Opinion
No. FST CV 02 0192695 S
March 3, 2006
MEMORANDUM OF DECISION
On November 26, 2002, the Commissioner of Transportation pursuant to General Statutes § 13a-73(b), filed a notice of condemnation and assessment of damages for the partial taking by eminent domain of easements on property at 213 Danbury Road, Wilton, owned by Danbury Road Associates. The Commissioner found the taking to be necessary for the layout, alteration, extension, widening, change of grade, reconstruction and improvement of Danbury Road, also known as U.S. Route 7. Damages were assessed at $79,800.00. On January 30, 2003, Danbury Associates appealed from that assessment claiming it is inadequate. It now asks this court to assess fair and reasonable damages.
Danbury Road Associates was a partnership owned by Richard Boyles and Alan Brigish. The property, purchased in 1979, consisted of 40,903 square feet (.939 ac.) and contained two buildings. The front building was an 1850 residence which had been converted to offices. The rear building was much newer (1988) and larger. They constituted rental property located in a general business zone, with an asphalt driveway and parking for 37 vehicles. The property was a legal nonconforming use in a zone requiring a minimum of one acre.
Originally, the Commissioner intended to take a fee interest of 3,443 square feet of land, and pursuant to General Statutes § 48-24, went before the Wilton Zoning Board of Appeals for a variance. The property owner opposed the state's petition before the ZBA and the board refused to grant a variance. The Commissioner then changed the condemnation, taking instead a defined easement of 3,443 square feet, a 637-square-foot sloping easement and a temporary driveway construction easement, in lieu of taking outright ownership. The highway boundary will be approximately 15 feet from the front building.
This section of Danbury Road had one traveled lane in each direction. The property sits between Young's Nursery to the south and a veterinary hospital to the north, with a gas station across the road. The subject property has 115 feet of frontage on Danbury Road. The front building rests 45 feet from the property line, a figure that will be shortened considerably by the state's proposed road widening. The front of the property has a stone wall, a sign and a couple of trees in a grassy area.
The easements taken include a defined easement for highway purposes and appurtenances covering 3,433 square feet, an easement to slope for highway safety within an area of 637 square feet and a right of entry to construct a driveway, that terminates upon completion of the work. The easements are delineated on a map entitled "Town of Wilton map showing defined easement acquired from Danbury Road Associates by the State of Connecticut Department of Transportation reconstruction of existing Route U.S. 7 Scale 1"= 40' October 2000 James F. Byrnes, Jr. — Transportation Chief Engineer Bureau of Engineering Highway Operations." It was last revised October 22, 2002. The property in question is described on a warranty deed dated June 6, 1979 and recorded in Volume 326 at Page 22 of the Wilton Land Records.
The court has viewed the premises. Moreover, as the court informed the parties at the outset of the case, the court is quite familiar with the area in question and its general economic circumstances, and many of the properties in the area, both-from personal knowledge and from handling other cases. Neither party showed concern nor sought recusal upon this disclosure by the court.
General Statutes § 13a-73(b) authorizes the taking of private property for highway purposes by the Commissioner, and requires that "the owner of such land shall be paid by the state for all damages . . ." Property owners, of course, have "a constitutional right to just compensation . . ." Commissioner of Transportation v. Kahn, 262 Conn. 257, 275, 811 A.2d 693 (2003); see also U.S. Const., amend. V; Conn. Const., Art. I, § 11.
"[T]he amount that constitutes just compensation is the market value of the condemned property when put to its highest and best use at the time of taking . . . In determining market value, it is proper to consider all those elements which an owner or a prospective purchaser could reasonably urge as affecting the fair price of the land . . . The fair market value is the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land, assuming, of course, that a market exists for such optimum use." (Internal quotation marks omitted) Northeast CT Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 25, 861 A.2d 473 (2004).
"[B]ecause each parcel of real property is in some ways unique, trial courts must be afforded substantial discretion in choosing the most appropriate method of determining the value of a taken property . . . In condemnation hearings, the state referee sitting as a court [of] appeals . . . is more than just a trier of fact or an arbitrator of differing opinions of witnesses. He is charged . . . with the duty of making an independent determination of value and fair compensation in light of all the circumstances, the evidence, his general knowledge and his viewing of the premises." 272 Conn. 14, 25-26, 861 A.2d 473 (2004); Wronowski v. Redevelopment Agency, 180 Conn. 579, 586, 430 A.2d 1284 (1980).
