Opinion
No. CV 01 0066283
April 1, 2004
MEMORANDUM OF DECISION
This is a consolidated appeal by owners of residential property located in Brooklyn, Connecticut from the assessment of damages by the defendant commissioner of transportation, for the partial taking by eminent domain pursuant to General Statutes § 13a-73b. The takings involve the same residential parcel of land and were filed on June 18, 2001 and September 13, 2002, respectively. The takings were for land and easements found necessary for the layout and improvement of the highway commonly known as Route 6. The real property owners, Roland and Lyn LaCharite, appeal the department of transportation's assessment of damages for the two separate takings.
The application for consolidation was granted by the court on May 19, 2003. The docket number of the case consolidated with this case is CV 02 0068952.
On June 18, 2001, the department of transportation of the state of Connecticut ("commissioner") filed with the clerk of the court in Windham Judicial District a "Notice of Condemnation and Assessment of Damages" in accordance with General Statutes §§ 13a-73(b) and 13a-73(e). This was the first filing ("first taking") and was subsequently amended on May 8, 2002. The purpose of the filing, as amended, was to acquire:
The commissioner amended the first filing to correct the size of the drainage right of way. The original filing called for a drainage right of way of "840 feet, more or less."
[premises] situated in the Town of Brooklyn, County of Windham and State of Connecticut, on the southerly side of Present U.S. Route 6, Providence Road, containing 1,737 square feet, more or less, bounded and described as follows, and shown on the map hereinafter referred to:
NORTHERLY — by Present U.S. Route 6, Providence Road, 103.52 feet;
EASTERLY — by Present U.S. Route 6, Providence Road, 14 feet, more or less; CT Page 5418
SOUTHERLY — by remaining land of Roland W. LaCharite et al, a total distance of 11 feet, more or less;
WESTERLY — by land now or formerly of John F. Ennis et al, 21 feet, more or less.
Said premises are taken together with the following easements and right under, over and across portions of Owner's remaining land:
A full and perpetual easement to slope for the support, safety and drainage of the highway and remove, use or retain excavated material within an area of 4,667 square feet, more or less, located between and opposite approximate Stations 87+80 right and 92+00 right, Construction Base Line, Present U.S. Route 6, Providence Road, as more particularly shown on said map.
A full and perpetual easement consisting of a drainage right of way within an area of 1,280 feet, more or less, located between and opposite approximate Stations 91+85 right and 92+25 right, Construction Base Line, Present U.S. Route 6, Providence Road, as more particularly shown on said map.
Said premises are taken together with a right of entry under, over, and across portions of Owner's remaining land to install sedimentation control system, to construct driveway and drainage ditch as more particularly shown on said map. Said right shall terminate automatically upon completion of said work by the State.
Said premises are more particularly delineated on a map entitled:" TOWN OF BROOKLYN MAP SHOWING LAND ACQUIRED FROM ROLAND W. LACHARITE ET AL BY THE STATE OF CONNECTICUT DEPARTMENT OF TRANSPORTATION FOR RECONSTRUCTION OF U.S. ROUTE 6 SCALE 1" = 40' JUNE 1999 JAMES F. BYRNES, JR., HIGHWAY OPERATIONS." Last revised 4/25/01. Sheet 1 of 1 (19-94-20).
The second filing ("second taking") was filed by the commissioner on September 13, 2002. The purpose of the second taking was to acquire:
A full and perpetual drainage right of way easement, within an area of 735 square feet, more or less, located opposite approximate Station 91+62 Right of CONSTRUCTION BASELINE, Present U.S. Route 6, Providence Road, as shown on said map.
Said easement is more particularly delineated on map entitled:" TOWN OF BROOKLYN MAP SHOWING D.R.O.W. ACQUIRED FROM ROLAND W. LACHAIRITE ET AL BY THE STATE OF CONNECTICUT DEPARTMENT OF TRANSPORTATION FOR RECONSTRUCTION OF U.S. ROUTE 6 SCALE 1" = 40' JUNE 2002 JAMES F. BYRNES, JR., HIGHWAY OPERATIONS." Revised 8/21/02, Sheet 1 of 1, (19-94-20A).
