Opinion
No. FST CV 05 4004767 S
June 1, 2011
MEMORANDUM OF DECISION
On June 21, 2005 the City condemned 2,547 square feet of the defendant's (hereinafter "the owner") land located at 129-131 Jefferson Street for the purpose of inclusion into the now open Stamford Urban Transitway ("SUT"). The parcel of land of which this is a part consists of 2.28 acres. The land is improved with two buildings, the larger of which houses a Buick-General Motors automotive dealership and the smaller, a diner. Together, these buildings comprise approximately 21,429 square feet in gross floor area. The owner operates the dealership and a tenant operates the diner pursuant to a lease from the owner.
The owner claims that not only did the City take a portion of its property but in doing so created three conditions which caused it damages. Proceeding east to west: (1) ten parking spaces used to display vehicles for sale were lost along the street line of Jefferson Street; (2) the delivery ramp on Jefferson Street which serves the parts department has lost its functional utility thereby necessitating relocation of the parts department with its attendant construction costs; (3) the diner has lost its front entrance, two parking spaces and signage area.
The City's response to each of these claimed elements of damages will be considered in the discussion that follows. The City has assessed damages at $800,000 through its appraiser, Christine Hume (hereinafter "Ms. Hume") assigning the current use as the highest and best use. The owner has determined the value of the area taken to be $1,715,000 through its appraiser, Barbara J. Pape (hereinafter "Ms. Pape"), maintaining the dealership without the diner as the highest and best use. The owner valued the entire property before the taking at $5,380,000 whereas the City valued it at $5,450,000. The court would observe that it is highly unusual that appraisers working for opposite sides will evaluate a large commercial property to approximately a one percent deviation from one another, especially when the higher appraisal is that of the condemning authority. Not quite so extraordinary but still remarkable is the fact that, apart from the cost of relocating the parts department, the owner estimates the taking damages to be $70,000 less than the City. This makes the court's job of finding the before taking value very simple. Accordingly, the court finds the value of the property before the taking to be $5,400,000.
The discrepancy in the final damages figures arises solely because Ms. Pape added to her core damages, the cost of constructing a new 2,000 ± square foot addition to the existing dealership building to house a new parts department (sometimes called "cost to cure"). Ms. Pape obtained this cost figure from an estimate provided by Charles Pavarini of Loft Development, LLC who was hired by the owner for that purpose. Ms. Hume did not include a sum representing a cost to cure because she was not given such a figure by the owner but added that even if she were provided such a figure she would not have added it to her damages estimate because, according to her understanding of appraisal principles, the cost to cure cannot exceed the diminution in value which the taking has caused the larger parcel.
Before giving consideration to these opposing positions it is necessary to state the general principles which guide the court's task in arriving at 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 he 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).
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).
Robinson v. Westport, 222 Conn. 402, 405-06 (1992) (alternate citations omitted). 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).
As stated earlier, this case is not about the comparative correctness of the approaches to value employed by the respective appraisers but rather concerns the validity of appraiser Pape's application of the cost to cure rule.
"In determining the market value of a remainder after a partial taking, 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. Budney v. Ives, 156 Conn. 83, 88; Holley v. Torrington, 63 Conn. 426, 433 "[A]ny expenses which are reasonably necessary to adapt the remaining land to use in view of changes to be made in the land taken may properly enter into the damages to be awarded . . . The more accurate statement is, however, that such expenses are not recoverable as such but are evidence of elements in the decrease of market value, of which they may be an accurate measure." Andrews v. Cox, 127 Conn. 455, 459-60; see DelVecchio v. New Haven Redevelopment Agency, 147 Conn. 362, (alternate citations omitted.) Bowen v. Ives, 171 Conn. 231, 236-37 (1976).
"Cost to cure is an element to be considered in reaching a valuation only when it is no greater in amount than the decrease in the market value of the premises if left as they stood. 4A Nichols, Eminent Domain (3d Ed.) § 14.22. If the cost to cure does restore the property to its former relative position, then the condemnee is not entitled to the cost of restoration in addition to an award for the difference in the before or after value." 5 Nichols, Eminent Domain (3d Ed.) § 23.2. Wakeman v. Commissioner of Transportation, 177 Conn. 432, 436 (1979).
