Opinion
# 2017-018-817 Claim No. 118002
05-05-2017
C.D. LeRAY ASSOCIATES v. STATE OF NEW YORK
SIDNEY DEVORSETZ, PLLC By: Sidney Devorsetz, Esquire Debra Sullivan, Esquire Carl Rosenbloom, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Patricia M. Bordonaro, Esquire Assistant Attorney General
Synopsis
Damages awarded for permanent partial appropriation, permanent easement, and consequential severance damages.
Case information
| UID: | 2017-018-817 |
| Claimant(s): | C.D. LeRAY ASSOCIATES |
| Claimant short name: | C.D. LeRay |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118002 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | SIDNEY DEVORSETZ, PLLC By: Sidney Devorsetz, Esquire Debra Sullivan, Esquire Carl Rosenbloom, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Patricia M. Bordonaro, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 5, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks remuneration from the State for a partial appropriation of its property pursuant to Highway Law sections 30 and 340-b and the Eminent Domain Procedure Law (EDPL). This claim has not been assigned or submitted to any other Court or tribunal for audit and determination and it was timely filed on February 8, 2010.
On August 13, 2009, the State filed Map Nos. 31, 66, 67, 68, and notices of appropriation regarding parcel numbers 31, 71, 72, 73 and 74. On August 19, 2009, the State filed Map No. 75 with notices relating to parcels 81 and 82. The Court adopts the descriptions of the appropriated properties as shown on those maps with the descriptions filed in the Jefferson County Clerk's Office, copies of which are attached to the claim and incorporated herein by reference. The Court has viewed this property.
The State appropriated a portion of the Claimant's vacant property on U. S. Route 11, in the Town of LeRay, Jefferson County, New York, as part of a project known as the Fort Drum Connector (Route 781). By stipulation, the dates of the State's appropriations were August 13 and 19, 2009.
Maps 31, 66, 67 and 68.
Map 75.
The subject property is owned in fee by Claimant, C.D. LeRay Associates, and is zoned Planned Development District (P.D.D.) which the appraisers agreed permitted the development of the property for commercial and residential use. Permitted uses in a P.D.D. zone include various residential development, business, recreational, retail, restaurant, school, and church uses. In 2008, a Commercial Corridor Overlay District was adopted which included the subject property.
Before the taking, the subject property was 33.30± acres and 24.85± acres after the taking. The State obtained 8.447± acres of vacant land in fee, by six appropriations: Map 31, Parcel 31, 7.1540 acres; Map 66, Parcel 71, .0497 acres; Map 67, Parcel 72, .8337 acres; Map 67, Parcel 73, .0258 acres; Map 68, Parcel 74, .29772 acres; Map 75, Parcel 81, .0867 acres in fee and by Map 75, Parcel 82, a permanent easement of .863 ± acres. The total appropriation is 9.31± acres. Mr. Mako described the property appropriated as follows:
The Defendant's appraiser stated the property was 24.8529 acres after the taking, however, the Court will use 24.85 for the after acreage.
Exhibit 1, p. 55.
"The taking consists of several linear strip areas, with a permanent easement extending along most of the remaining US Route 11 frontage for a drainage ditch, a fee taking without access along US Route 11, additional fee taking along the US Route 11 frontage, and the frontage along Anabel Avenue North and South, as well as irregular parcels. The fee simple area taken comprises approximately 8.447± acres with a permanent easement for a drainage ditch of 0.863± acres along the remaining US Route 11 frontage. By our calculations, this provides a remainder total fee simple owned site area of 24.85± acres. No significant site improvements were taken, other than the roadway of Anabel Avenue North, which is not included in this valuation."
Second paragraph, p. 25, Exhibit 1.
Second paragraph, p. 25, Exhibit 1.
A Supplemental Appraisal Report was completed by Mr. Mako to clarify the information in the original after an updated survey map was provided.
Exhibit 3.
The subject property is located on the west side of U. S. Route 11, across the road and just south of the entrance to Fort Drum. The effect of Fort Drum on the surrounding area was discussed by both experts in their respective appraisals and described as the major economic driver of the "North Country" with a billion dollar impact on the nearby communities. Fort Drum is a training center for almost 80,000 troops annually. It is the largest employer in northern New York State and was expanding between 2007 and 2013. In 2010, Fort Drum employed three times more civilians than the area's next largest employer and its total payroll was about $1.2 billion.
