Opinion
No. FST CV 05 4004778 S
July 21, 2010
MEMORANDUM OF DECISION
The plaintiff has condemned 4661 square feet of the defendant's land at the northwest corner of Canal and Jefferson Streets (known as "Zero Canal") to be used in the construction of the Stamford Urban Transitway ("SUT") which when completed will be an east-west thoroughfare which parallels I-95 at the subject site. The land taken is part of a larger vacant parcel which after the taking consists of 26,522 square feet. The site is located in the MG zone which permits a variety of commercial and industrial uses. At the time of the taking it was utilized as a parking lot for other property which the defendant owns on the westerly side of Canal Street and known as 441, 465 and 481 Canal Street (hereinafter known as the "west side properties"). The west side properties are also located in the MG zone, are contiguous to one another and were dedicated to commercial uses at the time of the taking and still are. 441 is an office building vacant at the time, 465 was occupied by Omni-Fitness, a physical fitness facility with offices on the second floor and 481 was occupied by Hiden Galleries, a multi-dealer antique shop, a Harley Davidson motorcycle dealership and the remainder of 481 was vacant but dedicated to warehouse use. 441 is a four-story office building, 465 is two stories and 481 is a one-story structure. Defendant acquired all four properties at the same time, in the same transaction, in 1997. Since that time, all of the uses have been served by vehicular parking lots located on site to the rear of the buildings and between 441 and 465 and were also served by Zero Canal, the subject property. 481 has never had its own on-site parking spaces.
The taking map states the area to be 4368 square feet. The actual area turned out to be 293 square feet greater after the land survey was completed.
The City has assessed damages at $170,000 through its appraiser, Christine Hume (hereinafter "Ms. Hume") and the defendant has determined value of the area taken to be $960,000 through its appraiser, Michael Gold (hereinafter "Mr. Gold"). Ms. Hume predicated her methodology on the premise that the highest and best use of Zero Canal was at the time of the taking and is now, as a separate, stand-alone building lot whereas Mr. Gold opines that its value should be determined not as a separate entity but rather as part of an integrated whole consisting of it and the west side properties treated together. Hence the basis for the disparity in results.
Several principles of law govern the court's task in determining fair market value.
Damages recoverable for a partial taking are measured by application of the "before and after rule," to determine "the difference between the market value of the whole tract as it lay before the taking and the market value of what remains 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." Lefebvre v. Cox, 129 Conn. 262, 265 (1942); Laurel, Inc. v. Commissioner of Transportation (Laurel III), 180 Conn. 11, 27 (1980); Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 298-99, (1979); Wakeman v. Commissioner of Transportation, 177 Conn. 432, 435, (1979); Hanson v. Commissioner of Transportation, 176 Conn. 391, 400 (1979); Smith v. Zoning Board of Appeals, 174 Conn. 323, 328 (1978); Plunske v. Wood, 171 Conn. 280, 283-84 (1976). The fair market value is the price that the trier reasonably thinks would result from fair negotiations between a willing seller and a willing buyer, contemplating the highest and best possible use of the land, giving a prudent investor the greatest financial return. Laurel, Inc. v. Commissioner of Transportation (Laurel III), supra, 27; Tandet v. Urban Redevelopment Commission, supra, 299; Lynch v. West Hartford, 167 Conn. 67, 73 (1974); Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 411 (1970). (Alternate citations omitted.) In determining fair market value, the trial court is free to select the method of valuation most appropriate to the case before it. Daddario v. Commissioner of Transportation, 180 Conn. 355, 365 (1980).
"The process of valuation at best is a matter of approximation." (Internal quotation marks omitted.) First Bethel Associates v. Bethel, supra, 231 Conn. 738. To ascertain the . . . value of . . . Property, the court must weight "the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and [its] own general knowledge of the elements going to establish value . . ." (Internal quotation marks omitted.) Aetna Life Ins. Co. v. Middletown, supra, 77 Conn.App. 26. In doing so, it has "the right to accept so much of the expert testimony and the recognized appraisal methods which are employed as it finds applicable." (Internal quotation marks omitted.) First Bethel Associates v. Bethel, supra, 741. Pilot's Point Marina, Inc. v. Westbrook, 119 Conn.App. 600, 604 (2010).
