Barton v. Norwalk ( 2016 )

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ROBERT BARTON v. CITY OF NORWALK
(AC 36040)
(AC 36270)
Gruendel, Prescott and Pellegrino, Js.
Argued October 28, 2015—officially released February 23, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Mintz, J. [motion to cite in]; Hon.
Taggart D. Adams, judge trial referee [judgment; motion
to award prejudgment interest].)
Daniel J. Krisch, with whom were Mario F. Coppola,
corporation counsel, and Carolyn M. Colangelo, assis-
tant corporation counsel, for the appellant in AC 36040
and the appellee in AC 36270 (defendant).
Elliott B. Pollack and Tiffany K. Spinella, for the
appellees in AC 36040 and the appellants in AC 36270
(plaintiffs).
Opinion
GRUENDEL, J. The defendant, the city of Norwalk,
appeals from the judgment of the trial court awarding
the plaintiff Robert Barton1 $899,480 in damages plus
$543,384.49 in prejudgment interest for his claim that
the defendant inversely condemned his building at 70
South Main Street in Norwalk (70 South Main) when it
took the building’s parking lot across the street at 65
South Main Street (65 South Main) by eminent domain.
On appeal, the defendant raises two claims: (1) that the
plaintiff was judicially estopped from asserting that the
value of 70 South Main prior to the inverse condemna-
tion should be calculated on the assumption that it had
parking across the street at 65 South Main because—
when the defendant took 65 South Main in the prior
eminent domain proceeding—the plaintiff valued it and
received just compensation for it, not as a parking lot,
but according to its ‘‘highest and best use’’ as a mixed
use development; and (2) that 70 South Main was not
inversely condemned because the plaintiff’s use and
enjoyment of it had not been totally destroyed. The
plaintiff cross appeals, arguing that the court improp-
erly denied him offer of compromise interest. We affirm
the judgment of the trial court.
The court found the following facts, which are
unchallenged on appeal. In 1981, the plaintiff purchased
the four story walk-up commercial building at 70 South
Main as an office for his sail-making business. There
was a single parking space at 70 South Main. The defen-
dant told the plaintiff that he needed more parking for
70 South Main to comply with zoning regulations. The
defendant approved a site plan for 70 South Main that
involved the plaintiff buying the vacant lot across the
street at 65 South Main and creating forty-four parking
spaces there. The plaintiff did so, and the defendant
issued a certificate of zoning compliance in 1984 for
both properties.
In 1985, the plaintiff sold his sail-making business
but kept the building. The buyers remained at 70 South
Main for one year before moving out. When they did,
the plaintiff began leasing space at 70 South Main to
a number of commercial tenants. Lessees included a
barbershop and a housing services office on the first
floor, Macedonia Church on the second floor as well
as parts of the third and fourth floors, a photo-gift busi-
ness on the third floor, and several crafts persons on
the fourth floor. The court did not expressly find but
it is undisputed that there was also a residential apart-
ment on the fourth floor. For most of the next fifteen
years, the building was 95 to 100 percent occupied.
When the plaintiff bought 70 South Main, there was
abundant on-street parking nearby. Beginning in 1990,
however, the defendant enlarged no-parking zones and
converted several side streets into through streets. As
a result, on-street parking grew steadily more limited.
In 1996, when the plaintiff learned of the defendant’s
interest in building a new police headquarters on land
that included his parking lot at 65 South Main, he and his
tenants grew concerned that they and their customers
would have nowhere to park. They expressed this con-
cern to city officials, who offered the plaintiff and his
tenants forty parking permits at the South Norwalk
train station, which would expire after ten years, as a
compromise. The plaintiff and his tenants rejected this
offer because they asserted that those spaces were far
away, unpleasant, and possibly dangerous. The plaintiff
stressed in his talks with two subsequent mayors of
Norwalk that, if the defendant condemned his parking
lot at 65 South Main, it would cripple operations at 70
South Main.
In February, 2002, the defendant condemned the
parking lot at 65 South Main and paid the plaintiff
$127,000 as just compensation for it. Norwalk v. Barton,
Superior Court, judicial district of Stamford-Norwalk,
Docket No. CV-02-0187554-S, 2009 WL 323785, *2 (Janu-
ary 27, 2009) (judgment as to adequacy of compensation
for 65 South Main). The plaintiff asked the Superior
Court to review the defendant’s statement of just com-
pensation, arguing that 65 South Main was worth
$350,000. Id. In addition, the plaintiff twice tried to
amend his pleadings in that case to add a claim for
losses to 70 South Main as a result of the taking of 65
South Main. The defendant successfully objected to
both amendments.
The parties’ experts testified in that proceeding only
to the fair market value of 65 South Main standing alone.
Id., *1. Specifically, both parties’ real estate appraisers
agreed that ‘‘the highest and best use’’ for 65 South
Main—which is the standard measure of just compensa-
tion; Northeast Ct. Economic Alliance, Inc. v. ATC Part-
nership, 272 Conn. 14, 25, 861 A.2d 473 (2004)—would
be ‘‘a mixed use development built to the maximum
permitted by zoning containing one or more of the fol-
lowing three uses permitted by the current zoning regu-
lations; a restaurant and taverns, multifamily dwellings,
off-street parking, retail, personal and business ser-
vices.’’ Norwalk v. Barton, supra, 2009 WL 323785, *3.
The defendant admitted that under the ‘‘highest and
best use’’ test, 65 South Main was actually worth closer
to $255,000. Id. Although both parties’ experts agreed
that the property’s highest and best use was a mixed
use development and although both experts valued it
as such, at oral argument on the last day of trial, the
defendant urged the court to value 65 South Main
instead as a parking lot, since there was no evidence
that the plaintiff intended to convert it from that use,
and to reduce its value accordingly. Id., *7.
On January 27, 2009, the court rendered judgment in
favor of the plaintiff in that case. The court found that
65 South Main was worth $310,000 as a mixed use devel-
opment and awarded the plaintiff $310,000 in just com-
pensation, minus the $127,000 that the defendant had
already paid the plaintiff, plus interest, fees, and costs.
Id., *10. As the defendant had requested, the court also
calculated 65 South Main’s value as a parking lot and
found it to be $334,000.2 Id.