Exhibits 1 and C.
In 2008 when a recession began, the economic conditions and real property values remained relatively stable in this northern New York State region due to Fort Drum. The region is projected to see continued growth and stability. Both appraisers agreed Fort Drum provides economic stability for this region and will continue to have a positive economic impact in the future. Mr. Anthony Casale, of Thurston, Casale and Ryan, LLC, the State's appraiser, felt that Fort Drum created a unique real estate market with a residential demand that exceeds the supply and a Route 11 corridor that is not yet extensively commercially developed.
Mr. William Durdel, President of Baldwin Real Estate Corporation, and the property manager for the subject property since Claimant's acquisition in 1988, testified that in order to obtain the P.D.D. zoning, the Town of LeRay required a conceptual build-out plan. A residential and retail development conceptual plan dated May 26, 1989, was prepared and presented to the town. The plan provides for the development of property owned by other entities in addition to the subject property. The design interconnects 400 housing units with retail development. Mr. John Mako, of Cushman and Wakefield, Inc., Claimant's appraiser, included a copy of the conceptual plan in his appraisal report. The housing units depicted on the plan have been developed.
Exhibit A.
The conceptual plan conceives of additional commercial and residential development to the north of the subject property with connected access which was eliminated by the construction of Route 781. This plan was not given approval by the town before the taking, a requirement before any development could begin.
Mr. Durdel testified the subject property was "land-banked" after it was purchased as "time was needed for the highest and best use of the site to come about." In other words, as development moved north on Route 11 toward the subject property, the most profitable use of the property was evolving. Once it was learned that the State was planning to construct a connector roadway and had three alternatives for its location between U. S. Route 81 and Fort Drum, the uncertainty discouraged Claimant from taking any steps toward development of the subject property.
Trial Transcript p. 41.
See Exhibit 1, p. 27.
Prior to the taking, the subject property and the existing residential area to the west had two means of ingress and egress: North Anabel Avenue and South Anabel Avenue, which both had signaled intersections with Route 11. Mr. Durdel testified that the Town of LeRay required signalization at the intersections with Route 11 when the residential area was developed. After the taking, North Anabel Avenue was eliminated, leaving South Anabel Avenue as the only access to the residential development as well as to the north and west sections of the subject property. To accommodate the increased traffic and for safety reasons, the Department of Transportation (DOT) added a roadway running north and south, from the western part of the former North Anabel Avenue, along the western border of part of Claimant's property, connecting to South Anabel Avenue. This new roadway was also called North Anabel Avenue. The DOT also added a right-turn-only lane on South Anabel Avenue at its intersection with Route 11.
A dead-end service road remains.
Mr. Durdel testified that the loss of the second access road to Route 11 caused a "stacking" problem on South Anabel Avenue, especially when there are shift changes at Fort Drum; he has seen vehicles wait through two or three signal changes before being able to access Route 11. Although the subject property has significant road frontage on Route 11 as part of the appropriation, the State took a right-of-way without access along all the frontage except for 84.07 feet, restricting direct access to Route 11. The State advised by letter the permanent easement was intended to prevent additional roads or driveways from being constructed on Route 11, and it will deny any requests for driveway access impacting the remaining unencumbered 84 feet. This leaves the subject property with a single access road.
Exhibit 3, Survey.
See Exhibits 3 and 12.
Claimant called as a trial witness, Steven F. Aiello, President and Co-Founder of COR Development Co. He has developed commercial real estate for over 25 years including shopping centers, multi-family housing, offices, hotel/motel and "big box" store projects. He visited the property after the taking and received maps from before the appropriation. In his opinion, the subject property was less desirable for "big box" or other retail development after the taking because of the single access road to it.
Mr. Aiello defines this as 50-60,000 square feet and up.
Mr. Aiello explained that with 400 residential units using a single access road, a developer would be concerned about getting delivery trucks in and out as well as traffic safety. He acknowledged that "big box" retailers sometimes have a single access road but, here, the dense residential area west of the subject property adds more traffic. Retailers cannot control the timing or number of deliveries which makes additional traffic a concern that did not exist before the taking. Although the reconfigured North Anabel Avenue could be used for access to the property, the issue is gaining access to Route 11.
