Mobil Oil Corp. v. Town of Westport

• Decision Date: 23 December 1980
• Court: Connecticut Supreme Court
• Parties: MOBIL OIL CORPORATION v. TOWN OF WESTPORT.

Page 768

438 A.2d 768

182 Conn. 554

MOBIL OIL CORPORATION v. TOWN OF WESTPORT.

Supreme Court of Connecticut.

Argued Nov. 7, 1980.

Decided Dec. 23, 1980.

[182 Conn. 555] J. Peter LaChance, Westport, with whom was Eugenie Dieringer, Westport, for appellant (plaintiff).

Keith D. Dunnigan, Bridgeport, with whom, on the brief, was Bruce L. Levin, Bridgeport, for appellee (defendant).

Before COTTER, C. J., and BOGDANSKI, PETERS, PARSKEY and ARMENTANO, JJ.

PARSKEY, Associate Justice.

The plaintiff contests a special assessment levied by the defendant in connection with a downtown parking facility known as the Baldwin parking lot constructed by the town of Westport during the 1960s. A special assessment was levied by the board of selectmen on all properties directly benefited by the parking lot in order to recoup The plaintiff owns a parcel which abuts the lot and has been used as a gasoline station since the early 1930s. On the basis of the above formula the plaintiff was assessed $10,611. The trial court upheld the assessment. On appeal, the plaintiff contests the trial court's conclusions in three respects: (1) the court erred in interpreting No. 568 of the 1953 Special Acts; 26 Spec.Acts 1116, No. 568; as amended by No. 86 of the 1965 Special Acts; 32 Spec.Acts 70, No. 86; to authorize involuntary special assessments, (2) the court incorrectly determined that the plaintiff's property was specially benefited and (3) the court erroneously held that the formula used to compute the amount of the assessment was legally proper and correct as applied to the plaintiff. We discuss each claim in turn.

part of the capital costs of site acquisition and construction of the lot. All properties lying within 500 feet of the lot were found to be directly and specially benefited. The extent of the benefit and the amount of the assessment were determined by a formula which took into account (1) the value of the property as of the date of the assessment, (2) the amount of parking, if any, which might be required due to the existing use of the property and (3) the proximity of the property to the lot.

STATUTORY AUTHORITY

The plaintiff first challenges the trial court's conclusion that No. 86 of the 1965 Special Acts ¹ authorizes the board of selectmen of the town of Westport (board) to levy an involuntary special assessment on those properties especially benefited by the municipal parking area. This act amended certain provisions of No. 568 of the 1953 Special Acts. ² The operative provision for It is axiomatic that a statute which is clear and unambiguous is not subject to modification by construction; Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978); and is to be given effect in accordance with its plain language unless to do so would thwart its purpose. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978). The 1965 special act authorizes the defendant to acquire property for parking purposes either by eminent domain (§ 6) or by agreement (§ 4(1) ) and to levy a special assessment on the specially benefited properties either by agreement (§ 4(3) ) or under its independent authority (§ 4(2) ). To hold otherwise would fly in the face of the clearly expressed legislative will.

present purposes is § 4, which is set out in three parts. Subsection (1) authorizes the board to enter into agreements for the acquisition of property for a parking facility. Subsection (2) authorizes the board to apportion and assess the cost of acquisition and construction of the parking area upon land specially benefited thereby. Subsection (3) authorizes the board to [182 Conn. 558] enter into agreements with the owners of specially benefited properties with respect to the determination of benefits and damages. The plaintiff's contention that a fair reading of this section leads to the conclusion that the board may levy a special assessment only as a result of an agreement with the affected property owners is without merit.

SPECIAL BENEFIT

The plaintiff next contends that there is no basis for the court's conclusion that the plaintiff's property was specially benefited by the defendant's parking facility. The thrust of the plaintiff's argument is that the plaintiff's gas station receives no direct and immediate benefit from the defendant's parking lot.

A "special assessment" is a "local assessment imposed ... upon a limited class of persons interested in a local improvement; who are assumed to be benefitted by the improvement to the extent of the assessment." Bridgeport v. N. York & N. Haven R. R. Co., 36 Conn. 255, 262-63 (1869). To be valid the benefit must be direct, immediate, appreciable and certain. Appeal of Cohen, 117 Conn. 75, 84, 166 A. 747 (1933); Naugatuck Railroad Co. v. Waterbury, 78 Conn. 193, 196-97, 61 A. 474 (1905). The assessment may not materially exceed the benefits conferred. Whitmore v. Hartford, 96 Conn. 511, 519, 114 A. 686 (1921); Naugatuck Railroad Co. v. Waterbury, supra. Whether a given property is specially benefited by a public improvement involves a question of fact. O'Rourke v. Stamford, --- Conn. ---, ---, 426 A.2d 311 (1979); Dellaripa's Appeal, 88 Conn. 565, 571, 92 A. 116 (1914).

The trial court concluded that the plaintiff's property was specially benefited both in its current use as a gas station and in its highest and best use (retail stores). With respect to the current use, there was sufficient evidence of special benefit to the gas station from the traffic generated by the existence of the parking facility to justify the imposition of the special levy. There was also evidence supporting the court's conclusion based on the property's highest and best use. The plaintiff's contention that only current use is applicable in special assessment cases is without merit.

An examination of the cases on special assessments cited by the plaintiff discloses So long as the land is not restricted or the current use is not permanent in character, there is no rule of law which precludes a special assessment based on potential use of the subject property. "The 'highest and best use' concept ... has to do with the use which will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate." State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 101, 239 A.2d 528 (1968). In levying a special assessment, a governmental unit is not required to limit its impact to current land use; it may also take into account the economic forces at work in the marketplace.

that they do not stand for the proposition advanced by the plaintiff. The cases which have limited consideration of benefit to current use have been those where the current use appeared to be permanent in character. Hartford v. West Middle District, 45 Conn. 462, 464 (1878) (school district); Bridgeport v. N. York [182 Conn. 560] & N. Haven R. R. Co., supra, 264 (railroad); Clapp v. Hartford, 35 Conn. 66, 80 (1868) (church). In N. Y., N. H. & H. R. R. Co. v. New Britain, 49 Conn. 40 (1881), the land, although purchased by the railroad for the purpose of storing freight cars and used exclusively for that purpose, was held subject to a special sewer assessment because the land was unrestricted, was unoccupied by buildings and was eligibly situated for mechanical and manufacturing purposes. Id., 44.

ASSESSMENT FORMULA

The formula adopted by the board for the special assessment provided for the cost of the project to be apportioned on the basis of the current assessed valuation of the subject property adjusted to take into account the proximity of the property to the parking facility and a factor reflecting the number of parking spaces needed by the property. The proximity factor was arrived at as a result of personal observations of an ad hoc committee appointed by the Westport first selectman. This committee concluded that property within a radius of 500 feet of the parking area would be benefited by it and recommended that the benefited area be divided into six zones, each to be given a numerical value representing the distance of the property...