Opinion
No. CV 03 0197624 S
February 3, 2006
MEMORANDUM OF DECISION
The above-entitled matter arises out of an appeal from a partial taking of land and other rights across the front of property having an address of 436 Danbury Road, Wilton, Connecticut. The Commissioner of Transportation of the State of Connecticut (the "Commissioner") took said land and rights by a Notice of Condemnation filed with the Clerk of the Superior Court, Judicial District of Stamford/Norwalk at Stamford, Connecticut, on October 21, 2003. The purpose of the taking was to widen and realign Danbury Road, also known as U.S. Route 7 in the vicinity of its intersection with Cannon Road. The Commissioner, in his Notice of Condemnation, assessed damages in the amount of $112,000. The owner of the premises, defendant/appellant, John D. Paul (the "appellant") has appealed said assessment of damages, claiming that said assessment is inadequate.
Pursuant to General Statutes § 13a-76, the matter was referred to the undersigned and the parties and their witnesses were heard over a period of four days from November 2, 2005 to November 8, 2005. By agreement of the parties, the court viewed the property in the absence of the parties and their counsel.
"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 affect such applicant. The court, after causing notice of the pendency of such application to be given to the commissioner, may appoint a judge trial referee to make such reassessment of such damages or such benefits. The court or such judge trial referee, after giving at least ten days' notice to the parties interested of the time and place of hearing, shall hear the applicant and the commissioner, may view the land, and shall take such testimony as the court or such judge trial referee deems material and shall thereupon reassess such damages and benefits so far as they affect such applicant . . ."
The evidence presented at trial established that prior to the taking the appellant's property consisted of a parcel of land situated at the corner of Danbury Road and Cannon Road containing 2.097 acres. The property was improved with three principal structures and one outbuilding. One structure was a two-story farmhouse circa 1830 containing 3,848 square feet known as "Cannon House." Offices on the first and second story of that structure occupy 3,347 square feet and a residential apartment on the second floor occupies 501 square feet. Prior to the taking, Cannon House was located approximately forty-five feet from the highway line of Danbury Road. A second structure on the property was a converted carriage house, circa 1880, which contained 3,302 square feet of office space on two floors. The appellant, an attorney, uses office space in the carriage house for his practice and rents out the remainder of that structure. A residential apartment was situated in a 500 square foot wood frame cottage. There was also a small shed on the property.
The property was located in the R-2A zone, a residential zone requiring a minimum lot size of two acres and a minimum front yard of fifty feet under the Wilton Zoning Regulations. Pursuant to the adaptive use provisions of those regulations the appellant had obtained permits allowing the use of Cannon House and the carriage house for offices. The regulations allow business uses by special permit on properties having structures of historic or architectural significance.
The taking involved a strip of land approximately 26 feet wide by 200 feet long immediately adjacent to Danbury Road containing 5,237 square feet. The taking also included the right to grade 2,496 square feet of the subject property, the right to install sedimentation system during construction on 361 square feet of the property, the right to reconstruct 252 square feet of the driveway on the property and 53 feet of the sidewalk leading to the front door of Cannon House. After the taking, the area of appellant's property was reduced to 1.95 acres.
On February 4, 2002, after identifying the portion of the appellant's property it wished to acquire, the Commissioner applied to the Zoning Board of Appeals of the Town of Wilton for variances of the lot size and front yard setback requirements of the Wilton Building Zone regulations to cure violations of the regulations which might arise in the event of the taking. A hearing on the Commissioner's application was scheduled for March 18, 2002. On March 11, 2002 the appellant sent a letter to Terrence J. Obey, a property agent in the Commissioner's office requesting a continuance of one month on the hearing on the variance application (Ex. 21). In that letter, the appellant stated:
General Statutes § 48-24 required that the Commissioner either obtain a variance of the area requirements of the zoning regulations or take the entire property. The statute does not require the Commissioner to obtain variances for any other non-conformities resulting from the taking. W.R. Associates of Norwalk v. Commissioner of Transportation, 46 Conn.Sup. 355, 376, 751 A.2d 859 (1999).
Per Connecticut General Statutes Section 48-24, a variance as to "area requirements" will hardly make me whole! Without regard to the fact that the property is on the National Registry of Historic Places and that the depravation of 6,000 square feet plus or minus of front lawn will destroy the historic value of the site, variances as to set back, percent of coverage; percent of building coverage; and at least four additional variances would be required to make the property even remotely useful in the future! (Emphasis in original.)