"When only a portion of a party's property is taken, the landowner is entitled not only to compensation for the value of the property taken, but also to severance damages for the diminution in the value of the landowner's remaining property that the severance of a portion of the property causes . . . To ensure that severance damages are included in the trial court's assessment, damages should be calculated by the before and after rule, under which [t]he proper measure of damages is the difference between the market value of the whole tract as it lay before the taking and the market value of what remained of it thereafter." (Citations omitted; internal quotation marks omitted.) Alemany v. Commissioner of Transportation, 215 Conn. 437, 444-45, 576 A.2d 503 (1990).
"[T]he determination of . . . value . . . depend[s] on the considered judgment of the referee taking into account the divergent opinions expressed by the witnesses and the claims advanced by the parties." Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612 (1961). Also, the visual observations of the premises by the trier are as important as evidence presented under oath. Minicucci v. Commissioner of Transportation, 211 Conn. 382, 388, 559 A.2d 216 (1989).
However, "[t]he question of what is just compensation is an equitable one rather than a strictly legal or technical one." (Internal quotation marks omitted.) Alemany v. Commissioner of Transportation, 215 Conn. 437, 444, 576 A.2d 503 (1990). "[T]he questions of the highest and best use of property and of the reasonable probability of a [future change affecting value] . . . are questions of fact for the trier." (Internal quotation marks omitted.) Northeast Ct Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 829, 776 A.2d 1068 (7001). Clearly, the "trier's acceptance and use of the testimony of a witness on some points does not preclude its rejection on others." Morgan v. Hill, 139 Conn. 159, 162, 90 A.2d 641 (1952). As in all such cases, the burden of persuasion on the issue of valuation, rests with the property owner. See Levine v. Stamford, 174 Conn. 234, 235, 386 A.2d 216 (1978).
Thus, the referee can reject the "appraisers" testimony in whole or in part regardless of [his] belief or non-belief of the subordinate facts relating to [their opinions]." (Internal quotation marks omitted.) New Haven Savings v. West Haven Sound Development, 190 Conn. 60, 69-70, 459 A.2d 999 (1983).
I.
There is a huge disparity between the owner's appraisal based on income capitalization, and that of the state based on comparable sales. The breadth of the gap concerns the court and calls for careful scrutiny of the methodologies that produced the variation between the state's $79,800.00 estimate and the owner's $202,000.00. See Burritt Mutual Savings Bank v. New Britain, 20 Conn.Sup. 476, 483, 140 A.2d 324 (1958), rev'd on other grounds, 146 Conn. 669, 154 A.2d 608 (1959).
A.
Courts around the country have criticized the use of the capitalization of income approach in cases of partial takings. See 1 L. Orgel, Valuation Under The Law of Eminent Domain (2d Ed. 1953) §§ 155-59, p. 647-53; see also, State ex rel Highway Transportation Commissioner v. Kuhlmann, 830 S.W.2d 569, 571 (Mo.App. 1992); Humble Oil Refining Co. v. State, 15 App.Div.2d 686, 223 N.Y.S.2d 448, aff'd, 12 N.Y.2d 861, 187 N.E.2d 791, 237 N.Y.S.2d 338 (1962). 29A C.J.S. 385, Eminent Domain, § 156 (1996); In a partial taking, the value of the entire enterprise may have little bearing on the value of the appropriated property. Indeed, in recognizing the danger of linking land value to business profits, our Supreme Court ruled that "[N]either the past nor estimated future profits of a business are reliable evidence of the value of the land on which the business is located because business profits depend on so many factors that their effect on the market value of the real estate is too remote." Eljay Realty Co. v. Argraves, 149 Conn. 203, 207, 177 A.2d 677 (1962). See also, Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 38, 428 A.2d 789 (1980).
The capitalization approach has also been criticized when the appropriated land neither produces income nor is equipped to do so. Lucre Corp. v. County of Gibson, 657 N.E.2d 150, 153 (Ind.App., 1955), cert. denied, 519 U.S. 950, 117 S.Ct. 362, 136 L.Ed.2d 253 (1995); J.J. Newberry Co. v. East Chicago, 441 N.E.2d 39, 42 (Ind.App. 1982); see Levitin v. State, 12 App.Div.2d 6, 207 N.Y.S.2d 798 (1960) 13 App.Div. 611, 214 N.Y.S.2d 712 (1961). The Newberry court, citing New York law, held that the use of the capitalization of income approach requires that the property taken is itself capable of producing the income capitalized, since it was the ongoing business, not the parcel, which enhanced the value of the land and that capitalization was too speculative. Id.; see also In re Rockaway Point Blvd., 28 N.Y.2d 465, 271 N.E.2d 546, 322 N.Y.S.2d 708 (1971).