As stated above, disperate opinions rendered by these two appraisers derives from their fundamental disagreement over the proper starting point for the process, namely the highest and best use of the tract remaining after the taking.
The 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; Cappiello v. Commissioner of Transportation, 203 Conn. 675, 681, (1987); Budney v. Ives, 156 Conn. 83, 88 (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." Greene v. Burns, 221 Conn. 736, 745 (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 (1978)." Minicucci 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, 101 528 (1968)." (Alternate citations omitted.) Robinson v. Westport, 222 Conn. 402, 405-06 (1992). While Connecticut has never adopted the federal presumption that the committed use at the time of the taking is the highest and best use, U.S. v. Buhler, 305 Fed.2d. 319, 328 (5th Cir. 1962), nevertheless [W]here a tract of land that is taken for public use is subject to a committed use for an extended period of time, a determination by the trier of its fair market value must be predicated on the existing use of the land and improvements; he may also consider the impact on present market value of any more profitable use to which the property may be devoted at the end of the term of committed use. Tandet v. Urban Redevelopment Commission of the City of Stamford, 179 Conn. 293, 301 (1979).
The starting point for Mr. Gold is the belief that Zero Canal should be treated as an integrated whole with the west side properties even though physically separated from them. Although he uses no such terminology, either in his testimony or in his written report, the condition of Zero Canal is analogous to property which properly may be considered to be a component part of an "assemblage." In their briefs the parties do not discuss the assemblage principle but rely on the "unity" theory discussed in the authoritative treatise, 4A Nichols, Eminent Domain. § 14B.03[1] 3d Ed. The unity principle holds that separate parcels may be considered as an integrated whole if there is unity of ownership, physical congruity and unity of use. 4A Nichols Eminent Domain, § 14B.03[1] 3d Ed. Connecticut courts do not seem to have formally adopted the Nichols rule but have embraced the concept. In Toffon v. Avon, 173 Conn. 525, 539-40 (1977) our Supreme Court recognized that to satisfy the unity of ownership rule there need not be identical quality or quantity of interest in all tracts of land at least where they were used as one unit for the same purpose. In Wright v. Shugrue, 178 Conn. 710 (1979), the court alluded to the "unity" rule in footnote 1 by stating that: "The question of whether certain pieces or parcels of land are to be considered "separate and independent" for the purposes of determining entitlement to damages is generally held to be a question of fact for the trier. 4A Nichols, Eminent Domain (3d Ed.) § 14.31. The major criteria considered in such a determination are physical contiguity, unity of ownership and unity of use."
In 1997 Judge Trial Referee Mulvey, relying on federal and sister state decisions, said that where two tracts are physically separated, "[I]ntegrated use, not physical contiguity is the test." 1997 WL88196 (Conn.Super.) This court believes that these pronouncements are consistent with the principles discussed by our Supreme Court in Commissioner of Transportation v. Towpath Associates, 255 Conn. 529 (2001).
"The doctrine of assemblage applies when the highest and best use of separate parcels involves their integrated use with lands of another. Pursuant to this doctrine, such prospective use may be properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable. If applicable, this doctrine allows a property owner to introduce evidence showing that the fair market value of his real estate is enhanced by its probable assemblage with other parcels." 4P. Nichols, Eminent Domain (3d Ed. Rev. 2000, P. Rohan M: Reskin, eds.) § 13.02[g]. Id. at 549, n. 13.
In Towpath the court eschewed outright adoption of the assemblage doctrine for valuation purposes in the context of a condemnation case. Nevertheless, in that case as in this case, the principle of assemblage was implicit in the trial court's analysis, rather than explicitly applied. Id., 547-48. According to the Supreme Court, "[t]he fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value . . . There must be a reasonable [probability] that the owner could use this tract together with the other [parcels for such] purposes or that another could acquire all lands or easements necessary for that use." (Internal quotation marks omitted.) Id., 548. (Alternate citations omitted.)