Because the plaintiff could not recover for losses to
70 South Main in the action concerning 65 South Main,
he filed a second action—the subject of this appeal—
in November, 2003, in which he alleged that the defen-
dant had inversely condemned 70 South Main when it
took 65 South Main. A four day trial to the court
occurred in February, 2013. The plaintiff called four
witnesses, namely, himself, his expert real estate
appraiser, a former tenant of 70 South Main, and a
current tenant of 70 South Main. The defendant chose
to call no witnesses. Instead, when the plaintiff rested,
the defendant moved for a judgment of dismissal on
the ground that the plaintiff had failed to make out a
prima facie case. After the court took that motion under
advisement, the defendant rested without presenting a
case-in-chief.
On August 28, 2013, the court rendered judgment
in favor of the plaintiff on his claim for the inverse
condemnation of 70 South Main. The court awarded him
$899,480 in damages plus $543,384.49 in prejudgment
interest. The court found that the lack of parking,
caused by the taking of 65 South Main by eminent
domain, ‘‘ha[d] substantially destroyed the [plaintiff’s]
ability to operate the property as a leasable facility
and enjoy even a modicum of financial success. The
evidence shows the lack of parking, which the [defen-
dant] initially insisted upon, reduced the . . . [proper-
ty’s] chances of commercial success to negligible or
nonexistent’’ and amounted to ‘‘a substantial destruc-
tion of the [plaintiff’s] ability to enjoy or use the prop-
erty . . . .’’ As such, the plaintiff ‘‘proved [his] claim
of inverse condemnation.’’
In concluding that the plaintiff’s use of 70 South Main
had been substantially destroyed, the court relied pri-
marily on three categories of evidence: (1) evidence of
the building’s lease rate; (2) evidence of the building’s
income; and (3) evidence of the building’s fair mar-
ket value.
First, as to the building’s lease rate, the court found
that the percentage of leased space in 70 South Main
had declined from more than 90 percent in 2001 to 5
percent in 2006, and had rebounded slightly to 10 per-
cent in 2011. After the taking of 65 South Main in Febru-
ary, 2002, the Family and Children’s Aid Society of
Fairfield County, which leased three quarters of the
first floor of 70 South Main, told the plaintiff that it
would leave as soon as its lease expired due to the lack
of parking. The building’s largest tenant—Macedonia
Church, on the second floor and parts of the third and
fourth floors—let its lease lapse and began looking for
alternative locations, citing parking concerns.3 Immedi-
ately after the taking of 65 South Main, the plaintiff lost
the third and fourth floor tenants, who also cited the
lack of parking as their reason not to renew. One long-
time lessee who operated a barbershop on the first floor
of 70 South Main explained: ‘‘It just doesn’t pay to open
any more . . . the parking situation has just killed us.
. . . Nobody wants to pay a $15 or $25 fine to get a
$12 haircut.’’
The plaintiff tried to rent space to new tenants.
Although prospective tenants found 70 South Main
attractive and otherwise suitable, they were dissuaded
by the lack of parking. By the time of trial, only two
tenants leased space at 70 South Main—a bail bond
office and a cell phone store, both of which ‘‘lease[d]
small areas and [were] unlikely to expand. The bail
bond office, of course, ha[d] a unique situation being
located literally across the street from the [new] police
station. The cell phone store owner walk[ed] to work
and the clientele [was] mostly walk-in.’’ Together, these
two tenants occupied only 10 percent of the building.
The court found that the ‘‘remainder of the building
will attract tenants only by rock bottom rents, and these
will be tenants for which parking is not an issue, likely
a small and transient group.’’
Second, as to the building’s annual operating income,
the court found that it had declined from $94,080 in 2001
to $20,661 in 2006, and rebounded slightly to $29,221 in
2011.4
Third, as to the building’s fair market value, the court
found that it had declined from $1.1 million before the
taking to $200,520 after the taking. At trial, the plaintiff’s
expert real estate appraiser testified that in a suburban
market, ‘‘parking is the lifeline of [a] building. You take
the parking away; you’ve gutted the building—the value
of a building.’’ That expert’s appraisal report, which the
plaintiff submitted into evidence, noted that 70 South
Main’s value as an office building after the taking ‘‘may
be lower than the value of the land at 70 S. Main Street as
if vacant and available for development.’’ The plaintiff’s
expert also testified that the value was ‘‘getting so low,
it’s virtually a tear-down at this point. . . . [W]e’re
pretty close to tear-down value.’’5
Finally, in addition to these three primary categories
of evidence, the court found that the building’s upkeep
had been affected. Contractors that the plaintiff hired
to repair the roof, windows, leaks, and heating system
of 70 South Main were stymied by the defendant’s
refusal to issue the necessary permits on the ground
that 70 South Main no longer had adequate parking and
so was not zoning compliant. Consistently, when the
plaintiff inquired of the defendant’s zoning officials in
the years after the taking of 65 South Main, he was told
either, ‘‘no parking, no permits,’’ or, ‘‘there’s pending
litigation; we can’t talk to you.’’ This created difficulties
for the plaintiff and his tenants.6
In short, the court found that ‘‘the record [was] quite
convincing that the economic fortunes of 70 South Main
took a considerable turn for the worse . . . a result
that [the plaintiff] had accurately predicted,’’ and that
this record established an inverse condemnation.
As to the defendant’s various counterclaims and spe-
cial defenses, the court found in favor of the plaintiff
on those as well. One such special defense was judicial
estoppel. The defendant had argued that the plaintiff
was judicially estopped from bringing an action for the
inverse condemnation of 70 South Main because: (1)
the plaintiff’s position in the previous litigation that 65
South Main’s highest and best use was as a mixed use
development was ‘‘completely inconsistent’’ with his
position in this litigation that he would have continued
using 65 South Main as a parking lot; and (2) his incon-
sistent positions gave him the unfair advantage of being
able to bring the inverse condemnation action for losses
to 70 South Main. The court disagreed, finding that the
positions were consistent and that the plaintiff derived
no unfair advantage.
