City of Hartford v. CBV Parking Hartford, LLC
City of Hartford v. CBV Parking Hartford, LLC
Opinion of the Court
**203*409The plaintiff, the city of Hartford, exercised its power of eminent domain to take certain property owned by three defendants
The record reveals the following facts, found by the trial court or otherwise undisputed. The property is located in an area north of the downtown area of the city (north downtown) and is comprised of fourteen tax lots that form three distinct parcels, each of irregular shape and covering only part of a city block (collectively, property). For purposes of this case, the property has been designated as Parcels A, B, and C.
North downtown, due to its separation from the core downtown area by Interstate 84 (I-84), has historically become a separate entity from the downtown. It largely did not benefit from increased commercial development that took place starting in the late 1990s that transformed and reenergized the core downtown. Prior to and continuing through the time of the taking, north downtown contained many rundown and/or abandoned buildings and lots, as well as large, disintegrating parking areas leased by businesses on the south side of I-84 for their employees' use.
*410Starting in 2003, the city undertook a series of efforts aimed at changing the fortunes of north downtown. In 2003 and 2004, it constructed or renovated several buildings in that area, including a Public Safety Complex, the Hartford police headquarters, and the Capitol Preparatory Magnet School. By early 2009, city officials approved a 2008 redevelopment plan with the stated goal of creating an opportunity for educational, commercial, and residential development in north downtown. The property was included in the area designated for such development. The plan called for the acquisition of properties by purchase, or eminent domain if necessary, to accomplish its development goals. In furtherance of these goals, in 2010, the city acquired a **205parcel of land adjoining one side of Parcel A and demolished an eyesore building on it commonly known as the "Butt Ugly" building (Ugly lot). The city acquired other properties in the area, but definitive redevelopment plans had not yet materialized.
In July, 2012, a financially distressed seller sold the property under a single deed for approximately $374,000 to the defendant CBV Parking Hartford, LLC, a subsidiary of CBV Parking Holding, LLC (CBV). The sale was not an arm's-length transaction, and the sale price was well under the city's valuation for purposes of property tax assessment.
Pennock J. Yeatman, the sole owner of CBV, is an experienced investor and developer of real estate. Prior to the purchase of the property, Yeatman had reviewed the city's 2008 plan and researched any impediment to redevelopment of the property. After he obtained the property, Yeatman took several steps to facilitate the sale or redevelopment of the property. He divided the property into three parcels to make the option of individual sales readily available, executing conveyances so that each of the three defendant subsidiaries of CBV held one. See footnote 1 of this opinion. He also negotiated the elimination of "gangway" rights or easements,
By late 2012, the city had become the owner of both of the two smaller properties that adjoined Parcel A: a LAZ parking lot on one side of Parcel A that the city had purchased in October, 2012, for $1,280,000, and the **206Ugly lot on the other side of Parcel A that it previously had acquired and razed for a total cost of $1,225,000.
In May, 2013, the city offered to buy Parcels A, B, and C for $1,170,000. CBV rejected the offer, indicating that the property was considerably more valuable and that CBV had no financial or other pressures requiring immediate sale. Negotiations continued with offers and counteroffers.
In the meantime and unbeknownst to CBV, the city had decided that the construction of a ballpark could be the catalyst for further redevelopment in north downtown. On July 1, 2014, the city solicited proposals for a public/private partnership for both the construction of the ballpark and the mixed-use development of its environs, including the property.