Ms. Pape's estimate of total damages suffered is broken down into two parts, namely $730,000 represents the diminution in value to the remainder of the parcel after the taking, and $985,000 represents the cost to cure, for a total $1,715,000 in damages. She does not indicate in her appraisal report(s) what the value of the premises will be after the cure is completed except one can infer that it will be the before taking value.
Before the taking the owner gained access to its parts department by means of a concrete ramp approximately twenty feet in length which began at the southerly edge of Jefferson Street and terminated at an overhead garage door which opens into its parts department. The taking reduced the length of the ramp to approximately five and one-half feet, thus reducing the width of the new sidewalk, with the result that the ramp has been rendered unusable for the owner's needs.
The evidence reveals that General Motors from whom the owner obtains its automotive replacement parts requires access to the parts department twenty-four hours per day in order to permit round the clock delivery; so called "unattended access." This practice was facilitated by the fact that along the curb adjacent to the north side of the building the City had long designated the area as a loading/unloading zone for commercial vehicles and so identified it with appropriate signage. Henry Minchin, a co-owner of the dealership told the court that the loading zone existed in that location for at least 40 years but has been eliminated by the new SUT.
Frequently, parts deliveries would arrive during the nighttime hours after the dealership had closed. Often, the delivery vehicle would be a tractor trailer which would park in the unloading zone parallel to the curb (or sometimes with right wheels on the sidewalk) and offload onto a hand truck, forklift or pallet jack as appropriate for the size of the delivery. The alternate method used on occasion, as needed, was for the truck to back up the ramp, stop at the garage entrance to the parts department and unload. This procedure is no longer possible for two reasons. First, since a truck can no longer park along the Jefferson Street curb it would be required to back up the ramp and use the alternate method by stopping at the garage door since the opening is not wide enough to permit entry. Such a maneuver would not be practical because the cab of the tractor trailer would extend into the highway thereby obstructing the flow of vehicular traffic on Jefferson Street. Second, the southern most strip of pavement along the curb has been designated as a bicycle lane which a parked truck would obstruct. Consequently, the owners have been forced to take deliveries by having the trucks unload in the parking lot on the east and south side of their building into a pickup truck which then transports the parts to the parts department. The owners claim that this is an inefficient method of taking parts deliveries and can only be accomplished during daytime hours, but not after closing. Henry Minchin cited occasions on which delivery drivers have driven away from the premises "because they could not get on the property."
The taking line goes to a point six inches from the north face of the building.
Adjoining the dealership building on the west is a one story building 1,335 square feet in floor area which has housed a diner for many years. The condemnation took the front entrance to the building (steps and a stoop) leaving sole ingress and egress to the southerly side of the building. It also took a parking space which ran parallel to Jefferson Street. Finally, in an easterly direction along Jefferson Street toward the intersection of Magee Avenue ten parking spaces for vehicle display have been lost with the result that the front row of the remaining display parking has been pushed back to a point where the row of vehicles displayed is less visible from the street. It is significant to note at this juncture that public parking on the north side of Jefferson Street from which the diner benefitted for many years was also eliminated by the creation of the SUT.
As the court understands the owner's appraisal, the diminution in value of $730,000 as distinguished from the cost to cure, is intended to compensate the owner for the loss of the diner since the appraiser's highest and best use analysis calls for its demolition and reversion of the land to a parking lot.
As stated earlier, the City's appraiser did not calculate a cost to cure because she was never given a construction cost estimate on which to base her calculation although she acknowledges that the parts department "will no longer have delivery access to the building" and included a "loss of functionality" of the parts department in her appraisal. Implicit in that omission is her belief that application of the cost to cure rule is unwarranted. The City's appraiser also differs materially from the owner's in that Ms. Hume would not demolish the diner for parking but would retain it as a part of the larger parcel.
The disagreement over the applicability of the cost to cure rule requires thoughtful analysis. The City offers three reasons for precluding its application. First, the City argues that the changed configuration of the access ramp does not prevent use of the garage entrance for parts delivery, but at most creates an inconvenience which is not compensable under the cost to cure rule. Further, the City argues that the reduced access has been accounted for by its appraiser assigning a twenty percent depreciation factor in her cost approach to value. Finally, the City contends that because the cost to cure exceeds the diminution of value of the remainder of the property it is not recoverable. The court will consider each of these reasons in turn.