Copies of this letter were sent to the Wilton Zoning Enforcement Officer and the Chairman of the Wilton Zoning Board of Appeals. The appellant was a former member of the Wilton Planning Zoning Commission. The appellants request for a continuance was granted and the hearing was rescheduled for and held on April 15, 2002.
At the hearing the variance applications were presented by Terrence Obey as the Commissioner's representative. The minutes of that meeting (Ex. 12) reflect that the appellant did not appear to either oppose or support the application. There was no opposition to the application from members of the public or from any officials or agencies of the Town of Wilton. The minutes of the hearing reflect that in response to questions from members of the board, Obey stated that the requested front yard variance (18 feet rather than the required 50 feet and existing 45 feet) would, for the foreseeable future, actually leave 30 feet between the building (Cannon House) and the highway. Obey explained that the state planned to take the additional twelve feet in order to provide for the possibility of adding a turning lane into Cannondale Center at some point in the future. Obey acknowledged that current traffic volumes would not warrant the construction of such a lane in the foreseeable future. During their deliberations a majority of the board voted to grant the area variance but to deny the setback variance in the apparent hope that the state would reconsider its decision to take the extra land required for the future turning lane. In their deliberations the board noted their opposition to the turning lane and the fact that the appellant had not indicated either clear opposition to or support for the variance applications in his March 11, 2002 letter. However, the stated reason for denial of the setback variance in the board's decision was on the grounds that sufficient hardship had not been demonstrated.
The applicant filed an appeal of the board's decision in the Superior Court pursuant the General Statutes § 8-8. However, that appeal was withdrawn shortly after being filed. The appellant, who brought the appeal pro se, testified on cross examination that he didn't recall the basis of the appeal and whether he had any discussions with town officials prior to withdrawing the appeal. On redirect examination he remembered that after the decision of the Zoning Board of Appeals, he spoke with counsel for the board, a former law partner, G. Kenneth Bernard, who was then Town Counsel for Wilton. The appellant testified that, after the taking he did not apply for a setback variance because he didn't want "to rock the boat."
The evidence produced at trial did not indicate whether the appeal was from the granting of the area variance, the denial of the front yard set-back variance, or both.
The Commission filed his Notice of Condemnation on October 21, 2003 without changing the area or location of the land taken. This application ensued.
During the hearing, the parties presented the testimony of appraisers and solicited their opinions as to the fair market value of the premises both before and after the taking. The applicant offered the testimony of two appraisers.
The applicant's first appraiser, Christopher Kerin, was an MAI and CCIM designated appraiser. He testified that in his opinion the fair market value of the applicant's property prior to the taking was $1,610,000 and that after taking the fair market value was $1,180,000. Consequently he found the damages due to the taking to be $430,000. In determining the value before taking Kerin employed a sales comparison approach (yielding a value of $1,580,000) and an income capitalization approach (yielding a value of $1,640,000). Under both approaches, Kerin considered that the property had the potential for additional development under the Wilton Zoning Regulations. In his reconciliation he gave equal weight to both approaches and found the final value to be $1,610,000.
Awarded by the Appraisal Institute.
Certified commercial Investment Member awarded by the CCIM Institute.
In determining the fair market value of the property after the taking, Kerin did not redetermine the value of the property using the sales comparison approach and the income capitalization approach. Instead, he determined the applicants damages based on four separate elements of damage. In this analysis Kerin assumed that the potential of the property for additional development was diminished as a result of the reduction in the size of the lot and that as a result of the denial of the front yard setback variance, the property had become illegally non-conforming after the taking and thus was in violation of the Wilton zoning regulations. His first element of damage was the value of the 5,237 square feet of area taken by the Commissioner. Kerin determined that the land had a value, as excess acreage, approximately $9.50 per square foot. The total value of the land taken was $49,751.50 which he rounded to $50,000. The second element of damages was based on an estimated reduction in the fair market rental value of the offices in the Cannon House caused by the proximity of Route 7 to the building. Kerin estimated a loss on 15% of the annual rental value of Cannon House resulting in a capitalized reduction in value of $161,440. The third element of damages was an estimated increase of annual operating expenses of Cannon House in the amount of $5,000. On a capitalized basis these increased costs (painting, landscaping, maintenance of foundation and chimney) resulted in a reduction in value of $58,820. The fourth element was the risk associated with the status of the property having the status of being illegally non-conforming with respect to the setback requirements of the Wilton Zoning Regulations. Kerin estimated that this risk subjected the property to a loss in value of 10% of the pre-taking value or $161,000. The total of the four elements of loss was $431,260 which Kerin rounded to $430,000.