By the close of the August 1, 2014 deadline for submissions, the city had received three proposals. It selected the one prepared *411by DoNo Hartford, LLC (DoNo), in collaboration with two other entities. DoNo's proposal presented a concept plan for a " 'dynamic new neighborhood' " for north downtown that included the ballpark, retail businesses, restaurants, and 600 residential units. Under the proposal, Parcels A, B, and C were to be assembled with adjoining properties for mixed-use development. The proposal indicated that DoNo had secured letters of interest for the construction of a grocery store and a brewery with a rooftop beer garden. DoNo supported its proposal with a market study, which concluded: " 'Given the current dynamics between employment, the state of housing opportunities in outlying areas of Hartford, and the tremendous opportunity for placemaking around the ballpark, the necessary conditions are in place to redefine what it means to live downtown.... The subject site represents an opportunity to develop and deliver a [mixed-use **207] neighborhood at the exact inflection point of downtown redevelopment.' "
Neither CBV nor Yeatman submitted a proposal, and the city did not solicit one from either. Yeatman claimed to have learned about the ballpark proposal from a Hartford Courant newspaper article published in July, 2014, and the request for development proposals sometime thereafter. According to Yeatman, the one month submission deadline was unusually short by industry standards, and he had inadequate time to complete a proper proposal for submission.
In August, 2014, the city's Court of Common Council approved a resolution authorizing the purchase of the property for $2.5 million, a price to which the parties had previously tentatively agreed. However, in light of the changing landscape, Yeatman countered with a proposal to sell only Parcel A to the city, which would allow the city to assemble the entire block immediately across the street from the ballpark but would allow Yeatman to develop Parcels B and C himself. The city rejected this offer.
In November, 2014, the city exercised its power of eminent domain to take the entire property, filing a statement of compensation of $1,980,000 for the taking. The defendants appealed to the Superior Court, claiming that the amount of compensation was "inadequate." In a trial to the court, both the city and the defendants each presented two appraisals and supporting expert testimony; all of the appraisals were based on a comparable sales methodology.
**208The city's appraisals valued the property at the time of the taking at $1,900,000 and $2,010,000, respectively. Both appraisals assumed continuation of the property's present use as parking lots. The court concluded that both appraisals suffered from the same "astounding shortcoming"; neither took into account the "major change" of the announced ballpark and expectations for surrounding development.
The defendants' appraisals, prepared by Michaud Company (Michaud) and J.F. Mulready Company, LLC (Mulready), valued the property at $4,810,000 and $5,220,000, respectively. The court rejected the higher Mulready appraisal, which was premised on research related to the effect that new minor league ballparks had on surrounding land values in three other cities, two in North Carolina and one in *412Indiana. The court found that Mulready's assumption that the positive effects of those developments would similarly follow in Hartford, despite current difficulties remaining in Hartford, was "much too enthusiastic ...." It also concluded that "the research ... does not support the singularly successful picture" reflected in Mulready's valuation.
The court found the Michaud appraisal of $4,810,000 the "most persuasive." The court set forth the following reasons. That appraisal rejected the "as is" approach of the city's appraisals because they did not reflect the highest and best use of the property. The Michaud appraisal also took into account the " 'cloud' " of the city's eminent domain power, which could dissuade competitive buyers and in turn depress value. Significantly, with regard to highest and best use, the court noted: "The Michaud report relies on the concept of 'assemblage,'
Approximately two weeks after the court issued its decision, upon the defendants' motion, the court awarded interest at a rate of 7.22 percent. The city appealed from the trial court's judgment to the Appellate Court, and we thereafter transferred the appeal to this court. See General Statutes § 51-199 (c) ;
**210Practice Book § 65-1. On appeal, the city challenges both the amount of compensation and the rate at which the trial court awarded interest.
I
The city claims that the court improperly valued the property on the basis of an unreasonable assumption that the defendants would assemble the property with adjoining properties owned by the city for commercial development. In response, the defendants contend that the city's appeal is moot because it challenges only one of *413two independent grounds that support the trial court's fair market value determination. Alternatively, they contend that, if the appeal is not dismissed as moot, the city cannot prevail on the merits because the trial court's assemblage valuation was proper.
