Barton v. City of Norwalk , 326 Conn. 139 ( 2017 )

 ROBERT BARTON v. CITY OF NORWALK
(SC 19671)
Rogers, C. J., and Palmer, Eveleigh, Robinson and Beach, Js.
Syllabus
The plaintiff B brought this action, alleging, inter alia, that the defendant
city had inversely condemned a parcel of real property containing a
partially leased building by taking, through the power of eminent domain,
an adjacent parcel containing a parking lot used by the tenants of the
subject property. Shortly after purchasing the subject property, B pur-
chased the adjacent parcel in order to construct a parking lot. B subse-
quently began leasing portions of the building on the subject property
to various residential and commercial tenants including, among others,
a church. In 2002, the defendant condemned the adjacent parcel in order
to build a police station and paid B $127,000 in compensation for the
taking. The lack of available parking due to the condemnation of the
adjacent parcel subsequently rendered the subject property undesirable
to current and prospective tenants. Both the percentage of space leased
and B’s rental income subsequently declined. Thereafter, B filed an
action in the Superior Court seeking review of the compensation
afforded to him by the defendant for the condemnation of the adjacent
parcel. The court found in favor of the plaintiff, determining that the
adjacent parcel was worth $310,000 rather than $127,000. Because B
could not recover for losses to the subject property in the previous
action concerning the adjacent parcel, he subsequently commenced the
present action alleging inverse condemnation of the subject property.
The trial court concluded that the lack of parking resulting from the
defendant’s condemnation of the adjacent parcel precluded B from
operating the building on the subject property as a leasable facility and,
as a result, had substantially destroyed B’s use and enjoyment of the
subject property. In so concluding, the trial court rejected the defen-
dant’s claim that, in light of B’s position in the previous action that
the highest and best use of the adjacent parcel was as a mixed use
development, the doctrine of judicial estoppel barred B from asserting,
for the purpose of his inverse condemnation claim, that he would have
continued using the adjacent parcel as a parking lot. The trial court
rendered judgment in favor of B, from which the defendant appealed
to the Appellate Court claiming, inter alia, that B had failed to make
out prima facie case for inverse condemnation because the subject
property retained significant value and that the trial court had incorrectly
concluded that B’s claim was not barred by the doctrine of judicial
estoppel. The Appellate Court disagreed with these claims and, accord-
ingly, affirmed the judgment of the trial court. The defendant, on the
granting of certification, appealed to this court. Held:
1. The Appellate Court correctly determined that the defendant had inversely
condemned the subject property by taking the adjacent parcel through
the power of eminent domain: the trial court’s conclusion that B’s use
and enjoyment of the subject property was substantially destroyed was
amply supported by its factual findings that B faced extreme difficulty
renting space due to the absence of parking and that the market value
of the subject property had fallen by more than 80 percent; moreover,
this court could not conclude, in light of declining lease rates and the
lack of success in marketing, that the continued presence of the church,
which had declined to renew its lease after the condemnation of the
adjacent parcel, undermined the trial court’s conclusions; furthermore,
the fact that the subject property retained some economic value did not
undermine the trial court’s ultimate finding that B’s use and enjoyment of
the subject property was substantially destroyed.
2. The defendant could not prevail on its claim that the trial court abused
its discretion by declining to bar B’s inverse condemnation claim under
the doctrine of judicial estoppel; the plaintiff’s claim in the present
action that he would continue to use the adjacent parcel as a parking
lot was not clearly inconsistent with his position in the previous action
that the highest and best use of the adjacent parcel was as a mixed use
development, as a property owner need not actually use his or her
property in accordance with its highest and best use.
Argued January 19—officially released July 4, 2017
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged taking of certain of the plaintiff’s real
property by inverse condemnation, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk,
where the court, Mintz, J., granted the plaintiff’s motion
to cite in Sonoson, LLC, as a party plaintiff; subse-
quently, the matter was tried to the court, Hon. Taggart
D. Adams, judge trial referee, who, exercising the pow-
ers of the Superior Court, rendered judgment for the
plaintiffs, from which the defendant appealed to the
Appellate Court, Gruendel, Prescott and Pellegrino, Js.,
which affirmed the judgment of the trial court, and the
defendant, on the granting of certification, appealed to
this court. Affirmed.
