Gebrian v. Bristol Redevelopment Agency

• Decision Date: 14 September 1976
• Citation: 171 Conn. 565,370 A.2d 1055
• Court: Connecticut Supreme Court
• Parties: John P. GEBRIAN et al. v. BRISTOL REDEVELOPMENT AGENCY.

Page 1055

370 A.2d 1055

171 Conn. 565

John P. GEBRIAN et al. v. BRISTOL REDEVELOPMENT AGENCY.

Supreme Court of Connecticut.

Sept. 14, 1976.

L. Paul Sullivan, Hartford, for appellants (plaintiffs).

Robert C. Danaher, Hartford, with whom were J. Jeffrey Almquist and Robert A. Wood, Hartford, for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ. LOISELLE, Associate Justice.

The defendant in eminent domain proceedings, on May 25, 1973, took land and buildings belonging to the plaintiffs in Bristol for redevelopment purposes and assessed damages of $73,500 for the taking. An appeal from the assessment of damages was taken by the plaintiffs and the matter was referred to a referee for hearing. The referee, exercising the powers of the Superior Court, found the fair market value of the premises to be $94,800. The plaintiffs have appealed from this judgment.

Although attacked by the plaintiffs, the following facts found by the referee, hereinafter referred to as the court, cannot be disturbed: Prior to May 25, 1973, the day of taking, the plaintiffs, who are brother and sister, owned an irregularly shaped parcel of land with buildings thereon fronting on Middle Street in Bristol. The property had originally been a part of a farm of about seventeen acres owned by the plaintiffs' parents. The plaintiff John P. Gebrian lived on the property from his birth on August 25, 1933, until the date of taking. The plaintiff Julia Gebrian lives in Ohio. An older brother, Michael, lived on the property until 1964, except during the war years. The plaintiffs' father farmed the seventeen-acre farm until early 1950, maintaining work horses and cows and growing fruit and vegetables. In about 1936, the father first deposited junk on the farm and added to it thereafter. John and Michael, at about he age of thirteen, began collecting small items of junk as a source of spending money. John gradually expanded his activities by bringing to the farm larger articles such as bathtubs and old farm equipment, which he stored in piles on the farm. Michael had collected five automobiles by 1943, when he left for the Navy, but his father dismantled them, and only parts remained when he returned in 1946. Michael then began repairing and rebuilding storage batteries, and picked up and deposited various items of scrap or junk on the farm in connection with this business.

John graduated from high school in 1952, worked for an undisclosed period at Stanley Works and later, for a time, for his brother Michael in the battery business, and continued his scavenging for junk, which he deposited on the farm. John wan an old-car enthusiast, and collected ten model A Ford cars. Beginning in 1952, he collected a number of inoperable motor vehicles and stored them on the farm. In 1955 he applied for permission to conduct an automobile junk yard on the farm, but withdrew the application. Michael obtained four annual junk dealer's licenses convering the years 1950 to 1952 and 1955 to 1957. John obtained annual junk dealer's licenses for the years 1957 up to the time of taking. The licenses were issued by the police on the basis of the suitability of the persons to whom they were issued. John did not sell any of the junk the collected.

On May 8, 1961, John and his sister Julia became owners of the seventeen-acre farm. In 1969, they sold about 8.38 acres of the land at the rear of the farm to an abutter for $50,500 or about $6026 per acre. Some of the junk which had been collected over the years was piled on the portion of the farm which was sold. The sale was a fair, arm's-length transaction. The 8.62 acres of the seventeen-acre farm remaining after the sale is the property in issue which was condemned by the defendant. The court inspected the premises with counsel. It has a two-story frame dwelling built around 1930, a two-story frame barn, a shed with a dirt floor used as a garage, a lean-to structure and two small sheds. The house is located 275 feet from the street and the area of about one and one-half acres in front of the dwelling was never used for the storage of junk. The land to the rear of the house is rough terrain with depressed areas, in part roughly cleared and elsewhere covered by trees and brush. It was on the land now in issue to the rear of the house that a garden had been maintained and on which, as well as on the land sold in 1969, and in the outbuildings, that junk had been piled and stored. The neigborhood is made up of vacant land, old residences, industrial and commercial uses and some newer industrial buildings.