The appellant's second appraiser was Peter A. Vimini an MAI designated appraiser. He testified that in his opinion the fair market value of the applicant's property prior to the taking was $1,550,000. In determining the value before taking Vimini employed a sales comparison approach (yielding a value of $1,570,000) and an income capitalization approach (yielding a value of $1,530,000). In his reconciliation he gave equal weight to both approaches and found the final value to be $1,550,000. In his initial effort, an appraisal dated May 17, 2004, Vimini found the fair market value of the property after taking to be $710,000. In reaching this conclusion Vimini gave equal weight to both a sales comparison approach (yielding a value of $680,000) and an income capitalization approach (yielding a value of $740,000). Under both approaches Vimini assumed that the denial of the setback variance would result in the entire gross income from the Cannon House (about $113,500 annually) being unavailable to the owner of the property. The valuation of $710,000 resulted in damages totaling $840,000.
On April 4, 2005, at the request of the appellant's counsel Vimini conducted an additional analysis of the after-taking value of the property. In this analysis Vimini used only an income capitalization approach. He assumed that reduced rental income from the Cannon House would be available after the taking. However, in light of the uncertainty caused by the denial of the variance, Vimini increased the capitalization rate under the income approach from 9.4% to 15% and assumed the need to invest in interior modifications in the Cannon House costing nearly $67,000. The new approach resulted in an after-taking valuation of $735,000 and damages in the amount of $815,000.
The Commissioner's appraiser was Norman Benedict a licensed appraiser with the MAI and CRE designations whose appraisal was dated January 12, 2005. He testified that in his opinion the fair market value of the applicant's property prior to the taking was $1,635,000 and that after the taking the fair market value was $1,470,000. Consequently he found the damages due to the taking to be $185,000. In determining the value before taking Benedict employed a sales comparison approach (yielding a value of $1,610,000) and an income capitalization approach (yielding a value of $1,655,000). In his reconciliation he gave slightly more weight to the income capitalization approach (55%-45%) and found the final value to be $1,635,000.
Counselor of Real Estate awarded by the American Society of Real Estate Counselors.
Benedict testified that in determining the value after the taking he employed a sales comparison approach (yielding a value of $1,510,000) and an income capitalization approach (yielding a value of $1,435,000). Under his sales comparison approach, Benedict made adjustments to the sales he selected for comparison to reflect the smaller size of the property. Under the income approach Benedict assumed that the same income stream would be available after the taking but adjusted the return on invested equity from 10% to 12% to account for "the risk inherent in the ownership of the property."
In his reconciliation Benedict, once again, gave slightly more weight to the income capitalization approach (55%-45%) and found the final fair market value after taking to be $1,470,000. Prior to making his appraisal report Benedict conducted extensive interviews with the following officials of the Town of Wilton — Robert Nerney, Town Planner; John Costa, Zoning Enforcement Officer; Robert Root, Assistant Town Building Inspector; Simon Sumberg, Esq., Town Counsel. In addition, Benedict examined the files of the Zoning Enforcement Officer, Planning and Zoning Commission and Building Inspectors Office. Based on these interviews and examinations, Benedict concluded that no one in the government of the Town of Wilton considers, the failure of the Board of Appeals to approve the setback variance to have created a zoning violation in need of enforcement. Based on this conclusion, Benedict rendered his opinion that "the zoning non-compliance exists, but that it is not significant in valuing the appraised property."
Benedict's analysis of the zoning issue also included a consideration of the relevant provisions of the Wilton Zoning Regulations. Section 29-4.F. of those regulations is entitled "NON-CONFORMING LOTS, NON-CONFORMING USES OF LAND, NON-CONFORMING STRUCTURES, AND NON-CONFORMING USES OF STRUCTURES AND LAND IN COMBINATION." Subsection 1 of that section provides in relevant part:
1. Intent: Within the zoning districts established by these Regulations or by amendments that may later be adopted, there exists lots, uses, and structures which were lawful at the time these Regulations were adopted or amended but which would be prohibited, regulated, or restricted under the provisions of these Regulations or future amendments. Such lots, uses and structures are declared by these Regulations to be non-conforming.
