Commissioner of Transportation v. Towpath Associates

• Decision Date: 27 March 2001
• Parties: COMMISSIONER OF TRANSPORTATION v. TOWPATH ASSOCIATES COMMISSIONER OF TRANSPORTATION v. JOSEPH F. WILUSZ ET AL.
• Court: Connecticut Supreme Court

255 Conn. 529

767 A.2d 1169

COMMISSIONER OF TRANSPORTATION v. TOWPATH ASSOCIATES

COMMISSIONER OF TRANSPORTATION v. JOSEPH F. WILUSZ ET AL.

(SC 16307), (SC 16306)

Supreme Court of Connecticut.

Argued November 2, 2000.

Officially released March 27, 2001.

Borden, Katz, Palmer, Sullivan and Vertefeuille, JS.¹ Anthony Jannotta, assistant attorney general, with whom were Robert T. Morrin, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellant (plaintiff).

Robert B. Basine, for the appellees (defendants).

Opinion

KATZ, J.

In these consolidated appeals, the plaintiff, the commissioner of the department of transportation (department), challenges the judgments of the judge trial referee (trial court) reassessing condemnation awards to the defendant Towpath Associates (Towpath) and the defendants Joseph F. Wilusz and Carol C. Wilusz (Wilusz),² respectively, in connection with the taking of the defendants' properties by eminent domain. The department contends that the trial court improperly assessed two stone bridge abutments, awarding damages as just compensation based on the value of the property to the state, rather than assessing their value in the ordinary market. We reverse the judgments of the trial court and remand the cases for a new trial.

The following facts reasonably were found by the trial court. The properties at issue lie on opposite sides of the Nepaug River in the town of Canton. The property line runs from west to east down the center of the river. On each bank there exists an abandoned stone bridge abutment and railroad track bed. The Towpath property is located on the south side of the river; the Wilusz property is on the north side. Although the railroad tracks and the bridge, which once had spanned the river connecting the properties, had been removed, the bridge abutments maintained an estimated useful life of 100 years. Neither property contains any other improvements.

The two parcels are located in a designated flood plain district and are zoned to permit single-family dwellings on one-half acre lots. The trial court recognized that, although the size of the condemned parcels precluded any development under the zoning regulations applicable to the flood plain, a special exception existed concerning the construction of bridges thereon.

On April 9, 1998, the department issued separate notices of condemnation and assessments of damages to Towpath and Wilusz under General Statutes § 13a-73 (b).³ Both notices stated that the properties were "necessary for the layout, alteration, extension, widening, change of grade and improvement of the highway commonly known as ... Powder Mill Road." The department's taking consisted of 17,160 square feet of land, including the railroad track bed and one of the bridge abutments, on the Towpath side of the river.⁴ The Wilusz property contained the other bridge abutment and track bed, and amounted to 27,340 square feet.⁵ The department had planned to utilize the bridge abutments, which were in close proximity to the existing roadway, to realign Powder Mill Road. The bridge on that road had been neglected, and the trial court noted that it was "unsafe for vehicular use, and dangerous for pedestrians. It [had] deteriorated to the extent [that] it [was] impassible. Open holes exist[ed] in its pavement...."

The department assessed damages to the Towpath and Wilusz properties in the amount of $1175 and $1575, respectively, and, in accordance with General Statutes §§ 13a-73 (b) and 48-11,⁶ the department deposited those amounts with the clerk of the Superior Court and notified the defendants of the taking. Towpath and Wilusz challenged the assessments by filing further pleadings in the trial court. The cases were referred separately to a judge trial referee. See General Statutes §§ 13a-76,⁷ 48-10⁸ and 52-434 (a) (1);⁹ Practice Book § 19-3.¹⁰

The cases were heard separately, but one immediately followed the other. In both cases, the department moved in limine to exclude evidence concerning the value of the bridge abutments. The trial court denied those motions.

In each case, the trial court heard testimony from the defendants' real estate appraiser, Peter R. Marsele, and from the department's appraiser, Cynthia L. Bess. In addition, the defendants in both cases provided testimony from a structural engineer, James A. Thompson, concerning the replacement cost of the abutments. Thompson estimated the cost of constructing new bridge abutments on the taken property that would accommodate a bridge like the one proposed by the department.

