Opinion
# 2012-040-052 Claim No. 117360
07-16-2012
TEHAN'S CATALOG SHOWROOMS, INC. v. THE STATE OF NEW YORK
Synopsis
Partial appropriation of two contiguous parcels. Award $43,314.53, plus interest. Case information
UID: 2012-040-052 Claimant(s): TEHAN'S CATALOG SHOWROOMS, INC. Claimant short name: TEHAN'S Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117360 Motion number(s): Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY BIERSDORF & ASSOCIATES, P.A. Claimant's attorney: By: Dan Biersdorf, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Audrey V. Bullen, Esq., AAG Third-party defendant's attorney: Signature date: July 16, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this timely filed Claim for damages caused by the partial taking in fee of two parcels of real property, as well as the imposition of a temporary easement thereon, the Court awards Claimant, Tehan's Catalog Showrooms, Inc., the sum of $43,314.53, plus interest, as more particularly described below. The measure of damages in the case of a partial taking is the difference between the fair market value of the property before the appropriation and its fair market value after the taking. The primary dispute in this Claim concerns the highest and best use of one of the two properties before the appropriation. Because the Court determines that Claimant failed to establish, by a preponderance of the credible evidence, that the parcel had a more valuable highest and best use before the appropriation than it did after the taking, the Court makes no award for indirect damages to that property.
A trial of the Claim was held on September 26 and 27, 2011 at the Court of Claims in Utica, New York. Thereafter, the parties requested and were granted additional time to order transcripts and to submit post-trial memoranda. The Court has made the required viewing of the subject property pursuant to Court of Claims Act ("CCA") § 12(4) and Eminent Domain Procedure Law ("EDPL") § 510(A). To the Court's knowledge, the Claim has not been assigned or submitted to any other court or tribunal for audit or determination.
Motions in Limine
As a preliminary matter, the Court denies Claimant's motion to exclude the report of Defendant's appraiser on the theory that it values Claimant's two properties as one parcel rather than two. The motion was first made at a pretrial telephone conference on September 16, 2011 and renewed on the first day of the trial of this Claim, at which time the Court reserved its decision. Having reviewed the report of Defendant's appraiser (see Ex. D), the Court determines that it complies with the requirements of Court of Claims Act ("CCA") § 16, as well as 22 NYCRR § 206.21(b). Thus, the Court further determines that any asserted deficiencies in the appraisal report do not preclude its admissibility, but rather, if substantiated, go to the weight it should be accorded (see National Fuel Gas Supply Corp. v Goodremote, 13 AD3d 1134, 1135 [4th Dept 2004]; Champlain Natl. Bank v Brignola, 249 AD2d 656, 657 [3d Dept 1998]). The Court further denies as moot Claimant's motion, in the alternative, that the Court issue an order restricting the testimony of Defendant's appraiser to his opinions on the combined parcels and not on the parcels individually. The Court notes that the testimony of expert witnesses in an appropriation case is limited to matters set forth in their respective appraisals or other reports (22 NYCRR 206.21[i]). Defendant's cross-motion to limit the testimony of Claimant's appraiser to the extent the Court grants Claimant's motion in limine, likewise, is denied as moot. Accordingly, the objections to the admission of Exhibits 1 and D, upon which the Court reserved its decision at trial, are now overruled. Subject to said objections, Exhibits 1 and D previously were admitted into evidence (Tr., v. I, p. 81; Tr., v. II, pp. 17-18).
All references and quotations taken from the trial transcript are indicated by reference to volume and page number.
The Subject Property
The subject property consists of two contiguous parcels located on the north side of Commercial Drive, which is also State Route 5A, in the Town of New Hartford, Oneida County, New York. The town assessor identifies one parcel as Section 328.08, Block 1, Lot 24 (Ex. 1, pp. 5, 22; Ex. D, pp. 11-12; see Exs. B, C and X). Claimant leases that lot to a third partywho operates a restaurant, Café Del Buono (hereinafter, "Lot 24" or the "Restaurant Lot" and the building thereon, the "Restaurant Building"). The parties agree that, before the taking, Lot 24 contained 160 feet ("ft.") fronting on Commercial Drive and extended to a depth of 100 ft. from the street, constituting a lot that is 160 ft. x 100 ft., or 16,000 square feet ("sq. ft.") (see Ex. 1, p. 19, Ex. D, p. 12).
See Exhibits F, G and H (collectively, the "Lease").