It is the intent of these Regulations to permit these conformities to continue until they are removed but not to encourage their survival. It is further the intent of these Regulations that non-conformities shall not be enlarged upon, expanded or extended if such a change would increase the nonconformity, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.
b. To avoid undue hardship, nothing in these Regulations shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of these Regulations and upon which actual building construction has been carried on diligently. Actual construction is hereby defined to include the placing of construction materials in permanent position and fastened in a permanent manner . . .
Subsection 2 addresses non-conforming lots. Subsection 3 addressed non-conforming uses of land. Subsection 4 which addresses non-conforming structures provides in relevant part:
4. Non-Conforming Structures: Where a lawful structure exists at the effective date of adoption or amendment of these Regulations which could not be built under the provisions of these Regulations as enacted or amended, such structure may be continued as long as it remains otherwise lawful, subject to the following provisions:
a. Such non-conforming structure shall not be enlarged in any dimension or altered in a manner which extends or increased the non-conformity but may be altered to decrease the non-conformity.
b. If such non-conforming structure is damaged or destroyed by any means, it may be repaired or replaced to an extent which does not increase the non-conformity. Such repair or replacement shall commence within six months after the damage or destruction occurs, and shall be completed within 18 months after commencement. If such repair or replacement is not accomplished within such time periods, the structure shall be reconstructed in conformity with the requirements of the district in which it is located.
c. If such structure is moved for any reason for any distance whatsoever, it shall thereafter conform to the requirements of the district in which it is located after it is moved.
d. A non-conforming use of a building or structure may be changed only to a conforming use.
Based on these provisions, Benedict concludes: "This taking does not create any non-conformance to the lot which did not previously exist." This conclusion leads to his opinion that the failure to obtain a front yard setback variance would not significantly impact the fair market value of the premises.
Based upon the appraisers' testimony and reports, the court finds that the fair market value of the property prior to the taking was $1,600,000. In addition to the appraisers the court heard other testimony bearing on the zoning status of the property, and the reasonable probabilities with respect to the property existing on the date of the taking.
Robert Nerney, Wilton's Town Planner testified that prior to 1971 the set-back requirement for the R-2a zone was forty feet. In that year the set-back requirement was increased to 50 feet and Cannon House, which was set back 45 feet from Danbury Road, became legally non-conforming with the required set-back requirement. Nerney testified that the taking by the Commissioner had increased the non-conformity of the set-back by reducing the front yard from 45 feet to 18 feet. In Nerney's opinion it is unlikely that any enforcement action will be taken with respect to Cannon House. He testified that the Wilton Board of Zoning Appeals has granted a number of set-back variances for properties on Danbury Road whose setbacks have become non-conforming or whose non-conformity has increased by virtue of taking by the State in connection with the widening of Route 7. Nerney believed that the only front yard set-back variance which had been denied following a state taking for Route 7 was the one which the Commissioner applied for on behalf of the appellant.
Bruce Dixon, the recently appointed Zoning Enforcement Officer of the Town of Wilton, testified that in his official capacity he has the ultimate decision as to whether enforcement action is to be taken on behalf of the Town. He further testified that he does not anticipate any enforcement action against the appellant as a result of the non-compliance of his property with regard to required front yard setbacks.
General Statutes § 13a-76 contemplates that the court reassessing damages will conduct a trial de novo and make an independent determination of value and fair compensation. Minicucci v. Commissioner of Transportation, 211 Conn. 382, 388, 559 A.2d 216 (1989). In cases, such as this one, where the taking is a partial one the usual measure of damages is the difference between the fair market value of the whole tract with its improvements before the taking and the fair market value of what remained of it thereafter. Gontarz v. Berlin, 154 Conn. 695, 229 A.2d 29 (1967).
Fair market value is the price that a trier reasonably believes would result from fair negotiations between a willing seller and a willing buyer. That evaluation should ordinarily be based upon the highest and best possible use of the land. Lynch v. West Hartford, 167 Conn. 67, 73, 355 A.2d 41 (1974). In this case the parties and appraisers are in agreement that the highest and best use of the land is the one to which the property has been put by the appellant — adaptive use of historical structures for commercial purposes.