A
"Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve." (Internal quotation marks omitted.) Burbank v. Board of Education ,
The defendants contend that the trial court's valuation rested on an alternative ground that was not based on assemblage. They rely on the final paragraph of the trial court's analysis, which commences with the following sentence: "The history of the city's taking of **211the two properties adjoining Parcel A of the subject property is enlightening for purposes of this court's evaluation and presents a basis for valuing the property even without application of the assemblage doctrine ." (Emphasis added.) The remainder of the paragraph then explains that applying the per square foot prices paid by the city for the two parcels adjacent to Parcel A to the property would have yielded valuations of $3,245,298 or $5,339,933.
Although the trial court's initial statement clearly lends support to the defendants' view, the paragraph viewed in its entirety and in context persuades us otherwise. The trial court did not adopt either of the two per square foot valuations cited, or even the mean of the two ($4,292,615.50). It did not indicate that it had weighted one of those valuations more heavily than the other, and the valuation ultimately adopted does not conform to any obvious mathematical formula. Nor did the court articulate any reason to settle on a figure closer to the valuation of one adjacent parcel than the other. Instead, adopting the defendants' view, the trial court would have had to settle on the mean of the two valuations, and added the seemingly arbitrary figure of $517,384.50 to coincidentally arrive at the exact same valuation as Michaud's valuation of $4,810,000-a valuation predicated on assemblage.
We recognize that the trial court can make an independent determination of value and fair compensation in light of all the circumstances and is not bound by the valuations or valuation methods used by the appraisers. See, e.g., Bristol v. Tilcon Minerals, Inc. ,
B
The question before us, therefore, is whether the trial court's adoption of Michaud's valuation was proper. The city's argument is twofold. First, it contends that *414the trial court applied the wrong legal test because, when it assumed that the defendants would assemble the property with neighboring properties owned by the city for commercial development, it failed to consider whether assemblage would have occurred in the absence of condemnation. Second, it contends that the evidence would not support a conclusion that the proper test was met. We do not agree with either contention.
The governing principles are not in dispute. The government must pay "just compensation" when it takes private property. U.S. Const., amend. V ; accord Conn. Const., art. I, § 11. "The amount that constitutes just compensation is the market value of the condemned property when put to its highest and best use at the time of the taking.... The highest and best use of a given parcel contemplates the use which will most likely produce the highest market value, greatest financial return, or the most profit ...." (Citation omitted; internal quotation marks omitted.) Commissioner of Transportation v. Towpath Associates ,
"Evidence of the special adaptability of land for a particular purpose is properly admitted if there is a reasonable probability that the land could be so used within a reasonable time and with economic feasibility.... A landowner must provide the trier with sufficient **213evidence from which it could conclude that it is reasonably probable that the land to be taken would, but for the taking, be devoted to the proposed use by a prudent investor in the near future.... The uses to be considered must be so reasonably probable as to have an effect on the present market value of the land. Purely imaginative or speculative value should not be considered." (Citations omitted; internal quotation marks omitted.) Id., at 544,
Similarly, "[t]he doctrine of assemblage applies when the highest and best use of separate parcels involves their integrated use with lands of another. Pursuant to this doctrine, such prospective use may be properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable. If applicable, this doctrine allows a property owner to introduce evidence showing that the fair market value of the owner's real estate is enhanced by its probable assemblage with other parcels." 4 J. Sackman, Nichols on Eminent Domain (3d Ed. Rev. 2018) § 13.01 [17].