The defendant appealed from the judgment to this
court, arguing that: (1) judicial estoppel barred the
plaintiff’s recovery for losses to 70 South Main; and (2)
in any case, the interference with the plaintiff’s use of
70 South Main was not so substantial as to be an inverse
condemnation. While that appeal was pending, the
plaintiff moved for offer of compromise interest pursu-
ant to General Statutes § 52-192a, arguing that he satis-
fied the statute because his 2009 offer7 to settle the
case was ‘‘for a sum certain’’ and he recovered an
amount ‘‘equal to or greater than [that] sum certain’’ at
trial. The court denied the plaintiff’s motion on the
grounds that his 2009 offer asked for considerably more
than a sum certain and, in any case, he had not recov-
ered all requested relief at trial. The plaintiff appealed
from that judgment and this court consolidated the
two appeals.
We address each of the three issues in turn.
I
We begin with the defendant’s claim that judicial
estoppel barred the plaintiff’s recovery. Specifically, the
defendant argues that, because the plaintiff previously
had asserted that 65 South Main should be valued
according to its ‘‘highest and best use’’ as a mixed use
development and because he had received just compen-
sation for it on that basis, he was judicially estopped
in the inverse condemnation action from assuming that
it was still a parking lot when he asserted 70 South
Main’s value prior to the taking. We disagree.
use of judicial machinery . . . judicial estoppel is an
equitable doctrine invoked by a court at its discretion
. . . . Accordingly, our review of the trial court’s deci-
sion not to invoke the doctrine is for abuse of discre-
tion.’’ (Citations omitted; internal quotation marks
omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145,
171, 2 A.3d 873 (2010).
‘‘[J]udicial estoppel prevents a party in a legal pro-
ceeding from taking a position contrary to a position the
party has taken in an earlier proceeding. . . . [J]udicial
estoppel serves interests different from those served
by equitable estoppel, which is designed to ensure fair-
ness in the relationship between parties. . . . The
courts invoke judicial estoppel as a means to preserve
the sanctity of the oath or to protect judicial integrity
by avoiding the risk of inconsistent results in two pro-
ceedings. . . . Typically, judicial estoppel will apply if:
1) a party’s later position is clearly inconsistent with
its earlier position; 2) the party’s former position has
been adopted in some way by the court in the earlier
proceeding; and 3) the party asserting the two positions
would derive an unfair advantage against the party seek-
ing estoppel. . . . We further limit judicial estoppel to
situations where the risk of inconsistent results with
its impact on judicial integrity is certain. . . . Thus,
courts generally will not apply the doctrine if the first
statement or omission was the result of a good faith
mistake . . . or an unintentional error.’’ (Citations
omitted; internal quotation marks omitted.) Dougan v.
Dougan, 301 Conn. 361, 372–73, 21 A.3d 791 (2011); see
also Dept. of Transportation v. White Oak Corp., 319
Conn. 582, 612, 125 A.3d 988 (2015) (same).
Here, because the court properly found that the first
and third of the three conditions had not been met, it did
not abuse its discretion when it rejected the defendant’s
judicial estoppel claim.
As to the first condition, the plaintiff has not taken
clearly inconsistent positions. The defendant argues
that the plaintiff took two clearly inconsistent positions
because: (1) in the previous eminent domain proceed-
ing, the plaintiff asserted that ‘‘the highest and best use
of 65 South Main Street was a mixed use development’’;
and (2) in this litigation, the plaintiff asserted that 70
South Main would have had ‘‘the use of 65 South Main
Street as a parking lot’’ but for the defendant’s taking
it. We conclude that these positions are not clearly
inconsistent, for two reasons.
First, the valuation of a property according to its
highest and best use—the standard measure of just
compensation—is understood to be potentially count-
erfactual. The law does not require that the owner actu-
ally devote the property to that use. See Northeast Ct.
Economic Alliance, Inc. v. ATC Partnership, supra, 272
Conn. 25 (‘‘[i]n determining its highest and best use,
the trial [court] must consider whether there was a
reasonable probability that the subject property would
be put to that use in the reasonably near future, and
what effect such a prospective use may have had on
the property’s market value at the time of the taking’’
[emphasis added; internal quotation marks omitted]);
see also Bristol v. Tilcon Minerals, Inc., 284 Conn. 55,
67, 931 A.2d 237 (2007) (‘‘the trial court’s finding that
there was a reasonable probability that the property
could or would be used for residential development in
the reasonably near future and its corollary finding that
the highest and best use of the property was for residen-
tial development were not clearly erroneous’’ [emphasis
added]). Thus, the plaintiff’s valuation of 65 South Main
as a mixed use development was not an assertion that
he would have stopped actually using 65 South Main
as a parking lot.
Second, the plaintiff’s argument in the eminent
domain proceeding that 65 South Main’s highest and
best use standing alone was a mixed use development
does not contradict his argument in this litigation that
65 South Main’s and 70 South Main’s highest and best
use together was an office building on 70 South Main
and a parking lot at 65 South Main. While this tack
could give the plaintiff an unfair advantage if 65 South
Main were worth dramatically less as a parking lot than
as a mixed use development, the two positions are not,
without more, inconsistent. Because clearly inconsis-
tent positions are the crux of a judicial estoppel claim,
the absence of this first condition alone justifies the
court’s decision.
As to the third condition, the plaintiff derived no
unfair advantage from simultaneously taking his two
positions. On the contrary, the plaintiff’s two positions
allowed him to recover once for 65 South Main and
once for 70 South Main, the same as if in the prior
litigation he had valued 65 South Main as a parking lot
instead of as a mixed use development. Although the
plaintiff may have recovered more than the defendant
preferred, he has not gained an unfair advantage.
The defendant, however, argues that the plaintiff
gained an ‘‘enormous advantage . . . in this case’’
because ‘‘[h]ad the [plaintiff] been bound to [his] prior
position . . . the linchpin of [his] inverse condemna-
tion case would have disappeared.’’ In short, the defen-
dant argues that the ‘‘advantage’’ the plaintiff gained
was being able to bring his action for the inverse con-
demnation of 70 South Main at all. In making this argu-
ment, the defendant confuses the baseline against
which an ‘‘advantage’’ is measured. The question is
whether the party gained more by taking inconsistent
positions than it would have by taking consistent posi-
tions.8 Two cases are on point.
In the first case, the parties extensively negotiated a
dissolution agreement, engaging in a quid pro quo where
each party ended up with some terms they liked and
some they did not. Dougan v. Dougan, supra, 301 Conn.