There appear to be no Connecticut appellate cases that have passed directly on this issue. In any event, the court notes that the easements taken only cover approximately one-tenth of the property which does not itself produce any of the income.
Virtually all authorities advise the use of extreme caution in the application of the capitalization method. Careful judgment is required in considering every element that leads to the final result. A small variation in any items considered can produce large variations in the ultimate conclusion. 29A C.J.S. 3865 Eminent Domain, § 156 (1992). Also, a slight variation in the capitalization rate profoundly affects the value attributable to the property. Unless the capitalization rate and the income are determined with reasonable certainty, the resulting value is speculative and of little use to the trier. 5.J. Sackman, Nichols on Eminent Domain, (3d ed. 2001) § 19.05(1), p. 19-32 through 19-33. Even where the capitalization method has been approved, courts have cautioned that it be carefully scrutinized and based on a foundation that minimizes conjecture and uncertainty; see, e.g., State v. Bare, 141 Mont. 288, 300, 377 P.2d 357 (1962); and care must be taken to distinguish between income from the property and income from the business on the property. Department of Transportation v. Fleming, 112 N.C.App. 580, 582-83, 436 S.E.2d 407 (1993). Gray v. South Carolina Department of Highways and Public Transport, 311 S.C. 144, 427 S.E.2d 899 (1992).
Despite the eruption of these cases, in the absence of Connecticut Appellate decisions directly in point, the court does not find the income approach to be unreasonable when property is held primarily for income purposes. Nevertheless, in view of the burgeoning case law, the court has viewed the owner's "capitalization of income" appraisal with a very careful eye.
B.
The owner's appraiser testified on more than one occasion that the figures he plugged in to the formulae he used were chosen on the basis of his judgment and experience. But, "[t]he rate of capitalization . . . ultimately selected for use by the appraiser cannot be the result of an arbitrary judgment on his part; rather it is a reflection of the current, well informed, conservative public judgment or rating expressed in comparable investment transactions and long term investments having characteristics similar to those found in the property under appraisal." P.W. Kniskern, Real Estate Appraisal Valuation, p. 339. The rate must reflect the market and the circumstances and must be applied carefully both before and after the taking. There are many variables to consider. The capitalization rate varies from market to market. It varies according to the different types and classes of property. It changes with economic conditions. The rate often varies in different areas of a city because of desirability of location, the general condition of the area and even the crime rate. The more desirable an area, the lower the capitalization rate. Moreover, when the frequency of comparable sales in a given area are low, reliable capitalization rate data may not be available. If adequate data is unavailable, and appraisers attempt to construct a rate through analysis of its component parts, this often reduces the credibility of the results. This appears to be the case here.
The basic formula is: Prop. Value = Net Operating Income (NOI) -------------------------- cap. rate
Conversely, cap. rate = NOI ___ prop. val.
Additionally, the appraiser used market rent, not contract rent. Valuation should be based on actual income. Gray and Gregory v. GTE South, Inc., 261 Va. 67, 71-72, 540 S.E.2d 498 (Va. 2001); People ex rel Department of Water Resources v. Andresen, 193 Cal.App.3d 1144, 1163, 238 Cal.Rptr. 826 (Cal.Ct.App. 1987); Illinois State Toll Highway Authority Grand Mandarin Restaurant, Inc., 189 Ill.App.3d 355, 363, 544 N.E.2d 1145 (Ill.App.Ct. 1989), cert. denied, 129 Ill.2d 563, CT Page 4686 550 N.E.2d 556 (1990); May v. Dewey, 201 Va. 621, 112 S.E.2d 838 (Va.Sup.Ct. 1960); see also, National Fuel Gas Supply Corp. v. Anger, 149 A.D.2d 951, 540 N.Y.S.2d 394 (N.Y.App.Div. 1989); Flangas v. State, 104 Nev. 379, 381-82, 760 P.2d 112 (1988). Further, the appraiser testified that the front building upon which he based his appraisal was a Class B building. The court disagrees and finds that this was a Class D building, which accounts for much of the difficulty. The difference is significant. A Class D building normally affects the rental rate, the type and financial vulnerability of the tenant and expected vacancy levels, which in turn, affects the bank lending rate. The capitalization rate is thus risk-related.
However, occasional references are also made to the rear building, such as when the owner's appraiser discussed rentals in his written report (see p. 21), despite testimony that damages to the property from the taking are limited to the front building (see p. 27).