From 1931, when the city of Bristol adopted its first zoning ordinance, until the time of taking, the farm was in a zone where a junk yard was not a permitted use, save for the period from 1949 to 1959, when a junk yard, but not an automobile junk yard, was a permitted use. At the time of the taking the property was in an industrial zone.

Five appriasers testified before the court as to the value of the premises. Three of these were employed by the plaintiffs although only two were called as witnesses by the plaintiffs. These two appraisers valued the property as a special purpose property, that of a junk or scrap metal yard, and valued the land on a square-foot basis. One appraisal amounted to $743,800 and the other to $727,700. The third appraiser employed by the plaintiff and called as a witness by the defendant and the other two appraisers employed by the defendant all considered the highest and best use of the property to be for industrial purposes and valued the premises as such on an acreage basis. Their appraisals were $152,400, $77,600 and $81,900 respectively.

The court concluded that the property had a market value at the time of taking, that there was no private or special use which the property in issue had for the plaintiffs which should be included as a significant element of value, that the highest and best use of the property at the time of taking was for industrial purposes as permitted by the applicable zoning ordinance, and that the land had a value of $11,000 an acre totaling $94,800.

The plaintiffs have made an extensive attack upon the finding, requesting that seventy-five paragraphs of their draft finding be added to the finding, that numerous paragraphs of the finding be deleted and that fifty-seven conclusions be substituted for the six made by the court. The sheer scope of the plaintiffs' challenges to the finding precludes any detailed discussion of them. As to the facts that the plaintiffs assert ought to have been found which they claim were admitted or undisputed, several were not briefed and are treated as abandoned. Hall v. Weston, 167 Conn. 49, 51, 355 A.2d 79; Mahon v. Heim, 165 Conn. 251, 252, 332 A.2d 69. Some requested additions either are implied in the finding, immaterial, not admitted or undisputed, or are merely cumulated details which would not directly affect the ultimate facts upon which the judgment depends. Salvatore v. Milicki, 163 Conn. 275, 277, 303 A.2d 734. The plaintiffs' claims that facts were found without evidence are not supported by the record. The claims that facts were found in a manner such as to cause doubt as to their significance are also without merit; findings may be corrected on that basis only when their meaning is unclear, not merely because they are unnecessary to the decision. Those facts which are undisputed and admitted have been added to the finding.

The main thrust of the plaintiffs' appeal is that the trial court erred in not finding that the premises enjoyed a valid nonconforming use as a junk yard, which enhanced their value. The usual measure of compensation in condemnation is fair market value, defined as 'the price that would probably result from fair negotiations between a willing seller and a willing buyer.' Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 410, 270 A.2d 549, 551. The value placed on the land by the court is a matter of fact and cannot be changed on appeal unless it is clear that the court failed to weigh an element of value which properly should have been considered. Birnbaum v. Ives, 163 Conn. 12, 301 A.2d 262; Edwin Moss & Sons, Inc. v. Argraves, 148 Conn. 734, 173 A.2d 505.

The finding has incorporated the history of the zoning regulations from their initial enactment in 1931, and their amendments, to the time of the taking. The plaintiffs' premises were within a residential zone where no junk yards were permitted from 1931 to 1949. In 1949, the zoning regulations were changed so that plaintiffs' premises were rezoned to an industrial use that permitted junk yards. On July 3, 1957, an amendment to the zoning ordinance prohibited junk yards in all zones in Bristol. Unquestionably between 1949 and 1957 the plaintiffs' premises could have legally been used as a junk storage yard.

No definition of a junk yard was included in the Bristol zoning regulations until 1968, long after junk yards were prohibited in all zones, when it was defined as '(m)ore than 50 square feet of space used for the accumulation of storage of waste, or discarded or used materials of any kind.' In 1953, the General Statutes first defined a junk yard, in its chapter regulating junk dealers, as 'any place in or on which old metal, glass, paper, cordage...