Commissioner of Transportation v. Candlewood Valley Country Club, Inc., No. CV04-0093451 S (CT 12/1/2005)
| Decision Date | 01 December 2005 |
| Docket Number | No. CV04-0093451 S,CV04-0093451 S |
| Parties | Commissioner of Transportation v. Candlewood Valley Country Club, Inc. Opinion No.: 91191 |
| Court | Connecticut Supreme Court |
On June 23, 2004, the Commissioner of Transportation, hereafter "Commissioner," acting under the authority of §13a-73(b) of the General Statutes, filed a notice of condemnation acquiring a fee simple interest in and to a strip of land from the Candlewood Valley Country Club ("Candlewood") along the frontage of the subject property containing 38,880± square feet for the improvement of the highway known as Route 7 in New Milford and assessed damages at $106,000.1
The subject matter of the take maybe described as follows: "Said premises are situated in the Town of New Milford, County of Litchfield and State of Connecticut, on the easterly side of Present Danbury Road, U.S. Route 7, containing a total area of 38,880 square feet, more or less, bounded and described as follows and shown on the map entitled: TOWN OF NEW MILFORD MAP SHOWING LAND ACQUIRED FROM CANDLEWOOD VALLEY COUNTRY CLUB, INC. BY STATE OF CONNECTICUT DEPARTMENT OF TRANSPORTATION CONSTRUCTION OF ADDITIONAL LANES ON U.S. ROUTE 7 NOVEMBER 2002 ARTHUR W. GRUHN, P.E.-TRANSPORTATION CHIEF ENGINEER BUREAU OF ENGINEERING AND HIGHWAY OPERATIONS, and bounded:
Parcel No. 1—containing 3,217 square feet, more or less, and bounded:
WESTERLY — by Present Danbury Road, U.S. Route 7, 303.7 feet;
NORTHERLY by land now or formerly of Berkshire Group, Inc., 11 feet, more or less;
EASTERLY — by remaining land of Candlewood Valley Country Club, Inc., a total distance of 303 feet more or less, by a line designated "Taking Line," as shown on Sheet 1 of 2 of said map;
SOUTHERLY — by land now or formerly of Present Danbury Road, U.S. Route 7, 9.7 feet.
Parcel No. 2—containing 35,663 square feet, more or less, and bounded:
WESTERLY — by Present Danbury Road, U.S. Route 7, a total distance of 1,767.69 feet, more or less;
NORTHERLY running to a point;
EASTERLY — by remaining land of Candlewood Valley Country Club, Inc., a total distance of 1,768 feet, more or less, by a line designated "Taking Line," as shown on Sheets 1 and 2 of 2 of said map;
SOUTHERLY — by land now or formerly of Berkshire Group, Inc., 14 feet, more or less.
Said premises are taken together with the following full and perpetual easements, and a right under, over and across portions of remaining and other land of Candlewood Valley Country Club, Inc., as more particularly shown on said map:
1. A drainage right-of-way easement within an area containing 5,356 square feet, more or less, located between and opposite approximate Stations 6+430 and 6+485 right Baseline, Present Danbury Road, U.S. Route 7, as shown on Sheet 2 of 2 of said map.
2. An easement to slope for the support of the highway, within an area containing 3,050 square feet, more or less, located between and opposite approximate Stations 6±140 and 6+240 right Baseline, Present Danbury Road, U.S. Route 7, as shown on Sheet 2 of 2 of said map.
3. A defined traffic easement to install and maintain traffic appurtenances, within an area of 1,323 square feet, more or less, located between and opposite Station 6+033 and approximate Station 6+053 right Baseline, Present Danbury Road, U.S. Route 7, as shown on Sheet 1 of 2 of said map.
4. The right to enter portions of land of Candlewood Valley Country Club, Inc., for the purpose of grading, installing a sedimentation control system, grading and constructing driveways, and installing bituminous concrete lip curbing, all as shown on Sheets 1 and 2 of 2 of said map. Said right of entry shall terminate automatically upon completion of said work unless sooner released by the State.
