249 Conn. 138 | Conn. | 1999
Opinion
The plaintiffs, Richard and Donna Melillo, own a home in East Haven that is located several hundred feet north of Tweed-New Haven Airport (Tweed). They initiated this action against the defendant, the city of New Haven, which owns and operates Tweed, alleging that certain commercial jet flights into
The record reveals the following relevant facts. In September, 1979, the plaintiffs purchased a home located at 177 Burr Street in East Haven for $60,000. The plaintiffs have resided at the 177 Burr Street residence since that date. The house, which is situated on a lot measuring 100 feet by 125 feet, was built in 1959, and is located approximately 450 feet north of the northern boundary of Tweed and less than 1500 feet from the end of the runway.
Tweed, which straddles land located in both New Haven and East Haven, commenced operations in 1931. During two periods between 1967 and 1975, commercial jets flew in and out of Tweed. These flights gave rise to an action in the United States District Court for the District of Connecticut by the town of East Haven and owners of twelve homes located near Tweed. See generally East Haven v. Eastern Airlines, Inc., 331 F. Sup. 16 (D. Conn. 1971), aff'd, 470 F.2d 148 (2d Cir. 1972), cert. denied, 411 U.S. 965, 93 S. Ct. 2144, 36 L. Ed. 2d 685 (1973) (Eastern Airlines). With respect to seven of these homes, the District Court found that the overflights had substantially interfered with the owners’ use and enjoyment of their properties and, consequently, that the overflights constituted a compensable taking
From 1975 to 1984, there was no commercial jet service into or out of Tweed.
Despite protests by the plaintiffs and other neighborhood residents, the defendant permitted Air Wisconsin to begin regularly scheduled jet flights into Tweed on February 15, 1985. These flights continued through December, 1986. Between March, 1985, and April, 1986, the peak period of Air Wisconsin jet service into Tweed, Air Wisconsin landed between 69 and 102 jets each month at Tweed. A substantial percentage of those jets flew directly over the plaintiffs’ property, frequently at altitudes of less than 100 feet.
Five days after Air Wisconsin had commenced its regularly scheduled jet service into Tweed, the plaintiffs
The plaintiffs then brought this action, claiming, inter alia, that: (1) the Air Wisconsin overflights had resulted in a permanent taking of their property by inverse condemnation
After a trial, the court concluded that the plaintiffs had failed to prove their claims. The court’s factual findings, which are set forth in its memorandum of decision, may be summarized as follows. The trial court concluded that the plaintiffs’ property “was the subject of significant direct low altitude jet overflight from 1967 to 1975.” The trial court also found that the “noise and turbulence [of the Air Wisconsin overflights from 1984 to 1986] substantially interfered with the [plaintiffs’] enjoyment of [their] property and caused some minor physical damage — such as loosened shingles — to the property,”
On the basis of these factual findings, the trial court rendered the following legal conclusions. In light of the nature of the low altitude jet overflights from 1967 to 1975, the plaintiffs’ property had been taken, for constitutional purposes, sometime during that time period, probably in 1967.
The trial court, having determined that the plaintiffs’ property had been taken sometime between 1967 and 1975, rejected the plaintiffs’ claim that they were entitled to compensation for a permanent taking of their property based on the Air Wisconsin overflights.
With respect to the plaintiffs’ constitutional takings claim, we agree with the plaintiffs that the record does not support the trial court’s conclusion that the jet overflights between 1967 and 1975 had resulted in a taking of the 177 Burr Street property at some time during that time period. Our careful review of the record reveals that, although the plaintiffs presented some evidence regarding the flights into and out of Tweed from 1967 to 1975, no evidence was introduced to establish the extent to which those flights had interfered with the use and enjoyment of the 177 Burr Street property in particular. Moreover, as the trial court observed, the District Court’s findings in Eastern Airlines are not applicable to this case because the status of the 177 Burr Street property was not litigated in Eastern Airlines.
