Phase I and Phase II environmental assessment, which the town reviewed independently for information concerning the proposed condemnation, AvalonBay claimed that the town had no need to conduct its own inspection and testing. Therefore, according to AvalonBay, this court could not grant the town any practical relief in deciding this appeal.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In the absence of an actual and existing controversy for us to adjudicate . . . the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 585, 775 A.2d 284 (2001); Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488,497, 736 A.2d 851 (1999).

We denied AvalonBay’s motion for remand, concluding that the issue of whether the town may gain access to the property prior to condemnation under § 48-13 was not moot. Even though the town had taken further preliminary actions toward an eventual exercise of its statutory condemnation power, it had not commenced formal condemnation proceedings. Indeed, the legislative body of the town—the representative town meeting—had not yet voted to condemn the property. Additionally, because it was dissatisfied with the results of AvalonBay’s environmental assessment, the town intended to utilize § 48-13 to gain precondemnation access to the property for further inspections and tests. Hence, at that stage, a controversy still existed, and we denied AvalonBay’s motion.

Thereafter, based on subsequent events, AvalonBay again moved this court to remand the case for a hearing on the issue of lack of subject matter jurisdiction. The town opposed the motion, arguing that the case was not moot, and that, even if it were, because the issue on appeal is capable of repetition yet evading review, we should retain jurisdiction over the appeal. We agree with AvalonBay that these most recent events preclude this court from granting any practical relief through its disposition of the merits. Accordingly, the case has become moot. AvalonBay Communities, Inc. v. Orange, supra, 256 Conn. 585.

According to the parties, on July 23, 2001, in accordance with the Darien charter, the town clerk verified that sufficient signatures had been filed to subject the representative town meeting’s July 9, 2001 formal condemnation vote to a townwide referendum. See footnote 14 of this opinion. The board of selectmen scheduled the referendum for September 25, 2001. The issue before the voters was whether to overturn the representative town meeting’s July 9 vote to condemn the property. On September 25, 2001, by a vote of 3207 to 2505, the voters overturned the July representative town meeting’s decision to condemn the subject property.

Under the Darien charter, the legislative body of the town is the representative town meeting. Under § 28 of the Darien charter the board of selectmen is authorized to acquire land for “public parks and public parkways . . . .” The board of selectmen’s resolution in this case delegated to the first selectman the power “to initiate and take all appropriate steps ... to acquire [the property] by condemnation or other legal means . . . .” See footnote 5 of this opinion. The resolution also instructed the first selectman to “[s]ubmit a referral” to the planning and zoning commission for its report and, eventually, “to obtain appropriate legislative approval for the acquisition of the property by condemnation and then to take all necessary steps ... to obtain title to said property.” See footnote 5 of this opinion. It is clear that the board of selectmen had planned to acquire the property and that it had contemplated that, if “other legal means” of acquiring it were unavailable, legislative approval from either the planning and zoning commission or the representative town meeting would be required to condemn the property. See Santini v. Connecticut Hazardous Waste Management Service, 251 Conn. 121, 139, 739 A.2d 680 (1999), cert. denied, 530 U.S. 1225, 120 S. Ct. 2238, 147 L. Ed. 2d 266 (2000) (“[m]ere planning by a government body in anticipation of the taking of land for public use and preliminary steps taken to accomplish this without the statutory filing of condemnation proceedings and without physical taking is not actionable by the [property] owner” [internal quotation marks omitted]).

Thereafter, however, the town formally disavowed any intention to condemn the property. Therefore, the relief sought—permission to conduct environmental testing in connection with a decision to condemn the property—properly can no longer be obtained. In other words, even if the town is correct that § 48-13 authorizes an entity to which a state has delegated the power of eminent domain to access property prior to any formal vote to condemn, for purposes of “inspection, survey, borings and other tests,” the referendum outcome has determined that the ultimate condemnation has lost its viability. The town’s argument that the referendum outcome does not preclude it from revisiting the issue simply means that if and when the town does revisit the issue, there will be a case in controversy for our consideration at that time. That argument does not address the court’s inability to grant relief.

The appeal is dismissed.

In this opinion the other justices concurred.

       General Statutes § 48-13 provides: “Upon filing a notice of condemnation of a condemning authority, either before or after the institution of a condemnation proceeding and after reasonable notice to the property owner or owners affected, the Superior Court or any judge thereof may authorize such condemning authority to enter upon and into land and buildings sought or proposed for public uses for the purpose of inspection, survey, borings and other tests. Such condemning authority shall be responsible to the owner or owners of such property for any damage or injury caused by such entrance and use, and such court or judge may require the filing of a bond or deposit of surety to indemnify the owner or owners of property for such damage. This section shall not limit or modify rights of entry upon private property otherwise provided for by law.”

