Opinion
No. CV06 400 80 75 S
May 28, 2009
MEMORANDUM OF DECISION
The above captioned case involves an appeal pursuant to Conn. Gen. Stat. § 13a-76, from the Commissioner's award of compensation to Gerald Green, Trustee ("Plaintiff," "Appellant," or "Gerald Green, Trustee") for the partial taking of a 12' easement for access to Route 7. The Commissioner acquired the property in accordance with his authority under Conn. Gen. Stat. §§ 13a-73(b) and 13b-73(f).
On November 18, 2005 ("the date of taking"), the Commissioner filed a Notice of Condemnation and Assessment of Damages with the court against Gerald Greene, Trustee. The Commissioner acquired a 12' easement for access to Route 7 situated in the Town of Wilton, Connecticut totaling 4,023, sq. ft. the easement taken is the same as an easement contained in an easement instrument recorded on November 20, 1989 in Volume 702 at page 328 of the Wilton Land Records. The purpose of the taking was to extinguish the right of direct access to Route 7 from the plaintiff's property over the 12' easement. The Commissioner deposited $40,000 with the court. Plaintiff filed an appeal of the condemnation award claiming the damages assessed were inadequate.
On March 20, 2009, the parties stipulated that the DOT filed an eminent domain action, Doc. No. FST-CV4007480-S, from which plaintiff took an appeal, Doc. No. FST-CV-06-4008075-S, and that the Court need enter only one decision in plaintiff's appeal.
The subject property consists of Lot 37 which abuts Route 7 and consist of 0.26 acres and Lot 39, which is a rear lot and consists of 1.87 acres, together with the right of access over the 50' wide private driveway Whitewood Lane to Route 7 which is contiguous to Lot 37 and Lot 39 and consists of 0.48 acres for a total of 2.61 acres. The plaintiff owns Lot 37 and Lot 39, along with the 50' private road Whitewood Lane via two quitclaim deeds from Edward E. Greene and Valerie Greene to Gerald Greene, Trustee recorded on the Town of Wilton Land Records at volume 1204, page 233 and volume 1156, page 49. The subject property is located in a R-1A Residential Zone which requires a minimum of 1 acre of land per dwelling. Town of Wilton Zoning Regulations, § 29-5.A.6.c(2). Gerald Greene, Trustee has had sole ownership of the property since 1999. The court visited the site.
The plaintiff presented an expert appraiser, Michael B. Gold, a Wilton resident with over 30 years experience in the Wilton area. The defendant presented Steven MacCormack, who used as sales comparison approach and testified the highest and best use of the property "as vacant" would be a single house lot. Mr. Gold, using the before and after methodology, was of the opinion that the damages caused by the taking amounted to $255,000. Mr. MacCormack, an appraiser of approximately 10 years experience from the Suffield, Connecticut area, on cross examination, acknowledged that he had never appraised any property in Wilton of the area except for the present taking and was of the opinion that damages caused by the taking was $62,250.
Mr. Gold, using the comparable sales method, found that the before value of the subject property was $290,000 and concluded that the highest and best use of the property was a single oversized building lot. While the comparable lot sales used by Mr. Gold ranged from $280,000 to $650,000, he felt that the subject nearness to Route 7, its access through the commercial area and its topography rendered it closer to the lower end of the lot scale spectrum. It was Mr. Gold's opinion that due to the speculative nature of possible access to the remaining land, it was limited to non-developmental uses and/or sale to abutters and that therefore its "after" taking value was only $35,000. The speculative nature of the access in the "after" state is due to the fact that access would have to come from the end of Whitewood Lane across a steep drop, which contains a stream, and across wetlands. Permits would have to be obtained from Wilton's Inland Wetlands Commission to either fill, pipe or redirect the stream and/or to bridge the stream and wetlands. Mr. Gold, with his thirty year of work in the Wilton area, could not find any example of when such permits were given. Such permits would be at best speculative.
Mr. MacCormack testifying for the defendant also used the comparable sales method and agreed that the highest and best use in the "before" state was as a single-family building lot. Mr. MacCormack agreed that before the taking, the site had "unencumbered access" using the 12' wide easement that was taken. Mr. MacCormack used some of the same comparable sales as Mr. Gold but found the site to be better and more valuable than Mr. Gold. The differences in the two appraisers came in Mr. MacCormack's "after" valuation where he testified that a Wetlands Permit would have to be obtained and a lengthy bridge built. On cross examination, Mr. MacCormack acknowledged he knew of no such permits having been granted in Wilton and he testified he could not guarantee that any such permits could be obtained. Mr. MacCormack also testified that Wilton Inland Wetlands regulations had a 100' setback or buffer from all streams and that he had no evidence or reason to believe that such a regulation would be waived. Assuming no waiver of the 100' setback regulation and a stream width of a minimum of 25 feet, the bridge would have to have a clear span of over 225 feet (100' setback plus 25' stream plus 100' setback on the other side). The cost of such a bridge could exceed the value of the property and would be prohibitive.
