173 Conn. 112 | Conn. | 1977
This proceeding arose from the taking by eminent domain proceedings of a parcel of the plaintiff’s land located in New Britain. The commissioner of transportation assessed damages at $250,500 and the plaintiff appealed to the Superior Court. The appeal was referred to three state referees, who, exercising the powers of the Superior
The facts found and conclusions reached by the court include the following: The plaintiff purchased the property in 1968 for the sum of $200,000, which included a $5000 down payment and a mortgage covering the balance. The irregularly shaped parcel included 12.56 acres and was subject to a sewer easement, a right of way and leaching field rights in favor of the grantors. The grantors also gave the plaintiff a parking easement over part of the grantors’ adjoining land which contained approximately 55,000 square feet. The property taken included a partially completed building and the parties stipulated that the value of the labor and materials was $135,000 subject to the right of the commissioner to offer proof that the structure was worthless because it was being constructed in violation of the state and municipal building codes. There were extensive and serious violations of the state building code, the correction of which would require massive structural revision and, therefore, the building had a value of only $16,375, representing the worth of the foundation. The property also lacked any sewage facilities. There were four possible routes over which sewage lines might have been run connecting the property with main sewage lines. The first ran along Hartford Road through rock and
The plaintiff first assigns error in the court’s exclusion of the parking easement area from its computation of the number of dwelling units which the property could support. The property taken was located in an A-3 zone, which permitted the development of 34.8 units per acre. The court, after hearing conflicting testimony, concluded that the highest and best use of the property would be for the development of luxury apartments at a density of twenty-two units with a value of $2300 per unit. The plaintiff does not contest the density or value per unit figures, but assigns error to the court’s conclusion that only the 12.56 acres held in fee were subject to this type of development and not the additional 1.26 acres on which the plaintiff held a parking easement. Under our law, fair market value is to be determined according to the use to which the property could most advantageously be put and it was for the court to determine that use. Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 411, 270 A.2d 549. The court clearly acted properly in concluding that land over which the plaintiff held a parking easement was not available for the same use as land which the plaintiff held in fee. Furthermore, based on tes
The plaintiff next claims that the court should have awarded it $135,000 as the stipulated value of the uncompleted structure on the property at the time of the taking. As stated previously, the parties entered into a stipulation which was incorporated into a finding of the court concerning the value of the structure, which the plaintiff has not attacked. This finding reads: “Plaintiff and defendant stipulated that if the court found the structure being built on the property by plaintiff at the time of talcing could be continued being built, as it was at the time of the talcing, that the court could by agreement of the parties find the value of the labor and materials to be $135,000 with the state reserving the right to offer proof [that] the incomplete structure had no value because it was being constructed in violation of the laws of the State of Connecticut and the City of New Britain.” A later finding which the plaintiff attacks as being contrary to the stipulation of the parties states: “The partially built building suffered from incurable functional obsolescence to the extent that the foundation only had value which is reasonably found to be $16,375.” The state relied principally upon the testimony of Thomas W. Persch, a registered professional architect, who testified to numerous failures to comply with the state and local building codes. The plaintiff argues, however, that the testimony of Persch was irrelevant since the local building code was not in evidence and the state code did not apply to the structure.
Finally, the plaintiff assigns error to the court’s allowance of $5000 as “[a] fair and reasonable sum to be awarded for maps, plans and mechanical drawings,” contending that $47,000 would have constituted the appropriate award. The $5000 was not included as an element contributing to market value of the property. See Schnier v. Commissioner of Transportation, 172 Conn. 427, 433, 374 A.2d 1087. Rather, it was awarded as an independent cost of the suit. The basis for the court’s award is unclear, but it is clear that it cannot be supported under our law. These costs could only be allowed by statute. Waterbury v. Macken, 100 Conn. 407, 413, 124 A. 5. General Statutes § 52-257 allows the court to award “a reasonable sum” for “maps, plans, mechanical drawings and photographs necessary or convenient in the trial of any case . . . .” The plaintiff’s claim of compensation in the amount of $47,000 was for engineering fees incurred in the original development of the property and not as compensation for expenses incurred in preparing for the litigation. Since no statutory basis existed for the award of an additional $5000 the -final award must be reduced by $5000.
In this opinion the other judges concurred.