Mr. Aiello acknowledged that the conceptual development plan did not propose a "big box" store on the subject property, instead, there were smaller businesses: a restaurant, an office building, a bank, nursery, arcade, etc. Mr. Mako attributed this to the timing of the conceptual plan, since in 1989 there was no "big box" development that far north. Mr. Aiello agreed that there is the potential that future development south of the property could provide connecting roads and give more access to the subject property. In short, Mr. Aiello opined that the potential for a "big box" store would increase the property value, but without that potential, the value is diminished. In support of this opinion, Mr. Mako included in his appraisal an email sent to Mr. Durdel from Bass Pro Shop's Director of Real Estate which states that Bass Pro Shop was not interested in the subject property after the taking because of the lack of access. Valuation
Exhibit A.
Exhibit 1, Addendum C, p. 1.
Both appraisers appropriately used the sales comparison approach for vacant land to value the property before and after the appropriation. Mr. Mako, Claimant's appraiser, valued the subject property as a single parcel of vacant land in both the before and after scenarios. Mr. Casale, Defendant's appraiser, divided the subject property into four economic units which he termed a hypothetical condition which is defined by the Uniform Standards of Professional Appraiser Practice (USPAP) as:
"[t]hat which is contrary to what exists but is supposed for the purpose of analysis. Hypothetical conditions assume conditions contrary to known facts about physical, legal, or economic characteristics of the subject property; or about conditions external to the property, such as market conditions or trends; or about the integrity of data used in an analysis.
A hypothetical condition may be used in an assignment only if:
• Use of the hypothetical condition is clearly required for legal purposes, for purposes of reasonable analysis, or for purposes of comparison;
• Use of the hypothetical condition results in a credible analysis; and
• The appraiser complies with the disclosure requirements set forth in USPAP for hypothetical conditions (USPAP, 2008-2009)."
Exhibit C, pp. 9, 10; The Appraisal Foundation, Uniform Standards of Professional Appraisal Practice, 2008-09 Edition (Washington DC: Appraisal Standards Board, 2008) U-3, U17.
Exhibit C, pp. 9, 10; The Appraisal Foundation, Uniform Standards of Professional Appraisal Practice, 2008-09 Edition (Washington DC: Appraisal Standards Board, 2008) U-3, U17.
Although where there are contiguous parcels with unity of ownership and use, a property should be treated as a single entity (see Erly Realty Dev. v State of New York, 43 AD2d 301 [3d Dept 1974]; Matter of Town of Brookhaven v Gold, 89 AD2d 963 [2d Dept 1982]), here, not all of the parcels are contiguous, as each parcel is divided by a roadway from the other parcels. Additionally, since a large portion of the northwestern parcel with frontage on North Anabel Avenue contains an unusable drainage basin, valuing this as part of one parcel would overvalue this land. Interestingly, the 1989 conceptual site plan for the subject and surrounding property proposed no use of the northwestern area with the drainage basin or the property south of South Anabel Avenue. For all of these reasons, and the noted inverse relationship between unit price and site size, such that smaller sites typically command a higher unit price, the Court finds that just compensation can best be determined by valuing this property as four economic units. Additionally, it is important to note that Claimant does not object to the Court valuing the property as separate economic units. The Court will, accordingly, value the subject property using Defendant's four distinct economic units.
Exhibit C, p. 8.
Exhibit 1, p. 44; Exhibit C, p. 90.
Exhibit C, p. 109. After the appropriation, Economic Unit 4 was made a separately taxed parcel (lot 47.9) on the tax map.
Claimant's Post Trial Brief, p. 11.
The four economic units are as follows:
Economic Unit (EU)1 - Parcel north of North Anabel Avenue 7.154 acres with frontage on Route 11 and North Anabel Avenue
Economic Unit (EU) 2 - Central Parcel with frontage on Route 11, 18.756 acres South Anabel Avenue, and North Anabel Avenue
Economic Unit (EU) 3 - Narrow parcel south of and with frontage on 3 acres South Anabel Avenue
Economic Unit (EU) 4 - Northwest Parcel with frontage on North Anabel Avenue, separated from the other parcels and with a 4.390 acres middle detention basin
Highest and Best Use
With any appropriation case, an owner is entitled to be justly compensated for any land taken (NY Const, art I, § 7 [A]). Just compensation is based upon the fair market value of the property in its highest and best use both before and after the taking (Matter of City of New York [Rudnick] 25 NY2d 146, 148 [1969]). The fair market value is the price at which a willing buyer would buy the property, and a willing seller would sell, if neither were under any compulsion to enter into the transaction (Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]). Before the taking, Mr. Mako found the highest and best use of the property was commercial/retail use including a "big box" or other similar large scale retail development. After the appropriation, Mr. Mako opined the highest and best use would still be commercial/retail development without "big box" utility because of the restricted frontage on Route 11 and otherwise unsuitable access. According to Mr. Casale, the character of the property allows it to be divided into four economic units, and the highest and best use both before and after the appropriation is commercial or residential development; specifically, for Economic Units 1 and 2, he found it was for commercial development and Economic Unit 3 either small commercial development or residential, as small apartment or town home development. Mr. Casale did not value Economic Unit 4 because he felt it was not affected by the appropriation.