Whether the taking has deprived the owner of access to the parts department depends upon the degree to which that access has been impaired, including the extent to which the owner is deprived of a reasonably convenient and suitable means of ingress and egress. Cohen v. Hartford, 244 Conn. 206, 221-21 (1998). "Some impairment of access rights and some diminution in the total value of property do not, without more justify a conclusion that there has been an unconstitutional taking." Id. New York Courts have also drawn a similar distinction between access that has become unsuitable in that it is inadequate to the access needs inherent in the highest and best use of the property involved on the one hand, and therefore, compensable, and access which is merely circuitous or inconvenient which is not compensable. Labriola v. State of New York, 36 N.Y.2d 328 (1975). Thus, the determination of whether the access at issue remains reasonably convenient and suitable is predominantly fact bound. The evidence on this point establishes the following. It is important to the owner that parts be obtainable over a twenty-four hour period so that serviced vehicles can be returned to their owners in an expeditious, competitive manner. Thus, the owner must have the ability to receive overnight deliveries by variously sized delivery vehicles. The manner in which deliveries are now received in the parking lot on the south side of the property is unsatisfactory because it does not allow for overnight deliveries and requires excessive handling of the delivered parts in that it requires the use of a pickup truck, thereby requiring parts be offloaded twice. This in return delays receipt of the parts with the result that cars are delayed in being returned to their owners. This outcome is harmful to the owner's business which in turn reflects itself in the value of the property in its highest and best use as an automobile dealership.
The City counters that, consistent with the owner's appraisal which calls for demolition of the diner and use of that land for parking, the land formerly occupied by the diner should be utilized as a driveway which would permit delivery trucks to travel along the westerly side of the building, offload there and transport parts along the sidewalk to the parts department entrance. The court notes from its view of the premises that the land on which the diner is located is ample in width and topographically suitable for such a use. The City points out that the sidewalk is 5 1/2 feet in width but is narrowed by a utility pole which stands between that driveway and the parts department entrance, exactly 52 inches from the building. According to the owner, the widest object that would need to pass through this 52 inch opening is a wooden pallet which is approximately 45 inches wide. The City argues further that the pallet containing parts could be conveyed from the truck through the garage door by means of a pallet jack or forklift using either the sidewalk or the street pavement. Such an arrangement would allow for just 3 1/2 inches clearance on either side of the utility pole and the wall. The court considers a practice requiring such precision operation to be impractical and downright dangerous. Moreover, driving the pallet jack or forklift on the highway would be illegal as neither device is a registered motor vehicle and the loading zone has been discontinued. Thus, although permitting limited uses, the new access, is deemed not to be reasonably convenient and suitable to the owner's needs because it does not accommodate tractor trailers or facilitate the off-loading of bulky parts.
The location of the pole is controlled by the utility company and there was no evidence that the pole could be relocated.
A pallet jack is a motorized device which moves pallets and their contents by means of an operator who walks behind it and steers it. Wikipedia, The Free Encyclopedia.
Damages must be a "necessary, natural and proximate result of the taking." Daddario v. Commissioner of Transportation, 172 Conn. 182, 185 (1976). This rule is very similar to the rule of proximate cause which has been borrowed from our tort jurisprudence. Unlike some areas of our tort law, such as recovery based on a highway defect (G.S. § 13a-149), the law does not require that the taking be the sole proximate cause of the injury to the property. All that is required is that the taking be a substantial factor in producing the injury. It need not be the sole cause but may act concurrently with other factors to produce the harm. Tetro v. Stratford, 189 Conn. 601 (1983). Thus, the taking is the proximate cause of the owner's injury in this case notwithstanding that it acted concurrently with the loss of the loading/unloading zone designation along the southerly curb of Jefferson Street. Indubitably, elimination of the loading zone would not have occurred but for the taking.
As stated earlier, the owner's appraiser added to the amount allowed for the taking ($730,000) a cost to cure factor based upon construction estimates provided by the owner. This factor totals $985,000 for a total estimate of damages of $1,715,000.
"While the cost to cure specific injuries resulting from the taking are not recoverable as such, it may be considered by the trier in determining the extent of any decrease in value in the property remaining after condemnation. Mazzola v. Commissioner of Transportation, 175 Conn. 576, 586 (1998).
