Schnier v. Ives

293 A.2d 1, 162 Conn. 171, 1972 Conn. LEXIS 868

• Court: Supreme Court of Connecticut
• Decided: January 19, 1972
• Status: Published

Opinions

Shapiro, J.

The defendant has appealed from a judgment, rendered by a referee exercising the powers of a judge of the Superior Court, reassessing the damages sustained by the plaintiff in the taking by the defendant of the plaintiff’s property for highway purposes.

The finding, which is not subject to correction in any material respect, discloses the following facts: On December 17, 1968, the plaintiff became the owner of 24.8 acres of vacant land situated in the town of Bloomfield, which he purchased for $325,000 pursuant to an agreement executed in April, 1967, with the prior owners. When he entered into that agreement which was conditioned on obtaining a zone change, the entire tract of land was zoned R-20 which restricted its use to the construction thereon of private one-family dwellings. Prior to the vesting of title in the plaintiff, seventeen acres of the tract were rezoned RB-20 which permitted construction of business and professional buildings. In February, 1969, the plaintiff employed an architect to prepare plans for development of the land involved here. During February and March, 1969, the architect prepared an overall rendering of the complex to be developed, which included a large office building. Subsequent to the above mentioned zone change, construction drawings of such a building were prepared. This was one of the few sites in the area on which the erection of an office building was permitted. During May, 1969, the plaintiff had the loam stripped from the land, a cellar excavated and low spots filled. The highest and best use of the plaintiff’s land was for the construction of office buildings, and at the time of the taking, June 25,1969, the plaintiff was implementing his plan to put the land to office building use. On June 25, 1969, the defendant, acting within his statutory authority, found the land necessary for purposes connected with the construction of the highway commonly known as interstate route 291, hereinafter called 1-291, and filed with the clerk of the Superior Court for Hartford County an appraisal of damages in the amount of $357,100.

The Connecticut General Life Insurance Company, hereinafter called Connecticut General, is a large landowner in the general area of the plaintiff’s land. On June 27, 1969, it purchased 10.52 acres, zoned B-20 in front and BB-20 in the rear, from Margaret E. Seger for $250,000 or $23,764 per acre. This property, located one mile more distant from Hartford than the plaintiff’s land, had a 235-foot frontage on Bloomfield Avenue and was acquired to improve access to other land already owned by Connecticut General. On July 11, 1969, Connecticut General purchased 2.5 acres from Nicholas J. Busso and Bosemary T. Busso for $200,000. One-half acre, zoned B-20, contained a dwelling house and had a fair market value of $100,000 while the rear two acres, zoned BB-20, had a fair market value of $100,000.

In 1964, David Chase, Frank Beckerman and Harry L. Gampel purchased for $67,000 approximately thirty acres of land adjoining the land involved here, each becoming the owner of an undivided one-third interest in the tract. On May 31,1969, Chase and Connecticut General entered into a bond for deed relating to the purchase of the interests of Beckerman and Gampel in the thirty-acre tract for $800,000, of which Connecticut General was to pay $600,000 and Chase $200,000. On January 6, 1970, title was transferred by Becker-man and Gampel to Chase and Connecticut General pursuant to the bond for deed, enabling Chase to own a 50 percent interest in the entire thirty-acre tract. Connecticut General paid $600,000 for its 50 percent interest, which is equivalent to $40,000 per acre. Of this land, zoned B-20 and not located on a corner, approximately 60 to 65 percent was designated a channel encroachment area while between 40 to 45 percent of the plaintiff’s land was so designated. No building may be erected within a channel encroachment area but a parking area is permitted. Connecticut General was interested in the land involved in the case at bar and in 1958 had directed a real estate agent to inquire as to its availability. Being adjacent to the land in which Connecticut General had purchased its interest at $40,000 an acre gave the land involved in this case comparable value for business use.

All the plans designating the location of 1-291 which had been released by the state of Connecticut, insofar as they pertained to the land involved here, were subject to change. The price paid for the Beckerman-Gampel interest in the thirty-acre tract was affected by the proposed location of 1-291 in the area. This highway location was not a major influence in the participation by Connecticut General in the purchase of the Beckerman-Gampel interests. Two of the plaintiff’s appraisers, whose qualifications were conceded by the defendant, utilizing the Seger, Russo and Beckerman-Gampel sales, valued the land involved here at $1,240,000 while one valued it at $1,116,000. One of the defendant’s appraisers, relying in part on the Beckerman-Gampel and Seger sales, valued the land involved here at $496,000 while a second appraiser valued it at $483,600. The referee is familiar with the location of the plaintiff’s land and has viewed it.