When viewing the property, the court was aware that the front building appeared to have recently undergone extensive and costly remodeling and what looked like a complete makeover by the new owner. Moreover, on cross examination, in an attempt to shake the owner's appraiser's credibility, the state pointed out that he referred in his appraisal report to the front building as a Class "D" building. The appraiser replied that it did not show that, since it referred only to replacement cost. The report in question cites the "Marshall Valuation Service for Replacement Cost New and Depreciation." There is a further reference on pg. 30 which states:
"Office Buildings
Average Class D"
Under the facts of this case, the court finds that the owner's methodology brought about an inflated view of value. The .0923 capitalization rate was arbitrarily low and not reasonable considering the economic realities of the "D" building under scrutiny and the area. The court finds that a capitalization rate of .105 (.107 is the mid point of the range testified to by the appraiser) would be more reasonable.
The capitalization rate calculus incorporates a property's value, gross rents, net rental income, vacancy amount and operating expense, both indoor and outdoor. Because of the formula, a higher estimate of value lowers the capitalization rate; and a lower capitalization rate raises the estimate of value.
C.
The owner's appraisal was largely based on an assumption that this was a Class B building. Many of his assumptions flowed from this, including comparable rents. During the trial there was a competition between the parties over whose comparables were more comparable. Both claimed that unlike their opponents, the properties they considered were indeed comparable, sometimes with an adjustment. The owner's appraiser went to some lengths on rebuttal to convince the court that his comparables were more comparable than those of the state. He stated that "you can't appraise a banana by using an orange." The state's appraiser continued this "fruitful" exchange by referencing "apples to apples." (Transcript of 11/2/05, Pg. 12, et seq.) Moreover, the court notes that in the owner's appraiser's report (p. 15), he makes it clear that as far as average asking rents were concerned, he was looking at "A" "B" space, which he indicated characterized the subject buildings. Further, on pg. 22 of his report he found a $22.00 rental which was in a building "of similar specification." He also testified that all the other buildings from which he listed "Office Rental Data — Wilton" on pg. 21, were Class B buildings.
On cross examination during rebuttal, the owner's appraiser came off of his original statement that the front building was a Class B building. He admitted it could be a C building — that it was acceptable to him. However, he did not change his original thesis or the resulting rental comparables and estimates which were based upon it being a "B" building.
It is reasonable to conclude from the owner's appraiser's testimony since he claimed the front building was a class B building, that he used a similar class of building, not a lesser class, in determining rental amounts and sales comparisons.
After its view of the property, the court agrees with the state's appraiser that the front building was a Class D building and the rear building a Class C building. The front building is 155 years old. There are few comparables available for an office building of that age. Figuring rentals by comparing rents from B buildings skews the result to a higher figure than is reasonable. The building is not in a "hot" economic area like some of the properties south of the Route 7-Route 33 junction. Even the owner's appraiser stated that this area has been under a cloud for some time because of the state's Route 7 takings over a considerable period; and that this affects value because it causes people to shy away from it. It also affects the rental rates and the capitalization rate. Also, when a building is very old, it cannot be anticipated that income will continue. 4 J. Sackman, Nichols on Eminent Domain, (3d Ed. 2001) § 128.08[3] p. 128-55. This is borne out by the inability to rent the property.
"It's my opinion that prior to the date of condemnation these rentals had to already be impacted by the threat of condemnation by the well publicized . . . road widenings scheduled for Route 7." Testimony of owner's appraiser, Transcript of Sept. 10, 2005, p. 24.
Neither can the court accept the owner's use of a gross rent of $22.00 per square foot; it is not reasonable for a 155-year-old Class D building in this area. The front building did have one lease on the date of taking at $18.66 per square foot which subsequently terminated and left the whole property thereafter vacant. The upstairs was already vacant. The owner testified he could not rent the downstairs office, even though he lowered the rent considerably. This speaks volumes to the condition and desirability of the building. The owner's "after" taking gross rental figure of $16.50 per square foot — was also excessive.
The owner's appraisal report further inflates values by understating the normal operating costs. To find net income, the appraiser used as expenses: general expenses ($2.50); utilities ($2.50); and taxes ($1.58) for a total deduction from gross income of $6.58, and net income of $15.42. Assuming "general" expenses includes indoor and outdoor maintenance (which is not clear), the court finds that these expense amounts should also include: vacancy and credit risks; legal; accounting; and insurance. This produces a much lower net operating income figure and reduces the value of the property.
II.
The court also has problems with the state's appraisal. The comparables used by the state were all from different areas, different times, and different properties. Moreover, the adjustments did not sufficiently make up for the differences.