The subject property is known as 379 Providence Road, Brooklyn, Connecticut and it is located on the southern side of Providence Road. Providence Road is also known as Route 6. Route 6 is a main artery connecting Willimantic and Danielson. Approximately fourteen thousand cars a day use the road. The record owners of 379 Providence Road are Roland W. LaCharite and Lyn M. LaCharite. The property consists of a single-family dwelling with an integrated two-car garage and an additional detached two-car garage on 6.13 acres of property zoned as "planned commercial." The residential use is a nonconforming use within the zone. Prior to the commissioner's taking, the LaCharite's home was located 245 +/- feet from Route 6, now the home sits 225 +/- feet from Route 6. The takings run along the Providence Road frontage of the LaCharite's real property. Prior to the condemnations, the LaCharite's property had 578 feet of road frontage, due to the takings they now possess 567.31 feet of frontage. The fee simple taking encompassed an area of 1,737 +/- square feet, the slope easement covers 4667 +/- square feet and the drainage right of way easement extends a total of 2015+/- square feet, respectively.
This was the lot size prior to the commissioner's taking. After the taking, the lot size was reduced to 6.09 acres.
This measure is taken from Robert Stewart's appraisal of the property. Valerie Sandberg's appraisal reports that the frontage before and after the taking was 646 feet.
The commissioner assessed damages of $575 for the first taking and $500 for the second taking.
A hearing was conducted on the LaCharite's appeals on December 12, 2003. At the hearing appraisers for each party testified and their appraisals were admitted into evidence. Additionally, Lyn LaCharite testified and the court has viewed the LaCharite property.
FACTS Appraisal Report of Robert Stewart prepared for the Plaintiffs
The plaintiffs hired Robert Stewart to appraise their property to determine the impact of both takings on the fair market value of the property. In his analysis, Stewart primarily employed the sales comparison valuation method.
Stewart determined that the highest and best use for the property was single-family residential and therefore he determined that for comparison purposes he would use properties that included a residence as opposed to vacant tracts of land Stewart was of the opinion that the takings decreased the value of the property because they caused a loss of a buffer between the residential use and the traffic.
Mr. Stewart performed valuations of the property for its value before the taking and then again for its value after the taking. Notably, Stewart adjusted the sale price of his residential comparable sales based on the view that each home had. In his before taking analysis, Stewart determined that each home, including the Lacharite's home, had an average view. Stewart determined that the value of the LaCharite home under the sales comparison approach was $256,000 before the taking.
Stewart's after taking appraisal compared the LaCharite home against the three homes used in the before taking analysis. He again applied the adjustments for location, lot size, age, livable square feet, and so forth. In contrast to the before taking appraisal, however, he this time adjusted the LaCharite's view, characterizing it as "traffic" and adjusted down each of the comparable property values by $19,000. With the adjustment for view applied, Stewart determined that the sales comparison value of the LaCharite home was $237,000, a difference of $19,000. Stewart testified that the $19,000 figure is a 7.5% reduction in the resale value of the home because of the change in the view. He explained that he arrived at this percentage from his experience as an appraiser.
Appraisal Report of Valerie Sandberg prepared for the Commissioner CT Page 5421
Valerie Sandberg was hired by the department of transportation to conduct an appraisal of the plaintiffs' property as it was impacted by these eminent domain proceedings. Sandberg used a comparable sale analysis to support her opinion of value. Sandberg found that the highest and best use for the property was residential. For her comparable properties, Sandberg selected unimproved residential parcels of land that sold during 2001. According to Sandberg, she utilized the sales comparison approach and selected the unimproved lots as comparable properties since the takings and consequent changes would, in her opinion, have no impact on the value or marketability of the residence on the subject property.The comparables selected were adjusted for size differences, wetlands and encumbrances. Sandberg, unlike Stewart, did not make an adjustment for view. With these adjustments, Sandberg determined that the LaCharite's property value was 19 cents per square foot, in other words, the LaCharite's land, unimproved, was worth $50,734 before the taking.