The court quoted liberally from decisions of other jurisdictions. For example, United States v. Fuller, 407 U.S. 488, 490 (1973) held that "the highest and best use of a parcel may be found to be a use in conjunction with other parcels, and an increment of value resulting from such combination may be taken into consideration in valuing the parcel taken." . . . If a prospective integrated use is the `highest and best use' of the land, can be achieved only through combination with other parcels of land, and combination of the parcels is reasonably possible, then evidence concerning assemblage, and ultimately, a finding that the land is specially adoptable for that highest and best use, may be appropriate. Clamor Realty Co. v. Redevelopment Authority, 129 Wis.2d, 87-88 (1986); Id. at 548-49.
In Frank Franc v. Bethel Holding Co., 73 Conn.App. 114 (2002) our Appellate Court recognized the "assemblage analysis" and acknowledged that it has been applied in the area of eminent domain and to value property in other contexts. Id. at 126. See also, Ferrigno Trustee v. Cromwell Development Associates, 93 Conn.App. 799 (2006). (Assemblage doctrine improperly applied where no reasonable probability of joinder of parcels); Norwich v. Styx Investors In Norwich, LLC, 92 Conn.App. 801 (2006) (trial court improperly failed to find that assemblage was likely to occur in a condemnation case.)
The present case differs from a strict "assemblage" case because all of the properties under consideration are owned by the same person. Thus, there is true unity of ownership. Therefore, the final ingredient, that it must appear reasonably practicable that the several parcels can be joined and that such a joinder is a reasonable probability is unnecessary. None of these cases requires that the properties be contiguous to one another. This court reads these cases to require only functional joinability or integration. "There must a reasonable [probability] that the owner could use this tract together with the other [parcels for such] purposes." Ferrigno v. Cromwell Development Associates, supra at 806. Mr. Gold treated Zero Canal in this way because he believes that the property is necessary to meet the parking needs of the "larger parcel," namely, the west side properties. Consequently, he valued Zero Canal as if it were a part of that larger parcel, thus causing him to assign a single value to Zero Canal and the west side properties. He then applied a before and after analysis, first determining the value of the whole integrated property before the taking and then after the taking, the difference being severance damages. Laurel v. Commissioner of Transportation, 180 Conn. 11, 36 (1980). In accordance with that methodology he valued the entire property at $8,250,000 before and $7,290,000 after, for a difference of $960,000, the amount of the damages.
On the other hand, Ms. Hume treated Zero Canal as if it were a stand alone parcel, separate and distinct from the west side properties. In so doing, she determined the value of the parcel before the taking to be $1,320,000 and $1,155,000 after the taking, resulting in damages of $165,000 subsequently adjusted to $170,000. The issue in the present case is, therefore, which is the more appropriate approach to ascertaining the value, the "assemblage" type approach or the "stand alone" approach.
The court begins with an examination of the use history of the property. The defendant purchased all four property addresses in the late 1990s in a single transaction from the same seller, the Tandet family, who used Zero Canal as a parking lot in connection with the west side properties. The defendant purchased Zero Canal solely for parking purposes. Since that time the defendant has maintained vehicular parking for the west side properties not only on site but also across the street at Zero Canal. The defendant has used the availability of parking at Zero Canal as a marketing tool in its efforts to lease up the west side properties. At the time of the taking, the parcel was mostly paved and partly in a natural state. It was fenced and locked with a gate but it was not striped. Over the years, the defendant refused offers to purchase Zero Canal because it wished to retain the property as parking for the west side properties. The only time that Zero Canal was utilized independently of the west side properties was in 2000 when the lot was used temporarily for construction staging for a nearby project; otherwise, it has been dedicated exclusively for use as a parking lot for the west side properties.