       The original defendants in this action included: the estate of F. Francis D’Addario; David D’Addario and Lawrence D’Addario, both in their individual capacities as heirs and as executors and trustees of the estate of F. Francis D’Addario; Albert Paolini, as executor and trustee of the estate of F. Francis D’Addario; Joan D. Benedetto; and Ernest J. Benedetto, as trustee of the Joan D. Benedetto Grantor Retained Income Trust Indenture. We refer to these defendants as the D’Addario defendants. As discussed in footnote 8 of this opinion, AvalonBay, as the contract purchaser of the property, intervened as a defendant before the trial court, and is the only defendant in this appeal.

       The fifth amendment to the United States constitution, which is applicable to the states through the fourteenth amendment; see Phillips v. Washington Legal Foundation, 524 U.S. 156, 163-64, 118 S. Ct. 1925, 141 L. Ed. 2d 174 (1998); provides in relevant part that “private property [shall not] be taken for public use, without just compensation.”
      Article first, § 11, of the Connecticut constitution provides that “[t]he property of no person shall be taken for public use, without just compensation therefor.”

       The fourth amendment to the United States constitution, which is applicable to the states through the fourteenth amendment; see Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993); provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      Articlefirst, § 7, of the Connecticut, constitution provides that“[t]he people shall be secure in their persons, houses, papers, and possessions from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The resolution provided: “WHEREAS, the Town of Darien, is desirous of acquiring the 33 acre D’Addario tract of land situated off Hollow Tree Ridge Road for its municipal purposes; and
      “WHEREAS, the Town of Darien has not been able to agree with the owner upon the amount to be paid for said property;
      “NOW, THEREFORE, it is:
      “RESOLVED, that the First Selectman is authorized to initiate and take all appropriate steps, pursuant to Federal, State and Local laws, to acquire by condemnation or other legal means the 33 acre D’Addario property situated on the west side of Hollow Tree Ridge Road. He is further instructed to take the following steps:
      “1. Direct Town Counsel to prepare a step-by-step procedure to be followed by the appropriate governmental authorities to effectuate the condemnation of the property.
      “2. Direct Town Counsel to obtain alternate appraisals of the property as follows:
      “(A) The value of the property without a right of way for all lawful purposes in, over and upon the [adjacent] property which gives access to Hollow Tree Ridge Road;
      “(B) The value of the property if it is determined that the property does in fact have a right of way for all lawful purposes in, over and upon the [adjacent] property which gives access to Hollow Tree Ridge Road.
      “3. Direct Town Counsel to obtain permission, either from the principal owners of the property or by statute from the court of appropriate jurisdiction, to perform an environmental assessment of the subject property, including but not limited to establishing the cost of the remediation thereof.
      “4. Submit a referral, pursuant to Section 8-24 of the Connecticut General Statutes, to the Planning and Zoning Commission for its report concerning the acquisition, by condemnation or other legal means, of the subject property.
      “5. Request alternative appropriations from the Board of Finance for sums equal to the appraised value of the property with a right of way to and from Hollow Tree Ridge Road and without such a right of way, less the cost of environmental remediation of the property.
      “6. Request alternative appropriations from the [Representative Town Meeting] for sums equal to the appraised value of the property with a right of way to and from Hollow Tree Ridge Road and without such a right of way, less the cost of environmental remediation of the property and to obtain appropriate legislative approval for the acquisition of the property by condemnation and then to take all necessary steps, including the filing of the Statement of Compensation and Certificate of Taking, to obtain title to said property.
      “7. Execute any and all documents andperform all requirements to achieve the acquisition of the property by condemnation proceedings.”

       Consistent with the testimony before the trial court, a leading treatise on eminent domain states that “[a] Phase I environmental audit is an analytical means for identifying the presence of environmental contamination on a particular property due to current or pre-acquisition activities on that site. . . . [It] consists of three main components: (1) a review of the historical records of the property; (2) a site inspection and walk-through; and (3) a site characterization report.” 8 P. Nichols, Eminent Domain (3d Ed. Rev. 2001, P. Rohan & M. Resldn eds.) § 14C.05[3], pp. 14C-49 through 14C-50. “The Phase II audit consists primarily of sampling, i.e., the collection and analysis of soils and/or other materials on the site. The principle components of sampling are; (1) development of the sampling plan; (2) preparation for revisiting the site; (3) conducting the sampling visit; and (4) making recommendations for further action.” Id., § 14C.05[4], pp. 14C-53 through 14C-54.

