Opinion
December 21, 1990
Appeal from the Court of Claims, Israel Margolis, J.
Present — Dillon, P.J., Doerr, Green, Pine and Davis, JJ.
Judgment unanimously reversed on the law without costs and matter remitted to Court of Claims for further proceedings, in accordance with the following memorandum: The court's determination of the highest and best use of the property is supported by the evidence and should not be disturbed (see, Matter of Rochester Urban Renewal Agency v. Lee, 83 A.D.2d 770). The court erred, however, in its conclusion that claimants should not be compensated for the presence of borrow because it would not have been "governmentally feasible" to mine the borrow. That conclusion is belied by the fact that, following the appropriation, all the required permits were issued and borrow was mined on this site. Consequently, we remit the matter to the Court of Claims to allow the parties to submit appraisals based upon comparable sales of land that contained borrow (see, Sparks v. State of New York, 48 A.D.2d 236, 239, affd. 39 N.Y.2d 884). We have examined the remaining issues raised by claimants and find them to be lacking in merit.