Comparability is generally a function of three variables: property characteristics, geographical proximity and time differential. See, United States v. 320.0 Acres of Land, 605 F.2d 762, 798 (5th Cir. 1979); United States v. 0.161 Acres of Land, 837 F.2d 1036, 1043 (11th Cir. 1988). Rarely are there parcels with identical characteristics in the immediate vicinity and with a sale within a short time of the taking — particularly so with a very old building. However, the more comparable with the subject property, the more probative they are. United States v. 320.0 Acres of Land, supra, 605 F.2d 762, 785. All three of these variables are problems in this case. Any opinion of fair market value, whether derived from the income or sales approaches, "is only as convincing as the foundation data upon which it rests." United States v. 1.16 Acres in Stamford, 300 F.Sup. 1021, 1023 (D.Conn. 1969).
It is settled law that the opinions of an expert do not bind the court. Birnbaum v. Ives, 163 Conn. 12, 20, 301 A.2d 262 (1972). The purpose of expert testimony is to aid the trier to reach his own conclusion by weighing it in light of all the circumstances and the trier's own general knowledge of the elements going to establish it. Bennett v. New Haven Redevelopment Agency, supra, 148 Conn. 516; see, Gentile v. Ives, 159 Conn. 443, 451, 270 A.2d 680 (1970), cert. denied, 400 U.S. 1008, 91 S.Ct, 566, 27 L.Ed.2d 621 (1971).
III.
The parties agree that the damage to site improvements — the stone wall, the business sign with underground lighting and trees — are legitimate items of damages, and the court agrees. However, the owner also urges the court to find severance damages in accord with the dictates of Alemany v. Commissioner of Transportation, supra, 215 Conn. 444-45, 576 A.2d 503 (1990). In a partial taking in addition to the value of the taken property, the landowner is entitled to damages for the diminution of value of the remaining property. The question of just compensation here is an equitable one. On this, there is no agreement: the state counters that this case does not merit severance damages.
The state argues that the owner's situation is no different than that of any other landowner along Route 7. The court does not find that argument fully persuasive. The owner counters that his property will be saddled with road construction and will be closer to a soon-to-be more heavily traveled road which will diminish rentals. There is some speculation here, since whether that closeness is good or bad reasonably rests in part upon the use to which the property will be put and the quality of the tenant. Obviously, closeness can be beneficial to some businesses. Some willing buyers or lessees might pay more for property closer to the highway. No hard credible evidence that the property will suffer — only opinion evidence — was presented to the court. See, Commissioner of Transportation v. BRW Management, LLC, Superior Ct. judicial district of Danbury, Docket No. CV 01 0344082 (June 25, 2003, Moraghan, J.) (in which the court, in the absence of testimony from a noise expert, a noise recording, or a report to substantiate the claim, found that "mere possibilities or suppositions will not sustain a legitimate inference of fact nor can such an inference be drawn by conjecture only"). See also, Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 882 A.2d 1265 (2005), citing 5 Nichols on Eminent Domain §§ 23.07, 23.09, and 27 Am.Jur.2d 219, Eminent Domain 591, to the effect that appraisers' testimony on severance damages consisting of generalized qualitative narrative on the negative effects of vehicular traffic have been rejected by some courts as factually unsupported conclusory opinions based on conjecture and insufficient evidence.
Further, because we are concerned with a Class "D" building, closeness to the road is less of an issue. A "D" building is reasonably likely to attract tenants who are less concerned with this issue than those in a Class "A" or "B" building.
A visit to the property also convinced the court that the front of the building is not normally used for ingress and egress. There is ample parking on the side and in the rear, and the regular entrance to the front building is in the rear next to the side parking area. Therefore, the proximity of the road is much less of an issue. Moreover, the land taken by the two easements does not itself appear to be an integral and inseparable part of the single use to which this land is put, and therefore, it is less likely to have an effect upon the depreciation of the remainder. See, in this regard, Andrews v. Cox, 129 Conn. 475, 482, 21 A.2d 587 (1942).
The owner's appraiser testified that data showed that rentals were at a substantial discount closer to the road, and he discussed a property across the road. However, the state's appraiser felt there was little or no effect, based upon his study of the corridor; and the state countered tellingly that the owner's own written appraisal reveals that the front building of the subject property actually had a higher rental than the rear building, which was farther from the road. (See Owner's Written Appraisal Report, pg. 21.)
