Commissioner of Transportation v. GHQ (2011)

SUPPLEMENTAL MEMORANDUM OF DECISION

This matter is before the court in connection with a supplemental hearing arising out of the court's previous order and decision finding that the defendant landowner GHQ, Inc. is entitled to additional compensation as a result of the Commissioner of Transportation's taking of GHQ's surface and sub-surface drainage rights resulting from a road construction project on Brush Hill Road, Middletown, CT. The court's February 27, 2009 memorandum of decision sets forth the operative facts and conclusions of law framing this dispute.   Those facts and conclusions of law, as well as the memorandum itself, are incorporated by reference as part of this supplemental memorandum.

That decision, in short, concluded that the project deprived GHQ of its surface and subsurface drainage capacity as a result of the removal and reinstallation of certain catch basins and a drainage culvert.   At the time of the initial hearings in this matter the principal dispute that emerged concerned the nature of the appropriate remedy to correct the loss of the defendant's surface and subsurface drainage systems.   Two competing proposals were offered.   The first, suggested by GHQ, was to increase the elevation of the GHQ property to place the property and drainage pipes at approximately the same grade.   This proposal would involve adding tens of thousands of cubic yards of fill to the existing property at an estimated cost of approximately $750,000.   The second solution, proffered by DOT, was to lower the drainage pipes at an estimated cost of approximately $35,000.   The court concluded, based on the evidence then available, that lowering the drainage pipe was the more prudent and reasonable approach and ordered supplemental hearings to determine the precise amount of damages that ought to be awarded as reasonable compensation for the remediation of the damages flowing from the taking.

The issue of damages having been thus framed, the court took additional evidence on the cost of the proposed fix, noting that “neither party has presented adequate evidence concerning the reasonable cost of modifying the newly installed system to accomplish the lowering of the 24 inch pipe as recommended by the Commissioner's experts.”  (February 27, 2009 Memorandum of Decision, p. 13).   As a result of the supplemental evidence, including expert opinions offered by each party's engineer, the court finds and concludes that the mere lowering of the drainage pipe, as it found in its February 2009 decision, is not adequate to remedy GHQ for the loss of its subsurface drainage system.   The following supplemental findings of facts and conclusions of law are entered.

1. The plaintiff DOT has not demonstrated by a preponderance of the evidence that its proposed fix-the dropping of the pipe-is physically feasible.

2. Connecticut Public Health Codes and Middletown Water Department Regulations require that the water line be located above the drainage pipe and that there be an eighteen (18) inch separation between the water and drainage pipes.

3. Because of the absence of “as-built” plans it is unknown whether:  a) the water line is located above the drainage pipe, and;  b) the relative distance between the two pipes is consistent with state and local law.

4 State and/or local regulations require that there be a 4.5 foot “cover” between the road surface and the top of the water line, meaning that the water line must be buried at least 4.5 feet below the road surface.

5. Because of the absence of “as-built” plans it is unknown whether there is a 4.5 foot separation between the road surface and the top of the water line.

6. DOT's proposes that the drainage culvert be lowered by 4.2 feet.   The better, more credible evidence, indicates that an additional drop of 3.53 feet is required in order to restore GHQ's pre-taking subsurface drainage capacity.

7. As a result of the absence of proof concerning the location of the drainage pipe and its position relative to the water pipe, the court cannot conclude by a preponderance of the evidence that it is either physically possible or consistent with state and local law to lower the drainage pipe by 4.2 feet let alone the additional 3.53 feet required to address subsurface drainage.

8 DOT's experts' conclusions concerning the feasibility of lowering the drain pipe did not consider or acknowledge the state and municipal regulations governing the relative locations of and spatial relationships between the water and drain pipes.   The court is unable to credit their assurances that, having been made aware of these issues, the “drop pipe” solution is either feasible or permissible.

9. In light of the foregoing the court concludes that GHQ has demonstrated by a preponderance of the evidence that the damages to which it is entitled to be compensated for the taking of its surface and subsurface drainage system is a function of the cost of implementing its proposed solution, namely, raising the grade of its property.

10. GHQ's expert concludes that the cost of its proposed remedy is $307,143.   That figure is uncontested.   The court finds that this amount constitutes the severance damages for which GHQ is entitled to be compensated, together with 10% interest from the time of the taking.

11. The court finds that GHQ is also entitled to $16,219.73 as damages for the Commissioner's physical taking.   This represents the difference between the $8,000 deposited into court by DOT and the plaintiff's expert's opinion that the fair market value of the property taken is $24,218.73.

Judgment shall enter in favor of GHQ in accordance with paragraphs 10 and 11.   Supra.

SO ORDERED.

ROBERT L. HOLZBERG, JUDGE

Holzberg, Robert L., J.