       General Statutes (Rev. to 1999) § 48-21 provides: “In any proceeding brought under the provisions of subsection (b) or (e) of section 13a-73 or section 13a-74, 13a-76, 13a-77, 13a-78 or section 19a-645 or subsection (a), (b) or (c) of section 32-635 or sections 32-636 to 32-640, inclusive, notice shall be given to all persons appearing of record as holders of any mortgage, lien or other encumbrance on any real estate or interest therein which is to be taken by right of eminent domain or by condemnation proceedings, in the same manner as notice is required to be given to the owner of such property; and the amount due any such mortgagee, lienor or other encumbrancer, not exceeding the amount to be paid for such property, shall be paid to him according to priority of claims, before any sum is paid to any owner of such property. In case of dispute as to the amount due any such mortgagee, lienor or other encumbrancer, the money may be deposited with the clerk of the superior court for the judicial district in which such property is situated, and anyone claiming an interest in the same may bring suit therefor, making all others claiming interest in the fund defendants, and the court may determine (he rights in the fund of all parties to such suit, and may tax costs according to the rules of equity.”
      Public Acts 1999, No. 99-241, § 59, and Public Acts 2000, No. 00-140, § 27, made technical changes to the internal statutory references that are not relevant, to this case.

       AvalonBay completed its purchase of the property on January 21, 2000. Thus, AvalonBay is the sole defendant in this appeal. See footnote 2 of this opinion.

       General Statutes § 48-6 provides: “(a) Any municipal corporation having the right to purchase real property for its municipal purposes which has, in accordance with its charter or the general statutes, voted to purchase the same shall have power to take or acquire such real property, within the corporate limits of such municipal corporation, and if such municipal corporation cannot agree with any owner upon the amount to be paid for any real property thus taken, it shall proceed in the manner provided by section 48-12 within six months after such vote or such vote shall be void.
      “(b) In the case of acquisition by a redevelopment agency of real property located in a redevelopment area, the time for acquisition may be extended by the legislative body upon request of the redevelopment agency, provided the owner of the real property consents to such request.
      “(c) In accordance with the policy established in section 7-603, any municipal corporation may taire property which is located within the boundaries of a neighborhood revitalization zone identified in a strategic plan adopted pursuant to sections 7-601 and 7-C02. The acquisition of such property shall proceed in the manner provided in sections 8-128 to 8-133, inclusive, and section 48-12.”

       General Statutes § 48-12 provides: “The procedure for condemning land or other property for any of the purposes specified in sections 48-3, 48-6, 48-8 and 48-9, if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken, shall be as follows: The Comptroller in the name of the state, any town, municipal corporation or school district, or the trustees or directors of any state institution in the name of the state, shall proceed in the same manner specified for redevelopment agencies in accordance with sections 8-128, 8-129, 8-129a, 8-130, 8-131, 8-132, 8-132a and 8-133.”

