In re Appeal of Condemnation Award to 89-2 Realty

566 A.2d 979, 152 Vt. 426, 1989 Vt. LEXIS 173
CourtSupreme Court of Vermont
DecidedSeptember 1, 1989
DocketNo. 87-556
StatusPublished
Cited by4 cases

This text of 566 A.2d 979 (In re Appeal of Condemnation Award to 89-2 Realty) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal of Condemnation Award to 89-2 Realty, 566 A.2d 979, 152 Vt. 426, 1989 Vt. LEXIS 173 (Vt. 1989).

Opinion

Peck, J.

Plaintiff appeals a condemnation award on the issue of damages. See 19 V.S.A. § 501(2) (defining damages) (formerly 19 V.S.A. § 221(b)). Two issues are presented: (1) whether the trial court erred when it did not award separate compensation for business loss on the remaining parcel; and (2) whether the trial court erred when it decided that plaintiff was not damaged by the rerouting of access lanes to the property. We remand for further findings.

Plaintiff corporation owns a 100,000 square-foot shopping center on 6.88 acres fronting Williston Road in South Burlington. In January 1986 the City of South Burlington condemned a strip of .19 acres of plaintiff’s parking lot along the road in order to widen the road. Before construction, the existing lot contained 163 parking spaces and two-way traffic lanes in front of the stores. If redesigned to maximize parking, the lot could have held as many as 211 cars, and the condemned parcel would have represented thirty spaces. As part of the road project, the City also changed the access to the property by consolidating the ingress and egress. Concerned that the post-construction parking arrangement would cause traffic congestion in the lot, plaintiff negotiated an agreement with the City for an additional egress from the lot. The additional exit consumed ten spaces more, under the maximized parking design. After the road construction and improvements, the lot has 171 parking spaces (eight more than it had previously), and improved access, but the parking spaces are narrower. In addition, the overall land-to-building ratio, described in feet, has decreased from 2.9:1 to 2.8:1.

The compensation award of $40,300 by the City Council was appealed to the superior court. 19 V.S.A. § 513. After a bench trial, the court increased the award to $53,714, which reflected additional “costs to cure” (i.e., related construction costs, such as sign changes, restriping, and median islands), including $28,735 to pay for the land, and $3,000 for temporary and permanent termination of related rights. Plaintiff argues, however, that the court did not include compensation for the diminished value of the business on the remaining parcel.

Plaintiff first asserts that 19 V.S.A. § 501(2) requires that the award reflect not only the fair market value of the land taken for public purposes, but also “the direct and proximate decrease in the value of the remaining property ... and the [429]*429business on the property.” Plaintiff advances several theories to describe the impact on the retail property: that the market value of the shopping center has been diminished by the change in the ratio of land to building area and that the rental value of the property is reduced because its leases are partially dependent on a percentage of retail sales, which will decrease due to parking limitations.

“Just compensation for the property taken is construed as being reimbursement of the fair market value of the property taken, plus the damage suffered by the remainder.” Crawford v. State Highway Bd., 130 Vt. 18, 24, 285 A.2d 760, 764 (1971). The rule of compensation for land taken by eminent domain includes compensation for business losses where applicable. Penna v. State Highway Bd., 122 Vt. 290, 295, 170 A.2d 630, 634 (1961). Compensation for business losses is statutory in Vermont, one of the few states to recognize loss to the individual over and above the value of the land. Cf. 42 A.L.R.3d 148, § 4 (1972). Compare, for example, the New Jersey court’s directive in State v. Cooper Alloy Corp., 136 N.J. Super. 560, 568, 347 A.2d 365, 369 (App. Div. 1975): “[Do] not include losses or costs that are incidental to a taking, such as loss to or destruction of good will, loss of profits, inability to relocate or frustration of the condemnee’s plans. These items are generally held not to be directly attributable to the realty, but rather peculiar to the owner.”

In Vermont, the value of the land taken at its highest and best use is first calculated, and then, if “‘the plaintiff has suffered a loss to his business which has not necessarily been compensated for in the allowance made for his land,”’ separate damages must be awarded for business loss.

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Bluebook (online)
566 A.2d 979, 152 Vt. 426, 1989 Vt. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-condemnation-award-to-89-2-realty-vt-1989.