Agenda - Planning Commission - 09/07/2017

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August 25, 2017 I Volume 11 I Issue 16 Zoning Bulletin which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been at- tempted by the taking agency...." In other words, an inverse condem- nation action is "an eminent domain proceeding initiated by the prop- erty owner rather than the condemnor." The court further explained that property may be "taken without any actual appropriation or physi- cal intrusion" if "the property cannot be utilized for any reasonable and proper purpose" such as with "total destruction of a property's eco- nomic value or substantial destruction of an owner's ability to use or enjoy the property." Here, the court found that the City had inversely condemned 70 South Main when it took 65 South Main as evidenced by Barton's "extreme difficulty renting space at 70 South Main [due to the lack of parking], which, in turn, resulted in a more than 80 percent diminution of its value." Specifically, the court found that the evidence showed that the lack of parking had rendered 70 South Main undesireable to prospective tenants as evidenced by: a drop in leased space from 97% in 2001 to 5% in 2011; and a real estate broker conclusion that pro- spective tenant interest in 70 South Main would not materialize into a lease principally due to the lack of parking. The court also found that when Barton attempted to obtain from the City necessary permits for certain maintenance services at 70 South Main, City agencies "re- buffed" him on the basis of lack of parking. Moreover, the court found that, based on documentary and oral expert testimony of a commercial real estate appraiser, the value of 70 South Main had fallen by more than 80% due to the "absence of available parking." Responding to the City's arguments, the court was unpersuaded "that the fact that 70 South Main retain[ed] some economic value under- mine[d] the trial court's conclusion that the [Barton's] use and enjoy- ment of the property was substantially destroyed." The court reiterated that "Connecticut law on inverse condemnation requires total destruc- tion of a property's economic value or substantial destruction of an owner's ability to use or enjoy the property." Therefore, the court concluded, "[1]ogic dictates that where inverse condemnation is found for substantial —but not complete —destruction of an owner's ability to use or enjoy property, the remaining quantum of use or enjoyment will be reflected in some economic value." Thus; where, as here, the plaintiff (i.e., Barton, here) has shown that his or her use and enjoy- ment of property has been substantially destroyed, "the taking is of constitutional magnitude and the plaintiff is entitled to just compensa- tion for the inverse condemnation of his property" with the usual mea- sure of damages being the difference between the market value of the property before the taking and the market value of the property thereafter. In sum, the court concluded that Barton had proven his theory of inverse condemnation as to 70 South Main. 10 © 2017 Thomson Reuters