"[If] combination of the parcels is reasonably probable , then evidence concerning assemblage, and, ultimately, a finding that the land is specially adaptable for that highest and best use, may be appropriate.... [T]he use of property in conjunction with other parcels may affect value if it is shown that such an integrated use reasonably would have occurred in the absence of the condemnation ." (Citation omitted; emphasis added; internal quotation marks omitted.) Towpath , supra,
"[A]lthough the possibility of a change ... always exists in some degree, it [is often] difficult to prove that such a possibility has become a reasonable probability **214.... Because of the uncertainties necessarily attending the determination of the probability of the happening of such an event in the future, claims and evidence regarding the probability must be scrutinized with care and examined with caution." (Citation omitted; internal quotation marks omitted.) Id., at 551,
The trier of fact's determinations as to what is the highest and best use of *415the property and whether there is a reasonable probability of a future change affecting value are questions of fact. Bristol v. Tilcon Minerals, Inc. , supra,
The city's first line of attack, however, is that the trial court's findings as to these matters were made without consideration of a critical element, namely, whether assemblage of the property with parcels owned by the city reasonably would have occurred "in the absence of the condemnation." Towpath , supra,
We are not persuaded that the trial court failed to apply the proper standard. The city places too much weight on the fact that the trial court did not recite the talismanic phrase "in the absence of condemnation" when reciting the governing law. The trial court repeatedly cited our decision in Towpath , supra,
Before we examine the trial court's ultimate finding-that there was a reasonable probability of assemblage for redevelopment by an entity other than the city-it is important to make two clarifications as to the scope of the matter before us. First, the trial court's decision appears to support the defendants' view that the lion's share of the difference between Michaud's valuation and those of the city's experts arises not from assemblage but from the effect on surrounding property values of the city's plan to construct a ballpark. The city's arguments on appeal, however, are exclusively directed to the matter of assemblage.
Having clarified our focus in the present case, we now examine the record to ascertain whether, and to what extent, it supports the trial court's ultimate finding-that assemblage of the property with the city's properties for redevelopment by someone other than the city was reasonably probable. The city does not contend that there was no evidence to support this finding but, rather, seeks to overturn the trial court's judgment on the extraordinary standard that review of the record should engender a "definite and firm conviction that a mistake has been made." (Internal quotation marks omitted.)
**218Levine v. Sterling ,
In Towpath , the Department of Transportation exercised the state's power of eminent domain to take properties on opposite sides of a river containing the remnants of stone bridge abutments in order to bridge the river as part of a project to realign and improve a highway. See Towpath , supra,
On appeal to this court, the department contended that the trial court improperly failed to apply the general rule "that the loss to the owner from the taking, and not its value to the condemnor, is the measure of the damages to be awarded in eminent domain proceedings." (Internal quotation marks omitted.) Id., at 539,
This court concluded that the record did not support the trial court's determination that it was reasonably **219probable that someone other than the department would have assembled these properties in the near future to construct a bridge thereon. Id., at 547-48,
There are material differences between Towpath and the present case that compel a different result. We acknowledge that the defendants' expert witness, Richard A. Michaud of the Michaud Company, was not asked to elaborate on the basis of his opinion that it was reasonably probable that the market would have responded to assemble the property for redevelopment if the city had not taken the property.
It is not purely speculative that someone other than the city would have used the assembled property for redevelopment. The DoNo proposal reflected its intention to effectuate such use. Its proposal expressed the view that north downtown was ripe for redevelopment. It bolstered that view with representations that it had secured letters of interest for the construction of a grocery store and a brewery in north downtown. The Mulready report prepared for the defendants confirmed that the construction of similar types of ballparks in other cities had sparked redevelopment. The fact that the trial court found the Mulready valuation too optimistic did not preclude its reliance on some of the subordinate facts on which that valuation was based. See State v. Andrews ,
The record also does not reflect that it is purely speculative that only the city would have made such an assemblage. Yeatman testified that, from the outset of CBV's purchase of the property, he had viewed the property best used as assembled with adjoining properties for development. He undertook substantial measures **221to eliminate every obstacle to assemblage. Although CBV's business plan indicated that the city was the most logical buyer to make this assemblage after the city purchased properties surrounding Parcel A, *419that plan preceded the disclosure of the plan to construct the ballpark. Notably, once armed with the relevant information, Yeatman made clear that, even if he were to sell Parcel A to the city, he intended to develop Parcels B and C on his own. In addition, Yeatman testified that, if he had been given a fair opportunity, he "[a]bsolutely" would have responded to the city's request for proposals for all or part of the plan. Yeatman's failure to produce a specific plan for redevelopment can reasonably be explained by the short window of time between the disclosure of the ballpark plan and the taking of the property, and the failed negotiations during the intervening period.