365 n.3, 373. The plaintiff represented to the court that
the final agreement was fair and reasonable, and the
court adopted the agreement in its entirety. Id., 364–65.
Then, when it came time to enforce a clause in the
agreement that disfavored the plaintiff, he argued that
the clause was void as against public policy. Id., 369.
Had he succeeded, he would have gotten the terms that
he liked and denied the defendant one of the terms that
she had negotiated for in exchange. See id., 375. By
contrast, had the plaintiff argued that the clause was
unenforceable before the court adopted the agreement,
the defendant presumably would have negotiated for a
different favorable clause in its stead. Our Supreme
Court held that the defendant was judicially estopped
from arguing that a clause in the agreement that he had
previously stated under oath was fair and reasonable
was actually void as against public policy. Id.
In the second case, when a plaintiff tried to amend
its complaint to add three new counts, the defendants
successfully objected on the ground that the new counts
did not relate back to the same series of events as the
original counts. MacDermid, Inc. v. Cookson Group,
PLC, 149 Conn. App. 571, 579–80, 89 A.3d 447, cert.
denied, 312 Conn. 914, 93 A.3d 597 (2014). Then, when
the plaintiff filed the new counts as a separate action,
the defendants moved to dismiss that new action on
the ground that it was barred by the prior pending
action doctrine because it arose out of the same series
of events as the first action. Id., 580–81. Had the defen-
dants taken consistent positions, they would have had
to face the plaintiff’s new counts, on the merits, in at
least one of the two actions; by taking inconsistent
positions, the defendants were able to block the new
counts entirely. See id., 581–82. The court held that the
defendants were judicially estopped from arguing that
the prior pending action doctrine barred the plaintiff’s
second action. Id., 582.
These two cases establish that the question is
whether a party gained more by taking inconsistent
positions than it would have by taking consistent posi-
tions. Here, by contrast, the plaintiff’s two positions
allowed him to recover once for 65 South Main and
once for 70 South Main, the same as if he had valued
65 South Main as a parking lot instead of as a mixed
use development. He gained no advantage, let alone an
unfair one.9
Because the plaintiff’s two positions were not clearly
inconsistent and because he derived no unfair advan-
tage from asserting them, we conclude that the court
did not abuse its discretion in rejecting the defendant’s
judicial estoppel claim.
II
Second, we consider the defendant’s claim that it did
not inversely condemn 70 South Main because it did
not ‘‘substantially destroy’’ the plaintiff’s use and enjoy-
ment of the building. We disagree. In making this argu-
ment, the defendant relies heavily on the continued
presence of Macedonia Church and two small street-
level tenants. The court, however, found that the plain-
tiff has been unable to lease out 90 to 95 percent of 70
South Main since the taking of 65 South Main and that
the building’s value reflects this, having declined to near
that of a vacant lot. It does not appear that the building
can be used for any other reasonable purpose. Although
the defendant points to the continued presence of Mace-
donia Church, we defer to the court’s finding that the
church’s presence was an outlier and not representative
of the building’s actual economic viability. That 10 per-
cent of the building was still leased by two small street-
level shops means that there was no total destruction
of use. We conclude, however, that on these facts, the
defendant substantially destroyed the plaintiff’s ability
to use and enjoy 70 South Main. Accordingly, an inverse
condemnation has occurred.
We begin with the standard of review. ‘‘Whether pri-
vate property has been taken by inverse condemnation
is a question of law subject to our plenary review.’’
Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 83.
‘‘Inverse condemnation is a cause of action against
a governmental defendant to recover the value of prop-
erty which has been taken in fact by the governmental
defendant, even though no formal exercise of the power
of eminent domain has been attempted by the taking
agency. . . . An inverse condemnation claim accrues
when the purpose of government regulation and its
economic effect on the property owner render the regu-
lation substantially equivalent to an eminent domain
proceeding . . . . Accordingly, an inverse condemna-
tion action has been aptly described as an eminent
domain proceeding initiated by the property owner
rather than the condemnor. . . .
‘‘The word taken in article first, [§ 11, of] our state
constitution10 means the exclusion of the owner from
his private use and possession, and the assumption of
the use and possession for the public purpose by the
authority exercising the right of eminent domain. . . .
Although property may be taken without any actual
appropriation or physical intrusion . . . there is no
taking in a constitutional sense unless the property
cannot be utilized for any reasonable and proper pur-
pose . . . as where the economic utilization of the land
is, for all practical purposes, destroyed. . . . A consti-
tutional taking occurs when there is a substantial inter-
ference with private property which destroys or
nullifies its value or by which the owner’s right to its
use or enjoyment is in a substantial degree abridged or
destroyed.’’ (Citation omitted; internal quotation marks
omitted.) Id., 83–84.
In short, inverse condemnation requires either: (1)
total destruction of the property’s economic value; or
(2) substantial destruction of the owner’s ability to use
and enjoy the property. Id., 85. Here, the plaintiff con-
cedes that prong one was not met. This appeal concerns
only whether prong two was met.
The parties agree that three inverse condemnation
cases are especially relevant and define the spectrum
of governmental action. Of these, one case involved
interference so absolute as to clearly constitute a tak-
ing; the other two involved minor interference insuffi-
cient to constitute a taking.
In the first case, this court held that property had
been inversely condemned. See Citino v. Redevelop-
ment Agency, 51 Conn. App. 262, 281–82, 721 A.2d 1197(1998), overruled in part on other grounds by Kaczynski
v. Kaczynski, 294 Conn. 121, 130 n.10, 981 A.2d 1068(2009). In that case, the defendant had condemned all
the buildings in an area except the plaintiff’s and left
that building ‘‘stand[ing] by itself, in the midst of the
deteriorated and boarded-up buildings owned by the
defendant . . . .’’ (Internal quotation marks omitted.)
Id., 281. As a result, the court found that the plaintiff’s
building ‘‘ha[d] no actual economic value now’’; (inter-
nal quotation marks omitted) id., 283; and the ‘‘charac-
ter and use of the plaintiff’s building ha[d] been
destroyed . . . .’’11 Internal quotation marks omitted.)
Id., 281. Nevertheless, at the time of trial, two of the
building’s six apartments still had tenants who were
paying rent. Id., 269. Because the building retained some
use, the trial court did not hold that an inverse condem-
nation had occurred. Id., 277. On appeal, this court
disagreed and held that ‘‘[i]t is sufficient if use of prop-
erty is severely restricted and its profitability greatly
reduced as a result of the action of the government.’’