There is also a claim that apprehension about the coming road construction and the dust, noise and interference it will cause will make people less willing to rent. Nevertheless, the metamorphosis to a four-way highway may well lead to an appreciation in value, like some areas of Route 7 south of the Route 33 intersection — where retail stores have been attracted and an upward pressure has affected the economic circumstances of the area. This, however, is a double-edged sword. The state had been taking Route 7 properties for a considerable period of time predating this taking. Before the taking, people of this area were well aware of what was coming. Indeed, one of the owner's neighbors, Orem's Diner, was forced to leave its long held location, and move to another one nearby on Route 7. Whatever economic pressures the owner could reasonably expect to have imposed upon it because of the state's well known plans, had already had considerable effect before the taking, thus exerting a downward pressure on economic rentals prior to the taking. The owner's appraiser appears to concede this in his testimony and report but he refused to make any adjustment because of it — suggesting damage to the property after, but not before, the taking. He admits the facts — but not their full effect.
See in this regard, fn. 5, supra.
One other consideration is whether modern road construction is more efficient than its historical antecedents and whether it is reasonable to assume that the proposed work can be done relatively quickly once it starts.
Nevertheless, the court takes seriously the charge in Alemany to "consider the value of the property in light of the current highway project and any other changes that are so likely to occur that they may reasonably be held to affect present value." Alemany v. Commissioner of Transportation, supra, 215 Conn. 448.
The proper test of severance damages is not the cost of remedial action, but the present impairment of value. Id. Any evidence bearing on present value may be considered. Andrews v. Cox, 127 Conn. 455, 460, 17 A.2d 507 (1941).
The owner's appraiser did not consider severance damages as a separate item of damages in his report but appeared to consider the "increase in traffic noise and pollution" as part of the damages resulting from the easements. (Report, p. 17.) He later testified: ". . . the summation of these four categories, damages related to the defined easement, easement to slope, temporary construction easement and the taking of site improvements, represents the total damages in this case." Transcript of September 14, 2005, p. 16. Particular emphasis on severance damages came later in court testimony.
The absence of concrete factual trial evidence on this subject, and on the question of the temporary easement, in addition to the speculative opinions of the appraisers, weakens the owner's argument. Because of the many factors discussed, this is a close question. Some of these factors appear to cancel each other out. Logic dictates it is reasonable to assume there will eventually be some noise and interference from construction and later an increase in traffic. All things considered, the court finds the balance tips slightly in the owner's favor. The court finds there will be some financial effect on the remaining property entitling the owner to an award of severance damages based on some diminution of value to the remainder. As the discussion in this section reveals, however, the court does not find it to be nearly as one-sided nor as extensive as the Owner's argument suggests.
The state also argues that the sale of the property disposes of the owner's search for severance damages. However, such damages as may exist should be reflected in the selling price. As the court sets forth in part IV B of this memorandum, the court found the selling price to be a reasonable price for this property at the time of the sale under all the facts of this case.
IV.
The temporary easement issue presents a different problem. Unlike the Alemany case, there is no evidence of a loss of parking spaces. We deal here only with a temporary right to construct a new driveway. The state asserts there will be no loss of access — and driveway construction is rarely very time consuming. The condemnor must leave the owner with reasonable access to the highway. But the owner is not entitled to damages for closing of access "where reasonably suitable alternative means of access remain." United States v. Certain Land in the State of New Jersey, 439 F.2d 670, 673 (3d. Cir. 1971). Reasonable access presents a question of fact. Damages merely for circuity of access have been considered damnum abs que injuria. Selig v. State of New York, 10 N.Y.2d 34, 39, 176 N.E.2d 59, 217 N.Y.S.2d 33 (1961). Therefore, inconvenience is not the "dispositive damage yardstick." Raj v. State of New York, 124 A.D.2d 426, 427, 507 N.Y.S.2d 770 (1986). See also Kachele v. Bridgeport Hydraulic Co., 109 Conn. 151, 145 A. 756 (1929) (recognizing that "[a]lthough the doctrine may seem rather harsh, as applied to certain cases, there are persuasive practical reasons on which it rests" Id.,). Suitability and inconvenience are factual questions; Priestly v. New York, 23 N.Y.2d 152, 156, 242 N.E.2d 827, 295 N.Y.S.2d 659 (1968); that cannot be answered in the abstract. Hronis v. Commissioner of Transportation, Superior Court, judicial district of New London, Docket No. 502566 (March 31, 1992, Healey, S.T.R.). Because of a lack of evidence that the property will suffer damages, a decision to award damages for the temporary driveway easement requires too much speculation. No plans were presented for changes to the parking area. In the final analysis, the court concludes this comes down to a matter of temporary inconvenience with the arguments on both sides tending to cancel each other out, and the owner failing to sustain its burden of proof.
V.