Moreover, the record lends strong support to the trial court's findings that Yeatman had both the expertise and the means to assemble and develop the property himself. Over Yeatman's career as a real estate investor, he had made investments for clients totaling five and one-half billion dollars. He had developed large projects across the country similar in scale and type to DoNo's proposal. Yeatman had financed the property with mortgages to afford him the option of either selling the parcels to other developers or contributing the parcels to a joint venture and being a codeveloper of them. He testified that he had secured two other investors for development of the property.
In jurisdictions in which common ownership is not required, the fact that the city owned the properties that would need to be assembled with the defendants' property would not preclude a finding that assemblage by someone other than the city was reasonably probable. See Santa Clara v. Ogata ,
**222Regents of the University of Minnesota v. Hibbing ,
We also cannot ignore the fact that the trial court supported its adoption of the Michaud assemblage valuation by the per square foot price paid by the city for the two properties abutting Parcel A. Although this factor was not an independent ground for the trial court's conclusion, it clearly bolstered that conclusion. It is noteworthy that common sense alone would suggest that Parcel A would be considerably more valuable than either of the two properties abutting it because Parcel A had substantially greater Main Street frontage, directly across the street from the ballpark site.
Finally, we recognize that, at the time of the taking, there was no certainty that the ballpark would be constructed and, if constructed, whether it would be sufficiently successful to spark the hoped for redevelopment of north downtown. However, for such integrated use to be reasonably probable in the absence of condemnation, the possibility of assemblage must only be "considerable enough to be a practical consideration and actually to influence prices." McGovern v. New York ,
**224Branford v. Santa Barbara , supra,
II
The city also claims that the trial court improperly awarded interest at the rate of 7.22 percent after it rendered judgment sustaining the defendants' appeal. According to the city, because the trial court did *421not set an interest rate in the judgment of compensation, the defendants are entitled only to the default rate of interest provided in § 37-3c. The city further asserts that the defendants were not entitled to offer of compromise interest because, if the default rate of interest properly had been awarded, the total compensation would not have exceeded their offer of compromise. In response, the defendants characterize the award as "postjudgment" interest and contend that it would be absurd to expect them to litigate the proper rate of interest before the court has rendered judgment as to the fair value of the property. We agree with the city.
The following additional procedural history is relevant to this issue. The trial proceedings and all posttrial/prejudgment **225filings focused exclusively on the fair market appraisals of the property. The defendants did not raise the issue or present evidence related to the rate of interest. The trial court rendered judgment in favor of the defendants on December 5, 2016, finding that the property was worth $2,830,000 more than the amount paid by the city at the time of the taking. The trial court's decision contained no reference to an award of interest.
On December 20, 2016, the defendants filed a motion for an award of interest on the $2,830,000 from the date of the taking in 2014, through the December 5, 2016 date of judgment, citing General Statutes § 37-3a. The city opposed the motion on the grounds that (1) interest recoverable in a condemnation action is governed by § 37-3c, not § 37-3a, the latter governing interest in civil actions generally as damages for the detention of money after it becomes payable, and (2) pursuant to the terms of § 37-3c, the defendants were entitled only to the default rate of interest prescribed therein because the trial court had failed to set an interest rate in its judgment. At a hearing on the motion, the defendants conceded that § 37-3c is the controlling statute for interest in condemnation cases. Nonetheless, they argued that the court could set interest at the 10 percent rate set forth in § 37-3a as a "reasonable and just" interest rate under § 37-3c. To avoid an evidentiary hearing, the parties subsequently stipulated that, if the trial court were to conclude that it could set a "reasonable and just" interest rate after judgment had entered, then such a rate would be 7.22 percent.
The trial court granted the defendants' motion for an award of interest, ordering payment of interest at a rate of 7.22 percent. As a result, the total compensation award, including interest, exceeded the defendants' offer of compromise, and they thereafter successfully **226moved for offer of compromise interest in the amount of $457,202.22.
