Commissioner, Department of Transportation v. David A. Klezos et al. (2011)

MEMORANDUM OF DECISION ON DAVID A. KLEZOS'S APPEAL FROM THE EMINENT DOMAIN CONDUCTED BY THE PLAINTIFF, COMMISSIONER, DEPARTMENT OF TRANSPORTATION

FACTS AND PROCEDURE:

This is an appeal by the defendant, (hereinafter also “Klezos”) from a Certificate of Taking for Notice of Condemnation and Assessment of Damages dated August 26, 2008 concerning Klezos's property at 247 Post Office Road, Enfield, Connecticut.   The plaintiff is the Commissioner of Transportation of the State of Connecticut (hereinafter also the “DOT”).

The DOT's taking by eminent domain of property of Klezos was on behalf of the town of Enfield.   The project is the reconstruction of Post Office Road in said town and the installation of a bikeway/walkway in front of Klezos's property.   The award of damages for the taking by DOT was initially $4,800 from which Klezos appealed.   At the request of the DOT, the matter was referred to this Court for an evaluation of the damages.

Mr. Klezos initially appeared in Court on this matter and was advised by this Court that he should get an appraisal of damages as a result of the eminent domain above referenced, and he was further advised to obtain the services of an attorney.   He did not obtain an attorney and the only appraisal that he could come up with was by a real estate agent as to the total value of his property as opposed to the value of the damages that he allegedly suffered as a result of the taking by DOT. On May 13, 2011 this Court visited the site at 247 Post Office Road, and was met there by Assistant Attorney General Raul Rodriguez representing the DOT as well as individuals from the DOT and the Town of Enfield and the contractor which is reconstructing Post Office Road. Despite prior notice of the meeting at 11:00 a.m. on May 13, 2011, Klezos was not present.   A Court hearing was held on May 26, 2011 at 10:00 a.m., but Mr. Klezos failed to appear despite being given notice of same.   At the hearing the Court heard from Walter Kloss (hereinafter also “Kloss”) a licensed real estate appraiser whom the Court qualified as an expert witness.   The Court also heard from two other witnesses for the DOT, Douglas Hummel and Michell London.   No one appeared on behalf of Klezos.

ISSUES AND FINDINGS:

1. Is the Amount of Damages Offered by the DOT Adequate?

The short answer is No.

Kloss testified as did Mr. Hummel that the property taken was all within the right of way of the town of Enfield/State of Connecticut.   A change as the result of the taking, although within the easement, was a small change of the slope leading in the existing slope down to the bicycle path which is not compensable.   Nonetheless, Kloss increased the value of the taking from $4,800 to $6,725 as of the date of taking, and the DOT has agreed to that in the way of damages.

However, under the principle of severance in which the Court can award damages for the effect upon Klezos's property from the taking even though the property itself was not taken, Kloss, as part of the $6,725 evaluated the taking of six trees fully on or partially on Klezos's property and awarded $1,000 for each tree.   The trees taken, according to Kloss's testimony, were on average 20 feet high to 30 feet high, and he estimated that to replace these trees would cost $1,000 per tree at 10 to 12 feet.   The replacement trees would be 10 feet to 12 feet high which is approximately half the height of the trees that were taken.   Accordingly, this Court finds that the value of the trees taken is double the $1,000 each for replacement at 10 feet to 12 feet.   Accordingly, this Court assesses damages for the taking of the six trees at $12,000.

2. Should the Court Award Damages for the Inconvenience and Difficulty with which Klezos has been Faced because of the Reconstruction of Post Office Road and the Installation of the Bicycle Path/Walkway in Front of his Property?

The short answer is Yes.

Under the principle of severance, Klezos was obviously inconvenienced in his loss of use of his property and his peace and quiet and still is because the construction is ongoing and is in part a result of the taking of the easement for the bicycle path/walkway.   The Court assesses these damages for inconvenience and difficulty in using his property during construction at $3,000.

3. Is Klezos Entitled to Interest on the Damages?

The short answer is Yes.

Under C.G.S. § 37–3C, the Court is allowed to make a reasonable assessment of interest on the damages.   The Court finds that 6% per annum is a reasonable interest rate against $15,725.   The interest is from the time of taking on August 26, 2008 to date which is two years and five months.   That amounts to $2,280.¹

CONCLUSION:

The total of the above amounts is $18,005, and judgment for said amount in damages is hereby entered.

Rittenband, JTR

FOOTNOTES

FN1. It is true that Klezos might not obtain more than 2 to 3% interest in a savings account but the interest rate post-judgment is 10% per annum, and prejudgment interest would be higher than 6%..  FN1. It is true that Klezos might not obtain more than 2 to 3% interest in a savings account but the interest rate post-judgment is 10% per annum, and prejudgment interest would be higher than 6%.

Rittenband, Richard M., J.T.R.