Commissioner of Transportation v. Danbury Road Assoc., No. FST CV 02 0192695 S (CT 3/3/2006)
| Decision Date | 03 March 2006 |
| Docket Number | No. FST CV 02 0192695 S,FST CV 02 0192695 S |
| Court | Connecticut Supreme Court |
| Parties | Commissioner of Transportation v. Danbury Road Associates Opinion No.: 92534 |
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.1
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).
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).
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).
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).
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