The determination of whether a particular property has been taken by inverse condemnation must be made
The trial court, having found that a taking of the 177 Burr Street property had occurred between 1967 and 1975, rejected the plaintiffs’ claim of a taking between 1984 and 1986 because the evidence did not establish that the later series of overflights gave rise to a greater degree of interference with the use and enjoyment of the property than had the earlier series of overflights. In light of our determination that the trial court improperly concluded that the property had been the subject of a taking between 1967 and 1975, the court’s rejection of the plaintiffs’ takings claim, predicated on its unsupported finding of a prior taking, necessarily also was improper. Furthermore, we agree with the plaintiffs that the trial court’s finding that the “noise and turbulence [of the Air Wisconsin flights between 1984 and 1986] substantially interfered with the [plaintiffs’] enjoyment of the property,” a finding that was amply supported by the evidence, sufficed to establish that the plaintiffs had satisfied the Ca/usby test for proving the taking of an avigation easement.
At trial, each party adduced testimony from a real estate appraiser to support its claim regarding the value of the 177 Burr Street property before and after the Air Wisconsin overflights. Furthermore, both experts relied on the comparable sales approach to estimate the fair market value of the property before and after the Air Wisconsin overflights.
The defendant’s expert, John Leary, testified that jet flights into and out of Tweed between 1971 and 1986 had no discemable impact on the value of residential properties that were the subject of jet overflights. Leary based his conclusion on an analysis of 700 residential sales in New Haven and East Haven, including the area
The trial court credited the testimony of the defendant’s expert witness, Leary, and expressly discredited the conclusions of the plaintiffs’ expert, Michaud. “The determination of [property] value by a court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses .... [T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” (Citations omitted; internal quotation marks omitted.) Eichman v. J & J Building Co., 216 Conn. 443, 451-52, 582 A.2d 182 (1990). “[I]t is the proper function of the court to give credence to one expert over the other.” Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993). “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d 101 (1997).
The record amply supports the trial court’s conclusion regarding the relative credibility of the two experts.
The plaintiffs have provided no persuasive reason why Leary’s opinion regarding the economic impact of the Air Wisconsin overflights on the plaintiffs’ property, which was based upon the same valuation method— the comparable sales approach — as that employed by Michaud, was flawed or otherwise untrustworthy. In essence, therefore, “the plaintiffs’ argument is that the court chose not to believe their appraiser. Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The purpose of offering in evidence the opinions of experts as to the value of land is to aid the trier to arrive at his [or her] own conclusion, which is to be reached by weighing those opinions in the light of all the circumstances in evidence bearing upon value and his [or her] own general knowledge of the elements going to establish it. . . . Ultimately, the determination of the value of the land depended on the considered judgment of the [trial court], taking into account the divergent opinions expressed by the witnesses and the claims advanced by the parties.” (Citations omitted; internal quotation marks omitted.) Maykut v. Shugrue, 171 Conn. 286, 288, 370 A.2d 923 (1976).
It is possible, of course, that another expert might have succeeded where the plaintiffs’ expert failed. It is far more likely, however, that, by the time the plaintiffs had purchased their home in 1979, the market already had adjusted for the likelihood of interference from jet flights into and out of Tweed. In other words, any
Finally, the trial court also properly rejected the plaintiffs’ claim under the relocation assistance act. See 42 U.S.C. §§ 4601 (6) (A) (i) and 4622 (a) (1). The plaintiffs are not “displaced persons” within the meaning of the relocation assistance act because they had never moved, or moved their personal property, from 177 Burr Street. See footnote 9 of this opinion. Consequently, they do not fall within the class of persons entitled to compensation under that act.
In this opinion the other justices concurred.
The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to what is now Practice Book § 65-1, and General Statutes § 51-199 (c).
Tweed has two runways. Runway 2-20 runs north and south and runway 14-32 runs northwest and southeast. All references to the runway in this opinion are to runway 2-20.
The fifth amendment to the United States constitution provides in relevant part: “[N]or shall private property be taken for public use, without just compensation. ” The takings clause of the fifth amendment is made applicable to the states through the fourteenth amendment. E.g\, Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980).
The trial court found, however, that when the plaintiffs purchased the property in 1979, “[t]here was ... a substantial amount of nonjet flight . . . .’’The evidence also indicated that coiporatejets regularly used Tweed at that time.
The evidence presented at trial indicated that, in addition to the Air Wisconsin overflights, there was some additional air traffic over the plaintiffs’ property between 1984 and 1986 that, according to the plaintiffs, also impaired their use and enj oyment of their property. For ease of reference, we refer to all of the overflights during that period as Air Wisconsin overflights.