Exhibit A.
The Court finds the highest and best use of the property before the taking to be commercial/retail development, with Economic Unit 2 having potential "big box" utility. After the taking, the highest and best use would still be commercial/retail development, however, Economic Unit 2 no longer has "big box" utility. Consequential/Severance Damages
Where there has been a partial taking, as in this case, there is sometimes a loss in value or injury to the remaining property from either the partial appropriation itself, or from the use of the appropriated property; this damage is known respectively as severance or consequential damage (see City of Yonkers v State of New York, 40 NY2d 408 [1976]; Niagara Mohawk Power Corp. v Olin, 138 AD2d 940 [4th Dept 1988]; Town of Fallsburgh v Silverman, 260 App Div 532 [3d Dept 1940]). In this case, Claimant alleges a loss in value to the remaining property as a result of the partial appropriation because it limited access and the potential utility for the remaining property. Yet, a partial taking alone does not establish the right to an award of consequential/severance damages which are "measured by the difference between the before and after values, less the value of the land and improvements appropriated" (Chemical Corp. v Town of E. Hampton, 298 AD2d 419, 420 [2d Dept 2002]; Coldiron Fuel Ctr., Ltd. v State of New York, 8 AD3d 779,780 [3d Dept 2004]; Mil-Pine Plaza v State of New York, 72 AD2d 460 [4th Dept 1980]; see generally 51 NY Jur 2d, Eminent Domain § 309 [2005]). Claimant bears the burden to prove such a loss with expert testimony or "actual market data showing a reduction in the value of the remainder as a result of the appropriation" (Chemical Corp., 298 AD2d at 422, quoting Zappavigna v State of New York, 186 AD2d 557, 560 [2d Dept 1992]). Claimant argues that because of the loss of utility for a "big box" store development, the property has suffered consequential/severance damages in addition to the direct loss of appropriated property. Before the Appropriation
Sales Comparison Valuation Although Claimant's appraiser valued the parcel as a whole, many of his selected comparable sales are useful comparisons to the subject property as economic units.
Mr. Mako used seven sales for comparison. The Court finds that the first comparable property, a sale from 2004 located in Oswego, New York, and Sale 5, from 2006 located in Cicero, Onondaga County, are too remote in both distance and time and will not be considered.
The Court finds Sale 2 is not a reliable comparison despite its location near Fort Drum's main entrance because, as Mr. Casale noted, the Town of LeRay required the purchaser to donate the seven acres of wetlands on the 18.83 acre parcel at the time of purchase. Mr. Casale did not use this parcel for that reason. The Court will give this sale no weight.
The Court will use Mr. Mako's Sales 3, 4, 6, and 7. The Court finds the sizes, location, and usage of these sales make them good comparables to the subject, even as economic units.
Defendant's appraiser considered sales in the area of the subject between 2005 and 2009, and chose only three, all from 2007, as comparables. He rejected properties labeled "F" (Claimant's Sale 4) and "G" in his appraisal because he found they had high unit prices which he attributed to their location near a Walmart.
Mr. Casale based his rejection of these properties on a "wave of real estate activity" concentrated around Walmart from 2012 to 2014. Yet, he did not provide the supportive data and this occurred long after the appropriation. He also represents that the traffic flow is highest between Route 342 and Walmart, south of the subject property. But this increased traffic flow is not supported by the traffic counts which Mr. Casale relied upon in his report which reference traffic volume from Route 342, south of Walmart, to the entrance to Fort Drum, north of Walmart, without breaking out any traffic count attributable to the location of the Walmart, independent of Fort Drum. As a result, the Court questions Mr. Casale's opined "Walmart Effect" and his rejection of the properties labeled F and G in his sales grid as comparables.