Carolyn M. Colangelo, assistant corporation counsel,
with whom were Mario F. Coppola, corporation coun-
sel, and Daniel J. Krisch, for the appellant (defendant).
Elliott B. Pollack, with whom, on the brief, was Tif-
fany K. Spinella, for the appellees (plaintiffs).
Opinion
EVELEIGH, J. In this certified appeal, the defendant,
the city of Norwalk, appeals from the judgment of the
Appellate Court affirming the judgment of the trial court
awarding the plaintiff Robert Barton1 $899,480 in dam-
ages plus prejudgment interest for his claim that the
defendant inversely condemned a parcel of real prop-
erty located at 70 South Main Street in Norwalk (70
South Main) by taking, through the power of eminent
domain, the plaintiff’s parking lot located across the
street at 65 South Main Street (65 South Main). See
Barton v. Norwalk, 163 Conn. App. 190, 193–94, 135
A.3d 711 (2016). The defendant raises two claims in
the present appeal. First, the defendant claims that the
Appellate Court incorrectly affirmed the judgment of
the trial court that the plaintiff had proven inverse con-
demnation because 70 South Main retains significant
value and generates significant income. Second, the
defendant claims that the Appellate Court incorrectly
concluded that the plaintiff’s inverse condemnation
claim was not barred by judicial estoppel. We disagree
with the defendant and, accordingly, affirm the judg-
ment of the Appellate Court.
The following facts and procedural history are rele-
vant to the disposition of the present appeal. ‘‘In 1981,
the plaintiff purchased the four story walk-up commer-
cial building at 70 South Main as an office for his sail-
making business. There was a single parking space at
70 South Main. The defendant 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’s purchase
of] the vacant lot across the street at 65 South Main
and creating forty-four parking spaces there. The plain-
tiff 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. . . . The plaintiff
asked the Superior Court to review the defendant’s
statement of just compensation, arguing that 65 South
Main was worth $350,000. . . . 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.
. . . Specifically, both parties’ real estate appraisers
agreed that the highest and best use for 65 South Main,
which is the standard measure of just compensation
. . . would be a mixed use . . . .
‘‘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
development and awarded the plaintiff $310,000 in just
compensation, minus the $127,000 that the defendant
had already paid the plaintiff, plus interest, fees, and
costs. . . .
‘‘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 defendant 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.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Id., 194–97.
The trial court found that the lack of parking, caused
by the taking of 65 South Main, had ‘‘substantially
destroyed the [plaintiff’s] ability to operate [70 South
Main] as a leasable facility and enjoy even a modicum
of financial success.’’ More specifically, the trial court
found that the lack of parking made the plaintiff’s
‘‘chances of commercial success’’ at 70 South Main
‘‘negligible or nonexistent.’’ The trial court concluded
that this is a ‘‘close case,’’ but nevertheless found that
‘‘the only evidence in this case is that 70 South Main
has substantially depreciated in value, by [more than
80 percent], and this loss has been caused by the taking
through eminent domain of the dedicated parking
spaces [at 65 South Main].’’ On the basis of these find-
ings, the trial court concluded that the defendant had
inversely condemned 70 South Main because the taking
of 65 South Main amounted to ‘‘a substantial destruction
of the [plaintiff’s] ability to enjoy or use [70 South
Main] . . . .’’
The trial court also rejected the defendant’s judicial
estoppel claim.2 ‘‘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 [trial] court disagreed, finding
that the positions were consistent and that the plaintiff
derived no unfair advantage.’’ Barton v. Norwalk, supra,
163 Conn. App. 200–201.
Accordingly, ‘‘the court rendered judgment in favor
of the plaintiff on his claim for the inverse condemna-
tion of 70 South Main. The court awarded him $899,480
in damages plus $543,384.49 in prejudgment interest.’’