In Williamson Planning Commission v. Hamilton Bank, supra, 473 U.S. 172, the United States Supreme Court held that “if a State provides an adequate procedure for seeking just compensation [for an alleged taking of private property], the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Id., 195.
“Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn properly. . . . Inverse condemnation is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted. . . . Agins v. Tiburon, 447 U.S. 255, 258 n.2, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980).” (Citations omitted; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 249 n.15, 662 A.2d 1179 (1995).
Article first, § 11, of the constitution of Connecticut provides: “The property of no person shall be taken for public use, without just compensation therefor.”
The relocation assistance act provides that “[wjhenever a program or project to be undertaken by a displacing agency will result in the displacement of any person, the head of the displacing agency shall provide for the payment to the displaced person of—
“(1) actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property . . . 42 U.S.C. § 4622 (a) (1) (1994).
The relocation assistance act defines the term “displaced person” as “any person who moves from real property, or moves his personal property from real property . . . .” 42 U.S.C. § 4601 (6) (A) (i) (1994).
Of course, “[i]t is a fundamental principle of law that the power to appropriate private property for public use is an attribute of sovereignty and essential to the existence of government.” (Internal quotation marks omitted.) Bradley Facilities, Inc. v. Burns, 209 Conn. 480, 490, 551 A.2d 746 (1988), cert. denied, 493 U.S. 810, 110 S. Ct. 54, 107 L. Ed. 2d 23 (1989). Nevertheless, the owner of such private property has a constitutional right to just compensation for any such appropriation.
“An avigation easement is an easement of right to navigation in airspace over designated land.” (Internal quotation marks omitted.) Westchester v. Greenwich, 227 Conn. 495, 497 n. 1, 629 A.2d 1084 (1993). There are essentially two types of avigation easements: clearance easements and flight easements. “A clearance easement is acquired to assure that no structure exceeds a maximum height, if structures are allowed at all. This will give aircraft an unobstructed view and provide a safety margin for flights that may have to descend due to pilot error, poor weather conditions, etc. The flight easement allows the frequent overflight of aircraft over the encumbered land and constitutes a separate and distinct easement from the clearance easement.” J. Eaton, Real Estate Valuation in Litigation (1982) pp. 256-57. Only the latter classification, established by Causby, is relevant to this case. For a general discussion of avigation easement law, see 4A J. Sackman, Nichols on Eminent Domain (3d Ed. Rev. 1998) § 14A.05, pp. 14A-116 through 14A-125.
Neither party claims that the standard to be applied under article first, § 11, of the state constitution is any different from the standard applicable
Thus, in Causby, “the Court was called upon to weigh the conflicting interests (1) of the Government (and, by implication, of others) in connection with the need to use the air for the passage of aircraft, and (2) of the owners of subjacent lands in connection with the need for reasonable tranquility in the airspace overhead so that they may use and enjoy their property.” Lacey v. United States, 595 F.2d 614, 615 (Ct. Cl. 1979).
The trial court noted that “[t]he noise and turbulence of the Air Wisconsin flights cannot be calibrated exactly, at least upon the evidence in the
In so concluding, the trial court expressly stated that its finding was based upon the evidence adduced at the trial of this case, not on the factual findings of the District Court in Eastern Airlines. As the trial court acknowledged, the findings of the court in Eastern Airlines are inapplicable to this case because the 177 Burr Street property was not the subject of that case.
The trial court also stated that the taking that had resulted from the first series of jet overflights from 1967 to 1975, and the alleged taking that
In setting forth this theory, the trial court adverted to certain language from the opinion of the Second Circuit Court of Appeals in Eastern Airlines that, the trial court suggested, left open the possibility that such a fact pattern could support a federal constitutional takings claim. See East Haven v. Eastern Airlines, Inc., 470 F.2d 148, 151 (2d Cir. 1972), cert. denied, 411 U.S. 965, 93 S. Ct. 2144, 36 L. Ed. 2d 685 (1973).