       AvalonBay relies principally on the procedures in General Statutes §§ 8-128 and 8-129. General Statutes § 8-128 provides: “Within a reasonable time after its approval of the redevelopment plan as hereinbefore provided, the redevelopment agency may proceed with the acquisition or rental of real property by purchase, lease, exchange or gift. The redevelopment agency may acquire real property by eminent, domain with the approval of the legislative body of the municipality and in accordance with the provisions of sections 8-129 to 8-133, inclusive, and this section. The legislative body in its approval of a project under section 8-127 shall specify the time within which real property is to be acquired. The time for acquisition may be extended by the legislative body in accordance with section 48-6, upon request of the redevelopment agency, provided the owner of the real property consents to such request. Real property may be acquired previous to the adoption or approval of the project area redevelopment plan, provided the property acquired shall be located within an area designated on the general plan as an appropriate redevelopment area or within an area whose boundaries are defined by the planning commission as an appropriate area for a redevelopment project, and provided such acquisition shall be authorized by the legislative body. The redevelopment agency may clear, repair, operate or insure such property while it is in its possession or make site improvements essential to preparation for its use in accordance with the redevelopment plan.”
      General Statutes § 8-129 provides: “The redevelopment agency shall determine the compensation to be paid to the persons entitled thereto for such real property and shall file a statement of compensation, containing a description of the property to be taken and the names of all persons having a record interest therein and setting forth the amount of such compensation, and a deposit as provided in section 8-130, with the clerk of the superior court for the judicial district in which the property affected is located. Upon filing such statement of compensation and deposit, the redevelopment agency shall forthwith cause to be recorded, in the office of the town clerk of each town in which the property is located, a copy of such statement of compensation, such recording to have the same effect as and to be treated the same as the recording of a lis pendens, and shall forthwith give notice, as hereinafter provided, to each person appearing of record as an owner of property affected thereby and to each person appearing of record as a holder of any mortgage, lien, assessment or other encumbrance on such property or interest therein (a), in the case of any such person found to be residing within this state, by causing a copy of such notice, with a copy of such statement of compensation, to be served upon each such person by a state marshal, constable or an indifferent person, in the manner set forth in section 52-57 for the service of civil process and (b), in the case of any such person who is a nonresident of this state at the time of the filing of such statement of compensation and deposit or of any such person whose whereabouts or existence is unknown, by mailing to each such person a copy of such notice and of such statement of compensation, by registered or certified mail, directed to his last-known address, and by publishing such notice and such statement of compensation at least twice in a newspaper published in the judicial district and having daily or weekly circulation in the town in which such property is located. Any such published notice shall state that it is notice to the widow or widower, heirs, representatives and creditors of the person holding such record interest, if such person is dead. If, after a reasonably diligent search, no last-known address can be found for any interested party, an affidavit stating such fact, and reciting the steps taken to locate such address, shall be filed with the clerk of the superior court and accepted in lieu of mailing to the last-known address. Not less than twelve days nor more than ninety days after such notice and such statement of compensation have been so served or so mailed and first published, the redevelopment agency shall file with the clerk of the superior court a return of notice setting forth the notice given and, upon receipt of such return of notice, such clerk shall, without any delay or continuance of any land, issue a certificate of taking setting forth the fact of such taking, a description of all the property so taken and the names of the owners and of all other persons having a record interest therein. The redevelopment agency shall cause such certificate of taking to be recorded in the office of the town clerk of each town in which such property is located. Upon the recording of such certificate, title to such property in fee simple shall vest in the municipality, and the right to just compensation shall vest in the persons entitled thereto. At any time after such certificate of taking has been so recorded, the redevelopment agency may repair, operate or insure such property and enter upon such property, and take whatever action is proposed with regard to such property by the project area redevelopment plan. The notice referred to above shall state (a) that not less than twelve days nor more than ninety days after service or mailing and first publication thereof, the redevelopment agency shall file, with the clerk of the superior court of the judicial district in which such property is located, a return setting forth the notice given, (b) that upon receipt of such return such clerk shall issue a certificate for recording in the office of the town clerk of each town in which such property is located, (c) that upon the recording of such certificate, title to such property shall vest in the municipality, the right to just compensation shall vest in the persons entitled thereto and the redevelopment agency may repair, operate or insure such property and enter upon such property and take whatever action may be proposed with regard thereto by the project area redevelopment plan and (d) that such notice shall bind the widow or widower, heirs, representatives and creditors of each person named therein who then or thereafter may be dead. When any redevelopment agency acting in behalf of any municipality has acquired or rented real property by purchase, lease, exchange or gift in accordance with the provisions of this section, or in exercising its right of eminent domain has filed a statement of compensation and deposit with the clerk of the superior court and has caused a certificate of taking to be recorded in the office of the town clerk of each town in which such property is located as herein provided, any judge of such court may, upon application and proof of such acquisition or rental or such filing and deposit and such recording, order such clerk to issue an execution commanding a state marshal to put such municipality and the redevelopment agency, as its agent, into peaceable possession of the property so acquired, rented or condemned. The provisions of this section shall not be limited in any way by the provisions of chapter 832.”
      Section 8-129 was amended after the time of the relevant proceedings in this case. See Public Acts 2000, No. 00-99, § 24 (changing references to sheriffs and deputies to state marshals). The changes were minor and technical in nature, and were not relevant to this appeal. For purposes of clarity, we refer herein to the current revision of the statute.

       General Statutes § 7-148 provides in relevant part: “(c) Powers. Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the constitution and general statutes . . .
      “(3) Property. (A) Take or acquire by gift, purchase, grant, including any grant from the United States or the state, bequest or devise and hold, condemn, lease, sell, manage, transfer, release and convey such real and personal property or interest therein absolutely or in trust as the purposes of the municipality or any public use or purpose, including that of education, art, ornament, health, charity or amusement, cemeteries, parks or gardens, or the erection or maintenance of statues, monuments, buildings or other structures, or the encouragement of private commercial development, require. ...”

