Posted by: Patricia Salkin | July 6, 2017

CT Supreme Court Finds Inverse Condemnation after City takes Adjoining Parking Lot through Eminent Domain

Defendant, the city of Norwalk, appealed from the Appellate Court’s judgment, which affirmed the judgment of the trial court awarding the plaintiff Robert Barton $899,480 in damages plus prejudgment interest for his claim that the defendant inversely condemned a parcel of real property located at 70 South Main Street in Norwalk by taking, through the power of eminent domain, the plaintiff’s parking lot located across the street at 65 South Main Street. On appeal, the defendant claimed that the Appellate Court incorrectly affirmed the judgment of the trial court that the plaintiff had proven inverse condemnation because 70 South Main retained significant value and generates significant income. Defendant also argued that the Appellate Court incorrectly held that the plaintiff’s inverse condemnation claim was not barred by judicial estoppel.
Defendant claimed that 70 South Main was not inversely condemned because it retained economic value, was approximately one half occupied, and continued to generate revenue. However, after 65 South Main was taken, the plaintiff’s real estate broker documented that the interest of prospective tenants would not materialize into a lease principally due to the lack of parking. When the plaintiff sought the necessary permits for certain maintenance services, he was denied by the defendant’s agencies on the basis of the lack of parking. The court found that the trial court’s conclusion was also supported by its finding that the value of 70 South Main had fallen by more than 80 percent. This finding was supported by the expert testimony of a commercial real estate appraiser, Michael McGuire. On the basis of McGuire’s report, the trial court found that the value of 70 South Main had diminished from $1.1 million to $200,520 or 81.77 percent. McGuire attributed this decline in value to the absence of available parking.

Accordingly, the court held that the plaintiff had proven his theory of inverse condemnation.
The defendant next argued the trial court incorrectly failed to find the plaintiff estopped from asserting that 70 South Main should be valued with the use of 65 South Main as a parking lot. The court rejected this argument, finding the fact that the plaintiff sought and proved a fair market value of 65 South Main as a mixed use development in the earlier eminent domain proceeding did not preclude him from claiming that he would continue to use that property as a parking lot had it not been taken. Here, the trial court found the damage 70 South Main incurred as a result of the defendant taking 65 South Main. As such, the court found that the defendant had inversely condemned 70 South Main when it took 65 South Main, and that the trial court did not abuse its discretion in rejecting the defendant’s judicial estoppel claim.
Barton v City of Norwalk, 2017 WL 2806277 (CT 7/4/2017)

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