The city argues and the evidence shows that on the two occasions on which Ms. Hume visited the premises, she saw no cars parked on Zero Canal, the parcel was fenced and the gate was locked. The defendant responds that this condition merely reflects underutilization caused by the fact that 461 was entirely vacant, thereby reducing the need for parking at Zero Canal.
According to Kathy Rorick the defendant's vice president in charge of real estate, it would not be economically feasible to replace the Zero Canal parking with a parking garage behind the west side properties. The practical effect of the taking is a reduction in land area available for zoning approved parking spaces from 74 to 56, resulting in a loss of 18 spaces. The spaces were not delineated by painted lines. The City's zoning regulations for the MG zone permit vehicular parking within 500 feet of the use, so Zero Canal clearly qualifies to satisfy that requirement.
While Mr. Gold's appraisal is based on the assumption that Zero Canal is essential to the continued economic viability of the west side properties, Ms. Hume's appraisal is based on a contrary belief and on the assumption that the parking provided by Zero Canal can be replaced by the defendant acquiring other land within 500 feet of the site for that purpose.
The essential nature of the parking lot derives from the fact that Zero Canal parking is legally nonconforming under the zoning regulations and that the elimination of even a single space would render the westside properties illegally nonconforming as to parking. Thus, with the loss of 18 spaces Mr. Gold reduced the value of the remaining property by allocating the loss of a specific number of spaces to each street address of the west side properties. However, it is apparent from the evidence that such an allocation would have to depend on the nature of the specific use, so under the zoning regulations each separate use might require more or less than that allocation.
In reaching his conclusions as to the essential nature of these parking spaces he relied on what his client, the defendant, told him and upon his understanding of a series of correspondence between James Lunney, the Zoning Enforcement Officer of the City of Stamford and William Hennessey, the defendant's attorney. He also determined that the buildings that comprise the west side properties are legally nonconforming under Stamford zoning. Without conferring with the Zoning Enforcement Officer he proceeded to fashion his appraisal based upon these premises.
Ms. Hume on the other hand, while not minimizing the importance of the parking, does not believe that the parking which Zero Canal provides is essential to the west side properties. Therefore, she determined that the highest and best use of Zero Canal is as a stand alone building site for what she termed a "flex style" or light industrial building. Her analysis assumes that there are no zoning impediments to selling off this parcel and severing it from the west side properties because whatever spaces are lost to the west side properties can be replaced by acquiring replacement space within 500 feet.
The plaintiff attacks Mr. Gold's appraisal for failing to comply with certain standards known as the Uniform Standards of Professional Appraisal Practice (USPAP). Both appraisers accept these standards as applicable to their assignments. The court has examined each of the standards in light of the Gold appraisal report and concludes that the noncompliance was technical in nature and had no material effect on the validity of his conclusions.
The court notes that in Nolan v. City of Milford, 92 Conn.App. 607 (2005) the court rejected the claim that an appraisal report should not be considered by the court because it did not conform to USPAP standards.
Before vetting the substance of Mr. Gold's appraisal, the court must first determine which of the two approaches to valuation is more appropriate. This necessitates a point by point analysis of the component elements which form the basis for Ms. Hume's appraisal.
The court is impressed by the fact that at the time she did the appraisal she was a member of the staff of the Stamford Urban Redevelopment Commission which is the plaintiff's agent in the acquisition of land for the Stamford Urban Transit Way ("SUT"). The condemned property is one of 53 which she appraised as part of that project. In undertaking her appraisal, she adhered to federal guidelines because the SUT is a federally funded project. During the course of her study for the appraisal she met with James Lunney, the Zoning Enforcement Officer, and learned that as far as he was concerned Zero Canal was needed for continued dedication to parking if the west side properties were to continue their current uses. Although she was aware of its contents, she failed to mention this correspondence in either her written appraisal report or in her direct testimony. She was aware of the substantial history of Zero Canal serving as a parking resource for the west side properties and yet implicitly rejected this history as a material factor in her analysis. In fact, she concluded that there was no zoning "encumbrance" to selling this parcel off from the others. She acknowledged that if a vacant 441 were to be leased up, the Zoning Enforcement Officer would not issue a zoning permit without the availability at Zero Canal to serve the remaining west side uses.