Sandberg used the same comparable properties for her after taking appraisal of the LaCharite's property. She did not make any adjustments to the property values from their before values when creating her after taking report. Again she found that the value for each unencumbered square foot of property was 19 cents, however, encumbered property was reduced by half and valued at 9.5 cents per square foot. Since the taking took some of the LaCharite's property in fee simple, the LaCharite's total property area was reduced from 6.13 acres to 6.09 acres or 259,339 square feet. Of the remaining parcel, Sandberg determined that 5,947 square feet is encumbered by the slope easement and right of ways. In all, Sandberg determined that the total value of the LaCharite's property after the taking was $49,840; $894 less than the before taking value.
During the hearing, the plaintiffs focused on Sandberg's assessment that the reduced buffer between Route 6 and the residence would not have an impact on the value of the improved property. The plaintiffs asked if an increase in road noise and/or altering the landscape to make a house clearly visible from the road would have an effect on the value of a home. In response, Sandberg could only answer that it would depend, but those changes would not necessarily have an impact on the value. Sandberg did eventually concede that when a buffer is removed, it will increase traffic noise, but qualified the statement by saying that the increase in noise is related to the type of tree that served as the buffer. She also characterized the portion of Route 6 that the LaCharite's reside on as having heavy traffic that includes truck traffic.
Interestingly, Ms. Sandburg had previously appraised this property for purposes unrelated to the condemnation proceeding and in that appraisal she used one of the same comparable properties that Stewart used in his appraisal for the plaintiffs.
Appraisal Report of Michael Alleta Prepared for the Commissioner
The court first notes that this appraisal is based solely on the September 2002 drainage right of way taking and furthermore, as recognized at trial, it is based on a smaller parcel than the commissioner had condemned. Alleta based his appraisal on the drainage right of way of 707 square feet +/-, however, the commissioner condemned 735 square feet +/-.
Alleta arrived at his measure of assessed damages by utilizing the direct sales comparison approach. Although Alleta did not determine what the best and highest use for the subject property was, the court infers that since he compared the subject property against residential properties, the best and highest use is residential. However, according to Alleta, "[t]he building(s) [on the LaCharite property] are unaffected by this acquisition," and thus were not a factor in arriving at the appraised value. Alleta's appraisal therefore only reports the value of the land as though it were unimproved. Thus, as comparable property, Alleta choose vacant tracts of land and made necessary adjustments for any difference in size and/or encumbrances. Like Sandberg, Alleta did not make any adjustments to value for view. In both his before and after taking appraisals Alleta characterizes the view as average.
Applying these parameters to his analysis, Alleta concluded that the before taking value of the LaCharite's 6.13 acres was $77,000 or 29.461 cents per square foot.
Alleta used the same comparable properties for the before taking appraisal and the after taking appraisal. Again, Alleta worked under the premise that the improvements to the property were unaffected by the department's acquisition. Alleta's after taking appraisal thus arrived at the same value per square foot, but because 707 square feet of the property was encumbered by the drainage right of way the value of that 707 square feet was reduced by half. Therefore, Alleta concluded that after the taking the property was worth $76,895, a difference of $105 from the before taking value. He subsequently assigned the $500 value to the taking since that is the department's recognized nominal damages amount.
Had Alleta used the full 735 square foot encumbrance, then the damages would have equaled $109. Since $109 does not exceed the nominal amount that Alleta had already assessed, the difference does not affect his conclusion.
