Rushchak v. City of West Haven
| Decision Date | 04 February 1975 |
| Citation | 356 A.2d 104,167 Conn. 564 |
| Parties | Stephen RUSHCHAK v. CITY OF WEST HAVEN. |
| Court | Connecticut Supreme Court |
Thomas F. Keyes, Jr., New Haven, for appellant (plaintiff).
Robert E. Reilly, Corporation Counsel, West Haven, for appellee (defendant).
Before HOUSE, C.J., and COTTER, LOISELLE, MacDONALD and LONGO, JJ.
This case arose from a taking for school purposes by the defendant city of a parcel of land consisting of about sixteen acres in West Haven owned by the plaintiff. The statement of compensation filed with the clerk of the Superior Court assessed as damages to the plaintiff for the taking the sum of $30,000. The plaintiff appealed to the Superior Court from the assessment of damages and the matter was referred to a state referee who, after a hearing, concluded that the property at the time of the taking had a fair value of $93,600 and, accordingly, rendered judgment that the defendant pay to the plaintiff the deficiency of $63,600 together with interest and appraisal and expert testimony fees. From that judgment the plaintiff took the present appeal. Although in his assignment of errors the plaintiff has made a general attack on the finding of facts, the principal claims as briefed by the plaintiff are two: (1) that the award of $93,600 was so low as to be inequitable and an abuse of discretion and (2) that the court 1 erred in refusing to admit the opinion testimony of expert witnesses as to the probability of zoning changes affecting the subject property, and, by so doing, failed to take into account an element which strongly affected the value of the property taken.
The plaintiff's claims of error addressed to the findings of fact require but brief mention. Despite our repeated admonitions about such wholesale attacks, the plaintiff has claimed error in the court's refusal to find 103 paragraphs of his draft finding and in making thirteen findings which, the plaintiff asserts, were found without supporting evidence. As we have frequently stated, such attacks tend to cloud the real issue and in themselves cast doubt on the party's claims. Dick v. Dick, 167 Conn. 210, 212, 355 A.2d 110; State v. Miselis, 164 Conn. 110, 114, 318, A.2d 102. It suffices to repeat that to secure an addition to a finding of fact on the ground that it was admitted or undisputed, it is necessary for the plaintiff to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the defendant admitted that the fact in question was true or that its truth was conceded to be undisputed. Barnini v. Sun Oil Co., 161 Conn. 59, 60, 283 A.2d 217. A finding will not be corrected to add evidential or immaterial matter or facts which have no bearing on the issues on which the judgment was predicated. Charter Oak Estates, Inc. v. Kearney, 160 Conn. 522, 525, 280 A.2d 885; Collens v. New Canaan Water Co., 155 Conn. 477, 481, 234 A.2d 825. Nor will a finding be corrected by the addition of facts that will not affect the result. Lewis v. Lewis, 162 Conn. 476, 481, 294 A.2d 637. Despite the plaintiff's many assignments of error directed at the court's finding, we do not find that it is subject to correction in any respect which would aid him.
The property which was taken by the defendant town consisted of about sixteen acres. The tract was irregular in shape and lay in a heavily wooded area. It was bisected by a brook with several small tributaries and some of the land near the brook and its tributaries was swampy. Practically all of the tract was burdened by extensive large outcroppings of rock, some of them rising many feet above the surrounding ground. The tract had a street frontage of 250 feet on the westerly side and ran for about 1500 feet to the east, bellying out to over 500 feet at the halfway mark of its depth. Public utilities and a municipal sewer system were available within 600 feet of the tract and the predominant use of land in the general neighborhood of the site, to the north, east and west was residential.
Until March, 1967, the tract was zoned 'Residence B', a zone which permitted three-family houses. On March 1, 1967, the planning and zoning commission adopted new comprehensive zoning regulations for the entire city. Anticipating the acquisition of the plaintiff's tract and of adjoining properties by the city, the commission changed the zoning classification of the selected site from 'Residence B' to 'Open Space.' At the same time, the commission classified the nearby surrounding land as 'Residence 3-1,' a classification which did not permit multifamily dwellings.
The plaintiff called three expert witnesses to give their opinions as to the value of the tract, two of them real estate appraisers and the third a contractor-developer. One appraiser, Richard Brennan, valued the tract at $360,000 or $22,500 an acre. The other appraiser, Constantine Neri, valued it at $400,000 or $25,000 an acre. The contractor-developer valued it at $176,000 or $11,000 an acre. All three expert witnesses based their opinions on the assumption that the tract upon application by the plaintiff would have been reclaissified zonally so as to permit the use of multifamily structures. On the basis of that assumption, each of the plaintiff's three experts appraised the value of the tract on what he believed to be comparable slaes of similar property located in zones which permitted multifamily structures. Such a use would be the highest and best use of the tract if the zoning regulations permitted such use. As we have noted, however, the zoning regulations did not permit multifamily dwellings on the tract at the time of the taking. The defendant produced as a witness the planning director of West Haven and administrator of the West Haven planning and zoning commission who testified that if the plaintiff's land were to be rezoned from its open space classification, it would in all reasonable probability be rezoned in accordance with the surrounding residential uses to R3-1 which was single-family residential. Two members of the planning and zoning commission also testified. One testified that he would have probably voted to change the plaintiff's property to R3-1 single-family residential zone. The other testified that he would not have voted to change the zone to a multifamily zone because the surrounding area was, to a large degree, comprised of single-family homes. The court found that in the event that the school building project on the site had been abandoned the planning and zoning commission would have reclassified the land within the site and such classification, 'in all reasonable probability, would have been 'Residence 3-1' in order to conform to the classification of surrounding properties.' It also found that the reasonable probability was that the tract would not have again been rezoned to permit multifamily structures if the city had not acquired the tract. Although these latter findings were attacked by the plaintiff as being found without evidence, that claim is clearly without merit.
The finding of the court with respect to the reasonable probabilities for any change of zone as they existed at the time of the taking clearly distinguishes this case...
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