While the Court accepts the dimensions of Lot 24 agreed upon by the parties' appraisers, it notes that the 1982 lease for the Restaurant Building, which is annexed to and made a part of the current lease, recites that the leased premises has approximately 160 ft. of frontage along Commercial Drive and a depth of 150 ft., not 100 ft. (see Ex. H, unnumbered fourth page).
The parties further agree that this Claim concerns only a portion of the other property, identified as Section 328.08, Block 1, Lot 25 on the assessor's map, because a large commercial building that is part of an adjoining shopping plaza encroaches upon the rear portion of that parcel (Ex. 1, pp. 5, 7, 22; Ex. D, pp. 11-12; see Exs. B, C and X) (hereinafter, "Lot 25," or the "Commercial Lot," the building thereon, the "Commercial Building," and Lot 24 and Lot 25 collectively, the "Lots," or the "Subject Property").Claimant operates its own business at that location. The appraisers disagree, however, about how much of the parcel should be included in the Commercial Lot.
Defendant's appraiser reports that the adjoining shopping plaza also is owned by Claimant and/or a related entity (Ex. D, p. 11).
Claimant's appraiser, Kevin L. Bruckner, erroneously states in his report that the parcel that includes Lot 25 has "an actual site size of 100 [ft.] (width) x 200 [ft.] (depth)," and then asserts that the rear 85 ft. of the lot is encumbered by the encroaching building (Ex. 1, p. 7). The appraisal report further states, again incorrectly, that, for the purposes of Mr. Bruckner's analysis, "the effective site area will be 100 [ft.] (width) x 115 [ft.] (depth) excluding the area of the encroachment which cannot be used for any future building or parking lot expansion" (id.). In fact, elsewhere in the report and at trial, he declared that Lot 25 totals 87 ft. x 115 ft., or 10,000 sq. ft., and that is the effective size he used in his analysis (id., pp. 19, 22; Tr., v. I, pp. 22- 23). Thus, Mr. Bruckner determined that the Subject Property was comprised of approximately 26,000 sq. ft. [16,000 (Lot 24) + 10,000 (Lot 25) = 26,000] before the appropriation (Ex. 1, p. 19).
10,000 sq. ft. is a rounded amount, the actual size being 10,005 sq. ft. [87 x 115 = 10,005].
By contrast, Defendant's appraiser, Eriksen E. Stropp, determined that the Subject Property was rectangular, with the dimensions of Lot 25 being 87 ft. x 100 ft., or 8,700 sq. ft. (see Ex. D, pp. 12, 14; Ex. X [Mr. Stropp outlined the two parcels in yellow and the point where he would divide Lot 25 from the encroachment at the rear of the parcel (see Tr., v. II, pp. 58-60)]). As a result, Mr. Stropp concluded that the site consisted of 24,700 sq. ft. [16,000 (Lot 24) + 8,700 (Lot 25) = 24,700] (Ex. D, pp. 4, 6).
The Court adopts Defendant's measurements regarding Lot 25 and finds, as a matter of fact, that its dimensions are 87 ft. x 100 ft. and, therefore, further concludes that the Subject Property consisted of 24,700 sq. ft. before the appropriation. The Court reaches these conclusions for several reasons.
First, the Court simply has greater confidence in Mr. Stropp's measurements and credits them over those of Mr. Bruckner given the confusion in Claimant's appraisal report about the width of Lot 25, as well as other errors contained therein which are discussed below.
Second, Mr. Bruckner explained that he established the depth of Lot 25 by drawing an "arbitrary line" (Tr., v. I, pp. 47, 146, 156) halfway between the Commercial Building and the large building that encroaches upon the back of the parcel that was "approximately 115 feet back" from the front of the road (Tr., v, I, p. 99 [emphasis supplied]). The Court concludes that Mr. Bruckner's arbitrarily and approximately drawn line is an insufficient basis upon which to establish the back line of Lot 25 at 115 ft.
