how much did it Cost Thomas Dana Snitch for his Investment?

IN THE COURT OF APPEAL OF NEW BRUNSWICK
> >
> >Hoyt, C.J.N.B., Ayles and Ryan, JJ.A.
> >
> >Date: 19970324
> >
> >Docket: 92/96/CA
> >
> >BETWEEN:
> >
> >THOMAS DANA SNITCH
> >
> >(Respondent) APPELLANT
> >
> >-and-
> >
> >TOWN OF DIEPPE
> >
> >(Petitioner) RESPONDENT
> >
> >APPEAL FROM DECISION OF Godin, J.
> >
> >
> >March 13, 1996
> >
> >DATE OF HEARING March 11, 1997
> >
> >DATE OF DECISION March 24, 1997
> >
> >COUNSEL:
> >
> >Peter J. Beardsworth, Esq. for the Appellant
> >
> >Sylvio A. LeBlanc, Esq. for the Respondent
> >
> >THE COURT
> >
> > The appeal is dismissed with costs.
> >
> >THE COURT
> >
> > This is an appeal from a decision of Godin, J. in the
> > Court of Queen's Bench, in which he fixed compensation of
> > $16,000.00 for land owned by the appellant Thomas Dana Snitch that
> > was expropriated by the respondent Town of Dieppe on July 6, 1994.
> > The decision is now reported in 174 N.B.R. (2d) 380. The decision
> > followed a compensation hearing made necessary when Mr. Snitch
> > refused the Town's offer of compensation.
> >
> > The property, which had an assessed value of $10,800.00
> > at the time of expropriation, is a vacant lot of approximately
> > 20,000 square feet located in an R-2 zone at the southern end of
> > Beausejour Street in Dieppe. Apart from a sanitary sewer line that
> > crossed the property, it was undeveloped. Both Beausejour Street
> > and the municipal services stopped approximately 110 feet from the
> > boundary of the property. The R-2 zoning permitted either a one or
> > two family dwelling on the lot. Mr. Snitch, who purchased the
> > property in 1991 for $12,000.00, operated a company engaged in the
> > wholesale and retail supply of construction and industrial
> > fasteners. It was his intention to eventually relocate his business
> > to the property. Before doing so, however, Paul Street would have
> > to have been completed so that the property would have access to a
> > main thoroughfare. The land in the area, apart from the lots that
> > fronted on either Champlain Street or Acadia Avenue, was, with one
> > exception, in an R-2 zone. The one exception was a lot on an
> > adjoining street that was rezoned in 1973.
> >
> > It was with such information that the parties' appraisers
> > based their opinions. The Town's appraiser, Daniel Doucet, valued
> > the expropriated property at $16,000.00 based on its present
> > zoning. Mr. Snitch's appraiser Harrison Goodwin, valued the land at
> > $64,000.00. It was the latter's view that the highest and best use
> > for the property, following a rezoning, would be a 16 unit
> > apartment building. Mr. Goodwin acknowledged
> >
> >[Page 2]
> >
> >that it was "a critical premise" of his appraisal that the property
> >would be rezoned. Both appraisers declined to attribute any value to
> >the property based on the projected completion of Paul Street. Mr.
> >Goodwin, for example, said "that the realization of Paul Street
> >Extension is too remote for the purpose of this appraisal".
> >
> > The Judge rejected Mr. Goodwin's appraisal because he was
> > satisfied, from the evidence, that the land could not be rezoned as
> > contemplated by Mr. Goodwin, thus leaving the property to be valued
> > on its present zoning. The Judge said:
> >
> >There is a history of consistent adherence to the existing municipal
> >development plan in the area. That plan is consistent with the
> >present zoning for the subject property. The rezoning of the subject
> >property to allow the development of a multiple family dwelling on
> >the subject property is speculative and remote. It is not a
> >realistic consideration in arriving at the market value of the property.
> >
> > Mr. Snitch submits that the Judge erred in reaching this
> > conclusion because properties in the area have in the past been
> > rezoned to uses that would permit a multiple unit apartment
> > building, thus validating Mr. Goodwin's appraisal approach.
> >
> > The evidence of Roland Richard, Director of Engineering
> > and Public Works for the Town of Dieppe, and of Michelle Couturier,
> > a Planner for the Greater Moncton Planning District Commission,
> > supports the Judge's conclusion. Ms. Couturier pointed out that in
> > 1995, a Municipal Plan was adopted that confirmed the R-2 zoning
> > for this property, a zoning that existed since 1966. For the
> > property to be developed for
> >
> >[Page 3]
> >
> >multiple dwelling use, there would have to have been spot rezoning
> >that, Ms. Couturier testified, is "not to be encouraged at all". The
> >entire basis for Mr. Goodwin's appraisal was predicated upon a
> >rezoning for a 16 unit apartment building, a rezoning that, based on
> >the evidence, the Judge found to be "not a realistic consideration".
> >The evidence amply supports that finding. Apart from properties
> >fronting on Champlain Street and Acadia Avenue, no rezoning from R-2
> >has occurred in that area since 1973. The recent adoption of the
> >Municipal Plan in 1995 would confirm a continuance of that policy.
> >
> > To determine the value of a property based upon a use
> > other than that permitted by the zoning at the time of
> > expropriation, there must be a realistic and reasonable probability
> > of such a rezoning. Such probability does not exist in the present case.
> >
> > Apart from the history of rezoning in that area, the lot
> > itself, as pointed out by Mr. Doucet, presents practical problems
> > for such a development. He, along with Mr. Richard, testified that
> > the lot would have to accommodate a turning area and, as a result,
> > the lot would not accommodate the 16 unit building as well. Thus,
> > not only was there evidence to support the Judge's finding that it
> > was unlikely that a rezoning would be approved, the lot could not
> > accommodate the proposed building.
> >
> > For the above reasons, we dismiss the appeal with costs
> > of $500.00 payable by the appellant to the respondent.