Id., 197. The defendant appealed to the Appellate Court,
which affirmed the judgment of the trial court.3 See id.,
219. This certified appeal followed.4
I
We begin with the defendant’s claim that the Appel-
late Court incorrectly affirmed the trial court’s judg-
ment awarding monetary damages on a theory of
inverse condemnation. The defendant claims that 70
South Main was not inversely condemned because it
retained economic value, was approximately one half
occupied, and continued to generate revenue. In
response, the plaintiff claims that the Appellate Court
properly affirmed the judgment of the trial court
because the plaintiff’s use and enjoyment of 70 South
Main was substantially destroyed. We agree with the
plaintiff.
‘‘As a preliminary matter, we note that, for this consti-
tutional claim [of inverse condemnation], we review the
trial court’s factual findings under a clearly erroneous
standard and its conclusions of law de novo.’’ Rural
Water Co. v. Zoning Board of Appeals, 287 Conn. 282,
298, 947 A.2d 944 (2008).
‘‘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 . . . .’’ (Internal quotation marks omitted.)
Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 83, 931
A.2d 237 (2007). The government action must result
in such a substantial interference with the use of the
property that it ‘‘amounts to practical confiscation.’’
(Internal quotation marks omitted.) Rural Water Co. v.
Zoning Board of Appeals, supra, 287 Conn. 298.
‘‘Accordingly, an inverse condemnation action has been
aptly described as an eminent domain proceeding initi-
ated by the property owner rather than the condemnor.’’
(Internal quotation marks omitted.) Bristol v. Tilcon
Minerals, Inc., supra, 83.
‘‘The word taken in article first, § 11 of our state
constitution5 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.’’ (Footnote in original; internal quotation
marks omitted.) Id., 83–84. In other words, ‘‘Connecti-
cut 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.’’ Id., 85.
The issue of whether there has been a substantial
destruction of an owner’s ability to use or enjoy a prop-
erty—the basis for liability in the present case—is a
fact intensive issue. See Rural Water Co. v. Zoning
Board of Appeals, supra, 287 Conn. 298 (‘‘[w]hether a
claim that a particular governmental regulation or
action taken thereon has deprived a claimant of his
property without just compensation is an essentially ad
hoc factual inquir[y]’’ [internal quotation marks omit-
ted]). There is no bright line standard. We have pre-
viously observed that ‘‘it may be difficult to determine
in certain close cases whether the alleged infringement
on property rights is sufficient to constitute the type
of complete taking that inverse condemnation requires
. . . .’’ Bristol v. Tilcon Minerals, Inc., supra, 284 Conn.
85; see also Washington Market Enterprises, Inc. v.
Trenton, 68 N.J. 107, 116, 343 A.2d 408 (1975) (‘‘[t]he
general question as to when governmental action
amounts to a taking of property has always presented
a vexing and thorny problem’’).
We recently observed, in a zoning variance case, that
‘‘[w]hen a reasonable use of the property exists, there
can be no practical confiscation.’’6 (Internal quotation
marks omitted.) Caruso v. Zoning Board of Appeals,
320 Conn. 315, 323, 130 A.3d 241 (2016). Thus, when a
putative condemnee fails to show that the property
cannot be used for any reasonable and proper purpose,
liability for inverse condemnation is precluded. See
Rural Water Co. v. Zoning Board of Appeals, supra,
287 Conn. 298–300 (finding no inverse condemnation
where landowner failed to show it could not continue
to operate water utility on subject property); Bristol v.
Tilcon Minerals, Inc., supra, 284 Conn. 55 (finding no
inverse condemnation where contamination from
nearby city landfill did not prevent landowner from
continuing to use land for mining operations or market-
ing land for residential development); Sinotte v. Water-
bury, 121 Conn. App. 420, 437, 995 A.2d 131 (finding
no inverse condemnation where landowners could still
use home as residence despite periodic sewage back-
ups), cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010).
‘‘Conversely, when the property retains no reason-
able use or value under the zoning regulation, a practical
confiscation occurs.’’ Caruso v. Zoning Board of
Appeals, supra, 320 Conn. 324. In Caruso, this court
noted prior cases holding that compelling the use of
large homes as single-family homes when it would be
prohibitively expensive to maintain the homes as such
would result in a practical confiscation. Id., 324–25,
citing Culinary Institute of America, Inc. v. Board of
Zoning Appeals, 143 Conn. 257, 260–61, 121 A.2d 637(1956), and Libby v. Board of Zoning Appeals, 143
Conn. 46, 52–53, 118 A.2d 894 (1955). In Libby, the
conclusion that the regulation amounted to a practical
confiscation was sustained on the basis of the inability
to market the property as a single-family residence.
Libby v. Board of Zoning Appeals, supra, 52 (‘‘[The
property’s] usefulness as a [single-family] house is gone.
The extent to which its value has dropped is borne out
by the inability to find, over a [two year] period, a single
individual who was willing to make any offer for it.’’).
Against this legal background, we conclude that the
trial court properly found that the defendant inversely
condemned 70 South Main in the present case. After
the defendant took the parking lot at 65 South Main,
the use of 70 South Main was substantially destroyed.
This conclusion is amply supported by the trial court’s
findings of fact that the plaintiff faced extreme difficulty
renting space at 70 South Main, which, in turn, resulted
in a more than 80 percent diminution of its value.
At the outset of its analysis, the trial court highlighted
the ‘‘serious, immediate, and enduring adverse effects’’
of the taking of 65 South Main on the marketability of
70 South Main. The court concluded that the lack of
parking had rendered space at 70 South Main undesir-
able to prospective tenants. This was evidenced by the
plaintiff’s graph depicting a drop in leased space from
97 percent7 in 2001, to 5 percent in 2006, with a slight
increase to 10 percent in 2011. The Family and Chil-
dren’s Aid Society of Fairfield County, a prior tenant
that had occupied three quarters of the ground floor,
left at the end of its lease citing the lack of parking.
Tenants on the third and fourth floor also departed at
the end of their lease because of the lack of parking. The
trial court noted the evidence presented about interest
from prospective tenants who found the space attrac-
tive, but were dissuaded by the lack of parking. Lover
Thomas, a barber who had run his business out of 70
South Main since 1989, attempted to endure the parking
challenges. He suffered a loss of one quarter of his
customers and ultimately closed shop, citing the lack
of parking.8
As the tenants departed, the plaintiff was unable to
replace them. After 65 South Main was taken, the plain-
tiff’s real estate broker documented the interest of pro-
spective tenants, interest that would not materialize
into a lease principally due to the lack of parking.9 In
a letter, the broker informed the plaintiff that, without
a solution to the lack of parking, ‘‘the future tenancy
of 70 South Main . . . looks very bleak at present.’’ In
the intervening ten years from the taking of 65 South
Main to the trial, the plaintiff managed to attract only
two small tenants to lease space. One is a cell phone
store and the other is a bail bondsman. The trial court
found that the tenancy of the bail bondsman is the
consequence of the unique situation that 70 South Main
is located across the street from the police station. The
cell phone store depends on walk-in clientele, and the
owner himself walks to work. The trial 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 tran-
sient group.’’
As a result of the lack of marketability, the plaintiff
struggled to maintain 70 South Main. When the plaintiff
sought the necessary permits for certain maintenance
services, he was rebuffed by the defendant’s agencies
on the basis of the lack of parking. The trial court
noted that ‘‘the record is replete with responses from
municipal authorities that nothing can be done because
of the parking issue and pending litigation.’’ The trial
court noted that, in order to keep costs down, at one
point, the plaintiff’s son lived in the building and fur-
nished maintenance services. Indeed, as the trial court
found, ‘‘[t]he evidence shows the lack of parking . . .
reduced [70 South Main’s] chances of commercial suc-
cess to negligible or nonexistent.’’
The defendant claims that the trial court’s finding
with respect to the viability of the property is improper
because it ignores the fact that Macedonia Church,
which had leased space from the plaintiff since 1987
continued to occupy space in the building and generate
substantial revenue. It is true that Macedonia Church
occupied a substantial portion of the building—39 per-
cent. Macedonia Church continued to occupy all of the
second floor and parts of the third and fourth floor of
the building through the date of the trial on a month
to month basis. As a result of the its continued tenancy,
the decline in operating income10 was not as steep as
the decline in term lease tenancy. The trial court found
that the income declined from $94,080 in 2001 to $20,661
in 2006.
The defendant, however, glosses over significant
facts regarding Macedonia Church’s occupancy of 70
South Main. Although it enjoyed below market rents,
once the parking lot was taken, Macedonia Church did
not renew its lease with the plaintiff and informed the
plaintiff that it intended to quit the premises when a
suitable alternative was found. As an act of municipal
grace, the defendant permitted Macedonia Church to
use certain parking spaces on a nearby street at no
cost. A leader from Macedonia Church testified that, if
parking were not furnished, it would need to seek an
alternative location on a temporary basis. As of the date
of trial, the plaintiff had not found any new tenants
for any of the spaces above the ground level. Thus,
notwithstanding the length of Macedonia Church’s con-
tinuing month to month occupancy, the plaintiff simply
could not count on it as a revenue stream to continue
to profitably operate the building long term. Therefore,
we cannot conclude that, in light of the dismal lease rate
and lack of success marketing vacant space, Macedonia
Church’s presence undermined the trial court’s conclu-
sion that the plaintiff’s use and enjoyment of 70 South
Main has been substantially destroyed.
The trial court’s conclusion is also supported by its
finding that the value of 70 South Main had fallen by
more than 80 percent. In making its finding, the trial
court ‘‘generally accept[ed]’’ the documentary and oral
expert testimony of a commercial real estate appraiser,
Michael McGuire. McGuire had thirty years of experi-
ence as a real estate appraiser, was a principal at a real
estate appraisal firm in Norwalk, and was ‘‘knowledge-
able about real estate values and trends in the Norwalk
area . . . .’’ McGuire had recent experience in dealing
with parking rules in Norwalk.11 On the basis of McGu-
ire’s report, the trial court found that the value of 70
South Main had diminished from $1.1 million to
$200,520 or 81.77 percent.12 McGuire attributed this
decline in value to the absence of available parking. He
testified that ‘‘parking is the lifeline of [a] building’’ in
a suburban market. He added that when ‘‘[y]ou take
the parking away, you’ve gutted . . . the value of a
building.’’ McGuire further testified that 70 South Main
was ‘‘pretty close to teardown value.’’ The appraisal
report stated that, without available parking, the prop-
erty may be worth less than if it were vacant and avail-
able for development.
We are not persuaded that the fact that 70 South
Main retains some economic value undermines the trial
court’s conclusion that the plaintiff’s use and enjoyment
of the property was substantially destroyed. ‘‘Connecti-
cut 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.’’ Bristol v. Tilcon Minerals, Inc., supra, 284
Conn. 85. Logic dictates that where inverse condemna-
tion is found for substantial—but not complete—
destruction of an owner’s ability to use or enjoy prop-
erty, the remaining quantum of use or enjoyment will
be reflected in some economic value. Where, as here,
the plaintiff has shown that his use and enjoyment of
property has been substantially destroyed, the taking
is of constitutional magnitude and the plaintiff is enti-
tled to just compensation for the inverse condemnation
of his property. ‘‘[T]he usual measure of damages is the
difference between the market value of the [property]
before the taking and the market value of [the property]
thereafter.’’ (Internal quotation marks omitted.) Id., 71.
In sum, we conclude that the trial court properly
concluded that the plaintiff had proven his theory of
inverse condemnation in the present case.
II
We next turn to the defendant’s claim that the plain-
tiff’s inverse condemnation action was barred by the
doctrine of judicial estoppel. The defendant claims the
trial court incorrectly failed to find the plaintiff
estopped from asserting that 70 South Main should be
valued with the use of 65 South Main as a parking lot.
Specifically, the defendant claims the following: (1) the
plaintiff’s position with respect to the use of 65 South
Main is clearly inconsistent with his position in the
previous eminent domain action, wherein he argued the
highest and best use of 65 South Main was as mixed
use development; (2) the trial court in the previous case
adopted the plaintiff’s position and awarded compensa-
tion on that basis; and (3) the plaintiff would derive an
unfair advantage against the defendant by taking such
a position in the present case. We conclude that the
defendant failed to prove that the plaintiff’s claim was
barred by judicial estoppel.