Id., 278–79. We concluded that an inverse condemnation
had occurred.12
In the second case, this court held that property had
not been inversely condemned. See Sinotte v. Water-
bury, 121 Conn. App. 420, 437, 995 A.2d 131, cert.
denied, 297 Conn. 921, 996 A.2d 1192 (2010). In that
case, the defendant’s sewer system caused major sew-
age backups in the finished basement of the plaintiffs’
home roughly every five years. See id., 423, 427. The
building’s pipes also gurgled and the first floor sinks
sometimes had sand, twigs, and debris deposited from
the sewer backup. Id., 425. As a result, the trial court
found that the plaintiff’s home lost 30 percent of its fair
market value. Id., 427. Nevertheless, the court found
that the property ‘‘substantially retained both economic
value and its prior use as a residence’’ and so held that
no inverse condemnation had occurred. Id., 437. On
appeal, this court agreed and affirmed in relevant part.
In the third case, our Supreme Court held that prop-
erty had not been inversely condemned. See Bristol v.
Tilcon Minerals, Inc., supra, 284 Conn. 86. In that case,
leachate from the defendant’s landfill had contaminated
the groundwater under the plaintiff’s property, creating
a stigma. Id., 82. As a result, the trial court found that
the plaintiff’s property had lost 50 percent of its fair
market value. Id., 83. Nevertheless, the contamination
did not affect the plaintiff’s current use of the property
as an access route to mines and as a storage site for
mined minerals. Id., 84. Nor did the contamination phys-
ically restrict the plaintiff from using the land as it
wished, for a residential development; the plaintiff
anticipated using the public water system—not wells—
to serve the lots. See id. The only harm was stigmatic.
See id., 82. Although the trial court did not find that the
plaintiff’s right to use the property was ‘‘substantially
abridged or destroyed,’’ it held that an inverse condem-
nation had occurred given the 50 percent reduction in
value. (Internal quotation marks omitted.) Id., 84. Our
Supreme Court reversed, holding that because the
stigma ‘‘had no effect on [the plaintiff’s] present mining-
related activities and [the plaintiff had] introduced no
evidence that the property could not be marketed for
residential development even if burdened by a stigma,’’
no inverse condemnation had occurred.13 Id., 85–86.
These three cases all present fairly extreme scenar-
ios. In Citino, the case holding that property had been
inversely condemned, the court found that the ‘‘use of
the plaintiff’s building ha[d] been destroyed’’; (internal
quotation marks omitted) Citino v. Redevelopment
Agency, supra, 51 Conn. App. 281; and that it retained
‘‘no actual economic value . . . .’’ (Internal quotation
marks omitted.) Id., 283. In Sinotte and Bristol, holding
that property had not been inversely condemned, the
court found that the properties retained at least half
their economic value and substantially retained all rele-
vant uses. Sinotte v. Waterbury, supra, 121 Conn. App.
437; see also Bristol v. Tilcon Minerals, Inc., supra,
284 Conn. 84.
The plaintiff’s case falls between these two ends of
the spectrum, but closer to Citino than to Sinotte and
Bristol. The court found that 90 percent of the plaintiff’s
building is now effectively unleasable. The court found
that the lack of parking ‘‘has substantially destroyed the
[plaintiff’s] ability to operate the property as a leasable
facility and enjoy even a modicum of financial success.
The evidence shows [that] the lack of parking, which
the [defendant] initially insisted upon, reduced the . . .
[property’s] chances of commercial success to negligi-
ble or nonexistent.’’ (Emphasis added.) The economic
value of the plaintiff’s property reflects this. The court
found that it has dropped by 81.77 percent, from $1.1
million to $200,520, which, according to the appraisal
of the plaintiff’s expert witness, ‘‘may be lower than
the value of the land . . . if vacant and available for
development.’’
These factual findings set the plaintiff’s case apart
from Sinotte and Bristol. In those two cases, the courts
found that the properties substantially retained their
preexisting uses even after the alleged inverse condem-
nation. Sinotte v. Waterbury, supra, 121 Conn. App.
437; see also Bristol v. Tilcon Minerals, Inc., supra,
284 Conn. 84. Here, by contrast, the court found, as in
Citino, that ‘‘even though part of [the plaintiff’s] build-
ing continued to be rented . . . the economic viability
of his property was nonexistent’’ as a result of the
defendant’s action.
The defendant argues, however, that the plaintiff’s
loss falls short of the ‘‘complete taking’’ required by
Bristol, pointing especially to Macedonia Church’s con-
tinued occupancy of roughly 40 percent of the building’s
office space, albeit, without a lease, on a month-to-
month basis, paying highly discounted rent.
We note at the start that Bristol requires not a ‘‘com-
plete taking’’; Bristol v. Tilcon Minerals, Inc., supra, 284
Conn. 85; but rather government action ‘‘substantially
equivalent’’; (emphasis added; internal quotation marks
omitted) id., 83; to a complete taking by virtue of its
‘‘substantial destruction of an owner’s ability to use or
enjoy the property.’’ (Emphasis added.) Id., 85. That is
precisely what the court found occurred in this case.
As to Macedonia Church’s continued occupancy, at
trial, the parties hotly contested what that occupancy
said about the economic viability of 70 South Main. The
court’s factual findings resolved that question, and the
defendant does not challenge those findings on appeal.
Accordingly, we reject the defendant’s argument that
we should reweigh the significance of Macedonia
Church’s month-to-month tenancy as an indicator of 70
South Main’s economic viability.
At trial, the defendant argued that the church’s
month-to-month tenancy of roughly 40 percent of the
building’s space—because it had continued for so long
and showed no sign of changing—should be treated as
no different from a lease of that space. On this view,
the building remained about one-half occupied and its
annual operating income was still roughly $30,000.
The plaintiff, by contrast, argued that the church’s
month-to-month tenancy was a red herring as far as 70
South Main’s present economic viability was con-
cerned, because: (1) the church had repeatedly said
that it was trying to leave; (2) the church was unlikely
to remain a tenant of that office space; and (3) the
church remained only because the defendant was in
effect propping it up with its selective offer of free
parking to churchgoers.