In determining fair market value the relevant date for valuation is the date of taking. St. John v. Commissioner of Transportation, 172 Conn. 234, 239, 374 A.2d 190 (1977); Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 139, 204 A.2d 833 (1964); Colaluca v. Ives, 150 Conn. 521, 531, 191 A.2d 340 (1963). The court is required to weigh all relevant factors in reaching a determination of fair market value. These include, for example, a strong possibility existing as of the date of taking, of enhanced values which would result from a successful application to re-zone the property. Budney v. Ives, 156 Conn. 83, 239 A.2d 482 (1968) or the availability of governmental funds to assist in the remediation of an environmentally contaminated site. Northeast CT. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 861 A.2d 473 (2004).
In Budney, supra, the court reasoned, that because a willing purchaser in an arms-length transaction would pay a premium for the property because of the likelihood of a successful re-zoning application, that premium should be included in the fair market value of the award of damages. 156 Conn. at 88. The court cited State v. Gorga, 26 N.J. 113, 117, 138 A.2d 833 (1958) with approval. "[T]he true issue is, not the value of the property for the use which would be permitted if a change in zone was made, but the value of the property as zoned at the time of the taking as it is affected by the probability of a change." 156 Conn. at 89. The court cautioned that: "Wishful thinking, optimistic conjecture, speculation, rumor and unfounded prognostications do not furnish a proper basis for a finding that a litigant has proved the reasonable probability of a future change in zone. Because of the uncertainties necessarily attending the determination of the probability of the happening of such an event in the future, claims and evidence regarding the probability must be scrutinized with care and examined with caution. Nevertheless, if such a reasonable probability is proved, it is a proper fact to be considered in the determination of the fair value of property taken by condemnation proceedings." 156 Conn. at 89-90.
In Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 298, 426 A.2d 280 (1979), the Court held that the trial court erred in basing valuation on the mere possibility that the property might have the potential to be converted to office use in eight years since such distant projections are speculative and unreliable.
In Greene v. Burns, 221 Conn. 736, 607 A.2d 402 (1992), the Supreme Court upheld a decision of the trial court valuing undeveloped industrial zoned property on the basis of its potential for development as residential property. The court determined that the trial court properly concluded on the basis of the evidence before it that industrial development of the property was unfeasible and the re-zoning of the property to permit residential development was likely.
In this line of cases, the appellant has called the court's particular attention to Mazzola v. Commission of Transportation, 175 Conn. 576, 402 A.2d 786 (1978). In that case the property was a mobile home park on which spaces for 131 mobile homes had been laid out. The property owner had obtained permits from the town of Windham for only 80 spaces. The court reversed a decision of the trial court awarding damages based on the existing number of spaces. The court held that the trial court's conclusion that the property owner could have likely obtained a waiver from the town allowing the 51 extra spaces to remain was not supported by the evidence. The court examined Windham's mobile home ordinance and determined that its waiver provisions were inadequate because they failed to set forth specific standards governing the granting of waivers. Under these circumstances the court found that any waiver which the property owner might have obtained would not have been upheld if challenged. The court found that the only way in which a legal waiver might have been obtained required the amendment of the mobile home ordinance to include standards for the granting of waivers. The court noted that an amendment to the ordinance would require action by the Windham Town Meeting and found that a valuation based on the mere possibility of such an amendment to the ordinance was "much too speculative to have any legitimate effect upon valuation." The court went on to find that the defective waiver provisions were not so integral to the ordinance to invalidate it. The court in Mazzola concluded that the uncertain legality of the excess mobile home spaces on the property was a factor which a willing buyer and a willing seller would consider in negotiating the value of the property. The court found that the trial court had improperly determined that the evidence supported the conclusion that there was a reasonable probability on the date of taking that the questionable legal status of the extra mobile home spaces would be resolved in favor of the property owner. 175 Conn. at 585-6.
