292 POST ROAD, LIMITED PARTNERSHIP v. COMMISSIONER OF TRANSPORTATION.

2004 Ct. Sup. 14216
No. CV01 07 46 86Connecticut Superior Court, Judicial District of Ansonia-Milford at Milford
September 23, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
CURRAN, JUDGE TRIAL REFEREE.

The Department of Transportation (DOT) for the State of Connecticut acting through its Commissioner pursuant to the statutory authority conferred upon him by §13a-73(b) of the Connecticut General Statutes has on May 28, 2001 filed with the Clerk of the Superior Court for the Judicial District of Ansonia/Milford a Notice of Condemnation and Assessment of damages for a partial taking of property located at 292 Boston Post Road, Orange, Connecticut, owned by the defendant 292 Boston Post Road Limited Partnership.

The taking is found to be necessary for the layout alteration extension widening change of grade and improvement of the highway commonly known as U.S. Route 1.

The property taken consists of a strip of land fronting on the Post Road and consisting of 1446 square feet. Along with the property taking is a right at entry over and under portions of the remaining land to construct driveways, curbing and grade. Said right of entry is to cease automatically upon completion of the work. The total damages assessed amount to $24,600.00.

On June 13, 2001, the defendant appealed from said assessment of damages alleging they are inadequate, that they do not consider the highest commercial use of the land and that the assessment does not consider the severance damages to the remaining land

The Fifth amendment to the Constitution of the United States and Article First, Section 11 of the Constitution of the State of Connecticut require that: “No private CT Page 14217 property shall be taken for a public use without just compensation.”

Connecticut General Statutes § 13-73(b) authorizes the taking of private property for highway purposes by the Commissioner of Transportation. This statute contains the language, “. . . and the owner of said land shall be paid by the State for all damages.”

The owner of land taken by condemnation is entitled to be paid just compensation . . . 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 . . . In determining the market value, it is proper to consider all the elements which an owner or prospective purchaser can reasonably urge as affecting the price of land

Greene v. Burns, 221 Conn. 736, 744. (Internal citations omitted.)

In determining fair market value the Court must decide the highest and best use that the property may be put to under the conditions as they exist. Our Supreme Court in Gasparri v. Department of Transportation,
stated: “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 at the taking.” Gasparri v. Department of Transportation, 37 Conn.App. 126, 128.

The subject property is located in an area of the Boston Post Road that is highly commercialized. The Court finds its highest and best use to be commercial, its present use.

Just compensation has been interpreted to mean that the condemnnee is entitled to receive a fair equivalent in money for the property taken as nearly as its nature will permit. Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 298.

In the present instance only a portion of the property is being taken.

Damages recoverable for a partial taking are ordinarily measured by determining the difference between the market value of the whole tract as it lay before the taking and the market value of what CT Page 14218 remained of it thereafter, taking into consideration the damages 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.

Cappiello v. Commissioner of Transportation, 203 Conn. 675, 679. (Internal quotations and citations omitted.)

The single objective of an eminent domain proceeding is to insure that the property owner shall receive and the state shall only be required to pay the just compensation which the fundamental law promises the owner for the property for which the State has seen fit to take for public use.

Bruno v. East Hartford, 4 Conn.App. 271, 274.

The undersigned Judge Trial Referee has viewed the subject property, examined the appraisal reports, heard all of the evidence and hereby makes his own evaluations of the damages incurred by the taking.

The subject property, on the date of the taking, comprised some 68,003 square feet. After examining the appraisal reports and viewing the property, the Court finds the fair market value of the property to be $1,360,000.00 or $20.00 per square foot. Since the court is considering only land in its determination of value, the same square foot value would remain after the taking. The fee that is being taken consists of some 1446 square feet the value thereof after the taking is $1,331,140.00. The damage for the fee interest therefore is $28,860.00.

In addition to the fee interest taken there is also being taken a right of entry over and under portions of the subject property in order to construct driveways and grade. Said right is to terminate automatically upon completion of the work. The State claims that this is merely a replacement of what is already there and therefore no damages have incurred.

While the Notice of Taking makes reference to a Right of Entry, it nevertheless imposes a restriction upon the owners’ use of its property and for this it is entitled to be compensated. The area covered by the Right of Entry comprises some 1668 square feet. On this right of entry, the Court places a value of $8,006.40.

As a result of the taking a zoning non-conformity will exist. The appellant claims that there is a likelihood that it will be required to CT Page 14219 bring the property into conformity with the Orange Zoning Regulations and that he is entitled to recover the cost of same.

This however is contrary to the testimony of the Orange Zoning Enforcement Officer who testified that in situations such as this where noncompliance has existed for over three years, they become accepted. Of significance, is the fact that the Town of Orange and the State of Connecticut are anxious to see the completion of this project and that the zoning authority would in all likelihood look favorably on any request for a variance.

The Court must take into consideration those damages which are so possible of occurrence in the future that they may reasonably be held to affect market value. Cappiello v. Commissioner of Transportation, supra,
679. While anything is possible, the probabilities seem to rest in favor of the State.

One of the appellant’s major claims is the loss of several specimen birch trees. The issue of the cost of a tree the Court believes not to be relevant. What is relevant is the impact, if any, on the before and after value of the land

The cost of relandscaping the impacted area the court finds to be $3,400.00.

The Court finds the damages to total $40,266.40 rounded to $40,300.00. The State having deposited with the Court the sum of $24,600.00, judgment may enter in the amount of $15,700.00 with costs. Pursuant to the terms of Section 37-3c of the General Statutes interest is awarded in the amount of 8% per annum.

The appellant is requesting an appraisal fee of $16,000.00. This, the court deems to be excessive. A fee of $4,500.00 is awarded.

THE COURT

CURRAN, J.T.R. CT Page 14220