The issue before us raises a question of statutory construction. As such, we apply plenary review guided by settled principles of construction aimed at ascertaining legislative intent. See generally General Statutes § 1-2z ; Lieberman v. Aronow ,
The text of § 37-3c provides in relevant part: "The judgment of compensation for a taking of property by eminent domain shall include interest at a rate that is reasonable and just on the amount of the compensation awarded. If a court does not set a rate of interest on the amount of compensation awarded , the interest shall be calculated as follows ...." (Emphasis *422added.) Section 37-3c then prescribes calculation methods premised on the "weekly average one-year constant maturity yield of United States Treasury securities ... for the calendar week preceding the date of taking," with additional interest awarded if the period from the date of the taking exceeds one year. Interest accrues from the date of the taking to the date of payment. General Statutes § 37-3c.
In our view, the statute unambiguously dictates that, when the "judgment of compensation" does not include a rate of interest, as in the present case, the default rate applies. There is simply no authority allowing the trial court to adopt another rate of interest. To conclude otherwise would render the second sentence of § 37-3c superfluous. See Lopa v. Brinker International, Inc. ,
**227[internal quotation marks omitted] ). It appears that the legislature assumed that tying the default rate to the yield of variable securities would ensure a sufficiently reasonable and just rate.
The defendants make no argument that the statutory text reasonably can be read otherwise. Instead, they make various policy arguments as to why application of the default rule would yield absurd results. We are not persuaded.
The defendants' characterization of the interest at issue as "postjudgment interest" evidences a fundamental misunderstanding of the unique nature of the interest in a condemnation case. Although § 37-3c governs the rate of interest in condemnation cases, the right to the award of interest in such cases is constitutional, not statutory. Leverty & Hurley Co. v. Commissioner of Transportation ,
We are not persuaded by the defendants' contention that condemnees must be able to seek interest postjudgment because it would be senseless to require a condemnee to present evidence regarding a reasonable and just rate of interest when the court has not yet found that the amount provided by the government at the time of the taking was inadequate.
We also are not persuaded by the argument that if a trial court were to inadvertently fail to set a rate of interest at the time of judgment and thereby trigger the default statutory rate of interest, a condemnee would be without recourse. Our rules of practice permit a party, within four months of a judgment, to move to open the judgment when there is "a good and compelling reason for its modification or vacation." (Internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co. ,
We conclude that the trial court lacked authority to set a rate of interest other than the default rate after it rendered its judgment of compensation. Therefore, the trial court improperly awarded interest at the rate of 7.22 percent rather than the default rate dictated by § 37-3c. As a result, the trial court also improperly granted the defendants' motion for offer of compromise interest. See footnote 12 of this opinion.
The judgment is reversed only as to the rate of interest and offer of compromise interest and the case is remanded with direction to award the default rate of interest under § 37-3c ; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
APPENDIX
*424--------
The defendants are CBV Parking Hartford, LLC, CBV Parking Hartford Ann, LLC, and CBV Parking Hartford Chapel, LLC. Although related entities, each defendant held title to one of three parcels comprising the property subject to the taking. Several other entities that had record interests in the property were named as defendants but are not parties to this appeal.
For ease of reference, a map included in one of the reports submitted by the valuation experts reflecting the boundaries of Parcels A, B and C is reproduced as an appendix to this opinion.
Yeatman testified that a gangway is "a pedestrian access point to allow pedestrians to get from one property to another."
Yeatman testified that the short deadline evidenced that the request for proposals was simply a "beauty contest," because the preparation necessary to complete the market studies and establish the financial bona fides for a proper submission could not reasonably have been completed in such a short period. The trial court found it unnecessary to make any findings as to whether Yeatman "had been treated fairly by the city."
