Opinion
No. CV-00-0438538 S
October 17, 2003
MEMORANDUM OF DECISION
In this condemnation matter, the Commissioner of Transportation (Commissioner) acquired through the state's power of eminent domain the following: 1,131 square feet, in fee simple, a 2,054 square foot slope easement and a temporary right to reconstruct the driveway from a service station, (takings). The subject property is located on Leetes Island Road, next to exit 56 of I-95, in Branford, Connecticut and is owned by the defendant Oil Barons, Inc. (Oil Barons) and leased to Berkshire Petroleum of Branford (Berkshire). The principals of Oil Barons were Robert D. Hartmann (Hartmann) its president and Dr. Stuart Levinson (Levinson) its secretary.
On May 4, 2000, the Commissioner filed a notice of condemnation and assessment of damages in the amount of $16,500.00 with the clerk of the Superior Court for the Judicial District of New Haven for said takings. Pursuant to General Statutes § 13a-73(b) the clerk of the court was required to give notice "to each person having an interest of record therein by mailing to each a copy of the same . . ." which notice was to include the assessment of damages by the Commissioner. In this case the Commissioner assessed damages in the sum of $16,500.00. General Statute 13a-76 provides that any person who is aggrieved by the assessment of damages by the Commissioner "may, at any time, within six months after the same has been so filed, apply to the superior court, . . . for a reassessment of such damages." In this case, the presumptive date of limitation would have expired on November 4, 2000 (six-month period).
General Statutes § 13a-73 provides in part the following: "The commissioner may take any land he finds necessary . . . and the owner of such land shall be paid by the state for all damages . . . The assessment of such damages and of such benefits shall be made by the commissioner and filed by him with the clerk of the superior court in the judicial district in which the land affected is located, and such clerk shall give notice of such assessment to each person having an interest of record therein by mailing to each a copy of the same, postage prepaid . . . If notice cannot be given to any person entitled thereto because his whereabouts or existence is unknown, notice may be given by publishing a notice at least twice in a newspaper published in the judicial district and having a daily or weekly circulation in the town in which the property affected is situated. Any such published notice shall state that it is a notice to the last owner of record . . . and shall contain a description of the property taken. Notice shall also be given by mailing to each such person at his last-known address, by registered or certified mail, a copy of such notice."
The Commissioner directed the clerk of the court to send notices to the following at the addresses indicated: "Oil Barons, Inc., c/o Harley Associates LTD, 469 West Main Street, Suite 201, Branford, Connecticut 06405" (Oil Barons notice, c/o Harley); "Berkshire Petroleum of Branford, Inc. (Lessee), 49 Leetes Island Road, Branford, Connecticut 06405" (Berkshire notice); "Oil Barons, Inc. (Duplicate Notice), c/o Dr. Stuart Levinson, 580 Hillside Road, Fairfield, Connecticut 06430" (Oil Barons notice, c/o Levinson).
Notice was also directed to be sent to Liberty Savings Bank, FSB (Mortgagee); LaSalle National Bank, as Trustee for Structured Assets Securities Corporation, Mutliclass Pass-Through Certificates (Mortgagee), but they did not appear in the matter and therefore are not pertinent.
Oil Barons Notice c/o Harley, was returned to the clerk of the court by the postal authority, was not opened and merely placed in the court's file. Oil Barons notice c/o Levinson was addressed to an address from which Levinson moved and the court finds he never received the notice.
After the expiration of the six-month period, Berkshire Petroleum of Branford, Inc., the tenant of Oil Barons, gave to Levinson the Berkshire notice who in turn furnished it to Hartmann. On November 13, 2001, after Hartmann became aware of the takings by the Commissioner, but subsequent to the six-month period, caused an appeal to be taken on behalf of Oil Barons pursuant to General Statute § 13a-76 seeking additional damages for the takings and attorneys fees it incurred in this matter.
General Statues § 13a-76 provides in part: "Any person claiming to be aggrieved by the assessment of such special damages or such special benefits by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court for the judicial district within which such land is situated for a reassessment of such damages or such benefits so far as the same effect such applicant." (Emphasis supplied.)
The Commissioner filed an answer together with the following special defenses: (1) the appeal may only be commenced with a citation, (2) Oil Barons is barred from claiming attorneys fees based on the doctrine of sovereign immunity and (3) the appeal was filed beyond the six months permitted under General Statutes § 13a-76.
The Commissioner filed a motion to dismiss based upon the special defenses. In a decision rendered on May 1, 2002 the court addressed the citation and timeliness issues denying the motion on these bases and reserved judgment to the time of trial with respect to the attorneys fee issue. Since rendering that decision the Supreme Court of Connecticut decided the case of Commissioner of Transportation v. Kahn, 262 Conn. 257 (2003), which involved the timeliness of an appeal under § 13a-76 and the court will revisit this issue in this opinion.
I. Timeliness
The appeal by Oil Barons was taken after the six-month period provided for in General Statutes § 13a-76. The "six month period for filing an application for reassessment under § 13a-76 is not jurisdictional. Rather, it is like a statute of limitations, requiring the commissioner to raise timely the property owner's failure to comply with that provision; failure to do so constitutes a waiver of the defense." Commissioner of Transportation v. Kahn, supra, 262 Conn. 268. The Commissioner argues that since the appeal was taken after the six-month period it should be dismissed because he raised the issue in a timely manner unlike Kahn.