The appellant claims that the denial of the front yard setback variance in 2002 rendered the continued use of Cannon House illegal and that the fair market value of the appellant's remaining property must be considered without regard to either the income stream generated by the rental of Cannon House or any values associated with that portion of Cannon House which is situated within fifty feet of the new property line. In reply the Commissioner urges that on the date of the taking, the Town of Wilton had a three-year period to begin enforcement action under General Statutes § 8-13a(a) and that the evidence shows that such enforcement action would be highly unlikely. In addition, the Commissioner claims that the evidence shows that it was reasonably probable that had the appellant applied for a variance of the front yard setback requirements of the zoning regulations, the Board of Appeals would have granted the variance, notwithstanding the denial of the same relief to the Commissioner eighteen months earlier. The Commissioner relies on Smith v. Zoning Board of Appeals, 174 Conn. 323, 326-29, 387 A.2d 542 (1978), in which the court reversed the trial court's decision overturning a variance of lot area requirements granted by the Board of Appeals after the area of the property was reduced by condemnation. The court held: "Surely there is a clear case of uncommon hardship beyond the control of a property owner when the state seeks to condemn a portion of his or her land and thereby render it non-conforming to a minimum lot area restriction. See 2 Rathkopf, Zoning and Planning (3d Ed.), p. 51-11. We conclude that exceptional difficulty or unusual hardship was implicit in the proposed taking which rendered the plaintiffs' property non-conforming and that no requirement of further proof of hardship devolved upon the state." 387 Conn. at 328.
"(a) When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a non-conforming building in relation to such boundaries or to the area of such lot, as the case may be."
In Heath v. Commissioner of Transportation, 175 Conn. 384, 398 A.2d 1192 (1978), the court upheld a trial court's determination to value property on the basis of industrial use even though it was zoned for residential use, when the evidence showed that property in the vicinity had been re-zoned for industrial use and the testimony supported the conclusion that there was a reasonable probability that of a zone change from residential to industrial. In Lynch v. West Hartford, 167 Conn. 67, 355 A.2d 42 (1974), the court upheld the trial court's decision to value property on an industrial basis in spite of its location in a residential zone. Although no zoning change had been applied for the court concluded that the trial court appropriately found that a zone change was reasonably probable, when the evidence showed current industrial use of the property for many years without objection and the town's plan of development had been amended to change the area in which the property was located from projected residential use to projected industrial use.
Accordingly, this court must determine the value of the appellant's remaining property on the date of taking based on the reasonable probabilities, including zoning, that existed as of that date and considering the effect that such reasonable probabilities would have on the determination of fair market value in the judgment of a prospective buyer of the property.
The appraisers called to testify by the parties were in substantial agreement as to the value of the appellants property prior to the taking. However, the appraisers differed greatly in their opinions regarding the value after taking. It should be noted that neither in his testimony nor in his written report, did Kerin actually offer a direct opinion as to the value of the property after taking. Instead Kerin determined various elements of "damages" (totaling $430,000) he claimed resulted from the taking. The deduction of these damages from the pre-taking price resulted in Kerin's after-taking fair market value of $430,000. Vimini reached use employed two different approaches to find after-taking values of $710,000 and $735,000 respectively. Finally, Benedict found the after taking value to be $1,470,000.
After examining the assumptions of the appraisers, the court is not persuaded that any of them accurately determined the post-taking fair market value of the property. Kerin's determination of the "damage" resulting from the taking of 5,237 sq. feet of land in the amount of $50,000 is supported by a reasoned approach to its value of excess land contributing to the development potential of the property. However, the court finds his assumption of increased operating expenses in the amount of $5,000 per year and the resulting loss in value of $58,820 to be unsupported. The court is also not persuaded that after the taking the rental income potential for the Cannon House will be reduced by fifteen percent resulting in a loss in value of $161,440.
In both his appraisals, Vimini concluded that the failure to obtain a front yard variance created such a substantial risk that the appellant would have to move, tear down or abandon all or substantial portions of Cannon House in order bring it into compliance with the fifty-foot front yard requirement, that he practically disregarded the value of that structure altogether. For the reasons discussed above, the court is not persuaded that such draconian action by local authorities is even possible, let alone probable. In sharp contrast to Vimini's opinion, Benedict found that the uncertainty regarding the front yard set-back was "not significant in valuing the appraised property." The court finds that the evidence does not support either Vimini's or Benedict's conclusions on this issue.
The appellant's evidence failed to show that there was a reasonable possibility that the Town of Wilton would initiate enforcement action with respect to the non-conforming front yard set-back. Even if such enforcement action were likely, the evidence does not show that it is reasonably probable that the appellant would be required to remove or cease using any portion of Cannon House. The evidence is clear, that prior to the taking, the front yard set-back was less that the required fifty feet. Under Section 29-4.F.4. of the Wilton Zoning Regulations this non-conformity was protected and allowed to continue subject to certain conditions. Those conditions include changes in the structure which extend or increase the non-conformity, moving the structure to a new location or a change in use. The conditions do not appear to include the event that occurred here — an increase in the non-conformity resulting from a taking of a portion of the property by condemnation. Under these circumstances the court finds it probable that if an enforcement action were brought by the Town of Wilton, the appellant could successfully defend that action.