We begin by setting forth our standard of review of
the defendant’s claim. ‘‘Because the rule is intended to
prevent improper use of judicial machinery . . . judi-
cial estoppel is an equitable doctrine invoked by a court
at its discretion . . . . Accordingly, our review of the
trial court’s decision not to invoke the doctrine is for
abuse of discretion.’’ (Citations omitted; internal quota-
tion 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.’’ (Internal quotation marks omitted.) Dougan
v. Dougan, 301 Conn. 361, 372, 21 A.3d 791 (2011). The
doctrine ‘‘protect[s] the integrity of the judicial process
. . . by prohibiting parties from deliberately changing
positions according to the exigencies of the moment
. . . .’’ (Citations omitted; internal quotation marks
omitted.) New Hampshire v. Maine, 532 U.S. 742, 749–
50, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001).
Judicial estoppel applies 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 seeking estoppel.’’ (Internal
quotation marks omitted.) Dept. of Transportation v.
White Oak Corp., 319 Conn. 582, 612, 125 A.3d 988(2015); see Dougan v. Dougan, supra, 301 Conn. 372–73;
see also DeRosa v. National Envelope Corp., 595 F.3d
99, 103 (2d Cir. 2010). The application of judicial estop-
pel is further limited to ‘‘situations where the risk of
inconsistent results with its impact on judicial integrity
is certain.’’ (Internal quotation marks omitted.) Dougan
v. Dougan, supra, 373. In addition, generally speaking,
the doctrine will not apply ‘‘if the first statement or
omission was the result of a good faith mistake . . .
or an unintentional error.’’ (Internal quotation marks
omitted.) Id.With respect to the first element of judicial estoppel,
the defendant claims that in the earlier eminent domain
proceeding, the plaintiff took the position that the high-
est and best use of 65 South Main was as a mixed use
development, whereas in the present case, 65 South
Main was treated as a parking lot dedicated to use in
conjunction with 70 South Main for purposes of valua-
tion. The defendant claims that the plaintiff’s positions
with respect to 65 South Main are clearly inconsistent.
The plaintiff claims that the positions are not inconsis-
tent because a person need not actually use property
in accordance with its asserted highest and best use.
We agree with the plaintiff.
When land is taken by the government, the landowner
is entitled to just compensation. Conn. Const., art. I,
§ 11. It is by now axiomatic that ‘‘the condemnee shall
be put in as good condition pecuniarily by just compen-
sation as he would have been in had the property not
been taken.’’ (Internal quotation marks omitted.) North-
east Ct. Economic Alliance, Inc. v. ATC Partnership,
272 Conn. 14, 25, 861 A.2d 473 (2004). To achieve this,
the landowner is compensated the fair market value of
the property taken. Id. ‘‘In determining market value,
it is proper to consider all those elements which an
owner or a prospective purchaser could reasonably
urge as affecting the fair price of the land . . . . The
fair market value is the price that a willing buyer would
pay a willing seller based on the highest and best possi-
ble use of the land assuming, of course, that a market
exists for such optimum use.’’ (Internal quotation marks
omitted.) Id. The highest and best use of certain prop-
erty is not necessarily the present use of the property.
To the contrary, ‘‘[t]he highest and best use concept,
chiefly employed as a starting point in estimating the
value of real estate by appraisers, has to do with the
use which will most likely produce the highest market
value, greatest financial return, or the most profit from
the use of a particular piece of real estate.’’ (Internal
quotation marks omitted.) Id. The law requires the court
to ‘‘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 pro-
spective use may have had on the property’s market
value at the time of the taking.’’ (Internal quotation
marks omitted.) Id.The defendant’s claim in this case is a conflation of
‘‘ ‘value in use’ ’’ and ‘‘ ‘value in exchange.’ ’’ Wellmark,
Inc. v. Polk County Board of Review, 875 N.W.2d 667,
673 (Iowa 2016). ‘‘ ‘Value in exchange’ refers to the
value to persons generally and focuses on market value
based upon a willing buyer and willing seller. . . .