The referee is more than a trier of fact or arbiter of differing opinions in condemnation cases. He is charged with the duty of making an independent determination of value and fair compensation in light of all the circumstances, the evidence, his general knowledge and his viewing of the property. Minicucci v. Commissioner of Transportation, 211 Conn. 382, 388, 559 A.2d 216 (1989). The court is not bound by either the values or methods of the appraisers. It can consider everything in evidence, including the raw data and utilize its own knowledge and judgment in independently determining fair market value. Along with its familiarity with the area the court had the opportunity to work with other cases concerning the Route 7 corridor. The court did evaluate everything before it, including its visit to the property; carefully weighed the credibility of the witnesses; and performed its own examination of income capitalization and its own evaluation of comparative sales.
The court ruled out the cost approach because of the age of the front building. The court is familiar with the late Justice Healy's decision in Morris Seigel Realty v. Commissioner of Transportation, Superior Court, judicial district of New Haven, Docket No. 337240 March 24, 1993, Healy, J., (referring to a 54-year-old building), that dealing with an old building militates against using the cost approach. See also Whitney Center, Inc. v. Hamden, 4 Conn.App. 426, 428, 494 A.2d 624 (1985).
"A determination of value is, from its very nature, a matter of opinion reached by the exercise of sound judgment." DelVecchio v. New Haven Redevelopment Agency, 147 Conn. 362, 365, 161 A.2d 190 (1960). "[S]ince no one method of valuation is controlling in the trier's determination of just compensation . . . the trial court need not necessarily specify a valuation method used. Nor is the court required to set forth specific factors that were considered in arriving at the determination." (Citation omitted.) South Farms Associates Ltd. Partnership v. Burns, 35 Conn.App. 9, 18, 644 A.2d 940, cert. denied, 231 Conn. 912 (1994); see also Gasparri v. Department of Transportation, 37 Conn.App. 126, 130, 655 A.2d 126 (1995). And the trier is not limited to using only one method. Cosgrove v. Hartford, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 561077 (Feb. 17, 1988, Aaronson, J.T.R.). Indeed, when the usual means of ascertaining value are, lacking, other means from the necessities of the case, may be resorted to by the court from the best available data. Feigenbaum v. New Britain Housing Site Development Agency, 164 Conn. 254, 260, 320 A.2d 824 (1973).
As in New Haven Savings v. West Haven Sound Development, supra, 190 Conn. 60, 459 A.2d 999 (1983), the court accepted and rejected parts of each appraiser's testimony in an effort to find a reasonable point between the conflicting evidentiary positions. "Under the circumstances of this case such an approach which was clearly an effort to give due regard to all circumstances, was reasonable . . . When confronted with conflicting evidence as to valuation, the trier may properly conclude that under all the circumstances a compromise figure most accurately reflects fair market value." Id., 70.
The court finds that the landowner is aggrieved and that the highest and best use of this property is a continuation of its present use as commercial property.
In the performance of its duty to make an independent determination of value and fair compensation, the court finds that the value of the property before the taking was $1,300,000.00, and that the value of the property after the taking — including severance damages — is $1,150,000.00. Thus, the full amount of damages total $150,000.00. The court finds that a reasonable appraiser's fee is $7,500.00. The court further finds that a reasonable and fair rate of interest is 5 1/2% which may be applied against the balance of $70,200.00 ($150,000.00 less the deposited amount of $79,800.00).
A.
The Wilton Tax Assessor's evaluation of the subject property as of October 1, 2002, just before the November 26, 2002 taking, came into evidence. The tax assessor appraised the full value of the property at $1,370,400.00. The court is well aware of our appellate decisions preventing the use of the tax assessor's valuation in calculating fair market value, and has obediently refrained from using it. Nevertheless, it is comforting to know that the assessor's valuation is very close to that of the court.
The tax appraiser's full value appraisal came into evidence as part of both appraiser's reports and later generated some discussion, before the state offered the tax appraisal appeal report from the Wilton board.
Yet this doctrine, at least in part, rests on an 1892 case. It is not too great a leap of faith to point out that after 114 years, that doctrine ought to be reevaluated by our Supreme Court. As former Chief Justice Peters observed in an address at Yale Law School, older case law should at some point be viewed more suspiciously, with a more limiting perspective. There comes a time when the life expectancy of an elderly doctrine should be short and subject to revisitation by the court. This is also true here because modern tax assessors are often professionals at evaluating real estate and records of government are now routinely received into evidence. We have come a long way since 1892.
Martin v. New York New England Railroad Co., 62 Conn. 331, 343, 25A. 239 (1892).