As we explain in further detail in this opinion, the doctrine of assemblage permits a property owner to introduce evidence in a condemnation proceeding that the fair market value of its land is enhanced by its probable assemblage with other parcels, which in turn could permit a higher and better use. See Commissioner of Transportation v. Towpath Associates ,
The city paid $1,280,000, equating to $25.75 per square foot, for the LAZ lot. The city paid $625,000 for the Ugly lot plus $600,000 to demolish the eyesore building on it, which, together, equated to a per square foot price of $42.37. According to one of the city's experts, the city was highly motivated to buy the Ugly lot because many city officials believed that the building was such a "blight" on the neighborhood that it had "stymied" development in that area. This view was consistent with the 2008 redevelopment plan's goal of removing "obsolete and blighted buildings from a critical perimeter area of the [d]owntown ...."
In the city's posttrial brief, it appears to have conceded that the value added by such plans could be considered if that value was not speculative: "The only relevance that the proposed baseball stadium has in this case is what impact, if any, did the information that was available [on the date of the taking] on December 9, 2014, regarding the proposed development have on the value of the subject property. While it is the stated goal of the [request for proposals] to catalyze development through the ballpark, the plan that was produced in response to that [request] is only conceptual and may not be developed."
See Almota Farmers Elevator & Warehouse Co. v. United States ,
Relatedly, although DoNo's proposal set forth several conditions for its approximately $330 million investment, not the least of which were substantial infrastructure investments and financial concessions by the city, the city did not advance any argument before the trial court relating to these matters. Therefore, we similarly do not consider those factors.
We presume that the trial court and the parties took this approach because there is Appellate Court case law holding that "the better rule is not to impose an absolute requirement of common ownership for parcels sought to be assembled for valuation purposes." Franc v. Bethel Holding Co. ,
The trial court's decision attributed this opinion to the "Michaud analysis." We presume that the court was referring to Michaud's testimony, which was the only source of such an opinion. The Michaud report did not express any opinion as to whether assemblage for redevelopment by someone other than the city was reasonably probable.
As one court explained: "The term 'in the near future' or even the term 'in a reasonable time' bear[s] no direct relationship to the ultimate subject under inquiry, i.e., the market value of the condemnee's land to the hypothetical willing buyer. To a literal-minded judge, the term 'near future' might exclude a rezoning that is unlikely for a two or three year period. To an astute investor, however, ten, fifteen or even twenty years might be considered 'in the near future,' or a 'reasonable time,' from the standpoint of investment objectives. One primary objective in a condemnation proceeding is to bring the values of the real-world marketplace into the courtroom. Yet a rule which commands a trial judge to exclude evidence of a rezoning which may take place beyond the judge's abstract notion of the 'near future' or a 'reasonable time' seems ... to frustrate that goal.
"The far better rule ... emphasizes the clause in the Nichols rule which states that '... such likelihood may be considered if the prospect of such (zoning change) ... is sufficiently likely as to have an appreciable influence upon present market value.' " Moschetti v. Tucson ,9 Ariz. App. 108 , 112-13,449 P.2d 945 (1969), overruled in part on other grounds by Tucson v. Rickles ,15 Ariz. App. 244 , 246,488 P.2d 180 (1971).
Had the default rate applied, the total compensation would not have exceeded the offer of compromise.
The defendants have never advanced an argument that the default rate of interest under § 37-3c is constitutionally inadequate. See E. & F. Construction Co. v. Ives , supra,
The defendants' addition of the amount of interest to the judgment of compensation as a basis to seek additional interest on the ground that the judgment exceeded the offer of compromise evidences that such interest is in fact an element of damages. They cannot have it both ways.
For similar reasons, we disagree with the defendants' assertion that the award of a rate of interest is akin to an award of attorney's fees because the final award cannot be calculated at the time of judgment. Although the final amount of interest cannot be determined until the judgment of compensation as to the property value has been determined and payment has been made, the rate of interest can be determined before the judgment of compensation is rendered.
Reference
- Full Case Name
- CITY OF HARTFORD v. CBV PARKING HARTFORD, LLC
- Cited By
- 15 cases
- Status
- Published