The plaintiff’s expert testified to this effect, saying
that the church’s continued presence was an outlier.
He opined that ‘‘[a]ll tenants leave at some time and a
church is a specialized use. . . . [T]hat building when
you look at it, it’s not really conducive for a church.
. . . It’s much more conducive to general office use, so
that would be the most likely user . . . .’’ The plaintiff’s
‘‘chances of getting [another] church to fit in that space
are slim to none.’’ He opined that ‘‘[i]f the church finds
a suitable space, I know they’ll go,’’ and that, when that
happened, the plaintiff probably would not be able to
find another tenant of any sort to replace the church.
In finding in favor of the plaintiff, the court largely
credited his expert on this point. It took the lease rate—
not the occupancy rate—as the best metric of 70 South
Main’s economic viability and treated the continued
presence of the church as an outlier. Accordingly, the
court found that the percentage of leased space in the
building had declined from more than 90 percent before
the taking to 5 to 10 percent after the taking. The court
expressly considered and rejected the defendant’s argu-
ment that Macedonia Church’s continued presence
proved that 70 South Main could still be used ‘‘as a
leasable facility and enjoy even a modicum of finan-
cial success.’’
The court found that 70 South Main’s other two
remaining tenants ‘‘lease[d] small areas and [were]
unlikely to expand. The bail bond office, of course,
has a unique situation being located literally across the
street from the police station. The cell phone store
owner walks to work and the clientele is mostly walk-
in.’’ Together, these two tenants occupied only 10 per-
cent of the building. The court found that the ‘‘remain-
der of the building will attract tenants only by rock
bottom rents, and these will be tenants for which park-
ing is not an issue, likely a small and transient group.’’
The presence of these two lessees, whose customers
were unique in their lack of need for parking, did not
rebut the court’s conclusion that the defendant had
substantially destroyed the plaintiff’s ability to use 70
South Main as an office and retail building.
There is no evidence in the record, and the trial court
did not find, that the building could still be used for
some other reasonable purpose, such as residential
apartments. Indeed, given that a portion of 70 South
Main was residential apartments prior to the taking of
65 South Main, that those tenants left due to the lack
of parking, and that the plaintiff found no one willing
to replace them, the court likely concluded that such
other uses were no more viable a use for 70 South Main
than office or retail space. The report of the plaintiff’s
expert that the property might now be worth more
vacant than with the building on it further supported
that conclusion.14
We thus conclude that the court did not err in holding
that the defendant had inversely condemned 70 South
Main when it deprived the building of parking because
the result was to substantially destroy the plaintiff’s
ability to use and enjoy his office building.
III
Finally, we consider the plaintiff’s argument on cross
appeal that the court erred in denying him offer of
compromise interest under § 52-192a. The plaintiff’s
argument is in two parts. He argues that: (1) his offer
to settle the case for $500,000 with interest, plus unspec-
ified costs up to $20,000, plus all necessary permits,
was an offer to settle the case for ‘‘a sum certain,’’ as
required by § 52-192a (a), or in any event, his offer met
the alternative test for such offers set out by this court
in Kazlon Communications, LLC v. American Golfer,
Inc., 82 Conn. App. 593, 847 A.2d 1012 (2004); and (2)
the judgment of $899,480 with interest was ‘‘equal to
or greater than’’ what he requested in his offer, as
required by § 52-192a (c). We disagree with both parts
of the plaintiff’s argument.
We begin with the standard of review. ‘‘The question
of whether the trial court properly awarded [offer of
compromise] interest pursuant to § 52-192a is one of
law subject to plenary review.’’ LaPlante v. Vasquez,
136 Conn. App. 805, 810, 47 A.3d 897 (2012).
The court denied the plaintiff offer of compromise
interest on the ground that he failed to meet two require-
ments of § 52-192a: (1) that a plaintiff offer to settle
his action ‘‘for a sum certain’’;15 and (2) that, after the
defendant rejects the offer, the plaintiff recover ‘‘an
amount equal to or greater than the sum certain’’ he
requested.16
First, the plaintiff argues that his offer was for a ‘‘sum
certain.’’ The offer included three demands: (1) $500,000
with interest; (2) ‘‘all appraisal fees and other fees and
costs expended by the Plaintiff to prosecute this action
up to $20,000.00’’; and (3) ‘‘all necessary land use certifi-
cates and/or approvals to allow Plaintiff and his succes-
sors in interest to use the property at 70 South Main
Street for its intended use as a mixed use retail/office
building.’’ The plaintiff argues that the first demand is
clearly for a sum certain, the second demand is capped
at a certain amount and so qualifies, and although the
third demand is neither monetary nor specific, ‘‘the
[defendant] knew which permits [the plaintiff] was
seeking’’ and so it qualifies, too. We agree that the first
demand was for a sum certain, but we conclude that
the other two demands were not. The second demand
was inherently variable; the cap limited but did not
eliminate uncertainty as to the amount. As to the third
demand, not only was it vague as to what was sought,
it was not for a sum of money.
The plaintiff argues that he is saved by this court’s
decision in Kazlon Communications, LLC v. American
Golfer, Inc., supra, 82 Conn. App. 593, which permits
nonmonetary conditions in a § 52-192a offer. In Kazlon
Communications, LLC, a plaintiff offered to settle its
case for $37,500 plus the withdrawal of the defendants’
counterclaim. Id., 599. The defendants rejected that
offer. Id., 600. The plaintiff, after obtaining summary
judgment on both the complaint and counterclaim,
asked the court for offer of compromise interest. Id.,
595, 599. This court held that the plaintiff’s offer met
the requirements of § 52-192a because it merely encom-
passed both halves of the litigation—the complaint and
counterclaim—and offered to settle it for a precise sum
of money. Id., 600.
The plaintiff argues that his demand for permits is
like the plaintiff’s demand in Kazlon Communications,
LLC, that the defendants withdraw their counterclaim.
Even if that were true, the ‘‘up to $20,000’’ term would
still violate the ‘‘sum certain’’ requirement of § 52-192a.
Moreover, it is not true. The plaintiff demanded more
than money and an end to both halves of the inverse
condemnation action.17 He also demanded ‘‘all neces-
sary land use certificates and/or approvals . . . .’’
Accordingly, his offer was not to settle the litigation
merely for ‘‘a sum certain,’’ as required by § 52-192a.
‘‘[B]ecause § 52-192a is punitive, we are required to
construe it with reasonable strictness . . . .’’ (Empha-
sis omitted; internal quotation marks omitted.) DiLieto
v. County Obstetrics & Gynecology Group, P.C., 297
Conn. 105, 149, 998 A.2d 730 (2010). Kazlon Communi-
cations, LLC, is already in some tension with the plain
language of § 52-192a, and we are not inclined to expand
it further.
Second, the plaintiff argues that he recovered ‘‘an
amount equal to or greater than the sum certain’’ he
requested. The relief requested was $500,000 with inter-
est, plus up to $20,000, plus all necessary permits. The
relief recovered was $899,480 with interest and no per-
mits. Even if ‘‘sum certain’’ permits a plaintiff to include
nonmonetary demands in his offer of compromise, the
plaintiff must recover relief at least ‘‘equal to’’ that
demanded. Here, the plaintiff recovered more money
but no permits. His recovery was different from—not
equal to or greater than—his demand.18 Accordingly, he
did not recover an amount ‘‘equal to or greater than’’
his demand, as required by § 52-192a.
Because the plaintiff failed to meet the requirements
of § 52-192a, the court did not err in denying him offer
of compromise interest.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The two plaintiffs in this case are Robert Barton and Sonoson, LLC.
Barton owned 70 South Main Street when it was taken, and he alone filed
the inverse condemnation action. While the case was pending, he quitclaimed
his interest in 70 South Main Street to Sonoson, LLC, and filed a motion to
join it as a plaintiff in this action, which the trial court granted. Sonoson,
LLC, is a family partnership—Barton and his wife own the majority interest
and each of their three children owns a smaller share. For ease of reference,
we refer to Barton as the plaintiff throughout this opinion.
2
This alternative valuation of 65 South Main is relevant to the defendant’s
judicial estoppel claim that the plaintiff obtained an unfair advantage by
valuing 65 South Main as a mixed use development rather than as a park-
ing lot.
3
The court found that Macedonia Church remains a tenant to this day—
albeit one without a lease and on a month-to-month basis, paying far below
market rent—only because it has found nowhere else to go and because
the defendant owns a dirt lot near 70 South Main where it allows the church’s
members to park for free. The lot is not available to other tenants of 70
South Main. The church’s Reverend George Cromwell testified that without
this lot, his church ‘‘would be in extreme difficulties and would have to
look for alternative, even if temporary, accommodations.’’
On the issue of what one could infer from the church’s continued presence,
the plaintiff’s expert testified without rebuttal that, not only was the church
actively seeking to leave, but also ‘‘[a]ll tenants leave at some time and a
church is a specialized use. . . . [T]hat building when you look at it, it’s
not really conducive for a church. . . . It’s much more conducive to general
office use, so that would be the most likely user . . . .’’ The plaintiff’s
‘‘chances of getting [another] church to fit in that space are slim to none.’’
The plaintiff’s expert witness agreed with the defendant’s counsel that ‘‘the
logical use of that space . . . based on the market, is office space . . . .’’
The plaintiff’s expert added, however, that due to the lack of parking, he
doubted the plaintiff would be able to find a replacement tenant of any sort
when the church left. He opined that the defendant had ‘‘forced [the plaintiff]
. . . between a rock and a hard place’’ by giving him the choice to either
let the church stay paying ‘‘ridiculously low’’ rent as long as possible, or let
the church leave and likely fail to find a replacement.
4
The exhibit from which the court derived these numbers notes that
‘‘Operating Income is defined as Gross Rents received less Operating
Expenses. Operating Expenses exclude mortgage interest and principal,
depreciation, and capital improvements. Services provided ‘in-kind’ to the
property are not reflected in Operating Expenses.’’
5
Although the court did not specifically recite in its statement of facts
the testimony and report of the plaintiff’s expert that the value of 70 South
Main approached that of a vacant lot, the court did note that ‘‘[o]n the
whole, the court accepts [the] analysis [of the plaintiff’s expert] as consistent
with commercial real estate appraisal purposes and an appropriate means
to ascertain market value.’’ Elsewhere in its opinion, the court noted that
the ‘‘court generally accepts the report and testimony of [the plaintiff’s
expert] that the after taking value of [70 South Main] is slightly over $200,000,
a decrease of over 80 percent from before taking value.’’
6
The defendant argues that we should ignore these difficulties because
the court’s statement that they were ‘‘arguably not directly relevant’’ to the
inverse condemnation issue meant that the court did not base its decision
on them. (Emphasis added.) On the contrary, the court made express findings
of fact on this point and indirect evidence is still evidence. See, e.g., Griffin
v. Nationwide Moving & Storage Co., 187 Conn. 405, 422–23, 446 A.2d
799 (1982).
7
The plaintiff’s offer stated:
‘‘OFFER OF COMPROMISE
‘‘Pursuant to General Statutes § 52-192a and Practice Book § 17-14, the
Plaintiff, hereby offers to compromise the above-captioned matter as
follows:
‘‘1. Plaintiff stipulates to damages in the total amount of $500,000.00 to
be paid by the defendant, City of Norwalk, to the Plaintiff as full settlement
of the claims underlying this action.
‘‘2. Defendant agrees to pay Plaintiff interest of 7.5% per annum on this
amount from the date of the taking, January 17, 2002, to the date of payment
of damages set forth above.
‘‘3. Defendant agrees to pay all appraisal fees and other fees and costs
expended by the Plaintiff to prosecute this action up to $20,000.00.
‘‘4. Defendant agrees to issue all necessary land use certificates and/or
approvals to allow Plaintiff and his successors in interest to use the property
at 70 South Main Street for its intended use as a mixed use retail/office
building.’’ (Emphasis added.)
8
Here, the plaintiff’s two positions were not inconsistent, but for purposes
of this condition we analyze them as if they were.
9
The obvious argument, which the defendant does not make, would be
that the plaintiff derived an advantage by valuing 65 South Main so as
to maximize its independent value in the proceeding devoted solely to
compensation for 65 South Main and then undervalued 65 South Main as a
parking lot so as to inflate the value of the building it served, 70 South Main,
in the proceeding devoted solely to compensation for70 South Main.