The above-described premises are taken subject to such rights and easements as appear of record."
To embellish and perhaps clarify, the taking consists of two parcels. Parcel No. 1 contained 3,217 sq. ft. in fee simple, 2,212 sq. ft. of grading rights and 282 lineal feet to install sedimentation fencing. Parcel No. 2 consisted of 35,663 sq. ft. in fee simple, along with 5,356 sq. ft. of drainage rights, 3,050 sq. ft. of slope easements, 12,098 sq. ft. of rights to grade and construct driveways, 981 lineal feet to install sedimentation fencing and 158 lineal feet to install bituminous curbing. The Commissioner also acquired a defined traffic easement of 1,323 sq. ft. to install traffic control devices. The total taking area is 38,880 sq. ft. in fee simple and 9,729 of encumbered land. The temporary rights consist of 14,310 sq. ft. and 1,421 lineal feet.
The defendant in this appeal claims to be aggrieved by the award as assessed by the state, and seeks an award in the amount of the difference between the Commissioner's value and the defendant's own value. "Aggrievement is established if 'there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.' "State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 300 (1987). Being an owner of property establishes that said owner has "a specific personal and legal interest in the subject mailer of the decision." Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 530 (1987); see Bossert Corporation v. City of Norwalk, 157 Conn. 279, 285 (1968). There can be no serious dispute over the fact that Candlewood as the owner thereof is indeed aggrieved by the actions of the Commissioner and has standing to pursue this appeal.
The Commissioner's appraiser initially valued the property at $106,000 and subsequently increased it to $109,000. He updated that amount at trial to address the inclusion in part of the cost of a new septic system of $6,354.70. The property owner's appraiser assessed damages at $390,200 ($356,000 permanent and $ 34,200 temporary) and the owner's appraiser again updated his amount at trial to include additional amounts for temporary damages based upon the loss of business. Justification for the take is found in the Fifth Amendment of the U.S. Constitution as made applicable to the states through the Fourteenth Amendment, and Article 1st §11 of the Connecticut Constitution similarly provides that: "The property of no person shall be taken for public use, without just compensation therefor." The Constitutional principle was well reflected throughout the General Statutes in our case law which is why just compensation is an equitable question 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. Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 828-29 (2001). In order to arrive at the amount that constitutes just compensation, we determine the market value of the condemned property when put to its highest and best use at the time of the 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." Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, supra 829-30. "The highest and best use concept chiefly employed as a starting point in estimating the value of real estate by appraisers, has to do with the use which will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate." State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 101 (1968). Highest and best use has been best defined as "that reasonably probable and legal use of vacant land or an improved property which is physically possible, appropriately supported, financially feasible, and that results in the highest value." Peter Rock Associates v. North Haven, 46 Conn.Sup. 458, 476 (2000); South Farms Assoc., Ltd. Partnership v. Burns, 35 Conn.App. 9 (1994); see 7 P. Nichols on Eminent Domain §4.04[4][4](a), pp. 457-59. The Commissioner's appraiser offers a conclusion that if the property is vacant it would be best used as a commercial use. If it is improved, he offers the conclusion that the highest and best use is considered to be its present office use. It does not appear that the owner seriously disputes that conclusion. The court is satisfied that the highest and best use of the property is its present use and the presentation by the appraisers is not truly affected by that finding. Peter Rock Associates v. North Haven, 46 Conn.Sup. 458, 470 (2000).
If the taking as here is a partial taking, the usual measure of damages is the difference between the market value of the whole tract with its improvements before the taking and the market value of what remained of it thereafter. Gontarz v. Berlin, 154 Conn. 695-97 (1967); Morgan v. Hill, 139 Conn. 159-61 (1952); Meriden v. Ives, 165 Conn. 768, 773 (1974); Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 414 (1970). To reiterate, the 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 (1974); Tolland Enterprises v. Commissioner of Transportation, 36 Conn.App. 49, 58 (1994).
Severance damages to the parcel remaining after the taking are included. The concept of severance damages is the compensation for the diminution of the fair market value of the remainder of the owner's property which is both unique to that...
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