Gentile v. Ives

• Decision Date: 05 June 1970
• Citation: 270 A.2d 680,159 Conn. 443
• Court: Connecticut Supreme Court
• Parties: Mae GENTILE et al. v. Howard S. IVES, Highway Commissioner.

Page 680

270 A.2d 680

159 Conn. 443

Mae GENTILE et al. v.Howard S. IVES, HighwayCommissioner.

Supreme Court of Connecticut.

June 5, 1970.

Abraham D. Slavitt, Norwalk, and Benson A. Snaider, New Haven, with whom, on the brief, was Robert A. Slavitt, Norwalk, for appellants(plaintiffs).

William A. McQueeney, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for appellee(defendant).

Before ALCORN, C.J., and HOUSE, THIM, PYAN and SHAPIRO, JJ.

RYAN, Associate Justice.

The plaintiffs have appealed from a judgment, rendered by a referee exercising the powers of the Superior Court, reassessing the damages sustained by the plaintiffs in the taking by the defendant of a portion of their property for highway purposes.

The plaintiffs assign error in the failure of the referee to find certain facts and in the finding of other facts without evidence.'These assignments of error have not been pursued in their brief and are, therefore, treated as abandoned.'Martin v. Kavanewsky, 157 Conn. 514, 516, 255 A.2d 619.

The following facts were found by the referee: On June 8, 1968, the defendant highway commissioner, pursuant to statute, filed a certificate of condemnation with the clerk of the Superior Court in Fairfield County and deposited the sum of $9000 to conpensate the plaintiffs for the taking of 6160 square feet of land on Carson Avenue in the town of Bridgeport.The property is located in a light industrial zone not served by sanitary sewers, and the land in the general neighborhood is used chiefly for industrial and business purposes, with some residential use.The property is surrounded on the south and west by a cement block plant, and to the east by a construction company; diagonally across the street is a building supply material storehouse.The property contains a dilapidated shed and a small nondescript house which has always been used as a residence.Neither of these buildings adds any value to the land, and a plaintiffs' appraiser deducted $1200 from his land valuation for the expense of demolition.Although the Bridgeport zoning regulations permit any use permitted in a business zone, the limited area of the property restricts its adaptability for use in light industry because of the frontand rear-yard setbacks and off-street loading space requirements of the zoning laws.The plaintiffs offered two real estate appraisers who testified as to the value of the property and submitted the appraisal reports upon which they based their opinions.One of these witnesses valued the property at $20,700 and the other at $19,900.The plaintiffs also used as a witness Robert H. Wynn, who appraised the property for the defendant but was not called as a witness by him.Wynn valued the property at $15, 500 and later updated his deport and increased the value of the property to $19,700.All three of these appraisers predicated their valuations on the use of the property for light industry.The defendant relied on one appraiser, William H. Ball, who valued the property at $9000 for residential use and later increased his valuation to $10,000.In arriving at their conclusions as to value, all three appraisers called by the plaintiffs as witnesses used sales which they considered comparable.Similarly zoned land located nearby on Sylvan Avenue, near North Avenue (a heavily traveled road also known as route 1), was valued by two of the witnesses at $4 a square foot and by one of them at $3.38.The subject property, located almost a full block west of Sylvan Avenue and one block north of North Avenue, is on Carson Street, which carries a moderate amount of traffic.A spur railroad track crosses Carson Street just west of Colonial Avenue at grade, causing a hump in the road.The referee was familiar with all the sites and viewed them as well as the subject property for the purpose of comparison.

The referee concluded that only the properties on Sylvan Avenue and on Island Brook Avenue were comparable, and in comparing those with the subject property, he considered the time and nature of the sales, the topography, the size of the subject lot and the limited appeal it would have to a buyer on the open market (other than the owner of the adjoining cement block plant).The referee concluded that the highest and best use of the plaintiffs' property on June 8, 1968, the date of the taking, was for light industrial purposes, and the state's assessment of damages based upon residential use of the property was contrary to reality as well as zoning; that since it was surrounded on three sider by industrial property, the land can be valued only for light industrial use, and because of its limited area, the desirability of the property for a single industry is debatable, a fact which would be reflected in its marketability; and that the value as of the date of taking was $13,860, computed at $2.25 a square foot.

The plaintiffs assign error in the referee's refusal to permit them to introduce evidence for the purpose of establishing that the defendant acted contrary to law and the policies and procedures fixed by directives under the Federal-Aid Highway Act, 23 U.S.C. §§ 101-141.There is nothing in the record to indicate that the highway project in question, known as the 'Relocation of Routes 25 and 8, Bridgeport-Trumbull Road,' was part of the Federal-Aid Highway system.It is, therefore, unnecessary to discuss the federal statute and regulations referred to by the plaintiffs.

The plaintiffs also assign error in the refusal of the referee to admit evidence concerning the administrative procedure in the office of the defendant leading to the determination of the assessment of benefits and damages by him.'(S)uch an assessment 'constitutes but a formal offer to the landowner, which he may or may not accept, as a step toward payment by the State if he does accept and to the institution of proceedings in court if he does not,' inadequacy in the amount of which affords no ground for interference by the court(Munson v. MacDonald, 113 Conn. 651, 657, 155 A. 910) * * *.'Stock v. Cox, 125 Conn. 405, 418, 6 A.2d 346.'Under article first, § 11, of the Connecticut constitution, no property shall be taken for a public use without just compensation.This means a fair equivalent in money for the property taken from the condemnee as nearly as its nature will permit.Ordinarily, although not necessarily, this is the market value of the property taken.But the question of what is just compensation is an equitable one 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.Winchester v. Cox, 129 Conn. 106, 114, 26 A.2d 592;Nicholson v. Weaver,194 F.2d 804, 807(9th Cir.).'Colaluca v. Ives, 150 Conn. 521, 530, 191 A.2d 340.In the event the landowner believes that the amount of the assessment is too low, he is not bound to accept it.The issue before the referee was the fair value of the subject property.The referee correctly concluded that evidence relating to the administrative procedure by means of which the commissioner's assessment was arrived at was irrelevant.

The plaintiffs also sought to introduce evidence to establish the 'registered value' of the property as determined by a review board.The plaintiffs claim that this constituted an admission of the value of the property by the defendant.The conclusion of a review board is not that of the defendant and cannot under any circumstances be regarded as an admission by him.Since the issue before the referee was the fair value of the subject property, any...