Opinion
No. CV 02 0080155 S
August 28, 2007
MEMORANDUM OF DECISION
Facts
The condemner, City of Milford is a municipal corporation located in the County of New Haven.
Pursuant to the provisions of § 7-246 of the Connecticut General Statutes, the Sewer Commission of the City of Milford is the City's duly designated water pollution control authority and is vested with the powers described in § 7-247 of the Connecticut General Statutes.
On September 5, 2002 the Sewer Commission voted to acquire the defendants' property located at 62 Herbert Street, Milford, Connecticut. Said property is identified on City of Milford Assessor's Map 117 as Parcel 10, Block 902.
The condemner determined that the amount of compensation to be paid for the taking was fifteen thousand dollars ($15,000.00). Said amount was deposited with the Superior Court.
On November 18, 2002 the City of Milford filed a Statement of Compensation in the Superior Court.
On December 23, 2002 the City of Milford filed a Certificate of Taking with the Superior Court.
On April 14, 2003 the defendants filed an Order of Notice of Appeal and Application for Review of Statement of Condemnation.
On August 24, 2007 a hearing was held. The defendant Helen Maykut testified that she obtained the subject property sometime during the 1970s.
The court notes that the appraisers for both sides used the comparable sales method to determine the value of the taking.
The plaintiff's Expert Witness, Stephanie A. Gaffney, a Certified Residential Real Estate Appraiser testified that the value of the subject property at the time of the taking was fifteen thousand dollars ($15,000.00). She came to this conclusion by analyzing three properties that she considered to be comparable to the subject property. All of the properties that were used as comparables were small pieces of properties that were left over slivers after some type of land transaction. She describes the "site area" of the subject property as .17 acres acquired portion. Her appraisal approach seeks to attempt to directly determine the market value of the taking by ascertaining a value to the 0.17-acre piece of land that was taken by the condemner.
The defendants' expert, Ralph A. Bowley, SRA, on the other hand valued the taking at one hundred and seventy thousand dollars ($170,000.00). Mr. Bowley valued the taking by using a feasibility study that was done for the defendant Helen Maykut in 2006 (See Plaintiffs' Exhibit 4 and 5). The property that was condemned is located within the proposed subdivided lot, Number 4. Mr. Bowley opines that lot 4 is no longer a viable building lot because of the plaintiff's taking. He further opines that the value of lot 4, but for, and at the time of, the taking was $170,000.00. He believes that as a result of the taking and the fact that the plaintiff placed a pumping station on the acquired property, lot 4 has no market value at all. Mr. Bowley conclusion is based in part due to the fact that there are wetlands on Lot 4 and because of said wetlands the property owner is limited by wetland regulations as to where a possible house on the property could be located.
The court notes that other than describing lot areas calculations, Exhibits 4, and 5 does not contain information such as the size or exact location of the wetlands. There are no measurements in terms of distances, metes or bounds. Further more there is no indication as to the exhibit's accuracy. The court further notes that the defendant Maykut could not testify that the wetlands as indicated on the exhibits was accurate.
Lot 4 as described in Plaintiffs' Exhibits 4 and 5 is approximately ninety nine thousand and fifty-nine (99,059) square feet. Instead of directly trying to give a value to the aforementioned .17 acre that was taken by the condemner, he opines that the defendants' financial lost was the value of the entire lot.
The defendants argued at the hearing that the pumping station was placed in the area where a house would have been located and that they cannot place a house anywhere else on the lot due to wetland regulations.
Standards
"We have stated repeatedly that `[t]he amount that constitutes just compensation is the market value of the condemned property when put to its highest and best use at the time of the taking. Minicucci v. Commissioner of Transportation, [ supra, 211 Conn. 384]; Cappiello v. Commissioner of Transportation, 203 Conn. 675, 681, 525 A.2d 1348 (1987); Budney v. Ives, 156 Conn. 83, 88 239 A.2d 482 (1968). In determining market value, it is proper to consider all those elements which an owner or a prospective purchaser could reasonably urge as affecting the fair price of the land . . . Budney v. Ives, [ supra, 88]. Greene v. Burns, 221 Conn. 736, 745, 607 A.2d 402 (1992). The fair market value is the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use. Mazzola v. Commissioner, 175 Conn. 576, 581-82, 402 A.2d 786 (1978). Minnicucci v. Commissioner of Transportation, supra, 384. The highest and best use concept, chiefly employed as a starting point in estimating the value of real estate by appraisers, 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)." (Internal quotation marks omitted.) Robinson v. Westport, 222 Conn. 402, 405-06, 610 A.2d 611 (1992). "In determining its highest and best use, the [judge] must consider whether there was a reasonable probability" that the subject property would be put to that use in the reasonably near future, and what effect such a prospective use may have had on the property's market value at the time of the taking. Id., 406; see also Green v. Burns, supra, 748 ("[t]he questions of the highest and best use of property and of the reasonable probability of a future change affecting value] . . . are questions of fact for the trier"). Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 827-29 (2001).
