Laurel, Inc. v. Commissioner of Transp.
| Decision Date | 04 March 1980 |
| Citation | 180 Conn. 11,428 A.2d 789 |
| Court | Connecticut Supreme Court |
| Parties | LAUREL, INC. v. COMMISSIONER OF TRANSPORTATION of the State of Connecticut. |
Robert Y. Pelgrift, Asst. Atty. Gen., with whom were Victor Feingold, Asst. Atty. Gen., and, on the brief, Carl R. Ajello, Atty. Gen., for the appellant-appellee (defendant).
Daniel Shepro, Bridgeport, with whom were Allan J. Rosen and Philip Baroff, Bridgeport, for the appellee-appellant (plaintiff).
Before LOISELLE, BOGDANSKI, PETERS, PARSKEY and WRIGHT, JJ.
This is the court's third opinion in a course of protracted litigation which began when the defendant commissioner took 0.38 of an acre of land from the plaintiff on January 23, 1974. The plaintiff appealed from the commissioner's $41,200 assessment of damages, alleging a constitutional taking of the remainder of its property, about 9.3 acres, and sought damages for that as well. The Superior Court awarded damages for inverse condemnation under General Statutes § 48-17b and ordered the defendants to amend the certificate of taking and assessment of damages and to take all of the plaintiff's property. The defendants appealed and the plaintiff cross appealed to this court. Error was found. The Superior Court was ordered to render judgment for the defendants in the action brought by Laurel, and to reinstate the condemnation proceedings initiated by the commissioner. Laurel, Inc. v. State, 169 Conn. 195, 207, 362 A.2d 1383 (1975) (hereinafter Laurel I ). Upon reinstatement of the condemnation proceedings and Laurel's appeal from the assessment of damages, the commissioner filed a plea in abatement alleging that the I
court lacked jurisdiction because Laurel's appeal had not been filed within six months of the assessment as required by General Statutes § 13a-76. The plea was overruled by the Superior Court and the commissioner appealed. In Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 223, 377 A.2d 296 (1977) (hereinafter Laurel II ), this court found no error, holding that the equitable relief provided by Laurel I clearly entitled the plaintiff to a determination of its damages in the reinstated condemnation proceedings. The Superior Court awarded damages of $2,576,300 to Laurel in the condemnation proceedings. From that judgment, both Laurel and the commissioner appeal.
The finding of the court is substantially as follows: The plaintiff Laurel, Inc., a Connecticut corporation, was the record owner of 9.7 acres of land in the town of Fairfield. The land abutted the Merritt Parkway to the south near the parkway's intersection with route 59 known as Easton Turnpike or Sport Hill Road (hereinafter Easton Turnpike). On January 23, 1974, the commissioner condemned and took by eminent domain 0.38 acres of Laurel's land for public use as part of new on-off ramps for the Merritt Parkway. The certificate of taking 1 and the taking map which appears as an appendix to this opinion describe the
portion acquired as a long narrow area leading from a physical outlet on [180 Conn. 15] Easton Turnpike to the remainder of Laurel's property where Laurel was in the process of building a condominium project to be known as "The Villager."
1. "NOTICE OF TAKING
SUPERIOR COURT
FAIRFIELD COUNTY
JANUARY 23, 1974
Laurel, Inc
177 State Street, Bridgeport, Connecticut
The Connecticut Bank and Trust Company (Mortgagee)
1 Lafayette Circle, Bridgeport, Connecticut
Cyril Waynik (Mortgagee)
4697 Main Street, Bridgeport, Connecticut
The First Connecticut Small Business
Investment Company (Mortgagee)
177 State Street, Bridgeport, Connecticut
Allan J. Rosen (Duplicate Notice)
Attorney at Law
177 State Street, Bridgeport, Connecticut
Prior to the time of the taking, Laurel had obtained a special permit from the town planning and zoning commission for the construction of 103 condominium residence units on this tract of land. Laurel's special permit constituted approval and authorization for all plans of construction, landscaping and all matters necessary for the completion of the project. The terms of the special permit provided, however, that access to and egress from the condominium project was limited solely to Easton Turnpike, to the west of the plaintiff's land. There are two other streets, Stevenson Road and Toll House Road, which abut the plaintiff's property to the east and provide direct physical access. The Fairfield zoning authorities stipulated in the special permit, however, that those roads were not to be used by Laurel; instead Laurel was to have sole use and control of the 0.38 acre strip, later taken by the commissioner, which abutted Easton Turnpike as a private means of ingress and egress. After the taking, the Fairfield town planner took no action with respect to revocation of the special permit so as to afford Laurel and the state officials an opportunity to resolve the problem of access to Easton Turnpike. The special permit was not revoked. It simply expired two years after it was issued. After the taking, the likelihood of Laurel obtaining a revised special permit to continue with the condominium development was nil.
