Tandet v. Urban Redevelopment Commission of City of Stamford

• Decision Date: 04 December 1979
• Citation: 179 Conn. 293,426 A.2d 280
• Court: Connecticut Supreme Court
• Parties: William H. TANDET et al. v. URBAN REDEVELOPMENT COMMISSION OF the CITY OF STAMFORD.

Page 280

426 A.2d 280

179 Conn. 293

William H. TANDET et al. v. URBAN REDEVELOPMENT COMMISSION OF the CITY OF STAMFORD.

Supreme Court of Connecticut.

Argued June 6, 1979.

Decided Dec. 4, 1979.

Robert M. Wechsler, Stamford, with whom was Elaine T. Silver, Stamford, for appellant (defendant).

Julius B. Kuriansky, Stamford, with whom, on the brief, was Marshall Goldberg, Stamford, for appellees (plaintiffs).

Before COTTER, C. J., and LOISELLE, LONGO, PETERS and HEALEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal was taken by the defendant Urban Redevelopment Commission (hereinafter URC) from the reassessment of damages awarded by a state trial referee for a partial taking of the plaintiffs' land in downtown Stamford. The finding discloses the following factual setting: The plaintiffs' property consisted of a five-story brick building with a two-story warehouse physically attached to the rear of the building. When the plaintiffs purchased the property in 1967 it was subject to a twenty-year lease for the period from August 1, 1962 to July 31, 1982. From the inception of the lease until the time of taking, the building was used as a department store with an adjoining warehouse. On July 27, 1973, the defendant notified the plaintiffs of its intention to take part of the property to facilitate the construction of a parking garage. On June 18, 1974, the defendant notified the plaintiffs that it would be necessary to demolish the warehouse, and on September 3, 1974, the defendant filed a formal notice of taking of 864 square feet of the plaintiffs' property and deposited with the clerk of the Superior Court $32,800 as damages. See General Statutes § 8-130. The defendant filed, on May 29, 1975, a second notice of taking in which it obtained the right to demolish the entire warehouse and a temporary easement over the plaintiffs' remaining property to facilitate its demolition. For this taking the defendant deposited one dollar with the clerk as damages. The warehouse was demolished in July 1975. The lease between the plaintiffs and their tenant, Supermarket General Corporation, provided, in part, that in the event the subject premises were partially taken by eminent domain and an architect, selected by the tenant and satisfactory to the landlord, concluded that the tenant's ability to use the remainder of the premises would be substantially reduced, the tenant would have the power to terminate the lease. After an architect selected in accordance with the lease so concluded, Supermarket General notified the plaintiffs on November 13, 1974 that it would terminate the lease and surrender possession of the premises on January 11, 1975.

The plaintiffs applied to the Superior Court, pursuant to General Statutes § 8-132, for review of the defendant's statement of compensation. The matter was referred to a state referee, who was presented with three appraisal reports. Two reports were introduced by the defendant; one assessed damages at $32,800 and the other assessed damages at $38,500. Neither of the appraisers selected by the defendant was aware of the tenant's election to terminate the lease and neither report included this factor in the determination of damages. The plaintiffs introduced an appraiser's report that fixed damages for the property taken and those resulting to the remainder at $210,000. The plaintiffs' appraiser, Norman Benedict, was engaged by the plaintiffs in June, 1975, and knew at the time that his report was prepared that the tenant had terminated the lease and evacuated the building. ¹ The referee, after hearing the evidence, adopted Benedict's appraisal and awarded damages to the plaintiffs in the amount of $210,000.

On appeal the defendant claims: (1) that the finding should be corrected in several respects; (2) that the court erred in adopting Benedict's appraisal because the before-taking value of the property was based on a future highest and best use that was speculative and conjectural; (3) that the court erroneously concluded on the basis of Benedict's report that the termination of the lease with Supermarket General was an economic detriment and not a benefit; and (4) that the court erred in concluding that the construction of a parking garage adjacent to the plaintiffs' remaining property conferred no special benefit to the property that would increase its after-taking market value.

