Commissioner of Transportation v. Clarence Zachery et al. (2011)

MEMORANDUM OF DECISION

This case involves two separate appeals under § 13a–73b of the Connecticut General Statutes i.e., (condemnation).   These cases were consolidated since each involved portions of the same property.   There were two separate condemnation actions necessary for the layout, alterations, extension, widening, change of grade, slope, replacement, and improvement of U.S. Route 44.   The owners, Clarence and Maria Zachery, have appealed the taking of these two parcels of property.

On August 14, 2007 the Commissioner of Transportation (Commissioner) took 6,421 square feet in fee and a 4,882 square foot easement from the appellants' property at 15 Montevideo Road, Avon, Connecticut.   The Commissioner deposited the sum of $40,000 with the Court for the taking.   On May 28, 2008 the Commissioner amended the taking to correct the appellants' address.   On July 15, 2008 the Commissioner took a 980 square foot easement from 15 Montevideo Road for additional improvements to U.S. Route 44 and deposited the sum of $2,000 with the Court for this taking.

The parties agree that the central point of contention between the Commissioner and the appellants in these cases is whether the subject parcel suffered any “severance” damages because of the takings and easements.   For the August 14, 2007 taking the defendant's appraisal found the “before taking” market value to be $625,000.   He found the “after taking” value to be $575,000 and calculated the damages award for the actual taking to be $50,000.   For the July 15, 2008 taking the Commissioner found the “before taking” market value to be $550,000 and he calculated the actual damage award to be $5,000.   The Commissioner treated each taking as separate.   The total combined damages were $55,000.   The Commissioner had retained the services of Mr. John Lo Monte of John Lo Monte Real Estate Appraisers and Consultants.

Appellants retained the services of Robert J. Mulready and Susan Mulready of J.S. Mulready Company LLC as appraisers.   The Mulreadys furnished a very detailed appraisal consisting of 84 pages.   They assessed the two separate takings as one.   The additional taking of 980 square feet of land as a full and perpetual easement as of July 15, 2008, was valued with the easement taking in August 2007.   Mr. Mulready arrived at a total damage of $253,780 for the overall taking using $940,000 as the “before taking” fair market value and $686,213.95 as the “after taking” value and the appellants' appraiser placed the value of the land taking in fee at $33,068.15 and the value of the easement was $27,170.37 for a total of $60,238.52, and severance damage at $193,547.37.

Severance damage is well recognized in Connecticut law.

We have consistently departed from the fair market value measure of damages in cases of partial takings.   When only a portion of a party's property is taken, the land owner is entitled not only to compensation for the value of the property taken, but also to severance damages for the diminution in the value of the landowner's remaining property that the severance of a portion of the property causes.

To ensure that severance damages are included in the trial court's assessment, damages should be calculated by the “before and after rule,” under which “[t]he proper measure of damages is 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.”  Alemany v. Commissioner of Transportation, 215 Conn. 437, 444 (1990).

The Commissioner's appraisal eliminated severance.   He argues that severance is not applicable in this case.

The appellants on the other hand maintain that severance is applicable to this case and has gone to considerable trouble to evaluate same.   Both parties have used the sales comparison approach and each used adjusted comparable properties in arriving at fair market value.

The subject property is located on the west side of Montevideo Road in the eastern portion of the town of Avon. The lot has 200 feet of frontage on Montevideo Road and 200 feet of frontage on Albany Turnpike (Route 44) also known as Avon Mountain Road. The lot is level at Montevideo Road and rises several feet before dropping off very precipitously at the rear to Albany Turnpike.   The property has a panoramic view of the Farmington River Valley below.

Before the taking the lot was heavily treed and shrubbery had been allowed to grow freely.   The lot is 2.2 acres in size and is an irregular rectangle in shape.   There is electricity, telephone, cable and road available to the site.

The highway, which was previously out of sight, has been moved closer to the house.   The precipitous fall off toward the road has been turned into a slope and the property has been transferred from a serene lookout retreat to a lot invaded by a busy highway.   The property which was previously hidden from view is wide open at present to any automobile coming either east or west on the highway.   All sense of privacy has been lost and traffic noise increased.

The Court is of the opinion that this case requires that damages due to severance must be assessed.   The only credible evidence advanced to the Court with respect to severance damages is that provided by the appellants.   The Court has examined in detail the very professional appraisal provided by the Mulready Company and the Court finds it to be very acceptable as to method.

The trial court is charged with the duty of making an independent evaluation of the property involved.  E & F Realty v. Commissioner of Transportation, 173 Conn. 247, 253 (1977).   The trier is not limited to arbitrating the differing opinions of the witnesses but is to make determinations in the light of all the circumstances, the evidence, and the general knowledge.   Pandolphe's Auto Parts, Inc., v. Manchester, 181 Conn. 217, 220 (1980).   Birnbaum v. Ives, 163 Conn. 12, 21 (1972).   The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part.  Smith v. Smith, 183 Conn. 121, 123 (1981).  Richard A. Waldman & Sons, 155 Conn. 343, 348 (1967).

Ultimately the determination of the value of real estate is a matter of opinion, which eventually depends upon the judgment of the trial judge who takes into account the different opinions expressed by the various witnesses.   Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425 (1959).

The fair market value prior to the taking found by the appellants is substantially higher than that found by the Commissioner's appraiser.   However, in the opinion of the Court the appellants have backed up the appraisals correctly and the Court also takes into account that this property is on the “ridge line” of the Avon Mountain which contains other lots all of which are the most valuable property in central Connecticut.¹

The Court accepts the appellants' appraisal.

While the Court is in agreement that this case deserves the application of the severance damages and the Court is in agreement with the appellants' method of arriving at a severance damage, the Court is of the opinion that the factor used by the appellants in arriving at the severance damage (22%) is too high.   The item that gives the property its principal value is the view of the Farmington River Valley which view is intact.   The damage being quantified in this case is of much less importance than said view of the valley and can with proper care and planting with trees etc., be diminished and some privacy and solitude restored.

The Court believes that a factor of 15% of the value of the land after taking better represents the true value of the severance.

In arriving at the value of the severance the Court made the following calculations:

Value of land after taking $879,761.49

but prior to the severance damages

Percentage of severance damages 15%

Value of severance damage $131,964.22

Value of land taken in fee $ 27,170.37

Value of easements taken $ 33,068.15

Total value of all damages $192,202.74

Judgment may enter for the appellants in the amount of $192,202.74.

Hale, JTR

FOOTNOTES

FN1. They used “comparables” from that location, unlike the Commissioner's appraiser..  FN1. They used “comparables” from that location, unlike the Commissioner's appraiser.

Hale, J.