Exhibit C, p. 87.
Exhibit C, pp. 85-86.
ECONOMIC UNIT 1 - 7.154 Acres Reviewing Mr. Mako's comparable sales in comparison to Economic Unit 1, some of his adjustments, other than location, must be changed. For Sale 3, Mr. Mako made a 10 % adjustment for location, -20% for size and 10% for utility for the 2.0 acres property which was purchased to build a Days Inn Hotel. Demolition costs were necessary. The Court finds that the size adjustment should be reduced to -10% since this economic unit is much smaller than the property as one parcel. Despite the asymmetrical shape of this economic unit, its good size and exposure on Route 11 and North Anabel Avenue, make its utility comparable to this Sale without an adjustment. Mr. Mako viewed the Sale 4 site as superior to the subject based upon its treatment as one parcel, however, the 4.15 acre property is closer in size to Economic Unit 1, so the -20% adjustment is changed to a -5%. The utility for Economic Unit 1 is inferior to Sales 4 and 7 due to its irregular shape requiring a -10% adjustment for those two sales. Mr. Mako made a -10% adjustment to Sale 6 for size, but this property is a comparable size to Economic Unit 1, so no size adjustment is necessary, no utility adjustment is necessary. For Sale 7, Mr. Mako made a -10%, adjustment for size which compared to Economic Unit 1 must be reduced to a +5% for the more valuable smaller size. With these adjustments, the per acre values are $92,500 for Sale 3, $141,928; for Sale 4; $132,814 for Sale 6; and $145,740 for Sale 7.
Mr. Casale adjusted his comparables for this Economic Unit for size only. The Court finds it necessary to modify the adjustment to Sale 1 for size from -25% to a -15% resulting in a per acre value of $82,258.
Based upon these comparables, the Court finds the per acre value of Economic Unit 1 to be $100,000 per acre.
ECONOMIC UNIT 2 - 18.756 Acres
In comparison to Economic Unit 2, the adjustments made by Claimant's appraiser require some modifications for size. The Court finds no modifications necessary for Sale 3. For Sale 4, the Court finds the size adjustment should be changed from a -20% to a -15% , and for Sales 6 and 7, the size adjustment should be changed from a -10% to a -5% for each. This will change the per acre values to $92,500 for Sale 3; $126,988 for Sale 4; $126,173 for Sale 6; and $145,740 for Sale 7.
Mr. Casale's only adjustment was -45% for size for his Sale 1, which should be reduced to a -30% adjustment, which changes the per acre value of that parcel to $67,742.
Considering the value of all of the comparables and placing more weight on Claimant's Sales 6 and 7, and Defendant's Sale 2, the Court finds Economic Unit 2's before value was $95,000 per acre.ECONOMIC UNIT 3 - 3 Acres
This parcel is a long, narrow parcel south of South Anabel Avenue with approximately 15 feet of frontage on Route 11 and 1,596 feet of frontage on South Anabel Avenue.
Claimant's comparable sales require some modification to the adjustments for size and irregular configuration when compared to Economic Unit 3. The Court finds that Mr. Mako's size adjustments should be eliminated for Sales 3 and 4. For Sale 3, the utility adjustment is eliminated due to the irregular shape of this Economic Unit. Sales 4, 6, and 7 also require a -10% utility adjustment in comparison to this Economic Unit. The size adjustments for Sales 6 and 7 should be +10%. No change is made to the location adjustments. This changes the per acre values for Sale 3 to $101,750; for Sale 4 to $149,398; for Sale 6 to $132,814; and for Sale 7 to $155,456.
Mr. Casale used the same Sale 1 as he used for the other two economic units, but also used two different sales - Sale 4 which is 1.87 acres, and Sale 5 which is .6 acres. Sale 4, which is the same as Claimant's Sale 3, required demolition of the existing structures and a contribution of $45,000 toward construction of a new town road before the Days Inn could be built. Mr. Casale felt these factors required a +35% adjustment to the sale price. Sale 5 was part of an assemblage purchase to build a 3,600 square feet, two-story office building. Mr. Casale made adjustments to both Sales 4 and 5 for size and adjusted all three sales by -25% for shape and a -25% for traffic visibility. There should be an adjustment for the shape for all three sales as the subject is long and narrow but it should be a -15% for Sales 1 and 5 and -25% for Sale 4. The size adjustments are appropriate. The traffic adjustment is not supported by Mr. Casale's traffic count information and, therefore, no adjustment is made. All properties show the same traffic count and, although the subject property doesn't have Route 11 frontage, it is easily visible from there.