I

We turn first to the issues raised by the defendant's attack on the finding. The defendant claims that the court erred: (1) in refusing to find certain material facts said to be admitted and undisputed; (2) in finding certain facts without evidence; and (3) in finding certain facts in language of doubtful meaning so that their real significance may not clearly appear in view of their relationship to other facts found. Each of these claims has been examined carefully and the finding is corrected by adding two paragraphs of the draft finding which we find to be either admitted or undisputed. ² Some of the facts contained in other paragraphs of the draft finding sought to be added are neither admitted nor undisputed; some are implicit in the finding, and others, even if added, would not affect the result. See Salvatore v. Milicki, 163 Conn. 275, 277, 303 A.2d 734 (1972). In view of our disposition of this case, no further correction of the finding is necessary. See Krause v. Krause, 174 Conn. 361, 364, 387 A.2d 548 (1978).

II

The defendant claims that the referee erred in admitting into evidence, and later relying upon, the report of the plaintiffs' appraiser on the ground that the proposed highest and best use of the property projected in the appraiser's determination of the before-taking market value of the land was remote and speculative. The plaintiffs' appraiser, Norman Benedict, predicated his before-taking valuation on the retail tenant's continued occupancy of the property for seven years and eleven months, the remaining period of the lease term. He then projected at the end of the tenancy a highest and best use of the property different from the existing use, based on forecasts of population growth, per capita buying income, commercial construction costs, operating expenses and rental income. Benedict concluded that the most profitable use to which the property could be applied nearly eight years in the future would be as an office building. His appraisal of the before-taking value of the whole property was based on these projections.

Under our constitution, no property shall be taken for a public use without just compensation. Conn.Const., art. 1 § 11. This has been interpreted to mean that the condemnee is entitled to receive a fair equivalent in money for the property taken, as nearly as its nature will permit. Schnier v. Commissioner of Transportation, 172 Conn. 427, 431, 374 A.2d 1087 (1977); Colaluca v. Ives, 150 Conn. 521, 530, 191 A.2d 340 (1963). The measure of damages is ordinarily the fair market value of the acquired land on the day of taking. Ibid. Where only a part of a tract of land is taken for the public use, the award will include the value of the part taken as well as any damages visited upon the remainder as a result of the taking. D'Addario v. Commissioner of Transportation, 172 Conn. 182, 184, 374 A.2d 163 (1976). In Lefebvre v. Cox, 129 Conn. 262, 265, 28 A.2d 5, 6 (1942), we stated: "The ordinary rule for measuring damages where a portion of a tract of land is taken is to determine the difference between the market value of the whole tract as it lay before the taking and the market value of what remained of it thereafter, taking into consideration the changes contemplated in the improvement and those which are so possible of occurrence in the future that they may reasonably be held to affect market value." (Emphasis added.) See Andrews v. Cox, 127 Conn. 455, 17 A.2d 507 (1941). In determining the market value of the remainder after a partial taking we have said that "it is proper for the trier to consider all elements which are a natural and proximate result of the taking and which could legitimately affect the price a prospective purchaser would pay for the land." Bowen v. Ives, 171 Conn. 231, 236, 368 A.2d 82, 86 (1976). Because fair market value has been defined simply to mean that price that a willing seller and a willing buyer would agree upon following fair negotiations; see Lynch v. West Hartford, 167 Conn. 67, 73, 355 A.2d 42 (1974); Uniform Eminent Domain Code § 1004(a); 27 Am.Jur.2d, Eminent Domain § 267; an appraisal of fair market value should take into consideration that use of the property that would provide a prudent investor the greatest financial return. Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 411, 270 A.2d 549 (1970); 4 Nichols, Eminent Domain (3d Ed.) § 12.314. Where in the opinion of the appraiser the property is not, on the date of taking, being put to its highest and best use, it is incumbent upon the appraiser to provide the trier with sufficient evidence from which it could conclude that it is reasonably probable that the land to be taken would, but for the taking, be devoted to the proposed use by a prudent investor in the near future. See Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934); Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206 (1879); United States v. 1,291.83 Acres of Land, Commonwealth of Kentucky, 411 F.2d 1081, 1084-1086 (6th Cir. 1969); Levine v. Stamford, 174 Conn. 234, 235, 386 A.2d 216 (1978); 4 Nichols, Eminent Domain (3d Ed.) §§ 12.314, 18.11(2); 1 Orgel, Valuation Under Eminent Domain (2d Ed.) § 31, and cases there cited; 27 Am.Jur.2d, Eminent Domain § 280. "The uses to be considered must be so reasonably probable as to have an effect on the present market value of the land. Purely imaginative or speculative value should not be considered." (Emphasis added.) Pruner v. State Highway Commissioner, 173 Va. 307, 310-11, 4...