       Consistent, with its argument concerning a condemning authority, AvalonBay also claims that the notice of condemnation required by § 48-13 “is a notice given by a municipality that has been legislatively authorized as required by . . . §§ 48-G and 8-128 to condemn land for a specific public purpose.” AvalonBay contends that, although the phrase notice of condemnation is not defined in any other statute, it “presupposes that a condemnation had been authorized,” and that the town has identified “specific private property for a specified [public] use . . . .” The town maintains that the notice contemplated in § 48-13 is simply a “procedural device” that places the application for access to the property before the Superior Court,.

       Specifically, on June 11, 2001, the town’s board of selectmen adopted a resolution to condemn the property and an adjoining three acre parcel for $27,600,000, which amount was to be used for “the acquisition of the AvalonBay . . . tract of land and . . . for purposes of environmental remediation . . . .” On June 20,2001, the board of finance approved the expenditure of $19,750,000 for the condemnation of the thirty-three acre AvalonBay property, and for unspecified environmental remediation costs. Thereafter, on July 9, 2001, the town’s representative town meeting voted fifty-three to twenty-one to condemn formally the property for compensation of $19,750,000.

       The town also argued that a remand was not necessary because this court certainly is capable of determining, particularly when the facts are undisputed, whether the case is now moot as a result of the events that transpired while the appeal was pending. See Ayala v. Smith, 236 Conn. 89, 94, 671 A.2d 345 (1996). We agree and therefore resolve the issue of subject matter jurisdiction.

       Section 48 (a) of the Darien charter provides: “The right to vote at town meetings of the town of Darien, except meetings for the election of town officers, shall be limited to town meeting members elected as provided in this act, and the legislative power of the town shall be vested in the representative town meeting.”

       Section 28 of the Darien charter provides: “The town is authorized to take land, by condemnation proceedings, for the purpose of public parks and parkways within its limits, and to lay out, improve and maintain the same. The board of selectmen, on its behalf, is authorized to acquire such land for such purposes. If it cannot agree with the owner upon the amount to be paid him [or her] for land thus taken, it may proceed to condemn such land in the manner set forth in section 48-12 of the general statutes, as it may be amended; provided no such land shall be taken for such purposes unless the town planning and zoning commission shall first have approved in writing the site to be taken and have certified that public necessity and public convenience require such taking.”

       The town’s argument, in essence, demonstrates why the issue on appeal is not capable of repetition yet evading review. See Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995).


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    ALEX MARTINEZ v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE
    (SC 16488)
    Norcott, Palmer, Vertefeuille, Zarella and Wollenberg, Js.
    Argued September 24
    officially released December 4, 2001

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      C. Christian Young, with whom was John R. Gulash, Jr., for the appellee (plaintiff).

      A motion for reconsideration en banc was granted April 1, 2002. This opinion has been superseded by Martinez v. Dept. of Public Safety, 263 Conn. 74, 818 A.2d 758 (2003).

   Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether the trial court properly denied the defendant’s motion to dismiss the plaintiffs claim for indemnification. The plaintiff, Alex Martinez, a former Connecticut state trooper, was prosecuted for a criminal offense arising out of an incident allegedly committed during the course of his duties. He was acquitted of all charges and sought indemnification pursuant to General Statutes § 53-39a. The defendant, the department of public safety, division of state police, the plaintiffs employer, refused to indemnify him. As a result, the plaintiff brought this action in the Superior Court, claiming his statutory right to indemnification. The defendant filed a motion to dismiss the plaintiffs action, claiming that the state is protected from suit by the doctrine of sovereign immunity and that the Superior Court, therefore, lacked jurisdiction over the plaintiffs claim. The trial court, Rush, J., denied the defendant’s motion to dismiss and the defendant appealed to the Appellate Court. Thereafter, we transferred the appeal to this court pursuant to Practice Book § 65-1. We affirm the decision of the trial court.

The following facts are undisputed. On or about March 18, 1998, while the plaintiff was on duty as a state trooper, he was involved in an incident with a motorist and subsequently was charged with violating General Statutes §§ 53a-83a and 53a-192. 4At a jury trial, the prosecution alleged that the plaintiff threatened a disabled female motorist with a ticket unless she consented to have sex with him. The plaintiff was acquitted of all charges. State v. Martinez, Superior Court, judicial district of Fairfield, Docket No. CR98-139129 (November 23, 1999). Thereafter, the plaintiff, pursuant to § 53-39a, requested indemnification from the defendant for the legal expenses and costs he necessarily had incurred in his defense. The defendant denied the plaintiffs request. The plaintiff then filed this action.

