Commissioner of Transportation v. Brian Brown et al. (2016)

MEMORANDUM OF DECISION

This is an appeal by Brian Brown and Celia E. Brown (hereinafter “owners”) from the assessment of damages in the amount of $20,500.00 for the partial taking of eminent domain on July 16, 2015, of their property known as 6 Boston Post Road, East Lyme, Connecticut, for the replacement of the Route 1 bridge over the Niantic River pursuant to §§ 13a–73(b) and (e) of the Connecticut General Statutes.  The subject property consists of a generally irregular shaped parcel that sits along the western bank of the Niantic River.  The site is gently rolling in nature and has excellent water orientation and frontage along the river.  The site contains approximately 1.64+/- acres.

The subject property is improved with a two-story period home that was built in 1820 in the Federal style.  The dwelling is well-maintained retaining much of the original building fabric.  The dwelling contains an estimated 2,192 square feet.  The property is located in a 10 residential zone and is presently utilized in the highest and best use as a residential property.  The property is further identified as Tax/Map Panel 32.1/19 by the Town of East Lyme Tax Assessor.

The easement takings are situated in the Town of East Lyme, County of New London and State of Connecticut, on the southerly side of Present Boston Post Road (U.S. Route 1), as more particularly shown on a map to be filed in the East Lyme Town Clerk's office entitled “TOWN OF EAST LYME MAP SHOWING EASEMENT ACQUIRED FROM BRIAN BROWN ET AL BY THE STATE OF CONNECTICUT DEPARTMENT OF TRANSPORTATION REPLACEMENT OF U.S. ROUTE 1 OVER NIANTIC RIVER BRIDGE NO 00368 SCALE 1” =40' January 2014 THOMAS A. HARLEY, P.E. CHIEF ENGINEER—BUREAU OF ENGINEERING AND CONSTRUCTION,” Sheet 1 of 1, (44–147–3), Last Revised 4/1/15, and are further described as follows:

1. A full and perpetual defined highway easement for highway purposes and appurtenances thereto, within an area of 2,635 square feet, more or less, located between and opposite Station 12+42 and approximate Station 14+00, right of the Base Line of Present Boston Post Road (U.S. Route 1), as shown on said map.

2. A full and perpetual easement for compensatory wetland mitigation, within an area of 4,211 square feet, more or less, located between and opposite Station 12+59 and approximate Station 14+00, right of the Base Line of Present Boston Post Road (U.S. Route 1), as shown on said map.  Easement area for compensatory wetland mitigation is not to be disturbed by owner and includes, but is not limited to mowing, clearing, drainage or dumping.

3. A construction easement for the purpose of installation of temporary hay bales, grading and temporary sedimentation control system, invasive plant species removal, compensatory wetland mitigation area creation and post construction monitoring of said areas relative to the construction of Bridge No. 00368, within an area of 2,100 square feet, more or less, located between and opposite Station 12+42 and approximate Station 14+00, right of the Base Line of Present Boston Post Road (U.S. Route 1), as shown on Said map.  Construction easement taken under this paragraph will be restored by removal of all temporary appurtenances, grading and planting of native vegetation.  Said construction easement will be extinguished upon completion of the project, unless sooner extinguished by the State, by the filing of an affidavit on the East Lyme Land Records.

Said easement was taken together with right to enter land of Brian Brown, et al. to grade and construct a driveway, and install sedimentation control system, all as shown on said map.  Said right to automatically terminate upon completion of said work unless sooner released by the State.

The above-described easements are taken subject to such easements and rights as appear of record.

The effective date of the taking is July 15, 2015, and the award from the Commissioner for the permanent easements was $19,500.00 and an additional amount for the temporary construction easement was $1,000.00 for a total of $20,500.00.  No compensatory value was awarded on any claim of damages to the remainder.¹

The landowner filed an appeal with this court and claims to be aggrieved by the award as assessed by the Commissioner.  “Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 300 (1987).  Being an owner of property establishes that a person has a specific personal and legal interest in the subject matter of the decision.  Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530 (1981).  The owners of the subject property aggrieved for the purpose of this appeal.

In determining the value of property, real estate appraisers ordinarily utilize three different approaches to value, i.e. sales comparison approach, the income capitalization approach and the cost approach.  Both appraisers utilized the sales comparison approach as the best approach to value.  In this case, the parties were at odds as to the proper use of the sales comparison approach especially concerning any effect of the taking as to the remainder of the owner's property and the square foot value of the land in this case.

If a taking is partial, the usual measure of damage is the difference between the market value of the subject property, i.e. the whole tract with its improvements before the taking and the market value of what remained of it thereafter.  Severance damages to the parcel remaining are thereby included.  Meriden v. Ives, 165 Conn. 768, 773 (1974).  The 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 thereafter.  Gontarz v. Berlin, 154 Conn. 695, 697 (1967).  Severance damages compensate the diminution of the fair market value of the result of the taking of the portions of the land by the condemning authority.  Tolland Enterprises v. Commission of Transportation, 36 Conn.App. 49, 58 (1994).

The Commissioner's appraiser found the subject property to conform to zoning regulations before and after the easement takings.  Thomas Fox concluded the subject site after the taking had 32' set back from the highway line right of way from the closest corner of the house and 35' from the highway right of way line to the nearest corner of the garage.  While finding no comparable land sales, he opined that the land value of $6.93 per square foot for the land based upon an appraiser's allocation of percentages to the land versus improvements.  He further found no severance damages as a result of the taking.