The new per acre values before the taking are $82,258 for Sale 1; $79,645 for Sale 4; and $137,500 for Sale 5.
Considering all of the comparable values, the Court finds the per acre value of this economic unit before the taking to be $110,000 per acre. ECONOMIC UNIT 4 -4.390 acres
This parcel is separated from Economic Unit 1 by North Anabel Avenue and from the other parcels by property owned by other entities. There was no direct taking of any portion of this Economic Unit. The conceptual plan prepared for the development of the entire subject parcel in 1989 showed no development on the portion of the subject that is this Economic Unit. The parcel has a significant portion dedicated to a drainage basin, where water collects runoff from the housing developments to the west. Mr. Mako, in valuing the subject as a whole, did not discount this portion of the property even though he recognized it would not likely be usable for building. He conceptualized it as acreage that would be used for a lot density factor. Based upon this evidence and Mr. Casale's position, the Court agrees that Economic Unit 4 was unaffected by the appropriation, either directly or indirectly and, therefore, valuation is not necessary. After the Appropriation
Sales Comparison Valuation Economic Unit 1
As part of the taking, Map 31, Parcel 31, this entire economic unit was taken in fee without access. As a result, the direct damages for this economic unit are 7.154 acres at $100,000 per acre for total direct damages of $715,400.00. Economic Unit 2
From this economic unit of 18.7560 acres the State took a total of 0.9959 acres in fee comprised of 0.0497 acres from Parcel 71; 0.8337 acres from Parcel 72; 0.0258 acres, Parcel 73; and 0.0867 acres from Parcel 81. Additionally, the State took a permanent easement of 0.863 acres across the frontage of this Economic Unit with Route 11, eliminating direct access to that major thoroughfare. The remaining unencumbered acreage after the taking is 16.8971 acres.
Map 75, Parcel 81, 0.087 acres and Map 75, Parcel 82, 0.863 acres permanent easements were filed with the County Clerk on August 19, 2009.
It is Claimant's position that in addition to the direct taking, the property is entitled to severance damages due to the loss of signalized access to Route 11 from North Anabel Avenue, restricting the property to only one Route 11 access point. In support of its position, Claimant relies upon the testimony of Mr. Aiello of COR Development, the letter from Michael Dunham of Bass Pro Shops, and Mr. Mako's appraisal report. This evidence reflects the loss of potential development from any "big box" retailer and leaving the property with "single stand-alone development" potential, and without the potential of combined development with adjacent parcels north of the subject property as existed before the taking.
Although the claim does not specifically seek damages for the permanent easement, the claim seeks damages for the property appropriated shown in the attached maps, and Map75, Parcel No. 81 and 82 specifically shows the permanent easement taken.
Defendant argues that Claimant failed to provide any data to support its position that having only one signalized entry diminishes the highest and best use, reduces development potential or affects value. Defendant argues its comparable sales do not support such a finding, and Mr. Mako's -15% loss of utility adjustment to most of his comparable sales in the after is not supported. Mr. Casale points to other commercial sales in the area without direct frontage or direct access to a major public arterial which he asserts supports his position that there was no effect to the property's value. Specifically, he points to sales on Herrick Drive in August 2008 of 4.15 acres for $149,290 per acre to build a Candlewood Suites, and a property on Johnson Road in August 2006 of 6.48 acres at $156,173 per acre which was used for development of the Carrollton Shopping Center. Defendant also points to the purchase of a 13.380 acre parcel off of Coffeen Street, on a singular access road, College Heights Drive in Watertown, near the I-81 interchange for the development of Home Depot. Defendant argues these sales are at the high end of unit price comparisons and had only singular access. Mr. Mako used sales participant interviews and his experience to make the adjustments to his comparable sales which he opines support his position that the lack of access affects value. He also relies upon the letter from Mr. Dunham of Bass Pro Shops to support the lack of interest after the appropriation for a "big box" store.
The Court finds after considering all the evidence that the taking limited access and frontage from this economic unit, and although not changing the highest and best use, its utility is no longer for "big box" usage. After reviewing the comparable sales used, the Court finds a -10% utility adjustment needs to be made to all of the comparable sales. The size adjustment for Sale 4 is changed to -15%, and for Sales 6 and 7 is changed to -5%. The resulting values are $74,000 per acre for Sale 3; $126,988 per acre for Sale 4; $112,892 per acre for Sale 6; and $126,308 per acre for Sale 7.