‘Value in use’ refers to the value a specific property has
for a specific use. . . . Value in use is based upon the
value of the property as it is currently used, not on its
market value considering alternative uses.’’ (Citations
omitted.) Id. In a free society, there is no requirement
that every property owner employ his property in its
highest and best use. But the fact that a property owner
chooses to put his property to less productive use does
not necessarily result in a diminution of the market
value of the property.13 If someone were to use the
newest model cell phone as nothing more than a paper
weight, no one would argue that in a competitive market
the cell phone would be worth that of an idle paper
weight. Because there would be a reasonable probabil-
ity that a willing buyer would use the cell phone as
intended—its highest and best use—rather than as a
paper weight, its market value is the former rather than
the latter, irrespective of its actual use. In valuing prop-
erty, an asserted highest and best use is not a promise,
but rather a means to ascertain fair market value. It
is not inconsistent for a property owner to assert a
particular use of property different from an asserted
highest and best use of the property.
The fact that the plaintiff sought and proved a fair
market value of 65 South Main as a mixed use develop-
ment in the earlier eminent domain proceeding does
not now preclude him from claiming, in the present
case, that he would continue to use that property as a
parking lot had it not been taken. This case is about
the value of 70 South Main. In presenting his case, the
plaintiff, through his expert, compared the value of 70
South Main with the use of 65 South Main as a parking
lot with the value 70 South Main without the use of 65
South Main as a parking lot. The trial court found as
fact, and the defendant did not challenge on appeal,
that this analysis showed the damage 70 South Main
incurred as a result of the defendant taking 65 South
Main. The fact that the plaintiff asserts in the present
case that he would have continued to use 65 South
Main as a parking lot is not clearly inconsistent from
his assertions in the earlier eminent domain action as
to the fair market value of that property.14 Accordingly,
the trial court did not abuse its discretion in rejecting
the defendant’s judicial estoppel claim.
We conclude that the Appellate Court properly deter-
mined that the trial court correctly concluded that the
defendant had inversely condemned 70 South Main
when it took 65 South Main, and that the trial court did
not abuse its discretion in rejecting the defendant’s
judicial estoppel claim.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
We note that Sonoson, LLC, is also a plaintiff in the present action.
Barton was the owner of the property at issue at the time of the alleged
taking and commenced the present action. Thereafter, Barton executed a
quitclaim deed to the property in favor of Sonoson, LLC. Thereafter, Barton
filed a motion to cite in Sonoson, LLC, as a party plaintiff, which was granted
by the trial court. For the sake of convenience, we hereinafter refer to
Barton as the plaintiff.
2
At the trial court, the defendant asserted other special defenses and
counterclaims, all of which were rejected. None of those claims are raised
on appeal.
3
The Appellate Court rejected the plaintiff’s claim on cross appeal that
the trial court incorrectly denied the plaintiff offer of compromise interest
under General Statutes § 52-192a. Barton v. Norwalk, supra, 163 Conn. App.
219. The plaintiff has not appealed from the judgment of the Appellate Court
on that issue.
4
This court granted the defendant’s petition for certification for appeal
limited to the following issues: (1) ‘‘Did the Appellate Court properly affirm
the trial court’s judgment awarding monetary damages based upon the theory
of inverse condemnation when [70 South Main] retained significant value,
was used for the same purpose as before the condemnation, and continued
to generate substantial rental income?’’; and (2) ‘‘Did the Appellate Court
properly hold that the plaintiff’s inverse condemnation action was not barred
by the doctrine of judicial estoppel, given the inconsistent positions that he
had taken on the use of the taken property?’’ Barton v. Norwalk, 321 Conn.
901, 901–902, 136 A.3d 1272 (2016).
5
Article first, § 11, of the constitution of Connecticut provides: ‘‘The prop-
erty of no person shall be taken for public use, without just compensa-
tion therefor.’’