At page 17 of her appraisal report she states "The lot has been designated for use as required parking for a nearby property in common ownership."
The USPAP mentioned above contains two standards which the court considers material to Ms. Hume's analysis.
First, Standard Rule 1-1(b) provides that the appraiser shall:
(b) not commit a substantial error of omission or commission that significantly affects an appraisal; and
Comment: An appraiser must use sufficient care to avoid errors that would significantly affect his or her opinions and conclusions. Diligence is required to identify and analyze the factors, conditions, data, and other information that would have a significant effect on the credibility of the assignment results.
Second, Standard Rule 1-2(f) provides that the appraiser shall:
(f) identify any extraordinary assumptions necessary in the assignment;
Comment: An extraordinary assumption may be used in an assignment only if:
it is required to properly develop credible opinions and conclusions;
the appraiser has a reasonable basis for the extraordinary assumption;
use of the extraordinary assumption results in a credible analysis; and
the appraiser complies with the disclosure requirements set forth in USPAP for extraordinary assumptions.
Ms. Hume omitted to state that her appraisal of the property for a stand alone use assumes that substitute parking could be acquired within 500 feet by a willing purchaser from a willing seller and yet her appraisal report as well as her testimony admits that there was a low level of vacant MG zoned land in Stamford. She omitted the statement because she did not believe the assumption to be "extraordinary." Also, she failed to mention and consider the fact that 441 has been left partially vacant by the defendant so as not to violate the minimum parking requirements under zoning, and in order to fill that vacancy, parking spaces at Zero Canal would have to be allocated to that building. Her appraisal report fails to contain an analysis of why Zero Canal should not be considered as an integral part of an assemblage with the west side properties. In fact, the report ignores the very existence of these properties, except as noted in footnote 2, above.
In treating Zero Canal as a stand alone use, she opines that a "flex style" or light industrial use would be most appropriate for the site. As an example of a flex style use she cited an automobile dealership that would have a showroom and supporting uses such as offices. She postulates that parking for such a facility would be located underground or on the roof of such a building, yet she did no study of the physical or economic feasability of such an arrangement. Additionally, she made no determination of the percentage of ground coverage which such a use would occupy and how much land would have to be devoted to ingress and egress, loading and unloading and other physical amenities required by the zoning regulations. She did not identify any leases or sales of such uses in the neighborhood. One of the three uses that she did identify was an automobile dealership which never materialized. None of the three are either light industrial or flex type uses. She freely admitted that at the time there was no demand for light industrial space in the neighborhood. Finally, as stated above, she made no study of the availability of land within 500 feet of Zero Canal which could be used as replacement parking. "The trier of fact arrives at his own conclusions as to the value of land by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value." First Bethel Associates v. Bethel, 231 Conn. 731, 743 (1995). "The credibility of expert witnesses and the weight to be accorded to their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." Transportation Plaza Associates v. Powers, 203 Conn. 364, 378 (1987).
According to the zoning regulations (Appendix A, N. 14) for the MG zone, floor area must be limited to one-half the lot area unless the use is manufacturing in not less than 350,000 square feet. Section 2 specifies compliance with driveway and traffic circulation standards.