On these facts the referee reached the following conclusions: At the time of the taking, the plaintiff was implementing his plan to put his land to its best use, namely, for the construction of an office building; that the Seger, Russo and Beckerman-Gampel transactions, involving properties either adjoining or in close proximity to the plaintiff’s land, are probative of the fair market value of the latter; that the transaction reflected in the bond for deed which involved Beckerman-Gampel and Chase-Connecticut General was the result of arm’s length negotiations between willing buyers and willing sellers and established a selling price of $40,000 per acre; that in comparison with the plaintiff’s land, the land involved in the Beekerman-Gampel transaction had inferior zoning and did not have a corner location; that the proposed location of 1-291 was a factor in establishing the selling price of the Beekerman-Gampel land and while the location of the highway in the area affected its value, it was not a controlling or predominant factor in setting the value; that the location of 1-291 did not increase the value of the Beekerman-Gampel interest in the land involved in their transaction with Chase-Connecticut General by over 20 to 25 percent; that the plaintiff’s land, being superior in zoning and location, was worth approximately 20 percent more than the land involved in the Beekerman-Gampel transaction; that the value of the plaintiff’s land, using the Beekerman-Gampel sale as a comparable, and with the aforementioned 20 to 25 percent and the 20 percent factors, gives it a value of $36,000 per acre or $892,000; that the Russo sale established a price of $50,000 per acre, was not influenced by the location of 1-291 and was established after arm’s length negotiations between a willing buyer and a willing seller; that the Seger sale produced a price of $23,764 per acre and was inferior to the plaintiff’s land in that it was not a corner lot, had limited frontage and its zoning was not as favorable ; that, taking into consideration the Beekerman-Gampel, Russo and Seger transactions, making allowances where appropriate for the influence of 1-291 and adjustment for the superior location and zoning of the plaintiff’s property, its fair market value on June 25,1969, was $875,000. The defendant assigns error in some of the conclusions reached by the referee. These conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Branford Sewer Authority v. Williams, 159 Conn. 421, 425, 270 A.2d 546; Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645.

The main thrust of the defendant’s appeal lies in his claim that there was harmful error in the method adopted by the referee in determining the fair market value of the plaintiffs land on June 25, 1969, the date of the taking. In making that claim, he contends that the referee erred in overruling his claim of law that the sale of the land involved here to the plaintiff should be considered as the best evidence of its value on the day of taking and in completely disregarding and overlooking the significance of this sale which preceded the condemnation date by six months. The price at which a parcel of land was bought is evidence competent to show its market value at the time of its taking by eminent domain, so long as that price is the result of a voluntary sale and not so remote in time as to be irrelevant. 27 Am. Jur. 2d, Eminent Domain, § 428 and cases cited in footnote 7. It should be observed that in the case at bar the referee did not exclude evidence of the sale to the plaintiff and, in fact, made findings regarding the sale. He did not, however, employ it in any method used by him to determine valuation. He was not required to do this, since the trier arrives at his own conclusion as to the value of land by weighing the opinion of the appraisers, the claims of the parties in the light of all the circumstances in evidence bearing on value and his own general knowledge of the elements going to establish value, ineluding his own view of the property. Gentile v. Ives, 159 Conn. 443, 451, 270 A.2d 680; Brothers, Inc. v. Ansonia Redevelopment Agency, 158 Conn. 37, 43, 255 A.2d 836; Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612; Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693. No single method of valuation was controlling, and the referee was entitled to select the most appropriate one under the facts as he found them. Brothers, Inc. v. Ansonia Redevelopment Agency, supra, 45; Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 99, 230 A.2d 9; Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 142, 204 A.2d 833.

The defendant also claims that the sale contemplated by the agreement of May 31, 1969, between Beckerman-Gampel and Chase-Connecticut General, which was consummated by deed on January 6,1970, almost seven months after June 25,1969, the date of condemnation of the land involved here, could not be used as a comparable sale in valuing the latter. The premise that this transaction, consummated subsequent to the taking, cannot be considered is without merit. It is interesting to note, as we discussed the issue earlier, that the defendant there urged that the referee should have utilized the actual price that the plaintiff paid for this property, a transaction that was completed over six months prior to the date of the condemnation.

Evidence of the Beckerman-Gampel sale could be found to be clearly relevant, the sale having been made sufficiently close in point of time to afford a fair comparison. Certainly, that transaction was not so far removed, timewise, from the appropriation of the land as to make a comparison unjust or impossible as a matter of law. Whether a transaction is sufficiently close in point of time to afford a fair comparison is a matter resting largely in the discretion of the trier. Knox v. Binkoski, 99 Conn. 582, 586, 122 A. 400 ; 27 Am. Jur. 2d, Eminent Domain, §429, and cases cited; see 4 Nichols, Eminent Domain (3d Ed.) § 12-311 (3). In the case at bar we cannot say that in this regard the referee abused his discretion.