The defendant argues that the state is protected from both suit and liability by the doctrine of sovereign immunity. “It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases. Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963).” Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). The plaintiff claims that under § 53-39a, this case presents one of the “certain prescribed cases” for which the state has waived its sovereign immunity for purposes of indemnification. We agree.

The trial court interpreted § 53-39a “as a waiver of sovereign immunity not only as to liability, but as to suit as well.” Accordingly, the court properly concluded that it did have subject matter jurisdiction over the plaintiffs claim and denied the defendant’s motion to dismiss.

The applicable standard of review is well established. “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) Antinerella v. Rioux, 229 Conn. 479, 489, 642 A.2d 699 (1994). “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998).

“The question whether the principles of governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination. . . . The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication.” (Citations omitted; internal quotation marks omitted.) Duguay v. Hopkins, supra, 191 Conn. 228. “To determine the legislative intent expressed in a statute, we look to its wording and to its history and basic policy as disclosed by preexisting legislation and the circumstances which brought about its enactment.” Id. Thus, to determine whether the state has waived its immunity from suit and liability, we first turn to the relevant statutory language itself.

“Section 53-39a, which was originally enacted in 1973; see Public Acts 1973, No. 73-627; authorizes indemnification for economic loss, including legal fees, incurred by officers of . . . police departments who are prosecuted for crimes allegedly committed by them in the course of their duties when the charges against them are dismissed or they are found not guilty. See, e.g., Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). The general purpose of the statute is to permit police officers to recoup the necessary expenses that they have incurred in defending themselves against unwarranted criminal charges arising out of their conduct in the course of their employment. Id., 628-29.” Cislo v. Shelton, 240 Conn. 590, 598, 692 A.2d 1255 (1997). Section 53-39a explicitly provides that “[w]henever, in any prosecution of an officer of the [division of [s]tate [pjolice within the [department of [p]ublic [s]afety ... for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution . . . .” Applying the plain language of the statute to the facts of the present case, the plaintiff falls within the rubric of “such officer” who 11 shall be indemnified” by the defendant, “his employing governmental unit . . . .” (Emphasis added.) “As we have often stated, [d]efinitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature. State v. Metz, 230 Conn. 400, 410, 645 A.2d 965 (1994); Lo Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989) .... State v. Pare, 253 Conn. 611, 623, 755 A.2d 180 (2000).” (Internal quotation marks omitted.) Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 270-71, 777 A.2d 645 (2001).

“The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Internal quotation marks omitted.) Id., 284-85. Here, § 53-39a imposes the substantive duty upon the state employing unit to indemnify a state employee who fulfills the statutory requirements. The use of the word “shall,” therefore, relates to the essence of the statute itself and necessarily imposes a mandatory directive upon the state.

We conclude that § 53-39a unambiguously provides for the indemnification of state troopers in these particular factual circumstances. Thus, the state clearly has waived immunity from liability. It is now necessary to determine whether the state also has waived liability from suit.

The defendant argues that § 53-39a does not waive or abrogate the state’s sovereign immunity from suit and that the defendant’s claim is completely within the jurisdiction of the claims commissioner, pursuant to General Statutes § 4-165. *The claims commissioner is granted discretionary duties by statute. Pursuant to General Statutes § 4-158, the claims commissioner has sole discretion to pay or reject any claim under $7500. For any claim in excess of that amount, the claims commissioner “shall make his recommendations to the General Assembly for the payment or rejection of [such claim].” General Statutes § 4-159. The General Assembly, as the final arbiter, is then free to accept, reject or alter any recommendation from the claims commissioner.

The defendant, however, by arguing that § 4-165 establishes the claims commissioner’s exclusive jurisdiction over the present case, reads § 4-165 in isolation. Chapter 53 of the General Statutes, of which § 4-165 is a part, establishes the general process by which an individual may bring claims against the state. Section 4-165 specifically provides in part that “[a]ny person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. . . .” (Emphasis added.) The chapter’s provisions include General Statutes § 4-142, which carves out the exceptions to the jurisdiction of the claims commissioner: “There shall be a Claims Commissioner who shall hear and determine all claims against the state except . . . claims upon which suit otherwise is authorized by law . . . .” (Emphasis added.) General Statutes § 4-142 (2). As we already have established, § 53-39a authorizes the liability of the state for the indemnification of a state trooper from his or her governmental employing unit. It falls, therefore, within the exception to § 4-165 carved out by § 4-142. Consequently, the defendant’s reading of § 4-165 would frustrate the purpose of § 53-39a.