"In condemnation hearings, the state referee sifting as a court [of] appeals . . . is more than just a trier of fact or an arbitrator of differing opinions of witnesses. He is charged by the General Statutes and the decisions of this court with the duty of making an independent determination of value and fair compensation in the light of all the circumstances, the evidence, his general knowledge and his viewing of the premises." Birnbaum v. Ives, 163 Conn. 12, 21 (1972); see also Minicucci v. Commissioner of Transportation, [ supra, 211 Conn. 388]." (Internal quotation marks omitted.) Eichman v. J J Building Co., 216 Conn. 443, 453 (1990). (Alternate citation omitted.) Northeast CT Economic Alliance v. ATC Partnership, 256 Conn. 813, 829-30 (2001).
The court was presented with cost estimates for conceptual designs to relocate the parts department to the southerly side of the existing dealership building now occupied by the service department and what is called the "write up and delivery section." Such a move will necessitate relocation of the latter department to a new addition to be constructed adjacent to this space to the south. Clearly, the $985,000 estimate of the cost of this project exceeds the damages estimated by both appraisers without this "cost to cure." The City argues that pursuant to Wakeman v. Commissioner of Transportation, supra, such a sum is unrecoverable because it exceeds the amount by which the property is diminished in value, viz: $985,000 v. $800,000 (Hume) and $730,000 (Pape).
Further exposition of this principle may be found in Nichols' treatise on eminent domain. "The cost to cure is a flexible tool. It can be used alone or in conjunction with the payment of just compensation for any uncured severance damages. This approach allows the property owner to recover the cost to cure the portion of the damage that can be cured, plus any diminution in value to the remainder which cannot be cured, when the total of those two is less than the overall diminution in value of the remainder uncured. Take the example of an improved property where the improvement is partially acquired and demolished for purposes of a public project. If the part of the building that is left can be used if sealed up and restored, then the owner is entitled to recover the cost of sealing/restoring the building when that cost is less than the damages suffered by reason of the loss of the entire building. And if the smaller, cured building is less valuable, the owner is also entitled to compensation for such uncured diminution." 4A Nichols, Eminent Domain, § 14.02[2][e] at 14-12.
The entire purpose of the "cost to cure" is, in so far as possible, to put the property back in the condition it was in prior to the taking. The cost estimate has been characterized by Mr. Pavarini and Ms. Pape both as "conceptual and speculative." Mr. Pavarini pointed out that no plans or specifications had been prepared for this project. Pape's words were that she had a "purely speculative, conceptual project here. I had conceptual plans; I had conceptual costing; it is really speculative." The trier of fact is not permitted to rely on evidence of damages that are speculative or conceptual. Robinson v. Westport, 222 Conn. 402, 408-09 (1992). Mere possibilities or suppositions will not sustain a legitimate inference of the existence of a fact nor can it be drawn by conjecture only. General Petroleum Products v. Merchants Trust Co., 115. Conn. 50, 58 (1932).
"To authorize a recovery . . . facts must exist and be shown by the evidence which affords a reasonable basis for measuring the [plaintiff's] loss. The [plaintiff has] the burden of proving the nature and extent of the loss . . . mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate." (Citation omitted, internal quotation marks omitted.) Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 58-59 (1998). "Proof of damages should be established with reasonable certainty and not speculatively and problematically . . . Damages may not be calculated based on a contingency or conjecture." (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35 (2006). (Alternate citations omitted.) Cannan v. Yale New Haven Hospital, 279 Conn. 622, 650 (2006). Severance damages must be shown to a reasonable conformity. They may not be remote, speculative or contingent in nature. Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 27 (2005).
While the individual figures which comprise the estimate may have a sound foundation and their reasonableness confirmed by Ms. Pape there was no evidence that the conceptual proposal was the only replacement plan that was appropriate. It is noted that no architect was engaged to perform a feasibility study to determine if this plan would most closely replicate the pre-taking condition.
It is apparent to the court that the conceptual plan that formed the basis for the cost estimate and ultimately Ms. Pape's appraisal was a plan chosen by the owner to promote maximum benefit to the dealership. Although the owner claims that this plan will not produce a parts department as good as the former parts department the question which the court must answer is whether this proposal exceeds what is needed to achieve restoration of the premises to its former condition. In this regard the owner has failed to meet its burden of proof.