There are several problems with the Commissioner's argument. First Oil Barons never received notice of the taking within the six-month period. The only notice it received was as a result of Berkshire giving Levinson the Berkshire notice after the expiration of the six-month period and which Levinson turned over to Hartmann, who thereafter promptly caused this appeal to be filed on behalf of Oil Barons.
To start the clock running without notice would raise serious constitutional issues. See Mobley v. Metro Mobile CTS of Fairfield County, Inc., 216 Conn. 1, 9 (1990). In a well reasoned opinion, the court in Commissioner of Transportation v. Frank Capone, (No. CV 96 0393289, September 29, 2000), held that the date when the six-month period begins "must be the date the person whose land is taken received or at least should have received notice of the condemnation and assessment."
Simply put, the Commissioner cannot ignore the fact that the notice addressed to Oil Barons was returned to the clerk's office and consequently the required notice was never given. The Commissioner had a safe haven available to him by serving the statutory agent of Oil Barons under General Statute § 33-663, who in this case was attorney Daniel Shepro, but he never took advantage of this statute.
The court finds that Oil Barons is not barred as a result of filing its appeal subsequent to the six-month period after Commissioner filed the notice of condemnation and assessment of damages with the Clerk of the Superior Court.
II. Attorneys Fees
Oil Barons in this appeal seeks attorneys fees and the Commissioner has moved to dismiss the claim based on the doctrine of sovereign immunity. "In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and there can be no legal right as against the authority that makes the law on which the right depends. This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others. In a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts." (Citations omitted; internal quotation mark omitted.) Doe v. Heintz, 204 Conn. 17, 31 (1987). However, in the absence of legislative authority, the Supreme Court has generally held fast to its rule which prohibits a monetary award against the state or its officials. Id. 32.
Oil Barons points to the language of General Statutes 13a-76a which allows the court to award additional damages when there is an "unreasonable delay between the filing of a map under the provision of § 13a-57 and the filing of a certificate of taking under § 13a-73 . . ." General Statutes § 13a-76a. Although in the present case the map of the takings was dated April 1997, and the takings were effective May 4, 2000 there was no evidence of the date of filing the map and that this caused the plaintiff damage. Furthermore, there was no evidence that Oil Barons incurred attorneys fees or otherwise as a result of any delay. Accordingly, the court holds that Oil Barons is not entitled to attorneys fees.
III Damages
The damages as a result of the land takings is not really in dispute. Indeed, the Commissioner's appraiser arrived at damages in the amount of $22,800.00 for the land taken, whereas Oil Barons' appraiser concluded the damages to be $14,000.00. Nevertheless, Oil Barons' appraiser did not stop at the value of the land. He appropriately considered that Oil Barons was entitled to recover severance damages and that is where the parties have parted company. Consideration of severance damages should be taken into account in an appropriate case. A visual inspection by the court; Gentile v. Ives, 159 Conn. 443, 452 (1970); confirms that such damages are appropriate, notwithstanding the Commissioner's appraiser's opinion there was no such damages.
The court has
consistently departed from the fair market value measure of damages in cases of partial takings. 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. CT Page 11288
[The court has] . . . also established, in highway easement cases, that the landowner is entitled to compensation for severance damages that might result from prospective uses of the easement as well as the damages immediately flowing from the presently contemplated highway improvement project for which the land was taken. It is proper to consider such use of the land taken as would in any reasonable anticipation be most disadvantageous to the landowner. In calculating severance losses, the trial court must [take] into consideration the changes contemplated in the improvement and those which are so possible of occurrence in the future that they may reasonably be held to affect market value. Moreover, the landowner need not demonstrate that a more detrimental future use is likely to occur; all possibilities that would affect market value are relevant.
Alemany v. Commissioner of Transportation, 215 Conn. 437, 444-45 (1990). (Citations omitted; internal quotation marks omitted.)
It is apparent that the present use as a gas station is within the classification of the highest and best use. Oil Barons has proven that there was a decrease in desirability of the property after the takings which resulted in the following: the raised level of roadway created sloped driveways from street down to the property; the loss of ability to post "signage" on the property; the impact upon commercial truck access in and out of the property; and the changed traffic flow patterns necessitated by slope and changes in I-95 Exit Ramp location; and the lost potential to use rear portion of property for restaurant purposes.
Oil Barons terminated the lease to Berkshire Petroleum (Berkshire) tenant and commenced eviction proceedings because of Berkshire's failure to pay its monthly rent of $15,000.00 as a result of the effects of the takings. A new lease was negotiated between the parties which resulted in a rent reduction to $11,000.00, resulting in a loss of $4,000.00 per month.
Prior to the takings, the property had a fair market value, based on the income approach of $1,700,000.00. As a result of the decrease in rental income, the fair market value was reduced to $1,270,000.00, resulting in a loss of $430,000.00.
In sum, judgment may enter in favor of Oil Barons against the Commissioner for $430,000.00 plus $14,000.00 for the land taken, in all, $442,000.00. In addition, Oil Barons is entitled to interest at the rate of eight percent per annum from the date of takings; General Statutes § 37-3c; plus a reasonable fee for its appraiser's report. The court will retain jurisdiction over this matter in case the parties are unable to agree on the mathematical calculations for the interest and the reasonable fee of the appraiser.
Robert I. Berdon, Judge Trial Referee