Agenda - Planning Commission - 09/07/2017

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Zoning Bulletin August 25, 2017 I Volume 11 I Issue 16 The Background/Facts: In 1981, Robert Barton (`Barton") pur- chased a four-story walk-up commercial building at 70 South Main in the City of Norwalk (the "City"). In order to comply with the City's zoning regulations that required more parking spaces for commercial use of his building, Barton also purchased a vacant lot at 65 South Main, creating 44 parking spaces. Over time, Barton leased space in the building to a number of commercial tenants. Then, in February 2002, the City condemned the parking lot at 65 South Main in order to build a new police headquarters on the land. The City paid Barton $127,000 as just compensation for the condemned land. Barton challenged the compensation offered, arguing that 65 South Main's "highest and best use," for which Barton should be compen- sated, was as a mixed use development worth considerably more than that paid by the City. The trial court agreed, finding 65 South Main was worth $310,000 as a mixed use development. In that action, Barton had also tried to add a claim for losses to 70 South Main as a result of the taking of 65 South Main. However, the City had successfully objected to Barton's attempts to amend the plead- ings to add that claim. As a result, Barton later filed a second action against the City in which he alleged that the City had inversely condemned 70 South Main when it took 65 South Main. In that second action, the trial court found that the lack of parking, caused by the taking of 65 South Main, had "substantially destroyed [Barton's] ability to operate [70 South Main] as a leasable facility and enjoy even a modicum of financial success." The court found that the evidence showed that 70 South Main had "substantially depreciated in value, by [more than 80 percent]" because of the "taking through eminent domain of the dedicated parking spaces [at 65 South Main]." The court concluded that the City, in taking 65 South Main, had thus also inversely condemned 70 South Main. The court awarded Barton $899,480 in damages plus $543,384.49 in prejudgment interest. The City appealed. Among other things, the City argued that 70 South Main was not inversely condemned because it retained economic value, was approximately one half occupied, and continued to generate revenue. DECISON: Judgment of Appellate Court affirmed. The Supreme Court of Connecticut held that the City had inversely condemned 70 South Main when it took 65 South Main because Barton's use and enjoyment of 70 South Main was "substantially destroyed." The court explained that "[i]nverse condemnation is a cause of ac- tion against a governmental defendant to recover the value of property © 2017 Thomson Reuters 9