In re Acquisition by Chittenden Solid Waste Dist. of Certain Prop. Interests by Eminent Domain, No. S1054-92 CnC
(Toor, J., Oct. 5, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                               VERMONT SUPERIOR COURT
                                                  CHITTENDEN UNIT
                                                   CIVIL DIVISION

                                 │
                                 │
In re ACQUISITION BY CHITTENDEN │
 SOLID WASTE DISTRICT OF CERTAIN │
 PROPERTY INTERESTS BY EMINENT │
 DOMAIN                          │                                              Docket No. S1054-92 CnC
                                 │
                                 │


                          RULING ON MOTION TO AMEND FINAL ORDER

           A jury verdict was entered in this eighteen-year-old eminent domain matter in

2004, and a final judgment setting just compensation at $4 million was entered in 2005.

The case was appealed, and that judgment was affirmed by the Vermont Supreme Court

in 2007. However, the payment was not tendered to Hinesburg Sand & Gravel (“HS&G”)

by the Chittenden Solid Waste District (“District”) until February 12, 2009. HS&G has

now filed a “Motion to Amend Final Order” pursuant to V.R.C.P. 60(b).

                                                           Background

           The legal basis for HS&G’s motion is the Vermont Supreme Court’s 2007

decision, in which the Court ruled that HS&G could raise the issue of changed value

under Rule 60(b). In re Chittenden Solid Waste District, 2007 VT 28, ¶ 33, 182 Vt. 38.

The Court held that “[t]he landowner is entitled to just compensation for the value of the

condemned land at the time of the taking.” Id. ¶ 32 (emphasis added). The “time of the

taking” is the “date of the tender of compensation.” Id. ¶ 33; see also id. ¶ 26 (an actual

taking “occurs when the government tenders payment and acquires title to the land.”). It

is unclear to the court why the tender was not made immediately after the jury verdict to
stop the clock running, but it is undisputed that it did not occur until February 12, 2009.

Thus, that is the date of the taking in this case.1

         The Court noted that before any issue of increase in value is submitted to a jury,

the property owner “must demonstrate to the court that grounds exist to grant relief from

judgment under Rule 60(b)(6): that is, that there has been a material change in the value

of the property between the date of the valuation and the date of the tender of

compensation.” Id. ¶ 33. If the court finds that a change has been established, the “narrow

question of the increase in value can be submitted to the jury.” Id. The date of the jury’s

valuation in this case was January 1, 2000. Id. ¶ 8. Thus, the question before the court

today is whether HS&G has made a showing that the value of the property has changed

between January 1, 2000 and February 12, 2009.

                                               Discussion

         To meet its burden here, HS&G first submitted an affidavit from Richard Sterner,

who specializes in valuations for solid waste facilities. Analyzing the property in terms of

its income value as a landfill, he values it as of February 2009 at $15,803,354. Nowhere

in the affidavit does he say what the value would have been under such an income

analysis in January of 2000. Nonetheless, a simple comparison of the $4 million jury

award for the 2000 value and the almost $16 million valuation by Sterner would suggest

a change in value between 2000 and 2009.

         However, the District argues that HS&G has failed to establish any change

because the method of valuation used by Sterner is entirely different from that used by




1
  For this reason, the court rejects the District’s argument that the motion to amend should have been filed
in 2007.

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the experts at trial. In addition, the District argues that the trial experts for both parties

and other courts have rejected the type of valuation Sterner did as being unreliable.

        HS&G responds to this argument with a 1990 appraisal done for the District by

Frank Bredice, pointing to his comment that the “Direct Sales Comparison Approach” to

valuation was not applicable because the only comparables he could find were mostly in

other states and “not enough like the Subject and close enough to use this analysis[.]”

However, that report was over ten years before the original valuation date, and nineteen

years before the taking date. It is thus of little value to the court.

        HS&G next submits a supplemental affidavit from Sterner asserting his opinion

that the value of the site increased materially between 2000 and 2009 “irrespective of

appraisal methodology.” He also explains why he believes the income approach is the

most useful method of valuation of the property. However, as before, Sterner fails to give

any value as of 2000 based upon the income approach.

        HS&G does not dispute the District’s representation that the valuations presented

to the jury by both parties used an entirely different approach, the sales comparison

approach. Nor do they dispute that both trial experts explicitly rejected the income

approach. HS&G’s own expert at trial, Steven Allen, rejected it “because properties like

the subject as vacant land do parcels do not usually generate a defined income stream.”

Trial Transcript at 142 (Dec. 2, 2003). Mr. Allen noted that the income approach “may

not be processed with a reasonable degree of reliability” in such situations. Id. at 142-43.

Likewise, the District’s expert at trial, George Silver, testified that the income approach

“is predicated on the idea that cash flows to a property . . . are indicative of value. In the

landfill market, there are very limited situations where properties are leased and the data

is not . . . available to process this approach.” Trial Tr. At 57 (Dec. 9, 2003). Given the

                                                3
testimony of both trial experts that the income approach is invalid in a situation such as

this, the court certainly cannot presume, as HS&G is asking it to do, that the income data

now being proffered is a valid way to show a change from a value arrived at as a result of

the sales comparison approach.

       The court has before it figures reached in completely different ways, with no

ability to compare them. The court concludes that the Sterner affidavits fail to establish,

as the Supreme Court has required, that there was “a material change in the value of the

property” between 2000 and 2009.

       Finally, HS&G submits a draft letter – not an affidavit – from someone who

appears to be an appraiser but does not so state. The draft letter states an opinion as to

overall sales price trends in Chittenden county for residential and commercial properties

between 2000 and 2009. The gist of the opinion is that commercial prices went up 70% in

that time period.

       The letter is far from sufficient evidence to meet HS&G’s burden here. It is not

admissible evidence as it is not even sworn to, it is a draft, and the author’s credentials

are not established. While the general information about sales trends might, if in an

admissible form, be relevant and useful in corroborating an opinion about value with

regard to this property, that is not enough here. It fails to establish anything about the

actual valuation of the property at issue here.

                                           Order

       The motion to amend is denied.

Dated at Burlington this 5th day of October, 2010.

                                              _____________________________
                                              Helen M. Toor
                                              Superior Court Judge

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