Opinion
No. CV01 0075165S
June 25, 2004
MEMORANDUM OF DECISION
The trial of this highway condemnation case was heard by this court on May 28, 2004.
The court viewed the property without counsel being present after agreeing they had no objection. The case erroneously named the Commissioner of Transportation as the plaintiff and Patrick Helen Corp., as the defendant. In fact, the Commissioner of Transportation is the defendant or the appellee, and the defendant is the plaintiff or appellant.
The plaintiff, Patrick Helen Corp. (sometimes hereinafter referred to as the appellant), filed an appeal on an award of damages of $37,300 deposited by the Commissioner of Transportation (sometimes referred to as the appellee) with the clerk of the court pursuant to General Statutes § 13a-76.
The property taken was for highway improvements. It was a strip of land 13+/-feet in width and 143+/-feet in length along the southerly border of this property at 480 Boston Post Road in Orange, also known as Route 1, owned by the appellant.
The land taken had an area of 2,012+/-square feet, leaving the appellant with a parcel of 40,241+/-square feet. In addition to the strip of land, the Commissioner also acquired the right to construct driveways and curb cuts of 458+/-square feet.
This property is situated in a C-2 Commercial District Zone upon which is situated a commercial building occupied by Kentucky Fried Chicken, a fast food restaurant. This property was in conformity with the zoning regulations of the Town of Orange before the taking, but after the taking, became non-conforming. After the taking, the building was set back 37± feet from the front property line, where the zoning regulations require a 50-foot setback.
The Town of Orange did not initially require either party to obtain a variance after the taking. The taking did not reduce any of the 26 parking spaces on the remaining property.
The improvements made by the Commissioner included planting shrubs, relocating electrical lines, replacement of signs and light pole bases, and the installation of electrical wiring. The parties stipulated the value of these improvements totaled $4,100.
There were only two witnesses who testified as experts at trial: the appraiser for the Commissioner, Mr. Walter Kloss, and the appraiser for the appellant, Mr. Joseph F. Perrelli. Their appraisals were entered into evidence. Both of them used the comparable sales method in determining the fair market value of the property. The court believes this was the most appropriate method in arriving at the fair market value of the property. Mr. Kloss determined the value of the damages at the time of taking was $37,300, and Mr. Perrelli stated the value of the damages at the time of the taking to be $81,850.
The fundamental law on the condemnation of private property is found in both the Constitution of the United States and of the Constitution of the State of Connecticut, and further interpreted in case law of this state. The Fifth Amendment of the Constitution of the United States states that "nor shall private property be taken for public use without just compensation."
Article I, Section 11 of the Constitution of the State of Connecticut states in relevant part that "[t]he property of no person shall be taken for public use without just compensation therefor."
Our Connecticut Supreme Court indicated that the question of what is just compensation is an equitable issue rather than a strictly legal or technical one. The paramount law intends that the condemnee shall be put in as good condition pecuniarily by just compensation as he would have been in had the property not been taken. Northeast Ct. Alliance v. ATC Partnership, 256 Conn. 813, 828.
In Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 298-99, in interpreting just compensation as found in the Connecticut Constitution, Article I, Section 11, supra, to mean "that the condemnee is entitled to receive a fair equivalent in money for the property taken, as nearly as its nature will permit." Schnier v. Commissioner of Transportation, 172 Conn. 427, 431, 374 A.2d 1087 (1977); Callaluca v. Ives, 150 Conn. 521, 539, 191 A.2d 340 (1963). The measure of damages is ordinarily the fair market value of the acquired land on the day of taking.
Where only a part of a tract of land is taken for public use, the award will include the value of the part taken as well as any damages visited upon the remainder as a result of the taking. D'Addario v. Commissioner of Transportation, 172 Conn. 182, 184, 374 A.2d 163 (1976). In Lefebvre v. Cox, 129 Conn. 262, 265, 28 A.2d 5 (1942), we stated: "The ordinary rule for measuring damages where a portion of a tract of land is taken is to determine 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; taking into consideration the changes contemplated in the improvement and those which are so possible of occurrence that they may reasonably be held to affect market value. See Andrews v. Cox, 128 Conn. 455, 17 A.2d 507 (1941).