Discussion
The basic disagreement between the parties concerns the issue of the highest and best use of the acquired property. The defendants argue that the highest and best use is the subdivision proposed in the 2006 feasibility study. The plaintiff argues that at the time of the taking there was no evidence that the defendants intended to subdivide the subject property. However the defendant Maykut testified at the hearing that she had a real estate background and that she bought the property with the idea of eventually subdividing it. As was stated earlier herein, "in determining its highest and best use, the [judge] must consider whether there was a reasonable probability" that the subject property would be put to that use in the reasonably near future, and what effect such a prospective use may have had on the property's market value at the time of the taking. See Robinson v. Westport, supra.
In addition to arguing that the highest and best use of the subject property is to subdivide the area upon which it is contained into the aforementioned proposed Lot number 4, the defendants also argue that the action of the plaintiff taking the 1.7 acres renders the lot unbuildable; however, other than rather this conclusory statements, the defendants did not offer sufficient credible and convincing evidence to convince this court that the proposed lot was rendered unbuildable by the taking. The court notes that at no time pertinent hereto did the defendants file any applications with the local wetland regulating agency concerning building a house or other structures on the subject property. Although the defendants' Appraiser concludes that the wetlands on Lot 4 prevents the defendants from building a house on the proposed lot because of the plaintiff's taking, other than the feasibility plan (Plaintiff's Exhibits 4 and 5) this court was not provided with any surveys or evidence of any other kind demarcating the actual size and location of wetlands or wetland buffers. Furthermore the defendant Helen Maykut acknowledged during the hearing that she could not testify that the wetland areas in Plaintiff's Exhibit 4 and 5 are accurate. Additionally Mr. Bowley conceded that he was not an expert in the area of wetlands and the information that he had concerning the existence of wetlands on the subject property came from the aforementioned exhibits.
The court notes that the exhibits appear to be mislabeled with plaintiff's exhibits being marked defendant and the defendants exhibits being marked plaintiff.
The Court's Determination of Value
The taking in the case at bar is a partial taking. The usual measure of damages in a partial taking is the difference between the market value of the whole tract with its improvements before the taking and the market value of what remained of it thereafter. Gontarz v. Berlin, 154 Conn. 695-97 (1967); Morgan v. Hill, 139 Conn. 159-61 (1952); Meriden v. Ives, 165 Conn. 768, 773 (1974); Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 414 (1970). The plaintiff's Appraiser valued the .17 acres taken by the condemner, and the defendant's Appraiser valued the difference in market value, not of the whole 6.15-acre tract, but of the 2-acre proposed lot 4 of the proposed subdivision as shown in a 2006 feasibility study.
As was stated earlier herein, the fair market value is the price that a trier reasonably believes would result from fair negotiations between a willing seller and a willing buyer. That evaluation should ordinarily be based upon the highest and best possible use of the land. Lynch v. West Hartford, 167 Conn. 67, 73 (1974); Tolland Enterprises v. Commissioner of Transportation, 36 Conn.App. 49, 58 (1994). Severance damages to the parcel remaining after the taking are included. The concept of severance damages is the compensation for the diminution of the fair market value of the remainder of the owner's property which is both unique to that land and arises as a direct and immediate result of the taking of the portions of that land by the condemning authority. Tolland Enterprises v. Commissioner of Transportation, 36 Conn.App. 49, 58 (1994). See also Meriden v. Ives, 165 Conn. 768, 773 (1974); Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 414 (1970).
"[A] trial court may seek aid in the testimony of experts, but must ultimately make its own independent determination of fair compensation . . . on the basis of all the circumstances bearing upon value." (Citations omitted; internal quotation marks omitted.) French v. Clinton, 215 Conn. 197, 202-03, 575 A.2d 686 (1990).
After considering all of the evidence, this court finds that the more credible and convincing evidence presented at the hearing of this matter proves that the highest and best use of the subject property is to subdivide said property into four lots as is indicated by the feasibility study; However, the court further finds that the credible and convincing evidence does not prove that the proposed lot 4 is an unbuildable lot because of wetland and taking issues. The court further finds that although the evidence did not rise to the level of proving that the proposed lot 4 was not an unbuildable lot, said evidence does prove that a combination of the taking and of the wetland concerns exacerbated by the taking did adversely affect what a willing buyer would pay a willing seller based on the highest and best possible use of the subject property. In light of the foregoing, finds that the defendants' property value at the time of the taking was one hundred and seventy thousand dollars ($170,00.00). The court further finds that taking diminished said property value by fifty-six thousand dollars ($56,000.00) when it occurred and the defendants are entitled to compensation in that amount.
It was undisputed that wetlands issues significantly impact upon the potential uses of the subject property.
The court notes that the defendant's expert did not dispute the value assigned by the plaintiff's expert provided that the subdivision had been approved.