233 Conn. 296 (1995) | Cited 0 times | Supreme Court of Connecticut | May 23, 1995

The plaintiff, DeMilo and Company,Inc. (DeMilo), appealed to the Superior Court from adecision of the defendant commissioner of the departmentof transportation (commissioner),1 in which the

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     commissioner determined the amount of relocationassistance to which DeMilo was entitled under the UniformRelocation Assistance Act, General Statutes§ 8-266 et seq., and the applicable regulations. Thecourt affirmed the commissioner's decision, and DeMiloappealed from the judgment of the trial court to theAppellate Court. We transferred the appeal to thiscourt pursuant to Practice Book § 4023 and GeneralStatutes § 51-199(c).

The facts of this case are undisputed and are relatedto the facts of two other cases decided this same date.See Commissioner of Motor Vehicles v. DeMilo & Co.,233 Conn. 254, ___ A.2d ___ (1995); DeMilo & Co. v.Commissioner of Motor Vehicles, 233 Conn. 281, ___A.2d ___ (1995). Since 1975, DeMilo has owned andoperated a motor vehicle junkyard and parts businessin Hartford. On August 1, 1985, the department oftransportation (transportation) acquired, by eminentdomain, a portion of DeMilo's land. The acquired landconsisted of the southeasterly corner of DeMilo's rectangularlyshaped parcel, as well as some adjoining landleased by DeMilo from the Barilla family, on which itstored some of its junked vehicles. The land had beenacquired by transportation in order to construct a newservice road, now known as Liebert Road, in connectionwith transportation's reconstruction of Interstate91. The acquired land contained many junked vehiclesand automobile parts, which inhibited transportationfrom going forward with its construction plans.

In June, 1986, the commissioner informed DeMilothat it would be paid the sum of $58,500 as a relocationallowance for the junked vehicles that had to beremoved from the acquired land and relocated. DeMiloappealed to the relocation advisory assistance appeals

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     board (board) pursuant to General Statutes § 8-271 and§ 8-273-1 of the Regulations of Connecticut State Agenciesgoverning relocation assistance promulgated bythe commissioner of transportation.2 Regs., Conn.State Agencies § 8-273-1. A panel, consisting of three

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     board members, held a hearing, as required by GeneralStatutes § 4-1793 and § 8-273-1 of the regulations,

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     which extended, in ten sessions, from February throughApril, 1988. Following the hearing, the panel submittedits proposed decision to the parties, who were thengiven an opportunity to submit briefs regarding the proposeddecision. Both parties took advantage of thatopportunity.

The panel's proposed decision set forth findings offact and conclusions of law. The panel found that thesubject of the relocation allowance consisted of 1000junked vehicles, which were best characterized as "lowvalue, high bulk personal property." The panel furtherfound that the replacement cost of the vehicles was $35each, so that the total relocation allowance payable toDeMilo was $35,000.4 After reviewing the panel's proposeddecision and the briefs submitted by the parties,the commissioner adopted the proposed decision andissued a final decision that DeMilo was entitled to$35,000 as its relocation allowance.

DeMilo appealed from the commissioner's decisionto the Superior Court claiming that: (1) it was a denialof its due process rights for the commissioner and theboard to act as "prosecutor, judge and jury" in theadministrative procedure; (2) the relocation allowancewas unreasonable; (3) the board's proposed decision wasinvalid because only one member signed it; and (4) thecommissioner's decision was untimely filed in violationof General Statutes § 4-180. The trial court affirmedthe commissioner's decision and dismissed the appeal.On appeal to this court, DeMilo pursues only its firsttwo claims.

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In addressing the due process claim, the trial courtconcluded that the procedure employed by the commissionerwas in accordance with the statutes and regulationsgoverning administrative appeals and that manyother administrative agencies follow the same basic procedure.The gravamen of DeMilo's claim is that thosestatutes and regulations are unconstitutional. The courtdetermined, however, that DeMilo's claim was not supportedby authority. The court concluded, therefore,that DeMilo had failed to overcome the presumptionin favor of the constitutionality of the statutory scheme.Zapata v. Burns, 207 Conn. 496, 507-508,542 A.2d 700 (1988).

With respect to DeMilo's claim of unreasonablereplacement cost, the trial court found that the boardhad considered "abundant evidence" regarding therelocation allowance. DeMilo's owner, Frank DeMilo,and DeMilo's expert, Stanley J. Lesnewsky, testifiedbefore the board that there were 1000 junked vehiclesthat had to be relocated. Sol W. Toder, the owner ofan automobile salvage business who testified as anexpert for transportation, testified that he had visitedDeMilo's Hartford site at least eight times and foundthat the subject vehicles could not be used for parts.Rather, he opined, the vehicles could best be used asscrap. Finally, Frank DeMilo testified that, at the relevanttime, he could receive $20 or $22 per gross ton5for such vehicles as scrap, and that the average vehicleweighed 1500 pounds, while heavy vehicles likeambulances or hearses may weigh up to 4000 pounds.The trial court concluded that DeMilo was unable todemonstrate that the relocation allowance awarded bythe commissioner was unreasonable.