For Defendant's sales, the Court finds adjustments are necessary. The same -10% utility adjustment for each sale - as with Mr. Mako's. The Court adjusts the site for Sale 1 from -45% to -35%, and adjusts the size for Sales 2 and 3 to +5%. These adjustments result in per acre values for Sale 1 of $51,097; Sale 2 of $44,882; and Sale 3 of $45,007. Based upon the comparable sales for Claimant and Defendant the Court finds the per acre value of this Economic Unit after the appropriation to be $80,000. The direct loss for taking is $94,611 (R) for the fee parcel, (0.9959 X $95,000), broken down as follows:
(.0497) Map 66, Parcel 71 $ 4,721.50
(.8337) Map 67, Parcel 72 $79,201.50
(.0258) Map 67, Parcel 73 $ 2,451.00
(.0867) Map 75, Parcel 81 $ 8,236.50
An award of $69,687 (R) is made for the permanent easement, so total direct damages are $164,298.00. The Court finds severance damages of $255,399.00. Economic Unit 3
This economic unit lost 0.2972 acres in fee, Parcel 74, by this appropriation leaving a total of 2.7028 acres after the appropriation. The Court agrees with Defendant's appraiser's finding that the taking does not impact the ability of this property to be used in the same fashion and extent as in the before valuation. Roadway frontage is not significantly changed in the after. As a result, the Court finds only direct damages are warranted for just compensation. Using the per acre value of $110,000 for the 0.2972 acres taken, Claimant is entitled to $32,692 for direct damages for this economic unit.
Accordingly, based upon the foregoing, the total damages to be awarded are: Direct Damages:
Economic Unit 1
[$100,000 X 7.154] $ 715,400.00
Economic Unit 2
Fee [0.9959 X 95,000] $94,611 (R)
P.E. [$95,000 X 0.863 = $81,985 X .85] $69,687 (R) $ 164,298.00
Permanent Easement.
Economic Unit 3
[$110,000 X 0.2972] $ 32,692.00
Total Direct Damages: $ 912,390.00 Consequential/Severance Damages
Economic Unit 2 Before Value $1,781,820.00
After Value $1,362,124.00
[Fee: $80,000 X 16.8971 = $1,351,768.00]
[P.E.: $80,000 X 0.863 = $69,040 X .15 = $10,356.00] $ 419,696.00
Consequential/Severance: [$419,697 - $164,298] = $ 255,399.00
Recapitulation
The total damages to be awarded are:
Economic Unit 1 $ 715,400.00
Economic Unit 2 $ 419,696.00
[$164,298 (direct) $255,399 (severance)]
Economic Unit 3 $ 32,692.00
Total Damages: $1,167,788.00
Pursuant to Court of Claims Act section 19 (1), statutory interest shall be awarded (Economic Unit 1 - $715,400; Economic Unit 2 -$86,374; and Economic Unit 3 - $32,692) for a total of $834,466 from August 13, 2009 until September 4, 2015, and then from October 17, 2015 to the date of this Decision and thereafter to entry of judgment. Statutory interest shall be awarded (P.E. - $69,687; Map 75, Parcel 81 - $8,236.50; and Economic Unit 2 severance damages $255,399) on the amount of $333,322 (R) from August 19, 2009 until September 4, 2015, and then from October 17, 2015 to the date of this Decision and thereafter to entry of judgment.
The parties executed a stipulation suspending interest which was "So Ordered" and filed in the Clerk's Office on September 4, 2015.
The Court awarded interest on the severance damage from the filing of the permanent easement and taking map (Map 75, Parcel 81) of access to Route 11.
See footnote 25, p. 16. --------
The award to Claimant herein is exclusive of the claims, if any, or persons (other than the owners of the appropriated property), their tenants, mortgagees, or lienors having any right or interest in any stream, lake, drainage, irrigation ditch or channel, street, road, highway, or public or private right-of-way, or the bed thereof within the limits of the appropriated property or contiguous thereto; and is exclusive of claims, if any, for the value of or damage to easements or appurtenant facilities for the construction, operation or maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer or railroad lines.
To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act section 11-a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 5, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims