Brothers, Inc. v. Ansonia Redevelopment Agency

• Decision Date: 05 March 1969
• Citation: 158 Conn. 37,255 A.2d 836
• Court: Connecticut Supreme Court
• Parties: BROTHERS, INC. v. ANSONIA REDEVELOPMENT AGENCY.

Page 836

255 A.2d 836

158 Conn. 37

BROTHERS, INC. v. ANSONIA REDEVELOPMENT AGENCY.

Supreme Court of Connecticut.

March 5, 1969.

Irwin E. Friedman, Bridgeport, with whom was Arthur Levy, Jr., Bridgeport, for appellant (plaintiff).

Joseph B. Buckley, Ansonia, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

ALCORN, Associate Justice.

The defendant in eminent domain proceedings took land and buildings belonging to the plaintiff in Ansonia for redevelopment and renewal purposes. See General Statutes § 8-128. As compensation for the taking the defendant determined and deposited with the clerk of the Superior Court the sum of $200,000. See General Statutes §§ 8-129, 8-130. The property consists of about 3.8 acres of land occupied by a complex of old industrial buildings and is bordered in part by the Naugatuck River and a railroad siding. The plaintiff applied to the Superior Court for a review of the amount fixed as compensation for the taking and the court referred the issue to a state referee for determination. After hearing the evidence offered by the parties and inspecting the property the referee filed his report, finding that the plaintiff had purchased the property in 1957 for about $150,000 and that the fair value at the time of the taking was $362,000, and he reassessed the damages at $362,000. In his memorandum of decision accompanying the report the referee described the buildings on the land as very old factory buildings used mainly for the storage of junk, and he stated that the property was well suited for that use. He stated further that, because of this, the plaintiff had claimed that the property 'was for a special purpose' and that, in determining the value of special purpose property, the reproduction less depreciation approach should govern. The referee then stated that, if he was required, as a matter of law, to adopt such an approach, he would find the value of the property to be $445,000. He added, however, that he did not accept this claim of the plaintiff but had relied on an income approach in valuing one parcel at $136,000 and a second parcel at $100,000. The value placed on the buildings thus appears to have been $126,000.

Pursuant to § 358 of the Practice Book, the plaintiff moved to correct the referee's report to recite a value of $204,000 and $100,000, respectively, on the two parcels of land and $489,017 on the buildings, and it requested that the total damages be reassessed at $793,017. It also requested the referee to find that when the property was purchased for $150,000 the owner had valued it at $450,000 to $500,000, had carried $450,000 in fire insurance on the buildings, and had sold the property at a distress price in order to be relieved of substantial maintenance and carrying charges. Finally, the motion sought a correction in the report to reflect the fact that the property was devoted to a 'special use' and that the plaintiff made no claim that it was a 'special purpose' property.

The referee denied the motion in all respects except to add to his finding the statement that in 1957 Ansonia was considered a distress area and prices were depressed. In the memorandum denying the motion to correct the referee stated that the requested changes in valuation were based on hearsay evidence and testimony which he was unable to accept and that '(m)y conclusion of $362,000 was made because I did not accept the low figure of the purchase price, but was reached as the fair market value of the subject property at the time of condemnation, having in mind the use to which it was put.'

The plaintiff filed exceptions to the referee's report alleging error in the denial of the changes sought in the motion to correct. Practice Book § 359. Following a hearing, the court overruled the exceptions and accepted the report of the referee as corrected. The court found the amount due the plaintiff as compensation for the taking to be $362,000 as determined by the referee and adjudged that the defendant pay the plaintiff the sum of $162,000, that being the difference between the compensation as finally determined and the $200,000 originally deposited with the clerk, with interest and costs.

The plaintiff has appealed from the judgment, and the single assignment of error is that the court erred in failing to sustain the plaintiff's exceptions to the referee's report. The first of those exceptions asserted that the referee erred in refusing to reassess the damages at $793,017 and in refusing to correct his conclusion to reflect that the property was devoted to a 'special use' since the plaintiff made no claim that it was a 'special purpose' property. The second exception asserted that the referee erred in refusing to add to his finding the claimed facts relating to the value of and the claimed reasons for the sale of the property for $150,000 in 1957.

The second exception is without merit. The referee had found that the plaintiff purchased the property in 1957 for $150,000. The plaintiff would have him add to that finding the fact that when this purchase was made the previous owner had valued the property at $450,000 to $500,000, that the fire insurance on the buildings alone was $405,000, and that the property had been sold at a distressed price to avoid maintenance and carrying expenses. The referee denied this correction because he found the evidence as to these claimed facts to be based on testimony and hearsay evidence which he did not accept as worthy of credit, and he further stated that he did not accept the low figure of the purchase price in reaching his conclusion as to the fair market value of the property at the time of condemnation. It was within the province of the referee to determine the credence to be given to the testimony before him. Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693.

The plaintiff's principal argument concerns the first exception to the report and in particular the meaning and significance of the terms 'special purpose' and 'special use' in arriving at a correct valuation of the condemned property. The argument, in brief, is that the plaintiff was conducting a large and profitable junk business on the property in a desirable location near manufacturing concerns which were likely customers; that the business was of a type unacceptable in most areas; that there was no other site available for it in the immediate vicinity; and that the use being made of the property under these circumstances served to place it in the category of a special use.

We accord little weight to the plaintiff's quarrel with the referee as to whether the property should be called a 'special use' or a 'special purpose' property. Such an excursion into semantics leads nowhere. The problem which has sometimes arisen in eminent domain proceedings of valuing property which is specially designed or limited in usefulness so that it does not have a readily ascertainable market...