Third, Mr. Bruckner estimated that the elevation of the encroaching building is five to ten feet higher than the level of the Commercial Building and Lot 25 below it and thought that a grassy, graded, berm area between the two buildings existed on account of that "significant difference in grade" and might protect the foundation of the encroaching building and be needed for drainage (Tr., v. I, pp. 102-105). Additionally, he did not think that it was "a viable option" to dig out and re-grade that area in order to create additional parking behind the Commercial Building (id., pp. 105, 108-109). Thus, the Court concludes that the grassy berm area constitutes part of the encroachment upon the parcel and none of it should be counted as part of Lot 25 since, according to Mr. Bruckner's own parameters, it "cannot be used for any future building or parking lot expansion" (Ex. 1, p. 7). Rather, it exists primarily for the benefit of the large encroaching building and limits the use to which the area behind the Commercial Building can be put. The Court further notes that the large encroaching building and the grassy berm both run in a line parallel to, and along the entire length of, the rear property line of Lot 24 and that both of them then extend, without deviation, to bisect the parcel that includes Lot 25 (see Ex. 1, p. 23 and Ex. D, p. 41 [grassy berm visible in photographs as green strip running along back of Subject Property with larger building beyond the berm]). The parties agree that the rear line of Lot 24 is at a depth of 100 ft. from Commercial Drive. Thus, the Court concludes that the "effective depth" of Lot 25, to use Mr. Bruckner's phrase, is an extension of that of Lot 24 and runs along, or very nearly along, the rear wall of the Commercial Building at a depth of 100 ft. from Commercial Drive (see Ex. D, p. 63 [grass berm nearly touches rear wall of the Commercial Building visible in bottom photograph]).
Fourth, as Mr. Bruckner himself noted, "[i]t is odd in the first place, that [the encumbered] portion of the parcel wasn't actually deeded to the shopping plaza," (Ex. 1, p. 7) and he "never got an explanation as to why that [larger] building encroaches on" the parcel (Tr., v. I, p. 23). The Court agrees. As previously noted, according to Mr. Stropp, Claimant and/or a related entity owns the adjoining shopping plaza (Ex. D, p. 11) and, thus, would have suffered the encroachment to occur. In any event, Claimant bears the burden of establishing its Claim and, its highest and best use analysis, yet Claimant failed to provide either a deed, or a precise survey showing the demarcation line between the encroachment and the portion of the parcel that constitutes Lot 25. In that regard, the Court notes that the engineer's conceptual parking plans provided by Claimant do not resolve the matter since they include only approximated property lines (see Ex. 1, pp. 20-21).
The parties did agree that the Subject Property is generally level and improved by paved parking areas (Ex. 1, p. 19; Ex. D, p. 14). They further agreed that Lot 24 is improved with the one-story Restaurant Building, erected in the 1950s and that Lot 25 is improved with the one-story Commercial Building, erected in the 1970s.
The Appropriation
The appropriation was made pursuant to Highway Law § 30 and the EDPL as part of a road widening project. It is depicted in New York State Department of Transportation ("DOT") descriptions and maps for the acquisition of property entitled "Kirkland-Yorkville & Whitesboro-Yorkville, Part 2, S.H. No. 8484," Map No. 135, Parcel No. 166 (Ex. B [the "Fee Acquisition Map" and the property so acquired, the "Fee Parcel"]) and Map No. 134, Parcel No. 165 (Ex. C [the "Temporary Easement Map" and the property so encumbered, the "Temporary Easement Parcel"]). The Fee Parcel is a strip of land across what had been the entire frontage of the Subject Property along Commercial Drive. The Temporary Easement Parcel, likewise, is a thin strip of land across both Lots and immediately in back of, or adjacent to, the Fee Parcel.
Claimant asserted that it owns both Lots described in the Fee Acquisition Map and the Temporary Easement Map (collectively, "The Appropriation Maps") (Ex. A, ¶¶ 3-4). Defendant, likewise, conceded that Claimant acquired title to the Subject Property many years ago (Ex. D, p. 11) and ownership was not contested. Both appraisers valued the Subject Property on the basis of Claimant's ownership of a fee interest in the Lots (Ex. 1, p. 31; Ex. D, p. 4). Thus, the Court concludes that Claimant's title has been established (EDPL § 505[C]).
The original Appropriation Maps, which were filed in DOT's office on March 28, 2006 and certified copies of which were filed in the Oneida County Clerk's Office on September 12, 2006, state that title to the property and the easements, interests and rights set forth therein were acquired in the name of The People of the State of New York (see Exs. A [exhibit A, Notice of Appropriation, attached thereto], B and C). Copies of the Appropriation Maps were transmitted to Claimant by certified mail on or about September 20, 2006 (see Ex. A, ¶ 8; EDPL §§ 402[A] and 502[A]). The date of valuation used by the two appraisers was September 12, 2006 (Ex. 1, p. 6; Ex. D, p. 4; Tr., v. I, p. 21; Tr., v. II, p. 17). Thus, the Court finds September 12, 2006 was the date of the taking. The Appropriation Maps and descriptions contained therein are adopted by the Court and incorporated by reference. The Claim was timely filed with the Clerk of the Court of Claims on September 4, 2009 (see CCA § 10[1]; EDPL § 503[A]).
