Commissioner of Transportation v. Paul, No. CV 03 0197624 S (CT 2/3/2006), CV 03 0197624 S

CourtSupreme Court of Connecticut
Decision Date03 February 2006
Docket NumberNo. CV 03 0197624 S,CV 03 0197624 S
PartiesCommissioner of Transportation State of Connecticut v. John D. Paul et al. Opinion No.: 92151


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-76,1 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.

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.2 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:

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 §8-8.3 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 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 MAI4 and CCIM 5 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.

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...

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