The court concludes that contrary to Ms. Hume's opinion, Zero Canal is an integral and essential part of the larger parcel which consists of the west side properties and must be treated as if all four addresses were one. The court rejects the Hume appraisal because it is based on two impractical and unrealistic assumptions, each of which the court deems to be both extraordinary and faulty. It is rejected further because it fails to recognize the fact that Zero Canal contains parking area which is essential to the viability of the west side properties. It is immaterial whether the parking provided on Zero Canal is mandated by the zoning regulations, has or has not been utilized to maximum capacity, or whether it is merely essential as a marketing tool to attract and retain tenants at the west side properties. The appraisal is impractical because it fails to include an analysis of the amount of ground coverage which the flex or light industrial use building would need in order to be economically viable for a purchaser. It fails to provide any ground based parking, suggesting cavalierly that perhaps parking can be placed underground or on the rooftop of the building. However, no study of the feasibility of such a plan was made. It is unrealistic because it makes an assumption which is highly improbable of fulfillment. Ms. Hume failed to identify any property within 500 feet of Zero Canal that is available for acquisition for use as replacement parking. In fact, she failed to investigate whether vacant land even exists within that radius. As for improved land, she failed to determine whether the cost of clearing an improved parcel preparatory to the construction of a parking lot would be economically feasible for her proposed use. She also omits any consideration of whether the cost of such replacement property would be economically justified by the use. The record shows and the court's personal familiarity is in accord with the fact that in 2005 the neighborhood was in the incipient stages of a gradual trend toward redevelopment. It would be extremely unusual in that environment for a willing buyer to find a willing seller of such property at an affordable price. And finally, Ms. Hume readily admits that 441 is "grossly" under parked in that it has 72 spaces when under zoning it needs 114 in order to conform. Thus, the remaining properties must make up for this shortage by utilizing Zero Canal for supplemental parking. In conclusion, if Zero Canal is needed as parking for the west side properties it is impossible for it to be treated as a stand alone parcel. Based upon the foregoing analysis the court will treat the property as an integral and essential part of the west side properties.
Turning now to Mr. Gold's appraisal report and testimony, it is clear that his approach to valuation was predicated entirely on the assumption that the parking spaces located on Zero Canal were needed to satisfy the zoning requirements for the west side properties. The evidence is compelling that that assumption is valid. Therefore, Mr. Gold determined that the highest and best use of Zero Canal was for a parking lot for the west side properties.
Proceeding on this basis Mr. Gold determined the sum total of the values of the three west side properties, including Zero Canal as part of their aggregate value, by using the market or comparative sales approach. "The best test for the determination of value is ordinarily that of market sales." Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 673 (1959). Thus, he used comparative office property sales for 441 and comparative warehouse/office sales for 465 and 481.
The court finds it significant that the City does not challenge the suitability of any of the Gold comparables. Instead, the City attacks Gold's conclusion that the highest and best use is its present use because he has failed to establish that there is a market beyond the defendant's use at the time of the taking. The City further attacks Gold's opinion because he used a "present use" not a market value analysis. The court does not agree. The appraiser's reliance on recent property sales having comparable characteristics is ample evidence that there was in fact a market for the west side properties at the time of the taking. Likewise, an appraiser is entitled, if he/she thinks proper to accept a present use as the highest and best use if the property has been committed to a specific use or uses for an extended period of time. Implicit in his analysis is the belief that there was no more profitable use to which the property might be devoted. Tandet v. Urban Redevelopment Commission, supra, at 293.
From these market sales Mr. Gold derived a value per square foot of building space which he then applied to the square footage of the three buildings as follows: 481 Canal = $3,715,000; 465 Canal Street = $1,330,000; 481 Canal Street = $3,205,000. He did not assign a value to the land separate from the buildings but included the land values in arriving at the total. Thus the total value of the west side properties including Zero Canal as an integral part of the west side properties was $8,250,000.
Based on the zoning required parking for each of the west side properties Mr. Gold allocated the loss of the 18 spaces eliminated by the condemnation to each property address proportionately by reducing the value of each property by a percentage which he determined impacted the particular property. By this method he calculated that the properties suffered losses in value as follows: 441 = $97,240; 465 = $306,931; 481 = $562,478, thus reducing and rounding out the value of the three properties together to $7,290,000.
As between the two appraisers available to the court, the court finds the Hume appraisal to be unacceptable for the reasons stated earlier. While the Gold appraisal is not perfect, it is on the whole fundamentally sound in its approach. On the other hand, the court does not accept the appraiser's failure to adjust his appraised value by the value of the land that was condemned on the same day by the City at 441 Canal Street. Immediately prior to the condemnation of Zero Canal Street the City condemned 3,247 square feet of vacant land at 441 Canal as another part of the SUT, thus reducing the size of the property and causing the loss of 16 parking spaces. The Gold appraisal report states that he has "disregarded the impact" of this taking. He explained in his testimony that had he taken it into consideration it would have increased the value of Zero Canal because it would have made its parking spaces even more important. The court does not agree. Accordingly, based upon the percentage area which this condemned property bears to the area of the entire parcel as gleaned from the Gold appraisal, the court reduces the total value and finds the value of Zero Canal to be $882,300.