The parties agreed that the Fee Parcel consisted of approximately 2,368 sq. ft. along the entire Commercial Drive frontage of the Lots (Ex. 1, p. 49; Ex. D, p. 37; see Ex. B). Mr. Stropp reckoned that the strip taken was between 7 ft. and 10 ft. wide for over 85% of the frontage. Mr. Bruckner agreed that the taking was wider at either end of the Lots and estimated that 2,100 sq. ft. of pavement surface was lost. He characterized the taking as "not huge" (Tr., v. I, p. 66). The parties further agreedthat the Temporary Easement Parcel consisted of approximately 1,547 sq. ft. (Ex. 1, p. 71; Ex. D, p. 37; see Ex. C). Mr. Bruckner stated that the temporary easement expired on June 2, 2009 and, thus, that the period of the temporary easement was two years and nine months (Ex. 1, pp. 49, 71; see also, p. 79). Mr. Stropp, by contrast, indicated that "[t]emporary easements of this nature are typically compensated at 10% per year for the duration of two years" (Ex. D, p. 37). In this instance, the Court adopts Mr. Bruckner's period of the temporary easement because it is more precise. Finally, the parties agreed that no physical changes were made to either the Restaurant Building or the Commercial Building as a result of the appropriation (Ex. 1, pp. 6, 19; Ex. D, p. 40).
Notwithstanding the transposed numbers in the report of Claimant's appraiser noted below (see Ex. 1, p. 49).
After the taking, Claimant's appraiser determined that the Subject Property comprised approximately 23,653 sq. ft. (Ex. 1, p. 59). Yet, earlier, Mr. Bruckner concluded that the size of the Subject Property before the taking was about 26,000 sq. ft. (id., p. 32) and that the Fee Parcel was about 2,368 sq. ft. (id., p. 49; see also Tr., v. I, p. 66). In that case, the size of the Subject Property after the appropriation, according to Mr. Bruckner's own measurements, should be 23,632 sq. ft. [26,000 - 2,368 = 23,632], not 23,653 as stated on page 59 of his appraisal report. By contrast, Defendant's appraiser stated that the remaining parcel consisted of 22,332 sq. ft. [24,700 sq. ft. (before taking) - 2,368 sq. ft. (Fee Parcel) = 22,332 sq. ft.] (Ex. D, p. 42). The Court adopts Defendant's figure that the Subject Property contained 22,332 sq. ft. after the taking.
Fair Compensation
"An owner whose property has been taken in condemnation is entitled to just compensation" (Matter of Town of Islip [Mascioli], 49 NY2d 354, 360 [1980]; see US Const, 5th Amend; NY Const, art I, § 7[a]). However, "[a] condemnation proceeding is not a private litigation. There is a constitutional mandate upon the court to give just and fair compensation for any property taken. This means 'just' to the claimant and 'just' to the people who are required to pay for it" (Matter of County of Nassau, 43 AD2d 45, 48 [2d Dept 1973], affd 39 NY2d 958 [1976]; see Town of Cheektowaga v Starlite Bldrs., 247 AD2d 933, 934 [4th Dept 1998]).
Just compensation, generally, is determined according to the property's fair market value in its highest and best use as of the time of the appropriation (Matter of Town of Islip [Mascioli], supra at 360; Keator v State of New York, 23 NY2d 337, 339 [1968]). Fair market value, in turn, is that price for which the property would sell if there were a willing buyer and a willing seller, neither of whom was under any compulsion to enter into the transaction (Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]; Matter of Town of Islip [Mascioli], supra at 360; Keator v State of New York, supra at 339).
Moreover, when the State takes a portion of real property and leaves a remainder, claimants are entitled not only to direct damages for the value of the land actually taken, but also any indirect damages resulting from impairment to the remaining property as a result of the appropriation. Such indirect impairment can be in the form of consequential damages that arise from the manner in which the State uses the property it has condemned. There also can be severance damages that occur because the taking caused a diminution in value to a claimant's remaining property (see Coldiron Fuel Ctr., Ltd. v State of New York, 8 AD3d 779, 780 [3d Dept 2004]; Williams v State of New York, 90 AD2d 882, 883 [3d Dept 1982]).