The owners challenged the finding of the Commission's appraiser.  Marc Nadeau, the owner's expert, concluded that the permanent easement taking resulted in a zoning unconformity in the set back of the house and garage.  He opined that the “highway easement results in the placement of the road much closer to the house such that the improvements no longer meet the setback requirements and no longer meet the requirements of East Lyme Zoning” resulting in diminishing the appeal of the subject property and limiting the use of the driveway and turn area.  Nadeau performed a land sale comparison utilizing subject land versus other land sales involving water front and water access properties with adjustments.  The sales utilized were sparse, rather old with many different features compared to the subject property including lack of deep water access.

The court concludes, after reviewing the exhibits and testimony of the experts, that the subject property after the takings is in full conformance with the Town of East Lyme zoning requirements.  The purpose of the takings is to rebuild the bridge in question and not to realign the highway.  The parties, through counsel, stipulated as to the specific location of the permanent highway easement highlighted in yellow in Court's Exhibit 1. The permanent easement does not affect the set back of the subject improvements.  The permanent highway easement does, however, impair the use of approximately 2' of the driveway hammerhead and adjoining land for overflow parking use.  The permanent easement for compensatory wetland easement does specify the further restriction of use by the owners of the wetland area which was limited prior to the taking based on the soils, vegetation, etc.

The court concludes that the loss in value as a result of the taking calculate as follows.  The court finds that a square foot of land value of $7.50.  The permanent easement for highway purposes over 2,635 square feet of land results in a 95% diminution in value ($18,775.00).  The permanent easement for wetlands mitigation are 4,211 square feet of land results in a 5% diminution of value with little additional restriction of use by the owners due to pre-existing wetlands restrictions ($1,579.00).²  The court further concludes that the temporary construction easement will affect the property over a two-year period in the amount of ($1,575.00).

The court further finds that the permanent easements for highway purposes and wetlands mitigation does have an effect on the remainder as a result of easement taking over the small area of the hammerhead and the overflow parking area with the damages to the remainder overall property value of property.  Said severance damage due to loss of the convenience to park in this area does have some impact to the value of the remainder of 2% or $9,689.00.³

The total loss in value from the permanent easements and severance damages to the subject property with improvements equals $30,043.00.  The court further finds there is no adverse affects to the existing site improvements which the court values at $250,000.00.  The court finds the fair market value of the subject property before the taking is $785,785.00 and the value after the taking including severance damages is $755,742.00.

Judgment may enter in favor of the defendant property owners in the amount of $11,118.00 ($30,043.00 plus $1,575.00 temporary construction easement minus $20,500.00 already received by the owners) together with expert fees for the owners' appraiser in the amount of $3,100.00 representing reasonable value for services rendered, pursuant to Conn. Gen.Stat. § 13a–76.

Devine, J.

FOOTNOTES

FN1. The Commissioner's appraiser found the fair market value of the property before the taking as $795,000.00 and the value after the taking $775,500.00 plus $1,000.00 for the temporary construction easement (Plaintiff's Exhibit 3 p. 13)..  FN1. The Commissioner's appraiser found the fair market value of the property before the taking as $795,000.00 and the value after the taking $775,500.00 plus $1,000.00 for the temporary construction easement (Plaintiff's Exhibit 3 p. 13).

FN2. The parties agreed that the permanent easement for the wetlands mitigation would result in removal of non-native plant species by the boundaries of the existing wetlands with the owner's limited use after the easement taking.  The extent of the wetlands prior to the easement are assumed to be the same in size due to lack of sufficient evidence to the contrary..  FN2. The parties agreed that the permanent easement for the wetlands mitigation would result in removal of non-native plant species by the boundaries of the existing wetlands with the owner's limited use after the easement taking.  The extent of the wetlands prior to the easement are assumed to be the same in size due to lack of sufficient evidence to the contrary.

FN3. In calculating the property owner's damages must also consider any potential impact of any more intensive uses of an easement on the value of the owner's remaining land.  While it is true that the Commissioner can pave a defined highway easement without a fee condemnation, the possibility of any pavement extension within said easement has been considered by the court.  Said paving improvement cannot occur in the future due to the permit restrictions.  State and Federal clean water standards.  Alemany v. Commissioner of Transportation, 215 Conn. 437 (1990);  Conn. Gen.Stat. § 22a–359, et seq. §§ 22a–28–22a–35, § 22a–35, § 22a–98, § 401 of the Federal Clean Water Act as amended and Connecticut Water Quality Standards effective February 25, 2001..  FN3. In calculating the property owner's damages must also consider any potential impact of any more intensive uses of an easement on the value of the owner's remaining land.  While it is true that the Commissioner can pave a defined highway easement without a fee condemnation, the possibility of any pavement extension within said easement has been considered by the court.  Said paving improvement cannot occur in the future due to the permit restrictions.  State and Federal clean water standards.  Alemany v. Commissioner of Transportation, 215 Conn. 437 (1990);  Conn. Gen.Stat. § 22a–359, et seq. §§ 22a–28–22a–35, § 22a–35, § 22a–98, § 401 of the Federal Clean Water Act as amended and Connecticut Water Quality Standards effective February 25, 2001.

Devine, James J., J.