The city's final claim is that the taking of the parcel at 441 Canal Street constitutes a bar to this litigation under the doctrines of res judicata and collateral estoppel. As a preliminary matter the court notes that a defense of res judicata must be specially pleaded. P.B. § 10-50. Nikitiuk v. Pishtey, 153 Conn. 545, 554 (1966) and because collateral estoppel is an aspect of res judicata Massey v. Branford, 119 Conn. 453, 465 (2010) it too must be specially pleaded.
The City has omitted to do so but the plaintiff has not raised this omission as a bar to its assertion. The City raised these issues by filing a motion in limine. The court has reserved decision on the motion. Because the parties have treated the doctrine as if it were especially pleaded, the plaintiff may be deemed to have waved this omission. Carnese v. Middleton, 27 Conn.App. 530, 537 (1992).
A recent exposition of both doctrines may be found in Massey v. Branford, supra. They are well settled and well known in Connecticut. This court need only focus on the nature of the condemnation proceeding to determine whether either is applicable.
In order for res judicata to apply, there must have been a final judgment on the merits. There must be a "final determination of the substantive rights of the parties." Bridgeport Hydraulic Co. v. Perarson, 139 Conn. 186, 196-97 (1952) (emphasis added.) In order to invoke the doctrine of estoppel the plaintiff must establish that an issue has been litigated. "Collateral estoppel is that aspect of res judicata which serves to estop the relitigation by the parties and their privies of any right, fact or legal matter which is put in issue and has been determined by a final judgment." P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161 (1983) (emphasis added.) The court said in Connecticut Natural Gas Corp. v. Miller, 239 Conn. 313, 323 (1996) "for an issue to be subject collateral estoppel it must have been fully and freely litigated."
The present case implicated these principles only because one minute after the condemnation in this case, on the same date in City of Stamford v. First National Joint Venture, LLC, no. FST CV 05-4004781 the City condemned the 3,247 square feet at 441 Canal Street. Simultaneously, the City deposited its compensation for the taking with the court. The defendant herein elected to accept the City's damages award and on September 23, 2005 the court (Rogers, J.) approved the payment. Thereafter, the clerk of the court paid over that sum to the property owner, thus ending the proceeding.
Concentrating on the merits of these claimed defenses, neither party has addressed, from a procedural standpoint, whether these doctrines apply to the 441 Canal Street condemnation. The court holds that they do not for several reasons. The 441 Canal Street proceeding did not result in a final judgment. The order of the court approving the payment was not made after trial, hearing or determination of any issue which could have been raised therein. The court's involvement was pursuant to § 8-131 of the General Statutes which requires the court to approve the sum accepted by the property owner as "reasonable." While in approving the application for payment the court did not find explicitly that the amount was reasonable, it must be deemed to have done so implicitly. The judicial act of approval after a finding of reasonableness was a narrowly limited adjudicative act which did not require the resolution of a factual or legal issue.
Res judicata and collateral estoppel would be appropriate for consideration had the defendant herein applied to the court for a review of the statement of compensation pursuant to § 8-132. Since no such application was made, the court had no occasion to entertain any of the issues which customarily arise in a condemnation case, such as have arisen in the present case and specifically was not called upon to "revise such statement of compensation" as is provided for in the statute. Thus, not only has there been no final judgment but there was no opportunity to litigate any of the issues because no litigation ever began. The motion in limine is now denied.
To summarize, the court rejects the analysis offered by the City's appraiser but accepts the appraisal of the property owner with the noted adjustment, determines the value of the condemned property to $882,200 and denies the pending motion in limine.