221 Conn. 736 | Conn. | 1992
The dispositive issue in this appeal from the judgment rendered in a condemnation action is whether the trial court properly valued real property of the plaintiffs that the state had taken by eminent domain. The defendant, the commissioner of transportation, condemned land belonging to the plaintiffs, James D. Greene, Patrick J. Crehan, Richard J. Fricke and James A. Canevari, and determined its value for purposes of condemnation. The plaintiffs
The plaintiffs were the owners of undeveloped land located in Danbury and Ridgefield. The plaintiffs’ land consisted of approximately twenty-four acres located in Danbury, which was zoned light industrial, and approximately twenty-nine acres located in Danbury and Ridgefield, which was zoned residential. On November 18, 1988, pursuant to General Statutes § 13-73 et seq., the defendant condemned the entire property for use in constructing a state highway, and estimated damages to the plaintiffs to be $2,194,000. The defendant deposited that sum with the court in accordance with General Statutes § 48-11,
At trial, the plaintiffs offered evidence indicating that the highest and best use of the Danbury parcel was as a light industrial development. Vincent McDermott, who was qualified as an expert in the field of land use planning, testified for the plaintiffs. McDermott stated that he had headed a team of experts, hired by the plaintiffs, that had analyzed the development potential of the subject property. The team included John Thompson, a traffic consultant, John Scott, a real estate development consultant, and James MacBroom, a spe
The plaintiffs offered further evidence tending to prove that it was feasible to construct the proposed development. McDermott testified that, in determining the feasibility of the project, the team had evaluated the property’s topography, soils, potential for sewage disposal, potential for drainage and accessibility. Additionally, they had considered the zoning regulations that were applicable to the property.
MacBroom testified that he had investigated the capacity of the property to support the proposed development’s projected sewage disposal, drainage and water supply facilities. MacBroom stated that the property contained a large amount of rock ledge that would have to be removed in order to install the industrial facilities, but that he believed that the ledge was an asset because the plaintiffs could sell the crushed rock for profit. MacBroom testified that, in his opinion, the property was suitable to sustain the required sewage disposal system and drainage facilities, and it could supply sufficient water to support the light industrial use of the property. MacBroom also stated that he believed that the plaintiffs could obtain the necessary approvals to construct the sewage, drainage and water supply systems.
Regarding access to the property for industrial use, Thompson testified that several of the surrounding roads, particularly Laurel Lane and Starrs Plain Road, would have to be extensively improved, but that such
As a result of the findings of the plaintiffs’ team, McDermott concluded that, within a reasonable time and with economic feasibility, a light industrial development could be constructed on the Danbury parcel. On the basis of that conclusion, Ronald B. Glendinning, a real estate appraiser, determined that the highest and best use of the plaintiffs’ Danbury parcel was light industrial. He concluded that the highest and best use of the remainder of the land was residential, and he appraised the value of the entire property at $4,409,000.
In contrast, the defendant offered evidence to indicate that the highest and best use of the entire parcel, including the Danbury parcel zoned for light industrial use, was residential. Ronald Ravizza, who was in the business of rock removal, questioned the plaintiffs’ conclusion that the rock ledge on the property was an asset. Ravizza testified that, rather than selling excavated rock, he typically disposed of it. Although he conceded that it was possible that the rock could be crushed and sold or even used by the plaintiffs, Ravizza testified that, in his opinion, it would require considerable expense to remove the rock. Kenneth C. Stevens, a soil scientist, testified regarding the feasibility of constructing a sewage disposal system on the property. He stated
The defendant also offered the testimony of two professional real estate appraisers, Arthur Oles and John Flint. Oles determined that it would be necessary to access the proposed development via Laurel Lane, which ran through a residential zone. He was aware that Danbury zoning regulations prohibited accessing an industrial zone through a residential zone. Accordingly, he determined that the highest and best use of the entire property was residential, and that it was 100 percent likely that the Danbury parcel could, and would, be rezoned as residential. In Oles’ appraisal report, he stated, “given the residential character of the surrounding neighborhood, the likelihood of a zone change [of
Flint also concluded that the highest and best use of the entire subject property was residential. Flint testified that he believed that there was inadequate access to the property for industrial purposes and that the property could not support the sewage needs of an industrial use. Flint stated in his appraisal report that the highest and best use for the entire parcel was residential. He stated that his appraisal was contingent upon a zone change, which he believed would occur because the assistant city planner for Danbury had informed him that “there is a stronger possibility of gaining a residential zone change than developing the parcel for industrial use.” Accordingly, Flint appraised the plaintiffs’ property as residential and placed a value upon it of $1,143,000.