Where, as here, the legislature expressly has established an obligation on the part of the state to its employee, the state is liable to that employee for the fulfillment of that obligation and, therefore, has waived the state’s immunity as to suit in order to achieve that end. We considered the converse of this situation in an earlier case. In Bergner v. State, 144 Conn. 282, 284, 130 A.2d 293 (1957), the General Assembly had passed legislation authorizing the plaintiff to sue the state for damages caused by an accident in a state facility. The state argued that the special act waived only the state’s immunity from suit, not from liability. Id. We disagreed, concluding that an act allowing suit but prohibiting liability would be useless. Id., 287. “It is a cardinal rule of statutory construction that courts must presume that legislatures do not intend to enact useless legislation. ... It would be utterly useless and meaningless to permit a suit which could not end otherwise than in a judgment for the defendant.” (Citation omitted.) Id. A statute must be read as imbued with purpose and with the means necessary to achieve that purpose. “[A] statute conferring a privilege or a right carries with it by implication everything necessary to ensure the realization of that privilege or to establish that right in order to make it effectual and complete.” (Internal quotation marks omitted.) Redevelopment Agency v. Norwalk Aluminum Foundry Corp., 155 Conn. 397, 405, 233 A.2d 1 (1967). Here, the language of § 53-39a is explicit and its directive is mandatory. If the state were not liable to be sued, the plaintiffs only means of recourse for indemnification would be through the claims commission. As we have determined, the discretion afforded the claims commissioner to deny or accept the plaintiffs claim for indemnification, however, is at odds with both the mandatory indemnification established by § 53-39a and the exception carved out by § 4-142. Accordingly, in keeping with our interpretation of the statutory scheme at issue here, we conclude that the legislature implicitly has provided for the waiver of the state’s immunity to suit.

The defendant also points out that this court previously has held that § 53-39a distinguishes and abrogates governmental as opposed to sovereign immunity. This observation, though accurate, is inapposite. It is true that the earlier cases we have considered involved factual scenarios concerning individuals employed by municipalities. See Cislo v. Shelton, supra, 240 Conn. 598 (“[§] 53-39a . . . authorizes indemnification for economic loss, including legal fees, incurred by officers of local police departments who are prosecuted for crimes allegedly committed by them in the course of their duties when the charges against them are dismissed or they are found not guilty” [citation omitted; emphasis added]); Rawling v. New Haven, 206 Conn. 100, 104-105, 537 A.2d 439 (1988) (“[§ 53-39a] affords a police officer a right of indemnity . . . [and is a statute] that abrogate [s] or modifies] governmental immunity” [citations omitted; emphasis added; internal quotation marks omitted]); Link v. Shelton, supra, 186 Conn. 627 (“§ 53-39a authorizes indemnification for legal fees incurred by an officer of a local police department as a result of prosecution for a crime allegedly committed by him in the course of his duty where he is found not guilty of the crime charged” [emphasis added; internal quotation marks omitted]).

Although our prior case law has only considered circumstances involving the indemnification of municipal employees, this fact does not affect our conclusion regarding this case.* The explicit language of § 53-39a specifically includes, in its first sentence, “an officer of the [division of the [s]tate [p]olice” in the class of employees entitled to indemnification from the governmental employing unit when the statutory requirements are satisfied. In this case, the employing unit is the department of public safety, division of state police.

The defendant finally argues that the trial court’s memorandum of decision improperly construes § 53-39a to confer upon state troopers an automatic right to indemnification if they are merely found not guilty of criminal charges. The defendant correctly points out that the second prong of the statutory prerequisite for indemnification is that the alleged crime must have been committed in the course of the state trooper’s duty. We conclude that the defendant’s reading misconstrues the trial court’s memorandum. The trial court clearly asserted the two requirements necessary for indemnification, quoting our decision in Cislo v. Shelton, supra, 240 Conn. 598. “ ‘The general purpose of [§ 53-39a] is to permit police officers to recoup the necessary expenses that they have incurred in defending themselves against unwarranted criminal charges arising out of their conduct in the course of their employment.’ . . . Given this analysis, the court concludes that the statute is mandatory, and that a right to indemnification is automatic upon a finding of not guilty.” (Citation omitted; emphasis added.)

Before us is the appeal of the trial court’s denial of the defendant’s motion to dismiss the plaintiffs claim for indemnification. We conclude that the trial court properly concluded that it had subject matter jurisdiction of the plaintiffs claim and that the defendant’s motion to dismiss properly was denied.