"An abutting homeowner on a public highway has a special right of easement in the public road for access purposes, but the owner is not entitled to access to his land at any and all points in the boundary between it and the highway. United States v. Certain Land in the City of Newark, 314 F.Sup. 836 (D.N.J. 1970), aff'd 439 F.2d 670 (3d cir. 1971). That is, the abutter's easement entitles him to some means of access from the adjoining highway, " but such owner cannot insist on the right of ingress and egress at any place he sees fit as he holds his right subject to the superior right of the state to impose reasonable regulations and restrictions.) King v. Stark County, 66 N.D. 467, 266 N.W. 654 (1936); Johnson v. United States, 479 F.2d 1383, 1391 (1973) (Emphasis added.) So too, this owner cannot insist on relocation of the parts department to any place it sees fit. The selection is limited to reproducing the former conditions as closely as possible.
The court was given the opportunity to view both the interior of the building and the exterior of the property. Bearing in mind that Mr. Pavarini stated that he was not asked to prepare an alternate estimate or a redesign of the existing parts department because it would require "displacement of other needed services." What Mr. Pavarini meant by that is that along the easterly wall of the parts department there is utility infrastructure such as air compressors, water, electric and gas meters with attendant large scale piping and wiring which would have to be relocated to another part of the building if the existing parts department were to be redesigned to provide for improved vehicular access. The owner never explored either the structural or economic feasibility of relocating the infrastructure to another part of the building. Indeed, Scott Minchin stated that he did not know what use the owner would make of the space vacated by the parts department.
Redesign of the present parts department would require demolition of the diner and restoration of the land on which it sits so as to make it usable as a driveway for access by delivery vehicles. As stated earlier, Ms. Pape opined that the highest and best use for the diner property is demolition and dedication of the land to a use supportive of the dealership, such as parking. Her appraisal report states the following: "The site supporting the diner reverts to its highest and best use of parking. It is considered equally probable that the site be reincorporated with the dealership or be acquired by a neighbor. Given the alley like location of the diner in relationship to the dealership building it is not a primary parcel in terms of exposure. Rather it is considered secondary but potentially supportive. Parking and access utilization is the highest and best use."
The court agrees with this opinion except that the court believes that it is highly probable that the site could be used efficiently as a driveway to provide access for delivery vehicles to a reconfigured parts department. It is noted that a tractor trailer is approximately 8 1/2 feet in width and the new driveway would be 16 feet wide at its narrowest point. This could be accomplished by creating a doorway through the westerly wall of the building and allowing entry to the floor of the parts department after removal and relocation of the utility and infrastructure mentioned above.
It is not the purpose of this exercise to propose this scheme as the best solution for the diminished parts department access but to show (i) it is consistent with the opinion of the owner's appraiser, (ii) the owner failed to provide any reason for not considering this possibility other than the assertion that the utility infrastructure would prohibit it, (iii) no feasibility study or cost estimate was ever sought. The court notes Ms. Pape's remarks at page 10 of her addendum to the appraisal (December 7, 2010, Ex. AA) that there are a "lack of viable alternatives to secure delivery of parts to the dealership." There is no support for that statement in the record. The court interprets this statement to mean only that Ms. Pape was not furnished with any viable alternative because the owner never explored whether such an alternative exists.
Notwithstanding this court's conclusion that the proposed solution to the parts department goes beyond what is necessary to restore the property to its pre-condemnation condition and that the owner failed reasonably to explore viable alternatives, nevertheless, the owner must be compensated for the impaired access.