The law in Connecticut concerning damages in a partial taking is well settled. The proper manner of computing the damages caused by a taking are to be determined by means of the Before and After method of appraisal. The full property is valued as of the moment of taking and then valued in its post taking. The two values are subtracted resulting in the damages caused by the taking.
The Supreme Court in Corbin Development v. Commission of Transportation, 176 Conn. 63, 67 restated the rule.
When, though eminent domain, only a portion of a tract of land is taken, "just compensation" includes "recovery for any damages visited upon the remainder which result from the taking." D'Addario v. Commission of Transportation, 17 Conn. 182, 184, 374 A.2d 163 (1976); Bowen v. Ives, 171 Conn. 231, 238, 368 A.2d 82 (1976); Meriden v. Highway Commissioner, 169 Conn. 655, 659, 363 A.2d 1094 (1975). In such a case the ordinary rule for measuring damages requires a determination of "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." Lefebve v. Cox, 129 Conn. 262, 265, 28 A.2d 5 (1941); Bowen v. Ives, supra, 236. It is, therefore, proper to consider in assessing damages all of those elements which a well-informed purchaser would view as affecting the value of the property, including the use to be made of the land taken as it might affect the value of the land remaining. Andrews v. Cox, 127 Conn. 45, 458-59, 17 A.2d 507 (1941).
Again, the Supreme Court in Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 36 stated:
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The owner of land taken by condemnation is entitled to just compensation. Conn. Const. Art I § 11. "If the taking is partial, the usual measure of damages 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. Severance damages to the parcel remaining are thereby included. Meriden v. Ives, 165 Conn. 768, 773, 345 A.2d 13; Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 413, 270 A.2d 549. 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. The valuation should ordinarily be based on the `highest and best' possible use of the lane. Connecticut Printers, Inc. v. Redevelopment Agency, supra, 411-13" Lynch v. West Hartford, 167 Conn. 67, 73, 355 A.2d 42 (1974). Application of the `before and after rule' to compute compensation for a partial taking was recently upheld by this court in Hanson v. Commissioner of Transportation, 176 Conn. 391, 400, 408 A.2d 8 (1979). This court has also held that where only a portion of a tract is taken for 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. Corbin Development Co. v. Commissioner of Transportation, 76 Conn. 63, 67, 404 A.2d 882 (1978); D'Addario v. Commissioner of Transportation, 172 Conn. 182, 184, 374 A.2d 163 (1976). These principles of Connecticut law on the assessment of damages for a partial taking reflect the judicial philosophy that just compensation requires that the condemnee shall be put in as good a condition pecuniarily as he would have been in had the property not been taken. Meriden v. Ives, 165 Conn. 768, 773, 345 A.2d 13 (1974); Slavitt v. Ives, 163 Conn. 198, 209, 303 A.2d 13 (1972).
The court has considered that plaintiff's appraisal report utilizes three properties from outside the Town of Wilton and also uses comparables that are of greater value than the subject property thus reducing the value of the subject property in the after taking and do not necessarily represent values at the time of taking. The court also is of the opinion after viewing the property and considering the difficulty plaintiff would have in obtaining a lengthy bridge over the wetland that obtaining the necessary permits for same is very speculative. While there is merit to the concept of assemblage the fundamental issue remains that to permit a bridge to be built is not reasonably probably and at best theoretical. Franc v. Bethel Holding Co., 73 Conn.App. 114, 122 (2002).
There is little doubt that the highest and best use of the property before the taking was a residential building lot. The Department's appraisal assumes that the municipality's zoning agency would simply waive its regulations so that only a minimal bridge would be constructed. There is nothing to support this contention. The court finds that the plaintiff's claims with respect to law are clearly supported by the evidence.
After a physical inspection of the property and considering the claims of both parties the court awards damages in the amount of $217,000. Interest shall accrue pursuant to § 37.3c, Connecticut General Statutes from the date of taking to the date of payment with appropriate credit for the sum of $40,000 already assessed and paid.
Judgment shall enter accordingly.