The trial court’s memorandum of decision reveals the following findings. It would be more costly to remove the significant amount of bedrock from the plaintiffs’ property than the plaintiffs estimated. Because the sewage system would cross wetlands and because the land was so highly permeable, it would be difficult and costly to install the proposed sewage system. The court also found that the unusual costs of preparing the site, those above and beyond the usual costs of development, would amount to $3,100,000, and the necessary costs of improving Laurel Lane and Starrs Plain Road would amount to $1,600,000, “which is far in excess of the plaintiffs’ estimates.” The court also found that the process of securing permits from Danbury, the state of
In this appeal, the plaintiffs claim that the trial court: (1) improperly valued the Danbury parcel as residential property because it was zoned light industrial; (2) improperly held the plaintiffs jointly and severally liable for payment of the judgment in favor of the defendant; and (3) improperly ordered the plaintiffs to post a bond to secure the judgment being appealed.
I
The plaintiffs first claim that the trial court improperly concluded that the highest and best use of the Dan-bury parcel was residential and, therefore, incorrectly determined its value as residential property. The plaintiffs assert that the trial court’s conclusion was improper because at the time of its taking the Danbury parcel was zoned industrial, and the trial court failed to find that it was reasonably probable that the zone would be changed to residential. Further, the plaintiffs argue that, even if the trial court found that it was reasonably likely that such a zone change would occur, that finding was not supported by the evidence. We disagree with both of the plaintiffs’ contentions.
A
Initially, the plaintiffs contend that the trial court failed to find that a change in the zone of the Danbury parcel from industrial to residential was reasonably probable. In the absence of such a finding, the plaintiffs assert that the trial court should have valued the parcel as industrial property. We conclude that the trial court implicitly found that such a zone change was reasonably probable.
Unquestionably, it would have been improper for the trial court to value the Danbury parcel as residential if it had found that the property would remain industrially zoned and, therefore, could not be legally used for residential purposes. This, the plaintiffs urge, underscores the magnitude of the trial court’s error in valuing the Danbury parcel as residential without a finding that a change of zone was probable. A far more sensible view of the trial court’s decision, however, is that it recognized that the plaintiffs’ proposed industrial development was not feasible, accepted the testimony of Oles and Flint and concluded that it was reasonably probable that the zone would be changed to residential, but did not explicitly so state in the memorandum. Although Practice Book § 4059 provides that a memorandum of decision must state conclusions on each claim of law and also the factual bases for those conclusions,
Next, the plaintiffs claim that even if the trial court found that a zone change was reasonably probable, the evidence offered was insufficient to support that finding. We are unpersuaded.
When making the difficult determination of whether a zone will be changed in the future, the trial court should cautiously examine the evidence offered. Budney v. Ives, supra, 90. The questions of the highest and best use of property and of the reasonable probability of a zone change are, however, questions of fact for the trier. Stamford Apartments Co. v. Stamford, 203 Conn. 586, 592, 525 A.2d 1327 (1987); Transportation Plaza Associates v. Powers, supra; Levine v. Stamford, 174 Conn. 234, 235, 386 A.2d 216 (1978); Lynch v. West Hartford, 167 Conn. 67, 74, 355 A.2d 42 (1974). We will not disturb the court’s findings on those issues unless they are clearly erroneous. Transportation Plaza Associates v. Powers, supra, 378.
In its memorandum of decision, the court stated that the Danbury parcel could not feasibly support an industrial use. Its finding was based upon the evidence that it would be extraordinarily costly to: (1) remove the bedrock from the property; (2) install an effective sewage system; (3) upgrade the surrounding roads; and (4) obtain the necessary permits to complete the project. In addition, Oles and Flint, professional appraisers, offered their testimony regarding the probability of a zone change. Oles stated that he believed that a zone change of the Danbury parcel from industrial to residential was 100 percent likely. Flint, having discussed the issue with the Danbury assistant town planner, reported that a zone change was more likely than the use of the Danbury parcel for industrial purposes. The plaintiffs offered no evidence to challenge
Although the plaintiffs assert that the defendant’s proof was insufficient in part because they offered no testimony from voting members of the Danbury zoning commission, we have held that “[p]roof of the reasonable probability that land could be put to a particular use need not be established by the testimony of the particular administrative officials involved.” Transportation Plaza Associates v. Powers, supra, 377. While it is true that “[wjishful thinking, optimistic conjecture, speculation, rumor and unfounded prognostications do not furnish a proper basis for a finding that a litigant has proved the reasonable probability of a future change in zone,” the trial court’s decision in this case was firmly based on evidence in the record. Budney v. Ives, supra, 89-90; see Heath v. Commissioner of Transportation, 175 Conn. 384, 387-90, 398 A.2d 1192 (1978) (testimony of one appraiser, in conjunction with the observable industrial use in the vicinity was a sufficient basis upon which to find a reasonable probability of a zone change to industrial); Lynch v. West Hartford, supra, 74-75 (testimony of two appraisers, and the fact that the land was currently being used, without objection, for industrial purposes provided sufficient basis to conclude that a zone change to industrial was reasonably probable). The trial court’s finding that the highest and best use of the Danbury parcel was residential was not clearly erroneous. Transportation Plaza Associates v. Powers, supra, 378.