Even if it were determined that the location of Cannon House following the taking were not a legal non-conformity, but rather a violation of the zoning regulations, the court must consider the likelihood that the owner of the property could obtain relief by way of a variance. In his post-trial brief the appellant claims that the minutes of the Board of Appeals "fail to provide any glimmer of hope that a variance could be obtained from this ZBA on the date of taking or at any time in the foreseeable future." The court disagrees. Although the Board of Appeals denied a front yard set-back variance, it did so upon a finding that no hardship existed. This finding is inconsistent and irreconcilable with the Board's finding a hardship had been created with respect to lot area by the taking of a portion of the property. The court credits the testimony of Wilton Town Planner, Robert Nerney, that in every other case in Wilton, where taking by the state for the widening of Route 7 resulted in a non-conforming front yard set-back, a variance had been granted. The minutes of the Board's meeting lead to the conclusion the front yard set-back variance was denied for two reasons. First, in the hope that the Commissioner would alter the layout of Route 7 and not take land for potential use as a turning lane onto Cannon Road. Second, due to the uncertainty as to whether, in view of his letter to the Board and his absence from the hearing, the appellant favored or opposed the granting of the variance.
Accordingly, the court concludes that even if the present front yard set-back were found to be illegally non-conforming, it is highly likely that a variance from the Board of Appeals could be obtained. Even if the variance were denied, there is a strong likelihood that an appeal from the denial to the Superior Court would be successful. Smith v. Board of Appeals, supra.
Although the court has determined that on the date of taking there was virtually no probability that the appellant's use of Cannon House would be affected by zoning enforcement action, it cannot accept Benedict's conclusion that the uncertainty concerning zoning is of no significance in determining the fair market value of the property. The court is required to value the property as of the date of taking. St. John v. Commissioner of Transportation, supra. On the date of taking, October 21, 2003, uncertainty existed as to whether the property was in complete compliance with the Wilton Zoning Regulations and as to the consequences if non-compliance was found to exist. This uncertainty could be expected to exist, to a greater or lesser degree until October 21, 2006 when the three-year period proscribed for enforcement action based on a structure's location had passed. The court finds that this uncertainty would have had a meaningful impact on the price a willing buyer would have paid for the property on the date of taking. The appellant urges and the court agrees that a willing buyer would have paid a lower price for the property based on the challenges he would face in obtaining financing in the face of zoning uncertainty. The court also agrees with the appellant's assertion that destruction of Cannon House by fire or other casualty prior to October 21, 2006 might give rise to doubts as to the ability of the owner to rebuild the structure and that these doubts might impact the price a buyer was willing to pay.
The court concludes that after the taking the property had a fair market value of $1,375,000 and that, based on the pre-taking fair market value of $1,600,000, the appellant suffered damages in the amount of $225,000. These damages include the impacts of the loss of area (and the reduction in the potential of the property to support additional improvements), loss of substantial portions of the front yard in the vicinity of Cannon House and the loss in value resulting from the uncertainty surrounding the zoning status of the property on the date of taking and the potential financing difficulties presented to potential purchasers until those uncertainties were resolved.
Since the damages awarded by the court exceed those of $112,000 assessed by the Commissioner, the appellant is entitled the compensation for his reasonable appraisal fees pursuant to General Statutes § 13a-76. The appellant presented evidence that his appraisal, Christopher Kerin charged appraisal fees totaling $6,600 for his professional service in connection with this action. The appellant also presented evidence of incurring title search fees in the amount of $1,100. The court finds Kerin's fees to be reasonable and they are allowed as costs under General Statutes § 13a-76. However, that statute does not provide for the allowance of title search fees as costs. Sorenson Transportation Co. v. State, 3 Conn.App. 329, 333, 488 A.2d 458 (1984). Accordingly, appellants claim for title search fees is denied. The court finds any additional fees incurred by the appellant for the appraisals made by Vimini would be excessive and therefore are not allowable as costs. Alemany v. Commissioner of Transportation, 215 Conn. 437, 449-50, 576 A.2d 503 (1990). Judgment may enter in favor of the appellant in accordance with this memorandum of decision.