The defendant assigns error in that the price paid for the Beckerman-G-ampel conveyance contains an increment created by knowledge and reliance on the public project embodied in the proposed construction of 1-291, and thus, as a matter of law, should not have been used in the referee’s determination of the value of the land involved here. It should be kept in mind that the referee did find that the BeckermanG-ampel property interest was enhanced in value by the proposed location of 1-291.

In anticipation of the construction of a public improvement, the value of the land in the vicinity of the proposed improvement frequently rises before the actual taking. The generally prevailing view is that the owner of the land taken in eminent domain is not entitled to recover an increase or enhancement in the value of his land due to the proposed improvement. 27 Am. Jur. 2d, Eminent Domain, § 283. The general rule is that any enhancement in value which is brought about in anticipation and by reason of a proposed improvement is to be excluded in determining the market value of the land. 4 Nichols, op. cit. § 12.3151 and see page 12-293, footnote 1, for cases cited. In giving effect to this rule, the United States Supreme Court sustained a trial court’s ruling that an opinion witness should exclude from his estimate of the fair market value of property being condemned, any increment in value due to the government project. United States v. Miller, 317 U.S. 369, 377, 63 S. Ct. 276, 87 L. Ed. 336. The court stated (p. 375): “[S]trict adherence to the criterion of market value may involve inclusion of elements which, though they affect such value, must in fairness be eliminated in a condemnation case . . . . These elements must be disregarded by the fact finding body in arriving at a ‘fair’ market value.”

“[A] landowner [should not] be entitled to indirectly increase the value of his land being taken by comparing it with a sale of other land the value of which has been enhanced by the public improvement contemplated. Denver v. Smith, 152 Colo. 227, 381 P.2d 269; Redfield v. Iowa State Highway Commission, 252 Iowa 1256, 110 N.W.2d 397; Zogby v. State, 53 Misc. 2d 740, 279 N.Y.S.2d 665; Latham Holding Co. v. State, 16 N.Y.2d 41, 209 N.E.2d 542.” Board of County Commissioners v. Vail Associates, Ltd., 171 Colo. 381, 391, 468 P.2d 842.

The landowner’s evidence of a comparative sale must be accompanied by evidence of the increment of value due to the influence of the contemplated public improvement in order to be considered by a trier who finds such a sale is so influenced. United States v. Miller, supra. Here, however, the plaintiff chose to offer no evidence as to the extent of the influence of the contemplated public improvement. Clearly, the defendant had no duty to offer evidence as to the extent of such influence in order to allow the plaintiff’s evidence to be utilized in such a case.

The referee chose to believe the defendant’s witness who testified that the proposed location of 1-291 was a factor in establishing the value of the land interest in the Beckerman-Gfampel transaction. He then attempted to utilize it as relevant evidence of a comparable sale by subtracting from the sum paid for it an allowance for the enhancement of its value due to the influence of 1-291. He concluded that it did not increase the value by over 20 to 25 percent and adjusted the value of this comparable land by that percentage.

The defendant claims that the referee erred in concluding that the location of 1-291 did not increase the value of the Beckerman-Gampel interest in the thirty-acre tract by over 20 to 25 percent. The referee, in his memorandum of decision, states that he assumed that factor. In his ultimate conclusion as to the fair market value on June 25,1969, he took into consideration the Seger, Russo and Beckerman-Gampel transactions and made “adjustment for the superior location and zoning of the subject property” and made “allowances where appropriate for the influence of 1-291.” Within these “allowances,” the 20 to 25 percent factor is inextricably woven and cannot be separated from other factors which could properly be considered by the referee in arriving at his conclusion of value of the land involved here. There is nothing in the finding to indicate the source from which the trier derived this percentage factor. Accordingly, the defendant must prevail on this assignment of error unless the factor assumed by the referee was ascertainable from a “view” taken by him of the plaintiff’s land. This court said in Gentile v. Ives, 159 Conn. 443, 452, 270 A.2d 680: “ We have consistently held that the visual observations made by the trier on a visit to the property are as much evidence as the evidence presented for his consideration by the witnesses under oath. They are in fact supplemental evidence.’ Houston v. Highway Commissioner, 152 Conn. 557, 558, 210 A.2d 176.” We fail to see, however, how a view of the plaintiffs land could produce evidence of a percentage factor, as used here, resulting from the influence of the 1-291 highway construction. We must conclude that the referee was in error in reaching the conclusion regarding the percentage factor for highway influence which is attacked by the defendant.

The other assignments of error require no discussion.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion House, C. J., and Loiselle, J., concurred.