Lyn LaCharite's Testimony
Lyn LaCharite's testimony was primarily elicited to describe the buffer of trees and slope that existed before the takings and to explain to what extent the buffer now exists. Further, the reconstruction of Route 6 will raise the roadbed by approximately five feet when completed. The LaCharites' driveway is currently level with the roadbed. When the reconstruction is complete, the LaCharites' driveway will be below the grade of the new highway and this will negatively impact the sight lines of vehicles entering and exiting the property.
THE LAW
This court, pursuant to the General Statutes and court decisions, is charged "with the duty of making an independent determination of value and fair compensation in the light of all the circumstances, the evidence, [its] general knowledge and [its] viewing of the premises." Minicucci v. Commissioner of Transportation, 211 Conn. 382, 388, 559 A.2d 216 (1989); Birnbaum v. Ives, 163 Conn. 12, 21-22, 301 A.2d 262 (1972); Feigenbaum v. Waterbury, 20 Conn. App. 148, 153, 565 A.2d 5 (1989). It is the court's task to reach a result that "gives the plaintiffs, as nearly as possible, a fair equivalent in money as just compensation for the [property] taken." Mathis v. Redevelopment Agency, 165 Conn. 622, 623, 345 A.2d 33 (1973); Feigenbaum v. Waterbury, supra, 20 Conn. App. 153-54. In Connecticut, the law is clear and consistent as to the proper measure of damages in a partial takings case. "[Our supreme court has] 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 landowner 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." (Citations omitted; emphasis added; internal quotation marks omitted.) Alemany v. Commissioner of Transportation, 215 Conn. 437, 444-45, 576 A.2d 503 (1990). Moreover, "[t]he court should consider any and all damages which will foreseeably follow from the proper construction of the project, including any damage to the remainder which is a necessary, natural and proximate result of the taking . . . The use to be made of the land taken is to be considered with regard to its effect on the remaining land . . ." (Citation omitted.) D'Addario v. Commissioner of Transportation, 172 Conn. 182, 185, 374 A.2d 163 (1976); see also Tamm v. Burns, 222 Conn. 280, 287, 610 A.2d 590 (1992).
CONCLUSION
The substantial differences between the values assigned by the expert testimony received by the court stems from the analysis of the impact of the severance of the condemned parcels from the remaining property. The condemned parcel and easements are along the roadway. While not constituting a significant percentage of the lot area, these easements and fee takings affect the portions of the lot that helped buffer this nonconforming residential use from the surrounding commercial uses and the view of traffic and noise of traffic from Route 6. All the experts agreed that the continued highest and best use of the LaCharites' property after the takings is its nonconforming use as a single-family residence. The degree and extent of the buffering of the residential use from the nearby commercial uses and the heavy arterial traffic is a significant factor in valuing the property and the impact of the takings. The Lacharites' home is located along the western edge of their property and is now twenty feet, or almost ten percent, closer to Route 6 than it was before the taking. The view from their home will be adversely impacted. Some of the changes may be ameliorated by new plantings. The loss of buffer will increase the amount of traffic noise the Lacharites experience in their home. The entry and exiting from the home will be affected by the change in slope of the driveway. The fee taking has reduced the size of the parcel.
Having considered the testimony of the owner, Lyn Charite, the appraisers and further giving due consideration to the elements that establish value, the court finds that prior to the takings, the property had a fair market value, based on the sales comparison approach, of $256,000. As result of the fee taking, the easement takings, and the drainage right of way takings, the fair market value was reduced to $245,000. Damages therefore are assessed at $11,000. The court assigns damages of $10,000 as it relates to the June 18, 2001 taking, as amended, and $1,000 to the September 13, 2002 taking.
Judgment may enter in favor of Roland and Lyn LaCharite against the commissioner in the amount of $11,000 less sums previously paid by the commissioner.
Interest is to be paid pursuant to General Statutes § 37-3a from the dates of the takings to the date of payment, together with costs and a reasonable appraisal fee of $2,300.
Cosgrove, J.