As of the date of the taking on January 23, 1974, Laurel had erected two buildings, a clubhouse which was about two-thirds completed and the first residential structure which was about one-half completed. Extensive underground improvements had been made. The installation of utilities and sewers had been completed. An outdoor swimming pool south of the clubhouse was partially constructed. Laurel had obtained permits to construct several buildings on the property. To obtain the special permit, Laurel had drawn and submitted plans for the entire project which were approved by the town. Laurel had entered into contracts to finance the project and to obtain the necessary labor and supplies. Sales brochures had been printed and a list of prospective purchasers who had called about the project was maintained. On the date of the taking, the plaintiff had expended $1,654,900 for the purchase of its land and for all improvements thereon.
The 0.38 acre strip which the commissioner took in condemnation was required by Laurel as an access road to Easton Turnpike. The strip abuts Laurel's remaining property to the east, where the boundary crosses through the clubhouse building, and Easton Turnpike to the west. The commissioner's taking map, although it does not show the presence of Laurel's partially completed structures, extends the taking line on the east into the plaintiff's condominium area, cutting off four feet of the clubhouse building along its entire length. 2
Within three days of receiving notice of the taking Laurel stopped all work on the Villager condominium site upon the advice of counsel, town officials and other advisors. Laurel brought suit against the state and the transportation commissioner within six days after receiving notice and sought damages for a constitutional taking of the remaining 9.3 acres of its land. The case was tried to the Superior Court where Laurel prevailed, but upon the state's appeal to this court, judgment was ordered for the defendants on the ground that Laurel had The court computed Laurel's damages for condemnation of the 0.38 acre strip as follows. At the time of the taking on January 23, 1974, there was a market for the sale of Laurel's partially completed condominium project. The project, on the basis of its location, type of units, amenities, and overall concept, was marketable. Although a determination of the fair market value of Laurel's property before the taking was difficult because successful or about to be successful condominiums are neither sold nor for sale, a reasonable buyer on a total purchase-money mortgage, no-risk basis, would enter into a contract to complete the project for one-half the final net profit realized from the sale of the condominium units. The total net profit reasonably anticipated if the project were to be completed after the taking was approximately 2.1 million dollars. The value of Laurel's property before the taking was $2,706,800: $1,654,900 in acquisition and land enhancement costs plus $1,051,900, Laurel's one-half share of the profits. The value of Laurel's remaining 9.32 acres after the taking was $130,500, based on $14,000 per acre for single family residence use in accordance with zoning requirements. Laurel was awarded the difference between the before and after values of its property, $2,576,300, less the state's original deposit of $41,200 or $2,535,100, together with interest and costs.
not established a constitutional taking of its remaining land. These findings arose from the condemnation proceedings instituted by the commissioner which this court ordered reinstated.
The court found that the fair market value of the property was not merely the cost of the land plus the cost of development because Laurel had assembled, at the time of the taking, a "package" of great fair market value. The permits previously acquired by Laurel had eliminated the risk of administrative delay or even denial. A buyer would know that he was buying more than land and partially completed buildings. A buyer would know that he was buying an approved plan of development that would produce revenue. A buyer and seller, in arriving at a fair market value of the incomplete project, would prepare a pro-forma profit and loss statement for the project which would project total cost and total sales revenue and estimate potential profit. They would then negotiate a fair allocation of the projected profit. The division of profit between buyer and seller would depend on how much work the seller, in this case...
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