In determining the market value of the remainder after a partial taking, we have said that `it is proper for the trier to consider all elements which are a natural and proximate result of the taking and which could legitimately affect the price a prospective purchaser would pay for the land' Bowen v. Ives, 171 Conn. 231, 236, 368; A.2d 82 (1976). Fair market value has been defined simply to mean that price that a willing seller and a willing buyer would agree upon following their negotiations; see Lynch v. West Hartford, 167 Conn. 67, 73, 355 A.2d 42 (1974)."
In summary, what is just compensation for property taken for public use is an equitable issue rather than a strict legal or technical one. The person whose property is taken must be in as good position pecuniarily as he would have been had the property not been taken. Northeast Ct. Economic Alliance, Inc., v. ATC Partnership, 256 Conn. 813, 828 (2001).
Both the appraisers in this case determined that the highest and best use of the property is for commercial use. Both appraisers used the comparable sales method to determine fair market value of the property taken and the effect on the remaining property.
In his testimony and appraisal, Mr. Kloss determined the appellant's damages as follows:
Taking area — 2,012 square feet at $16.50 per square foot equals $33,198.00 or say $33,200.00
Improvements Effected:
Single base sign and electrical 2,500.00 Exit sign bases and electrical 1,000.00 12 shrubs at $50.00 each 600.00 __________ Total damages: $37,300.00
He found fair market value of the land before the taking to be $697,200, and after the taking $659,900, arriving at total damages of $37,300.
In his testimony and confirmed by his appraisal, Mr. Perrelli found the fair market value of the property before the taking was $875,000, and $793,150 after the taking, for damages of $81,850.
He determined the damages as follows:
Estimated market value of the subject property before acquisition: $875,000
Less market value of the part taken as part of the whole: — 34,000
Less severance damages to the remainder — 43,750
Less loss of the contributory value of the shrubs and light pole bases and wiring: — 4,100
Estimated market value of the subject property after the acquisition: 793,150 ________ Indicated damages as of May 25, 2001: $ 81,850
He estimated the fair market value of the 2,047+/-square feet taken by the Commissioner to be $34,000, and included the improvements of $4,100, for total damages of $38,100, or $800 more than the $37,300 found by the Commissioner's appraiser. However, Mr. Perrelli added the sum of $43,750 as severance damages for the remaining property. In his opinion, the taking impacted the remaining property because it now was non-conforming under the Orange Zoning Regulations. It no longer complied with the 50-foot setback requirements. Although a variance was not required at the time of taking, there may in the future be a catastrophic loss for the commercial building on the. property. In his opinion, a variance would be required to rebuild or expand the building. In his appraisal, Mr. Perrelli stated his reasoning as follows:
The reconstruction would require extraordinary expenditures for a new concrete slab, utility runs, walkways, etc. That would not otherwise have been required prior to the acquisition. In addition, any expansion or other substantive changes in the existing improvements would not be possible without a variance. Lastly, there is no guarantee that the existing improvements would be able to be reconstructed and still comply with zoning.
The court finds that any catastrophic loss to the building now on the remaining property which may occur some time in the future is entirely speculative. The appellant offered no evidence of when such a catastrophe would ever occur. The court finds this claim to be speculative. See Wilusz v. Ives, 157 Conn. 352, 358 (1965). In that case, our Supreme Court held that speculation has no place in assessing damages in a condemnation action.
In Northeastern Gas Transmission Company v. Altschul, 18 Conn. Sup. 461, 466 (1953), the court held that an unsupported fear of damages from a public works project is not a basis for assessing damages.
The appellant has the burden to prove by a preponderance of the evidence the Commissioner's damages award of $37,300 is not fair compensation.
After considering the testimony of both appraisers, their appraisals entered into evidence, the appellant failed to meet his burden of proof that $81,850 is fair and just compensation for the property taken and the remaining property.
The court also finds his claim for severance damages of $43,750 to the remaining property is speculative and therefore is rejected.
The court finds the testimony and the appraisal by the Commissioner's appraiser, Mr. Walter Kloss, was more logical and credible. The court finds his award of $37,300 in damages was fair and just compensation to the appellant in this action.
The Court
By Romeo G. Petroni, J.T.R.