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Commissioner of Transportation v. Building Enterprises, LLC

Superior Court of Connecticut, Judicial District of New Britain, New Britain

August 12, 2015

Commissioner of Transportation
v.
Building Enterprises, LLC et al

MEMORANDUM OF DECISION

Cynthia K. Swienton, J.

This case involves an appeal pursuant to General Statutes § 13a-76 from the Commissioner of Transportation's (the commissioner) award of compensation to Building Enterprises, LLC, [1] for a partial taking of easements and other rights for the rehabilitation of Bridge No. 10615 CT Route 555 over Boston and Maine Railroad in New Britain, Connecticut. The commissioner acquired the easements in accordance with his authority under General Statutes § § 13a-73(b) and 13a-73(e).

BACKGROUND AND FINDINGS OF FACTS

On January 21, 2014, the commissioner took by eminent domain certain easements from the property located at 493 West Main Street, New Britain (hereinafter " the subject property"), and deposited the sum of $1, 300 with the court as compensation for the taking. The property is owned by Building Enterprises, LLC, and consists of a parcel of land of 0.89 acres with an existing vacant restaurant/bar consisting of 6, 518 feet. The property was purchased by Building Enterprises at a foreclosure sale for $120, 000 in 2013, with the intention of repairing and renovating the building and property to open a restaurant/nightclub.

On January 21, 2014, the commissioner filed a notice of condemnation and assessment of damages with the court against Building Enterprises. The taking is located at the southeastern portion of the subject property, abutting the railroad right of way and West Main Street. The commissioner acquired an easement for transportation purposes consisting of 201 square feet, an easement to slope consisting of 228 square feet, the right to construct sidewalk and steps consisting of 31 square feet and the right to enter portions of said remaining land for the purpose of installing a sedimentation control system. The sum of $1, 300 was deposited with the court for the taking.

On February 18, 2014, Building Enterprises filed its appeal and application for review of statement of compensation. As the owner of the subject property, Building Enterprises claims it is aggrieved by the commissioner's assessed value because the amount is inadequate. Therefore, it seeks a reassessment of damages, interest, and costs. The question before the court is what is the correct amount of damages to be awarded for the commissioner's taking. The commissioner sets forth two central points of contention between the parties, which the court agrees. First, what are the correct methodologies to be used by the parties' appraisers to conform to the law of eminent domain, and second, what is the fair market value of the subject property in the " before taking" and " after taking" to determine an assessment of damages.

STANDARD OF REVIEW

The trial court is charged with making an independent valuation of the property involved. F& F Realty v. Commissioner of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977). The trier is not limited to arbitrating the differing opinions of the witnesses, but is to make determinations in light of all the circumstances, the evidence, and his general knowledge. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). 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, 438 A.2d 842 (1981). Ultimately the determination of the value of real estate is a matter of opinion, which eventually depends upon the considered 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, 151 A.2d 693 (1959).

In a condemnation appeal, the property owner has come to court alleging that it has been aggrieved by the condemner's assessment of the special damages because that assessment is inadequate. The property owner bears the twin burdens of production and persuasion. Levine v. Stamford, 174 Conn. 234, 235, 386 A.2d 216 (1978).

DISCUSSION

The commissioner's appraiser, Walter J. Kloss, calculated damages at $2, 500 based upon a " before and after taking" sale comparison approach of Building Enterprises' property as vacant and improved land. Building Enterprises' appraiser, John LoMonte, calculated damages at $95, 000, based upon a blended sales comparison approach and capitalized income approach.

Kloss used the sales comparison approach in valuing the subject property. He calculated the raw land value of .089 acres in the " before taking" using three vacant land sales comparables, all located within New Britain, and then made adjustments to arrive at a before taking value of $194, 000. (Exhibit 3, p. 18-20.) He then deducted the Department of Transportation (DOT) easements from the before taking land area to determine the after taking land value, which he found to be $192, 000. He determined the amount of damages for the unimproved property at $2, 000, and added an additional $500 due to loss of shrubbery. (Id., p. 33.) Thus, the damages " after taking" to the unimproved land is $2, 500. (Id., p. 37.)

Kloss made a determination of before and after taking damages to the subject property as improved. He utilized comparables from comparable neighborhoods within New Britain which sold within one year of the commissioner's taking. Again, based upon this approach, he arrived at a final damage calculation of $2, 500. (Id., p. 36-37.) He did not make any adjustments for curb appeal, because it was his belief that the curb appeal would be the same before and after the construction. No adjustments were made for increased traffic, diversion of traffic, changed use of a public way, nor loss of business.[2]

The appraisal report of Building Enterprises and its calculated damages were based upon a blended sales and income capitalization approach. It included adjustments for curb appeal as well as visibility and exposure. The appraiser, LoMonte, values the property as 100 percent leased or owner occupied; however as noted previously, after the owner learned of the state's intention to rehabilitate Bridge No. 01615, he did not start any rehabilitation or remodeling of the property. LoMonte ...


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