11/26/2004

State High Court Will Hear Appeal Of Eminent Domain Case — The (New London CT) Day, 11/25/04

Seafood company seeking money for value of equipment

By Kate Moran

The state Supreme Court has agreed to hear an appeal from Foss & Bourke, the company that lost its seafood warehouse at Fort Trumbull to eminent domain and is seeking compensation for the industrial equipment that used to be inside.

Unlike residents who refused to give up their homes to eminent domain, Foss & Bourke never challenged the city's right to seize its brick warehouse at 82 Trumbull St. for economic development. However, the owners believe that the city should pay them not just for the real estate but also for the heavy equipment they cannot move to another location.

George Kanabis, the company's attorney, will argue that the city should compensate Foss & Bourke for the loss of an “assembled economic unit” that includes the warehouse and its fixtures –– a 15,000-gallon lobster tank, a 9,000-cubic-foot cooler and special lights, insulated walls and windows, sprinklers, drains and an electric system.

Kanabis said Wednesday that the city and the New London Development Corp. were unable to find a new and affordable location that met the needs of the wholesale seafood business, including proximity to the water. He argued that the equipment lost value because the company had no new location where it could get the machinery up and running.

In other words, selling the equipment as salvage would not bring a price equal to the value the equipment has as part of a functioning business.

“You value it not as equipment per se but as the totality — having everything in place and what that means for the business,” Kanabis said. “Take an old dishwasher in a restaurant. If you have to sell it, it's not worth much, but in place, it has a lot of value.”

In addition, Kanabis said the city should reimburse the company for the special lighting and cooling systems Foss & Bourke installed to keep the seafood fresh — amenities he said would have to be duplicated if the city had found a location where the company could move.

Edward O'Connell, an attorney for the city and the NLDC, said Wednesday that his clients already had factored in the lighting and other features as part of the value of the building.

“Some of these things that their appraiser called trade fixtures were really part of the real estate: the electrical wires and conduits, elevators, window casements, loading docks and things like that,” O'Connell said.

The state Appellate Court agreed with him in a decision issued in September, when a three-judge panel declined to supplement the $336,000 the company got for the building four years ago with additional money for the fixtures.

Judge Barry R. Schaller, writing for the panel, said the company was seeking compensation for the loss of its business, although legal precedent does not award damages for that cause.

The Appellate Court notes in its decision that Connecticut courts have not adopted the “assembled economic unit doctrine” that is recognized in Pennsylvania but which courts in other states, including New York, Ohio, Florida, Alabama and West Virginia, have rejected.

Kanabis argues the state has implicitly adopted the principle and that “it's time now for the Supreme Court to make a decision and let everybody know whether this doctrine is going to be applied in Connecticut or not.”


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