II
The plaintiffs next claim that the trial court improperly held that they were jointly and severally liable for
In its memorandum of decision and in its written judgment, the trial court stated that the plaintiffs had been paid $430,548 in excess of the damage they sustained, and “[t]hey are ordered to repay that amount to the State of Connecticut.” Subsequently, the plaintiffs moved the trial court to articulate whether the plaintiffs’ liability was joint and several or only several. The trial court denied the motion for articulation, stating that, pursuant to General Statutes § 48-10,
The plaintiffs state on appeal that, because the trial court denied their motion for articulation, they “shall assume the worst for purposes of this appeal, and consider the liability imposed by the judgment as joint and several . . . .” That assumption is in direct contradiction to the trial court’s explicit statement that it could not decide the issue of the parties’ respective liability for damages. Furthermore, the plaintiffs do not claim that the trial court improperly interpreted its jurisdiction as granted by § 48-10, or that it improperly refused to decide the issue of their respective liabilities. Because we will not render a purely advisory opinion, we decline the plaintiffs’ invitation to “assume the worst,” and, therefore, will not consider this issue further. Moshier v. Goodnow, 217 Conn. 303, 306, 586 A.2d 557 (1991);
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 48-11 provides: “Whenever the state takes property under any provision of the general statutes or any special act, and the state and the owner or owners of such property or of any interest therein are unable to agree on the amount to be paid as just compensation for such property, the taking authority shall file, with the clerk of the court to which a petition for the assessment of just damages has been preferred, a statement of the sum of money estimated by such authority to be just compensation for the property or interest therein taken. Such sum shall be deposited in said court to the use of the person or persons entitled thereto and notice of such deposit shall be given to such person or persons by such clerk. The court may require such person or persons to give bond to the state conditioned on the repayment to the state of so much of such deposit which may be withdrawn as exceeds the amount of compensation finally awarded. Interest shall not be allowed in any judgment on so much of such amount as had been deposited in said court. Upon the application of any such owner or owners, the court, after determining the equity of the applicant in such deposit, may order that the money so deposited, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in such proceeding. If the compensation finally awarded exceeds the total amount of money so deposited or received by any person or persons entitled thereto, the court shall enter judgment against the state for the amount of the deficiency.”
General Statutes § 52-434a provides: “(a) In addition to the powers and jurisdiction granted to state referees under the provisions of section 52-434, a chief justice or judge of the supreme court, a judge of the appellate court, a judge of the superior court or a judge of the court of common pleas, who has ceased to hold office as justice or judge because of having retired and who has become a state referee and has been designated as a trial referee by the chief justice of the supreme court shall have and may exercise, with respect to any civil matter referred by the chief court administrator, the same powers and jurisdiction as does a judge of the court from which the proceedings were referred.
“(b) In condemnation proceedings in which the assessment fixed by the condemning authority exceeds the sum of two hundred thousand dollars the court may, at the request of either party, or on its own motion, refer the proceedings to the chief court administrator for referral to a committee of three such referees who, sitting together, shall hear and decide the matter. In such matters in which the fees payable to a referee are to be paid by the state, each such referee shall be reimbursed as provided in section 52-434.
“(c) The power conferred by this section may be exercised by any such state referee, whether acting in his capacity as a state referee, or as an auditor, or as a committee of one, or by any committee composed of not more than three such state referees, with respect to any civil matter referred to him or to it, the provisions of any general or special law to the contrary notwithstanding. ’ ’
Because we conclude, as the plaintiffs conceded at oral argument, that the claim that they were improperly ordered to post bond has become moot, we will not consider it.
Practice Book § 4051 provides in relevant part: “A motion for rectification or articulation shall be filed in triplicate with the chief clerk of the supreme court and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the chief clerk of the supreme court.
“Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the supreme court under §4054. . . .”
General Statutes § 48-10 provides: “The determination of the amount of damages in any case brought by the state to condemn land or any interest therein shall be referred to a state referee.”