The plaintiffs also claimed that: (1) they are entitled to compensation under the takings clause of the fifth amendment; and (2) the defendant owed them compensation under General Statutes § 13b-43, which provides in relevant part that “[a]ny municipality . . . may expand or improve an airport, and may take any land or interest therein necessary for such expan
After the trial court had issued its memorandum of decision on July 11, 1997, the plaintiffs filed a motion for articulation, which the trial court denied on September 15, 1997. The plaintiffs then filed a motion for review with the Appellate Court. On September 22, 1997, the Appellate Court, in a one page order, granted the plaintiffs’ motion for review, but denied the relief sought.
In the trial court and in their briefs on appeal, the plaintiffs consistently have asserted, with respect to the issue of just compensation, that the defendant should be required to purchase the 177 Burr Street property from them. At oral argument, however, the plaintiffs conceded that, because the property retains significant market value notwithstanding the Air Wisconsin overflights, the defendant would not necessarily be required to compensate them in an amount equal to the full value of the property. We know of no support for the plaintiffs’ claim that a taking of the kind they allege would entitle them to compensation for the full value of their property absent a showing that, due to the Air Wisconsin overflights, their property was essentially without value.
Moreover, the District Court in Eastern Airlines found that only seven of the twelve subject properties at issue in that case had been taken by virtue of the jet overflights between 1967 and 1975, and, even with respect to those seven, the court characterized its determination as a “close” call. East Haven v. Eastern Airlines, Inc., supra, 331 F. Sup. 33.
The comparable sales approach has long been an approved method for ascertaining the fair market value of property. See, e.g., Torres v. Waterbury, 249 Conn. 110, 123-24, 733 A.2d 817 (1999); Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 385-86, 389 A.2d 734 (1978); Hutensky v. Avon, 163 Conn. 433, 437, 311 A.2d 92 (1972).
For example, Leary had been engaged in the appraisal of real estate since 1970, whereas Michaud had been an appraiser only since 1986. Furthermore, Leary had taught a number of courses, including college level courses, on the appraisal of real property; Michaud apparently had no such experience.
For example, Michaud stated that he had relied on his own inspection of the 177 Burr Street property, and his perception of how certain overflights during his visit to the property were likely to have “affected those [properties] directly in the flight path, and how they affected those directly to the left or right of the flight path . . . .” Michaud also stated that he had relied on his “experience with other forms of nuances or externalities, such as overhead power lines, such as a change in use by a neighbor [and] how that affects the specific property. You know, we look at a number of things because real estate markets are relatively inefficient [in that they do not provide] clear and conclusive evidence [of value].”
In noting Michaud’s consideration of factors other than the comparable sales figures, we do not mean to imply that an appraiser’s reliance on such factors necessarily would render that expert’s opinion unreliable. We point them out, rather, only because the trial court reasonably could have concluded that, in the circumstances of this case, there was no sound basis for Michaud to have relied on them, and, furthermore, that the relatively subjective nature of those factors casts doubt on the trustworthiness of Michaud’s market analysis.
In their briefs, the plaintiffs also assert, in conclusory fashion, that the “trial [court’s erroneous conclusion] that the plaintiffs’ property was previously taken in 1967, and that there was no substantial variation between the [defendant’s] activities [between] 1967 [and 1975] and its activities [between] 1984 [and 1986] . . . adversely affected [the court’s] evaluation of the economic effect of the 1984 taking.” The plaintiffs, however, have provided no support for this assertion, and we are aware of none. Indeed, the findings about which the plaintiffs complain relate to the question of whether an avigation easement had been acquired by the defendant by virtue of one or both of the two series of overflights, not to the issue of whether the later series of overflights had resulted in economic harm to the property.
We note that the plaintiffs, in their complaint, alleged that the defendant had “agreed to abide by the terms and conditions” of the relocation assistance act, and the regulations promulgated thereunder, as a condition of the receipt of “substantial aid and assistance from the United States to operate Tweed . . . .” The trial court did not address this issue in light of its conclusion that the plaintiffs were not “displaced persons” within the meaning of the relocation assistance act. We also need not address this issue.
The plaintiffs also have appealed from the judgment of the trial court rejecting their claim under the takings clause of the fifth amendment. See footnote 18 of this opinion. We agree with the trial court that the plaintiffs are not entitled to consideration of that claim because of the existence of a legally sufficient procedure, under article first, § 11, of the constitution