You asked the following questions:

The Office of Legislative Research is not authorized to give legal opinions and the following should not be construed as one.

1. Under The Recreation And Natural Heritage Trust Program, Can DEP Acquire Property Taken By A Town For Open Space?

The Recreation and Natural Heritage Trust Program authorizes the DEP to acquire land for a broad range of conservation goals. The law does not prohibit the DEP from acquiring a property that has previously been acquired by eminent domain.

Before agreeing to buy a property, DEP must evaluate its suitability for the program. It must consider whether the property has: (1) high priority recreation, forestry, fishery, wildlife, or conservation value consistent with the state comprehensive plan for outdoor recreation and the state plan of conservation and development; (2) a prime natural feature of the Connecticut landscape, such as a major river, its tributaries and watershed, mountainous territory, an inland or coastal wetland, a significant littoral or estuarine or aquatic site, or any other important geologic feature; (3) habitat for native plant or animal species listed as threatened or endangered or of special concern in the data base or pursuant to the program established under CGS § 26-305, particularly areas identified as essential habitat for such species; (4) a relatively undisturbed outstanding example of a native ecological community which is now uncommon; or (5) been threatened with conversion to incompatible uses or contains sacred sites or archaeological sites of state or national importance (CGS § 23-75).

It is unlikely the DEP would be interested in buying property that the town has acquired by eminent domain for open space purposes because the town would already be obligated to maintain it as open space. DEP would be more likely to spend its limited resources on a property with significant open space values that is at a greater risk of being developed.

In addition, the property would not be eligible for funds under the other DEP open space acquisition program (i.e., the Protected Open Space and Watershed Land Acquisition Program) because the statutes prohibit the use of program funds for eminent domain purposes (CGS § 7-131d(c)). If the town (or a land trust or other eligible entity) and the landowner could agree on a sales agreement, they may be eligible for a matching grant from the program.

We have been unable to find a list of towns that have used eminent domain to acquire land for open space or the prices offered and ultimately paid in the time available for this report.

According to Chuck Reed of the DEP, the department has not used eminent domain to acquire open space from a private owner in the past 25 years. We will update this report as we receive more information.

Eminent domain is an inherent power of a sovereign. It allows the government to take property for public use subject only to payment of just compensation to the property owner. The power is explicitly provided in the Article 1, Section 11 of the State Constitution. It reads: “[t]he property of no person shall be taken for public use, without just compensation therefore.” The power is also given to towns and is described in several statutes. Essentially, towns have the power of eminent domain to take property within the town boundaries for municipal purposes (CGS § 48-6) and specifically for open space purposes (CGS § 7-131b(a)).

Towns must first vote to acquire a property. If after voting to acquire the property, the town and the landowner cannot agree on the purchase price, the town may take it using its eminent domain powers. The statutes establish procedures for exercising eminent domain powers. The town or municipal agency must determine the property's value and file a statement of compensation and deposit the estimated compensation amount with the Superior Court (CGS § 8-130). It must also notify the owners and anyone with ownership interests in the property such as the bank (CGS § 8-129).

If the landowner contests the value, the court must appoint a referee to review the statement and hold a hearing on the property's value (CGS § 8-132). After receiving testimony and any relevant material, the referee must determine the property's value and report it to the court for approval. The referee may raise, lower, or leave unchanged the town's compensation estimate (Research Associates Inc. v. New Haven Redevelopment Authority, 152 Conn. 137 (1964)). The referee is not bound by the opinions of experts; he may weigh such opinions based on the circumstances and his own general knowledge (Bennett Et Al. v. New Haven Redevelopment Authority, 148 Conn. 513 (1961)). If the referee awards more than the towns offered, the court may order the town to pay reasonable appraisal and expert testimony fees (CGS § 48-26).

Just compensation is the property's full fair market value. In theory this is the price that would result from negotiations between a willing buyer and a willing seller (see generally Colaluca v. Ives, 150 Conn. 521 (1963) and E.& F. Construction Co. v. Ives, 156 Conn. 416 (1968)). The basic means of determining the fair market value is an appraisal usually based on comparison sales. This method may become increasingly speculative as the number of comparable property sales decreases. Just compensation may also interest from the date of the taking to the date of the payment.

Generally, just compensation is the value of the property at the time of the taking in its present condition. The law allows the court referee to take into account the uses to which the property has been put and the potential (or highest) use of the property. It does not include future changes in law that creates new uses. However a property owner may show that the fair market value of the property is higher than the estimate based on a probability of rezoning. The landowner may attempt to establish that a willing buyer would pay a premium for the property based on the likelihood that it will be rezoned to allow future development. However the mere possibility of rezoning is not enough to increase the fair market value (see generally 27 Am Jur 2d, Eminent Domain § 679). At least one Connecticut case has accepted evidence regarding probable zoning changes as a factor in determining fair market value of a property (Transportation Plaza Associates v. Powers, 203 Conn. 364 (1987)).

Profits are generally not considered in determining fair market value unless there is a statutory or constitutional provision requiring otherwise or unless the profits are derived from the intrinsic nature of the land itself. Prospective profits for a business may be considered not necessarily as part of the property taken by eminent domain, but as property (i.e., the business) injured by the taking (27 Am Jur 2d, Eminent Domain § 694).

Either party may appeal the Superior Court's decision to the Appellate Court and from their to the state Supreme Court and ultimately to the United States Supreme Court. The determination of just compensation is well-established territory by the courts. The state and U.S. Supreme courts are unlikely to accept a petition for a takings case based solely on a determination of fair compensation unless some other legal principle is at issue.

CGS § 7-131b(a) authorizes a town, after a vote of its legislative body, to acquire property located in an area designated for open space in the town's plan of development. It may acquire the property by purchase, condemnation (i.e., eminent domain), gift, devise, lease, or other method. The town must maintain, improve, protect, limit the future use of, or otherwise conserve open space land acquired under this provision.

Generally, if the government acquires the entire title (i.e., fee simple) to a property it owns the property outright and can dispose of it as it wishes once the public use no longer exists or is abandoned. If the government acquires a portion of the property title, such as an easement, and subsequently abandons the easement the portion of title may revert back to the owner of the underlying property (27 Am Jur 2d, Eminent Domain §§ 934-939). At least one Connecticut case recognized the reversion of an easement back after the public use had been abandoned (Waterbury v. Platt Bros., 76 Conn. 435, 438 (1904)).

We could find no court cases regarding towns that had condemned land under this section and subsequently decided to use the property for some other purpose. However, it appears that the property generally would not revert to the prior owner unless a right or reverted was clearly stated in the deed or required by statute.

MR:lc