Our examination of the record and the briefs andarguments of the parties on appeal persuades us that

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     the judgment of the trial court should be affirmed. Theissues raised on appeal were resolved properly in thecourt's thoughtful and comprehensive memorandum ofdecision. DeMilo & Co. v. Dept. of Transportation,43 Conn. Sup. 441, ___ A.2d ___ (1995). Because thatmemorandum of decision fully addresses the argumentsraised in the present appeal, we adopt the trial court'swell reasoned decision as a statement of the facts andthe applicable law on those issues. It would serve nouseful purpose for us to repeat the discussion containedtherein. Greater Bridgeport Transit District v. StateBoard of Labor Relations, 232 Conn. 57, 64,653 A.2d 151 (1995); Advanced Business Systems, Inc. v. Crystal,231 Conn. 378, 380-81, 650 A.2d 540 (1994); VanDyck Printing Co. v. DiNicola, 231 Conn. 272, 274,648 A.2d 877 (1994).

The judgment is affirmed.

1. The defendants are the state of Connecticut, the departmentof transportation and J. William Burns, commissioner oftransportation. For purposes of this appeal, we will refer to thedefendants collectively as the commissioner.

2. General Statutes § 8-271 provides: RELOCATIONASSISTANCE ADVISORY PROGRAM. (a) Whenever a program or projectundertaken by a state agency or under the supervision of a stateagency will result in the displacement of any person on or afterJuly 6, 1971, such agency shall provide a relocation assistanceadvisory program for displaced persons which shall offer theservices described herein. If the state agency determines thatany person occupying property immediately adjacent to any realproperty acquired is caused substantial economic injury becauseof such acquisition, it may offer such person relocation advisoryservices under such program. "(b) Each relocation advisory assistance program required bysubsection (a) shall include such measures, facilities, orservices as may be necessary or appropriate in order (1) todetermine the needs, if any, of displaced persons for relocationassistance; (2) to provide current and continuing information onthe availability, prices and rentals, of comparable decent, safeand sanitary sales and rental housing, and of comparablecommercial properties and locations for displaced businesses; (3)to assure that, within a reasonable period of time, prior todisplacement there will be available in areas not generally lessdesirable in regard to public utilities and public and commercialfacilities and at rents or prices within the financial means ofthe families and individuals displaced, decent, safe and sanitarydwellings, as defined by the commissioner of transportation fortransportation projects and by the commissioner of housing forall other state agency programs and projects, equal in number tothe number of and available to such displaced persons who requiresuch dwellings and reasonably accessible to their places ofemployment, except that the commissioner of transportation fortransportation projects and the commissioner of housing for allother state agency programs and projects may prescribe byregulation situations when such assurances may be waived; (4) toassist a displaced person displaced from his business or farmoperation in obtaining and becoming established in a suitablereplacement location; (5) to supply information concerningfederal and state housing programs, disaster loan programs andother federal and state programs offering assistance to displacedpersons; (6) to provide other advisory assistance services todisplaced persons in order to minimize hardship to such personsin adjusting to relocation. "(c) The heads of state agencies shall coordinate relocationactivities with project work, and other planned or proposedgovernmental actions in the community or nearby areas which mayaffect the carrying out of the relocation assistance programs." Section 8-273-1 of the Regulations of Connecticut StateAgencies provides: RELOCATION ASSISTANCE APPEAL "(a) Any person aggrieved as to the provisions of Chapter 135of the General Statutes of Connecticut, as revised, should firstrequest reconsideration by the State agency of the decisioninitially received as to relocation assistance. If the personaggrieved is not satisfied by the decision rendered by the Stateagency upon reconsideration, he then may request a hearing beforethe Relocation Advisory Assistance Appeals Board. "(b) The request must be submitted in writing to the Stateagency causing the displacement within eighteen months after thedate of acquisition of real property by the State agency causingthe displacement by land acquisition programs, by building codeenforcement activities, or by a program of voluntaryrehabilitation of buildings or other improvements conductedpursuant to governmental supervision or the effective date ofthese regulations whichever is later. "(c) A Relocation Advisory Assistance Appeals Board shall beestablished by the Commissioner of Transportation and anotherAppeals Board by the Commissioner of Community Affairs. The Boardestablished by the Commissioner of Transportation will hearmatters concerning transportation projects and the Boardestablished by the Commissioner of Community Affairs will hearmatters concerning all other State agency programs and projects. "(d) The Board will review applications of all personsaggrieved, hold hearings thereon, and report its findings within15 days after the hearing to the Transportation Commissioner onmatters concerning transportation projects, and the CommunityAffairs Commissioner on matters concerning all other State agencyprograms and projects. "(e) The respective Commissioners shall make the finaladministrative decisions and advise the appellant of his decisionin accordance with Section 4-179 of the General Statutes ofConnecticut, as revised."

3. General Statutes § 4-179 provides: AGENCY PROCEEDINGS.PROPOSED FINAL DECISION. (a) When, in an agency proceeding, amajority of the members of the agency who are to render the finaldecision have not heard the matter or read the record, thedecision, if adverse to a party, shall not be rendered until aproposed final decision is served upon the parties, and anopportunity is afforded to each party adversely affected to fileexceptions and present briefs and oral argument to the members ofthe agency who are to render the final decision. "(b) A proposed final decision made under this section shall bein writing and contain a statement of the reasons for thedecision and a finding of facts and conclusion of law on eachissue of fact or law necessary to the decision. "(c) Except when authorized by law to render a final decisionfor an agency, a hearing officer shall, after hearing a matter,make a proposed final decision. "(d) The parties and the agency conducting the proceeding, bywritten stipulation, may waive compliance with this section."

4. The relocation allowance cannot exceed the replacementcost. See General Statutes § 8-268(a)(2).

5. Frank DeMilo defined a gross ton as 2240 pounds.

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