6
We have noted that the ‘‘same analysis’’ is applied in zoning variance cases
as in inverse condemnation cases because ‘‘when the [zoning] regulation
practically destroys or greatly decreases [the property’s] value for any per-
mitted use to which it can reasonably be put . . . the loss of value alone
may rise to the level of a hardship.’’ (Citation omitted; internal quotation
marks omitted.) Caruso v. Zoning Board of Appeals, 320 Conn. 315, 323,
130 A.3d 241 (2016). Generally speaking, a landowner must show, inter alia,
‘‘unusual hardship’’ to be granted a variance. Id., 321. In order to meet this
element of the legal standard for a variance, the landowner may demonstrate
that ‘‘the zoning regulation has deprived the property of all reasonable use
and value, thereby practically confiscating the property.’’ Id., 322. Accord-
ingly, we have observed that this places our variance cases ‘‘at the intersec-
tion of two related, yet distinct, areas of law: land use regulation and
constitutional takings jurisprudence.’’ (Internal quotation marks omitted.)
Id. The unusual hardship test in zoning variance cases and the substantial
destruction test in inverse condemnation cases require a showing that the
property cannot be utilized for any reasonable purpose. Compare id., 323(‘‘we have continually held in variance cases that [w]hen a reasonable use
of the property exists, there can be no practical confiscation’’ [internal
quotation marks omitted]), with Bristol v. Tilcon Minerals, Inc., supra, 284
Conn. 84 (‘‘there is no taking in a constitutional sense unless the property
cannot be utilized for any reasonable and proper purpose’’ [internal quotation
marks omitted]); see also Rural Water Co. v. Zoning Board of Appeals,
supra, 287 Conn. 299 (noting that landowner’s inverse condemnation claim
failed for same reasons as its claim of unusual hardship).
7
The memorandum of decision recites that 87 percent of the building
was under lease in 2001. The graph admitted into evidence recites the figure
of 97 percent for 2001. Elsewhere in the memorandum of decision, the trial
court states that ‘‘[r]ental space under lease fell from over 90 percent in
2001 . . . .’’ Because the trial court cited the graph as its source for the 87
percent figure and we find no other basis in the record for the conclusion
that 87 percent of the building was under lease in 2001, we conclude that the
87 percent figure in the memorandum of decision was a typographical error.
8
Thomas stated the following in a June, 2006 letter: ‘‘It just doesn’t pay
to open every day anymore. The neighborhood is better, and that should
be good, but the parking situation has just killed us. . . . Nobody wants
to pay a $15 or $25 fine to get a $12 haircut. . . . With all this, it is a struggle
each month to stay current with the rent and other expenses, and I don’t
see the situation improving.’’
9
Over the course of approximately 120 days in 2002, the broker fielded
twenty to twenty-five inquiries regarding the space available at 70 South
Main. The broker noted that the ‘‘primary and paramount issue’’ with respect
to the spaces for these inquiries was the lack of on-site or nearby parking.
Four potential tenants were shown space. Three of the potential tenants
declined to enter a lease citing parking issues, while the fourth did not give
a reason.
10
According to the plaintiff’s exhibit, ‘‘[o]perating [i]ncome is defined as
[g]ross [r]ents received less [o]perating [e]xpenses. Operating [e]xpenses
exclude mortgage interest and principal, depreciation, and capital improve-
ments. Services provided ‘in-kind’ to the property are not reflected in
[o]perating [e]xpenses.’’
11
McGuire testified that he had recently served on a committee that exam-
ined parking in the area.
12
The defendant notes in its brief that McGuire determined the before
taking value of 70 South Main by applying valuation methodology that consid-
ered the use of 70 South Main and 65 South Main together and suggests
that this method is inaccurate. At trial, however, the defendant declined to
present any evidence with respect to the value of 70 South Main. Ultimately,
the trial court credited McGuire’s testimony and found that his analysis
provided a determination of the damage done to only 70 South Main. The
defendant did not challenge the trial court’s findings of fact on appeal.
Our holding in the present case, therefore, should not be construed as an
endorsement of the method used by McGuire to determine the before taking
value of 70 South Main.
13
The defendant’s suggestion elsewhere in its brief that the before taking
value of 70 South Main should be based upon the capitalization of the below
market rent the plaintiff received from the Macedonia Church suffers from
the same flaw.
14
Because we conclude that the defendant failed to prove the first element
of judicial estoppel, we need not discuss whether the defendant had satisfied
the second and third elements.