Marsele compared the value of the Towpath property as a six acre parcel prior to the taking with its postcondemnation value, notwithstanding the fact that Towpath owned only that portion of the property that the department had condemned. See footnote 3 of this opinion. Marsele testified that, in his opinion, the highest and best use of the property was that proposed by the state, to bridge the river, or a similar use connecting the bridge abutments. Although he could not conduct a comparable sales analysis of similar properties with bridge abutments thereon, Marsele compared vacant flood land values and estimated the value of the Towpath property, without the abutment, to be $7200 for the six acre plot. Relying on the report of the structural engineer, Marsele then estimated that the replacement cost of the bridge abutment amounted to $91,300. Thus, in Marsele's opinion, the estimated total property value of the six acres prior to condemnation was $98,500.

Because the Towpath property actually taken by the department was only 17,160 square feet, Marsele estimated the land remaining after the taking to be 5.6061 acres. Applying the same estimates for vacant flood property values to the remaining land resulted in an estimated value of $6700. Marsele obtained his total damage estimate to Towpath as a result of the taking by comparing the before taking estimated value of $98,500 with the estimated value of the land remaining without the abutment of $6700. In essence, Marsele took his estimated value of the six acre property of $98,500 and from that deducted $6700, the estimated value of the 5.6 acres not taken by the department, resulting in an estimated loss to Towpath of $91,800.

Marsele offered similar estimates in the Wilusz case. He testified that the highest and best use of the property was the same as that of the Towpath property, that is, its use as a bridge site connecting the abutments. Marsele estimated that, prior to the taking, the 2.058 acre parcel of vacant land, without the abutment, had been worth $2500. In addition, he estimated the replacement cost of the abutment to be $91,300, for a total precondemnation value of $93,800. The Wilusz property taken was 27,340 square feet, which, according to Marsele, left an estimated land area of 1.43 acres. Marsele estimated the remaining value of that 1.43 acres to be $1700. Subtracting that from the estimated value of the 2.058 acres and the bridge abutment prior to the taking led Marsele to conclude that Wilusz suffered damages in the amount of $92,100.

Bess, the department's appraiser, testified as well, although in the trial court's view, her analysis regarding the two properties "lacked comprehension" principally because the bridge abutments "were of no consequence in her findings of damage." In Bess' opinion, the zoning restrictions concerning the flood plain property precluded any development and, because the land was vacant, the highest and best use of each of the properties was its "continued present use as vacant/flood zone land."

Bess used a comparable sales analysis to estimate the value of the land and determined that the Towpath property before the taking was O.51 acres, valued at $1350. After the taking, Bess estimated that O.12 acres remained and that its approximate value was $360. She concluded that Towpath suffered damages in the amount of approximately $1175. Similarly, with respect to the Wilusz property, Bess determined that, before the taking, an 8.03 acre plot was worth $20,075. After the taking of O.63 acres, she estimated the remaining value of 7.4 acres to be $18,500. Thus, Bess estimated that the total damages suffered by Wilusz amounted to $1575.

Following the separate hearings, the trial court issued a joint memorandum of decision. The trial court found that "the highest and best use of the subject properties is their use in the manner proposed by the takings for the relocation and realignment of Powder Mill Road and the replacement of its unsafe and abandoned bridge, or a similar use bridging the Nepaug River, utilizing the existing abutments on its banks, and building a roadway for transportation or recreational purposes over and incorporating the abandoned railroad track bed existing on the properties." The trial court further found that the properties maintained "special adaptability" for such a use. After considering the fact that the abutments constituted "structures that have become a part of the real estate" and that the value of the property must be considered as a whole, "rather than being valued separately in a summation approach," the trial court assessed further damages to Towpath in the amount of $21,125 for a total condemnation award of $22,300. Similarly, the trial court assessed additional damages to Wilusz in the amount of $22,525, for a total condemnation award of $24,100.

Thereafter, the department filed separate appeals in each case in the Appellate Court. Towpath and Wilusz filed cross appeals, and the Appellate Court, sua sponte, consolidated the cases. Both Towpath and Wilusz withdrew their cross appeals and we subsequently transferred the consolidated appeals to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the department maintains that the trial court improperly valued the bridge abutments and failed to apply the...