The measure of damages in the case of a partial taking is the difference between the fair market value of the property before the appropriation and its fair market value after the taking (McDonald v State of New York, 42 NY2d 900 [1977]; Acme Theatres v State of New York, 26 NY2d 385, 388 [1970]; Matter of City of New York (Metro Inv. & Credit Corp.), 288 NY 75, 77 [1942]). Any award made should indicate, moreover, the amounts of damage attributable to the direct appropriation and those resulting from indirect damage to the remainder, as well as the basis for such award (Howard v State of New York, 35 AD2d 1032 [3d Dept 1970]; Wineburgh v State of New York, 20 AD2d 961, 962 [4th Dept 1964]).
Mr. Stropp More Persuasive Than Mr. Bruckner
While each of the appraisers provided generally sincere and forthright testimony, nevertheless, they were not equally persuasive. In the Court's assessment, the appraisal report and testimony of Defendant's appraiser, Mr. Stropp, was more persuasive and credit-worthy than that of Claimant's appraiser, Mr. Bruckner. Mr. Bruckner's appraisal report contains numerous errors which, collectively, diminish the Court's confidence in it and limits the degree to which it is prepared to credit his testimony and determinations. Mr. Bruckner acknowledged one such error at trial. A central issue in this Claim is the number of parking spaces available to the Subject Property before and after the taking. In several places, Claimant's appraisal states that there were 26 spaces at the Restaurant Lot before the taking, that two (2) spaces were lost as a result of the taking, and that there were 23 spaces left after the taking [26 - 2 = 23 (sic)] (Ex. 1, pp. 5, 49). Mr. Bruckner explained that the references to two (2) spaces was inserted into an early draft of the report and remained in the final appraisal by mistake, but that three (3) spaces were lost and 23 is the correct number of spaces left after the taking (Tr., v. I, pp. 67-68). Unfortunately, there are other errors/problems with Claimant's appraisal report, in addition to those already noted.
For example, beginning with the transmittal letter, Mr. Bruckner states that total damages attributable to the fee taking equal $135,300, but the direct and indirect damages listed add up to only $130,300 [$26,530 + $103,770]. Later, the $26,530 total direct damages figure again is stated, but its constituent parts, land and improvements, actually add up to $31,530 [$23,530 + $8,000] (Ex. 1, p. 7; see also p. 71).
There is a similar problem with Mr. Bruckner's calculation of direct damages to the improvements attributable to paving. He states that the $8,000 figure [$31,200 (before) - $23,200 (after)] is taken from the before and after site improvement estimates in his cost approach analysis (id., p. 71). Those cost approach summaries indicate, however, that the value of site improvements attributable to paving before the taking is $30,400 [$20,000 (restaurant) + $10,400 (retail building)] (id., p. 38) and $26,200 after the taking [$17,200 (restaurant) + $9,000 (office building)] (id., p. 60). Those figures result in direct damages to the improvements attributable to paving of only $4,200 [$30,400 - $26,200], not $8,000. Moreover, that $4,200 amount is consistent with Mr. Bruckner's estimate that 2,100 sq. ft. of pavement was lost as a result of the taking because he valued the paving at $2 per sq. ft. [2,100 sq. ft. x $2 = $4,200] (see id., p. 49).
Mr. Bruckner's cost approach analysis includes amounts for sprinkler systems in both buildings, which he thought he saw during his site inspections (Ex. 1, pp. 38, 60; Tr., v. I, pp. 116-117). Eric Del Buono, who leases the Restaurant Building, testified, however, that, while he has a chemical fire suppression system in the cooking area and fire extinguishers in each room, the restaurant does not have a sprinkler system (Tr., v. I, p. 162). Mr. Stropp, likewise, testified that he did not observe any sprinkler system in the buildings and there is no evidence of sprinkler systems in the photographs of the interiors of the two buildings that he took during his inspections (Tr., v. II, p. 22; Ex. D, pp. 61, 64).
