Court Agrees Highest and Best Use of Property Was Residential in Eminent Domain Proceeding

Four cases were decided together concerning the Town of Branford’s exercise of eminent domain.  The town appeals from judgment in favor of plaintiffs, Barbara and Perrotti, owners of the property at the time of the taking, and the plaintiff New England Estates, the developer who had a contract with the owners to purchase the property.  At the time of the taking, most of the land was zoned industrial with a small section zoned for residential.  The property owners purchased the property at a foreclosure auction in the 1990s and later entered into an agreement with New England Estates for development.    New England Estates was granted a permit for a 268-unit development which included a golf course. The zoning commission, however, denied the application for a new development designation for the property.  In 2003, the town voted to take the property by eminent domain.  In response, both New England Estates and owners of the property filed appeals.  The trial court found that “the highest and best use of the land was residential” and found that the town “presented no credible evidence of environmental contamination at the site.” The town claims the trial court erred when it determined the highest and best use of the land was residential.  At the time the land was taken, the land was mostly zoned industrial.  The town alleged that because New England Estates would not have been successful in obtaining a zone change, the trial court’s conclusion is improper.  The Connecticut Supreme Court, however, determined that the trial court had sufficient evidence to support its finding that the best use of the land was residential. 

The town also asserted that the trial court improperly allowed an attorney to testify as New England Estates’ zoning law expert witness.  The court disagreed with the town and affirmed the judgments below.    The testimony given was his opinion as to why New England Estates’ application “would have been insufficient to withstand a challenge in Superior Court pursuant to § 8-30g.”  The town contends that this testimony is not simply an opinion but rather an interpretation of the law.  The Supreme Court held that whether New England Estates would have prevailed in an appeal of the decision by the zoning commission is not relevant to resolution of this appeal and as such, the testimony by the expert witness, even if it was impermissible opinion, was a harmless error.

Town of Branford v. Thomas Santa Barbara, Jr., 2010 WL 432345, 294 Conn. 785 (2/16/2010)

The opinion can be accessed at: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR294/294CR165.pdf

This is one of a trio of decisions handed down by the CT Supreme Court, all of which are also reported at InverseCondemnation

Thanks to Dwight Merriam, Esq. of Robinson & Cole in Hartford, CT for sending in this decision.