See E.A. Peters, "Common Law Judging in a Statutory World:" An Address, 43 U. Pitt. L. Rev. 995, for the well spring of this doctrine. Chief Justice Peters there cited the words of Second Circuit Judge (and former Yale Law School Dean) Guido Calabresi, who suggested that "the life expectancy of a . . . judicial decision . . . is relatively low right after birth, becomes very high after the rule has survived a few years and then diminishes as it ages." Id., 1009.
There are other reasons why the court should be able to receive this in evidence. The late Justice Arthur Healy, a recognized expert in condemnation matters wrote for the three-judge court in Peter Rock Association v. Town of North Haven, 46 Conn.Sup. 458, 756 A.2d 335 (1998), cert. denied, 254 Conn. 933, 761 A.2d 754(2000) (which used an assessor's appraisal), that there are two basic reasons for the non-use of tax assessments in condemnation cases: first, that the assessment is hearsay as to the condemnation appellant, since it is not effectively subject to attack by the owner. Id., 463 n. 9. This is not the case here because the landowner appealed the assessment to the Wilton Board of Assessment Appeals. Since it had the right, if it wished, to further appeal to the Superior Court, the owner had the opportunity to put the assessment under scrutiny and challenge by using, among other tools, the right to cross examination. Justice Healy's second reason was that the assessment occurred at a different time from the time of the taking. Id. That is also not true here since the assessment was made extremely close to the time of taking.
Nichols on Eminent Domain refers to Justice Healy's decision in Murphy v. Town of Wallingford, as an insightful due process analysis. § 13B, 031211, p. 13B-95-96.
There is another reason. Some jurisdictions admit this evidence when the owner values his own property for the assessment, which was what occurred before the Board of Assessment Appeals. The evidence may be used against the owner when he seeks to use a higher value for condemnation than for taxation. While there is some conflict of authority as to the degree of owner participation required to render the assessment admissible, some affirmative act by the owner is generally required and it need not be in the form of a sworn statement. See Note, "Admissibility of Assessed Value in Condemnation Proceedings," 41 Saint John's L. Rev. 570, 572 (1967); United States v. Certain Parcels of Land, 261 F.2d 287 (4th Cir. 1958). It is the view of this court that the act of filing an appeal with the local tax board, and thus asking the government to rely upon the figures the owner or its representatives propose, is a sufficient statement to allow those figures to be used — if not the actual assessment — not just for impeachment, but substantively.
Moreover, the owner's counsel asked the state's appraiser a line of questions on cross examination about tax assessments, although he used them on a different issue for the purpose of attacking credibility.
B.
The court also allowed testimony that the landowner sold his property in 2005. The owner objected that the sale was too remote in time to be admissible. However, the Connecticut Supreme Court, in Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24(1980), held with regard to a 1978 taking that neither a 1972 sale nor a 1976 sale (six years and two years earlier respectively) were too remote. Id., 223-24. The court held that "this matter rests in the discretion of the trier . . . which was not here abused." (Citation omitted.) Id., 224 n. 9. Further, the Supreme Court in Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 426 A.2d 280 (1979), with regard to later evidence stated: "it is both unnecessary and misleading to rely upon `uncertain prophecy' instead of experience either to increase or to diminish a condemnation award." Id., 307. The sale represents a market determined certainty, not a supposition or guesswork.
Not only was there testimony from both appraisers about the large rise in the commercial real estate market in this area during 2002 to 2005 but the court is also familiar with that issue and able to work backwards from the appreciated value of the sales price to a reasonable figure in 2002. The court finds the selling price to be reasonable under all the circumstances. That said, the 2005 sale for $1,565,000.00 is another confirmation of the court's independent judgment as to fair market value. A sale which the trier can relate forward or back will ordinarily be a reliable indicator of fair market value. New Haven Savings Bank v. West Haven Sound Development, supra, 190 Conn. 71; New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 236, 348 A.2d 641 (1974).
The court obviously does not agree with the owner's appraiser's estimate of the full value of the subject property.
Indeed, although the court did not use the tax appeal papers for substantive purposes, since they came into evidence for a limited purpose, the court notes that the landowner's appraiser assessed the property after the taking for tax purposes at $1,180,900.00 which once again provides confirmation of the court's judgment.
Therefore, full value for Danbury Associates is $150,000.00. After subtracting the $79,800.00 deposited with the court, the sum due the landowner is $70,200.00 which the court finds to be fair and just compensation, plus interest. The court finds that reasonable and just interest may be awarded in the amount of 5 1/2% from the date of taking to the date hereof. The court approves a reasonable payment to the owner's appraiser in the amount of $7,500 for appraiser's fees.
Judgment may enter for Danbury Associates for the amount of $70,200.00 plus reasonable and just interest of 5 1/2% from the date of taking to the date of the judgment.