"When reviewing a takings claim based upon an alleged infringement of an owner's legal right of access to property, a court must ascertain the degree to which such access is impaired by the regulatory action; see e.g. Colorado Dept. Of Highways v. Davis, 626 P.2d 661 (Colo. 1981); including the extent to which the regulation deprives the owner of a reasonably convenient and suitable means of access. See, e.g. Falls Riverway Realty, Inc. v. Niagara Falls, 732 F.2d 38, 40 (2d Cir. 1984) Johnson v. United States, 479 F.2d 1383, 1391 (Ct. Cl. 1973); Palm Beach County v. Tessler, 538 So.2d 846, 847 (Fla. 1989); DuPuy v. Waco, 396 S.W.2d, 103, 109 (Tex. 1965). Although we consistently have held that `[a] landowner who, as a result of governmental action, suffers a total and permanent loss of his right of access to the public way . . . is entitled to recover damages.' Luf v. Southbury, supra, 188 Conn. 342; see Slavitt v. Ives, 163 Conn. 198, 207 (1972) (destruction of sole right of access to landlocked property constitutes taking); Cone v. Waterford, 158 Conn. 276, 279-80 (1969) (discontinuance of road providing property owner with only practical means of access amounts to taking); some impairment of access rights and some diminution in the total value of property do not, without more, justify a conclusion that there has been an unconstitutional taking . . ." (Citations omitted.) Luf v. Southbury, supra, 354; Cohen v. Hanford, 244 Conn. at 221, 222.
As stated earlier, there is no question in the court's mind that the owner has suffered a significant impairment of its access to its parts department. In the words of the Court of Appeals for the Second Circuit, "It (the access) is inadequate to the access needs inherent in the highest and best use of the property involved." Falls Riverway Realty v. City of Niagra Falls, 754 F.2d at 42. Having determined that there has been an unexplained failure to consider other alternatives and that failure is unreasonable this court cannot accept the "cost to cure" estimate proferred by the owner. The injury therefore must be compensated by some other appropriate method.
"The function of the trial court in condemnation cases is to determine as nearly as possible the fair equivalent in money for the property taken. Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 410, 270 (1970). Although the market value of the taken property is ordinarily the most appropriate measure of fair compensation; DelVecchio v. New Haven Redevelopment Agency, 147 Conn. 362, 363-64 (1960); we have long held that other measures may be appropriate when the fair market value measure of damages does not fully compensate the owner. Colaluca v. Ives, 150 Conn. 521, 530 (1963); Winchester v. Cox, 129 Conn. 106, 114-15 (1942); State v. Suffield Thompsonville Bridge Co., 82 Conn. 460, 467-68 (1909). " [T]he question of what is just compensation is an equitable one rather than a strictly legal or technical one. The paramount law intends that the condemnee shall be put in as good condition pecuniarily by just compensation as he would have been in had the property not been taken." Colaluca v. Ives, supra; Alemany v. Commissioner of Trans., 215 Conn. 437, 444 (1990). (Alternate citations omitted.) (Emphasis added.)
The court finds that the method most appropriate and equitable is found in the cost approach analysis which Ms. Hume employed at page 64-65 of her September 1, 2004 appraisal (Ex. 8). There she states "the parts department will no longer have delivery access to the building." And that "an adjustment has been made to the overall depreciation charged to the property, in the form of an additional charge of functional depreciation. Based on the extent to which there is a decrease to overall utility, an additional 20% reduction has been made in the form of functional depreciation."
Ms. Hume testified that she was more comfortable with this approach but she also used the sales comparison (market approach) to corroborate her cost approach estimate.
However, based upon the testimony at trial of which Ms. Hume did not have the benefit at the time she did the appraisal, the court finds that a 20% loss in functional utility does not reflect the actual loss in functional utility with sufficient accuracy. The owner testified that the most critical time to have unimpaired access is during the nighttime hours when the dealership is closed (so called "unattended access.") Taking into account that unimpaired access is also relevant during the daytime hours when the dealership is open and that not all deliveries require larger truck access, the court determines that a factor which reflects the hours of closure will give a more appropriate representation of the loss. Thus, the court assigns a factor of 33% functional depreciation, which percentage corresponds roughly with the nighttime hours which are most heavily impacted by the taking. The court disagrees with Ms. Hume that the parts department comprises only 20% of the dealership business. The parts is in an integral part of servicing and a large part of customer satisfaction. The court is persuaded that this method of compensating for the loss, though somewhat technical, is predominantly equitable in nature. See Alemany v. Commissioner of Transp., supra.
The court finds that the value of the property before the taking was $5,400,000 and the value after the taking was $4,256,640 resulting in damages of $1,143,360. Interest pursuant to G.S. § 37-3c is awarded at the rate of six percent. Costs will be taxed in accordance with P.B. § 18-5.