163 Conn.App. 190
Conn. App. Ct.2016Background
- Robert Barton owned 70 South Main (four‑story commercial building) and purchased the adjacent lot at 65 South Main to provide 44 parking spaces; city issued zoning compliance in 1984.
- In 2002 Norwalk condemned 65 South Main for a police headquarters; Barton sought higher compensation and the court later awarded $310,000 (minus prior payment), having valued 65 South Main at its highest and best use as mixed‑use development.
- Barton separately sued for inverse condemnation of 70 South Main, alleging loss of parking from the taking of 65 South Main substantially destroyed his ability to use/enjoy 70 South Main; trial court awarded $899,480 damages plus prejudgment interest.
- Trial findings: occupancy fell from ~95% pre‑taking to about 5–10% post‑taking; operating income dropped dramatically; fair market value fell from ~$1.1M to ~$200,520; repairs and permits were impeded by zoning/parking issues.
- Norwalk appealed asserting (1) judicial estoppel because Barton previously valued 65 South Main as mixed‑use, and (2) no substantial destruction of use; Barton cross‑appealed denial of offer‑of‑compromise interest under Conn. Gen. Stat. § 52‑192a.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial estoppel | Barton: earlier valuation of 65 S. Main as highest and best use (mixed‑use) does not preclude arguing it functioned as parking for 70 S. Main | Norwalk: Barton’s prior highest‑and‑best‑use position is inconsistent and gave him unfair advantage | No estoppel — positions not clearly inconsistent and no unfair advantage; trial court did not abuse discretion |
| Inverse condemnation (substantial destruction) | Barton: loss of parking substantially destroyed ability to use/enjoy 70 S. Main (massive occupancy/value losses) | Norwalk: presence of Macedonia Church and two small tenants shows property retained viable use; no taking | Held for Barton — substantial destruction satisfied (major decline in leases, income, and value), so inverse condemnation occurred |
| Offer of compromise interest (§ 52‑192a) | Barton: offer for $500,000 + interest, up to $20,000 costs, and necessary permits was a "sum certain" and judgment exceeded it | Norwalk: offer included non‑monetary and indeterminate demands; plaintiff did not recover permits | Denied — offer was not a sum certain (nonmonetary and capped/variable terms) and recovery was not equal to or greater than the offered relief |
Key Cases Cited
- Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14 (2004) (highest and best use can be a reasonable probability/counterfactual for valuation)
- Citino v. Redevelopment Agency, 51 Conn. App. 262 (1998) (severe restriction of use and near‑elimination of economic value can constitute inverse condemnation)
- Bristol v. Tilcon Minerals, Inc., 284 Conn. 55 (2007) (no taking where property retained present use despite substantial value loss)
- Dougan v. Dougan, 301 Conn. 361 (2011) (elements and equitable nature of judicial estoppel)
- DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105 (2010) (strict construction and punitive purpose of § 52‑192a offer‑of‑compromise interest)