The decision of the trial court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53-39a provides: “Whenever, in any prosecution of an officer of the Division of State Police within the Department of Public Safety, or a member of the Office of State Capitol Police or any person appointed under section 29-18 as a special policeman for the State Capitol building and grounds, the Legislative Office Building and parking garage and related structures and facilities, and other areas under the supervision and control of the Joint Committee on Legislative Management, or a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment, of any legal fees necessarily incurred.”

       General Statutes § 53a-83a (a) provides: “A person is guilty of patronizing a prostitute from a motor vehicle when he, while occupying a motor vehicle: (1) Pursuant to a prior understanding, pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him; or (2) pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person or a third person will engage in sexual conduct with him; or (3) solicits or requests another person to engage in sexual conduct with him in return for a fee; or (4) engages in sexual conduct for which a fee was paid or agreed to be paid.”

       General Statutes § 53a-192 (a) provides in relevant part: “A person is guilty of coercion when he compels or induces another person to engage in conduct which such other person has alegal right to abstain from engaging in, or to abstain from engaging in conduct in which such other person has a legal right to engage, by means of instilling in such other person a fear that, if the demand is not complied with, the actor or another will . . . (4) take or withhold action as an official, or cause an official to take or withhold action.”

       The legislative history of § 53-39a pertinent to the claim raised by the plaintiff does not itself provide us with any insight as to the intention of the legislature in enacting the statute. The legislative history is limited to the public act’s appearance on the consent calendar. See Public Acts 1973, No. 73-627.

       General Statutes § 4-165 provides in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. ...”

       General Statutes § 4-158 (a) provides in relevant part: “The Claims Commissioner may approve immediate payment of just claims not exceeding seven thousand five hundred dollars. . . .”

       General Statutes § 4-159 provides in relevant part: “After hearing, the Claims Commissioner shall make his recommendations to the General Assembly for the payment or rejection of amounts exceeding seven thousand five hundred dollars. . . . [T]he Claims Commissioner shall submit such recommendations to the General Assembly, together with a copy of his findings and of the hearing record of each claim so reported. The General Assembly may (1) accept or alter any such recommendation or (2) reject any such recommendation and grant or deny the claimant permission to sue the state. The General Assembly may grant the claimant permission to sue the state under the provisions of this section when the General Assembly deems it just and equitable and believes the claim to present an issue of law or fact under which the state, were it a private person, could be liable.”

       The plaintiff did file a notice of claim with the claims commissioner on August 24, 2000. On February 5, 2001, the plaintiff also filed a motion for a stay of the proceedings before the claims commissioner pending the outcome of this appeal. The latter motion was denied on February 7, 2001.

       At oral argument before this court, the defendant’s counsel stated that the plaintiffs remedy could include an appeal of the claims commissioner’s denial of a claim to the legislature, asking, in effect, for the legislature to either grant the plaintiff the right to sue the claims commission, or to order the claims commissioner to pay the plaintiff, thereby overriding the statutorily granted discretion afforded the claims commissioner. See footnote 7 of this opinion. We conclude that this remedial scheme is inconsistent with the legislative intent expressed by §§ 4-142 and 53-39a.

       In Cislo, the plaintiff was a police officer employed by the city of Shelton, as was the plaintiff in Link. In Rawling v. New Haven, 206 Conn. 100, 537 A.2d 439 (1988), the plaintiff was a New Haven police officer.

       We note that the past usage of the terms “sovereign” and “governmental” immunity has been, at times, somewhat inconsistent and, consequently, confusing. See, e.g., Duguay v. Hopkins, supra, 191 Conn. 228 (where liability of state commissioner of mental retardation was considered, court stated “[t]he question whether the principles of governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination”). In Duguay, the term “governmental” is used interchangeably with “sovereign.” See also White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990) (“The state and its municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts. . . . The state legislature, however, possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities.” [Citation omitted.]). Elsewhere in our jurisprudence, the distinction between the two terms is clear. See, e.g., Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984) (“[t]he state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities”); Murphy v. Ives, supra, 151 Conn. 264 (“A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued ... in any action. . . . Municipalities do, in certain circumstances, have a governmental immunity from liability.” [Citations omitted; internal quotation marks omitted.]). We note that the use of “sovereign immunity” has always referred to the sovereignty of the state; “governmental immunity,” however, has been used both in its limited form to refer only to the immunity enjoyed by municipalities — and thereby distinguished from the immunity of the state — and as synonymous with or encompassing “sovereign” or state immunity. None of these usages alters our analysis in the present case.