The defendant does not make this argument because the court in the
eminent domain proceeding calculated the value of 65 South Main as a
parking lot and found that value to be $334,000; slightly higher than the
$310,000 value it found for 65 South Main as a mixed use development.
Norwalk v. Barton, supra, 2009 WL 323785, *10. Although it is conceivable
that the plaintiff could have gotten increased damages for 65 South Main
by valuing it as a mixed use development in the eminent domain proceeding,
there is no evidence that that happened here—indeed, what evidence does
exist suggests the opposite.
10
Article first, § 11, of the constitution of Connecticut provides: ‘‘The
property of no person shall be taken for public use, without just compensa-
tion therefor.’’
11
The trial court in Citino found that the property was still worth $50,000
to $75,000 compared to its pre-taking value of roughly $150,000 and that
‘‘with completed redevelopment of the area the value m[ight] increase.’’
Citino v. Redevelopment Agency, Superior Court, judicial district of Hart-
ford-New Britain, Docket No. CV-95-0545209-S (January 30, 1997) (18 Conn.
L. Rptr. 567, 573), aff’d and remanded, 51 Conn. App. 262, 721 A.2d 1197(1998), overruled in part on other grounds by Kaczynski v. Kaczynski, 294
Conn. 121, 981 A.2d 1068 (2009). Nevertheless, the court found that ‘‘[f]or
all intents and purposes th[e] building ha[d] no actual economic value’’
because the plaintiff had taken on nearly $250,000 in debt to renovate it, at
the defendant’s urging, and the building’s present rents were too low to
recoup that cost. Id. The same reasoning underlay the conclusion of the
trial court in Citino that even if the defendant finished redeveloping the area,
the plaintiff’s property would still have no ‘‘realistic’’ economic value. Id.12
The defendant opined at oral argument in the present case that Citino
‘‘would not come out the same way if it were decided after Bristol [v. Tilcon
Minerals, Inc., supra, 284 Conn. 55],’’ a more recent inverse condemnation
case from our Supreme Court. We note that in Bristol, the Supreme Court
expressly considered Citino and did not overrule it. Id., 85.
13
The court ultimately held that the plaintiff was still entitled to damages,
albeit on a theory of permanent trespass rather than inverse condemnation.
Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 91.
14
The defendant submitted a letter of supplemental authority after oral
argument before this court, in which it brought to our attention our Supreme
Court’s recent decision in Caruso v. Zoning Board of Appeals, 320 Conn.
315, A.3d (2016). We conclude that Caruso is consistent with our
analysis. In Caruso, the court held that, where ‘‘the [property owner] offered
no evidence of the current value of the property’’; id., 320; no evidence of
‘‘efforts to market, sell, or develop the property,’’ and no evidence ‘‘that the
property [was] unfit for any permitted use because of a peculiar characteris-
tic of the property,’’ there was insufficient evidence to prove a taking.
(Internal quotation marks omitted.) Id., 325–26. Here, the plaintiff submitted
evidence of (1) a drastic decline in the property’s value; (2) a decade of
failed efforts to market the property; and (3) a peculiar characteristic, in
that the property lacked parking. Such evidence was sufficient to prove
a taking.
15
General Statutes § 52-192a (a) provides in relevant part: ‘‘[A]fter com-
mencement of any civil action . . . seeking the recovery of money damages,
whether or not other relief is sought, the plaintiff may . . . file . . . a
written offer of compromise . . . offering to settle the claim underlying
the action for a sum certain. . . .’’ (Emphasis added.)
16
General Statutes § 52-192a (c) provides in relevant part: ‘‘After trial the
court shall examine the record to determine whether the plaintiff made an
offer of compromise which the defendant failed to accept. If the court
ascertains from the record that the plaintiff has recovered an amount equal
to or greater than the sum certain specified in the plaintiff’s offer of compro-
mise, the court shall add . . . eight per cent annual interest on said amount
. . . .’’ (Emphasis added.)
17
Here, the defendant had raised two counterclaims: (1) a claim for title
to 70 South Main if the court held that it had been inversely condemned;
and (2) a claim for any post-taking income earned from 70 South Main if
the court held that it had been inversely condemned. The court ultimately
denied both counterclaims.
18
We note that even if the permits could be assigned a dollar value, which
they were not here, it would have been improper simply to ask whether the
plaintiff had recovered an amount equal to or greater than the total of
$500,000 with interest, plus $20,000, plus the value of the permits. First,
such an approach would nullify the provision of § 52-192a that limits the
relief a plaintiff may seek, in exchange for the withdrawal of an action, to
a ‘‘sum certain.’’ If the legislature had wanted to allow plaintiffs to request
permits or easements or real property or any other nonmonetary relief in
an offer eligible for § 52-192a interest, it easily could have done so. It did
not. Second, § 52-192a is a punitive statute; Cardenas v. Mixcus, 264 Conn.
314, 321, 823 A.2d 321 (2003); designed to punish a defendant for the waste
of judicial resources that occurs when a defendant fully litigates a case only
for the plaintiff to get the exact same relief that he had offered to settle for
before trial. See DiLieto v. County Obstetrics & Gynecology Group, P.C.,
supra, 297 Conn. 153 (‘‘interest awarded under § 52-192a is solely related
to a defendant’s rejection of an advantageous offer to settle before trial’’
[emphasis added; internal quotation marks omitted]). That rationale does
not apply in a case, as here, where the defendant may well have been willing
to pay a larger sum of money but was unwilling to promise the plaintiff the
desired nonmonetary relief. Indeed, the present case illustrates that dilemma
particularly well, since it is not even clear that the defendant—or the court—
had the authority to give the plaintiff the permits he sought without first
going through the required channels. Those channels likely would have
included a public hearing with notice to affected third parties, who would
have had a right to speak on the matter and who might well have raised
legal grounds for denying some permits that the zoning board would have
been compelled to obey. See General Statutes §§ 8-6 (duties of zoning board)
and 8-7d (notice and hearing requirements). It would hardly serve the pur-
pose of § 52-192a—i.e., to promote the acceptance of reasonable settlement
offers; Cardenas v. Mixcus, supra, 321;—if we were to punish a defendant
for refusing an offer that it knew it might be unable legally to fulfill.