Claimant's appraisal at times states that the size of the Temporary Easement is 1,574 sq. ft. (Ex. 1, p. 49) and that figure also is reflected in the stated annual rent for the Temporary Easement of $1,574 (id., p. 7). Elsewhere, it is reported to be 1,547 sq. ft. (id., p. 71). The Court concludes that Mr. Bruckner, in fact, intended the 1,547 sq. ft. measurement throughout his appraisal and that references to 1,574 sq. ft. are typographical errors because his stated rental value of the Temporary Easement [$4,254] can be arrived at only if 1,547 sq. ft. is the correct amount (id., transmittal letter, p. 71 [(1,547 sq. ft. x $10 [Claimant's land valuation/sq. ft.]) x 10% (stated rental to fee ratio) = $1,547 x 2.75 (stated two year, nine month duration of temporary easement) = $4,254.25 = $4,254 (R)]. By contrast, if the size of the Temporary Easement is 1,574 sq. ft., then the rental value would be $4,328 [(1,574 sq. ft. x $10) x 10% = $1,574 x 2.75 = $4,328.50 = $4,328 (R)].
With respect to Mr. Bruckner's sales comparison approach analysis used to determine the land value of the Subject Property as vacant, the last two rows in the summary grids, in both the before and the after appropriation analyses, are captioned "Unadjusted Price/Acre" and "Adjusted Price/Acre," respectively, when, in fact, the rows appear to contain values stated in terms of prices per square foot (Ex. 1, pp. 31, 58; cf. pp. 32-35, 59).
Of far greater importance, as discussed below, however, Mr. Bruckner appears to have significantly misstated the sale price per square foot of his comparable sale No. 1 (see Ex. 1, pp. 31, 33).
Highest and Best Use
The appraisers agreed that the Subject Property is located in a zoning district that permits a broad range of commercial, retail, service, office and restaurant uses and that the Lots meet minimum lot size requirements, both before and after the appropriation (Ex. 1, p. 5; Ex. D, p. 13). They further agreed that the highest and best use of the Subject Property, in a vacant condition, both before and after the appropriation, would be to assemble the Lots and develop them, either for retail (Claimant), or commercial (Defendant) purposes (Ex. 1, pp. 28, 55; Ex. D, pp. 19, 42). They also agreed that the highest and best use of Lot 24, in an improved condition, both before and after the appropriation, would be to continue its current use as a restaurant (Ex. 1, pp. 28-29, 55-56; Ex. D, pp. 20, 42).
As noted above, the primary dispute between the parties concerns the highest and best use of Lot 25 in an improved condition. Claimant asserts that its highest and best use before the appropriation would be to convert the existing Commercial Building into retail space, that the conversion could have been accomplished without the need for a zoning variance, but that the loss of parking in the after condition restricts Lot 25 to its less productive current use as a commercial enterprise (Ex. 1, pp. 28-29, 49, 55-56). Defendant, by contrast, posits that there is no change in the current highest and best use of Lot 25, as improved, for commercial purposes as a result of the appropriation (Ex. D, pp. 20, 42). Resolution of the dispute depends upon the number of parking spaces that could be created on Lot 25, as improved, before the appropriation.
Mr. Bruckner determined that the parking requirement for retail space was a function of "simple math," one space for every 200 sq. ft. of building area (Tr., v. I, p. 27; see also p. 43). Thus, he determined that it was not necessary to take interior measurements of the buildings (id., p. 96). Because he measured the gross area of the Commercial Building at 2,583 sq. ft. (rounded to 2,600 sq. ft.) (Ex. 1, pp. 5, 23), he determined that a minimum of 13 parking spaces were required to permit a retail use [2,600/200] and endeavored to show that Lot 25 met that minimum requirement before the taking (Tr., v. I, pp. 41, 43-44). The Court notes that Mr. Bruckner appears to have misapprehended the Town of New Hartford's retail parking requirement. Joseph A. Booth, the Town's Senior Director of Building Codes and Zoning, explained that, while the parking requirement for commercial/office space is calculated on the basis of one space per 300 gross sq. ft. of the building, the retail parking requirement is one space per 200 sq. ft. of floor area open to the public, with parking requirements for building areas that are not open to the public assessed according to the individual requirement applicable to each separate use, such as office, warehouse, stockroom space, etc. (id., pp. 186-188; see Ex. P). Mr. Booth indicated that Mr. Bruckner's decision to calculate the retail parking requirement based upon gross square footage of the entire Commercial Building would be correct only in the most extreme case in which the entire floor area of the building was public space devoted to retail use (id., pp. 190-191) with no areas devoted to back office or storage space as presently exist in the Commercial Building.
Mr. Bruckner worked with a professional engineer, Alan Swierczek, to estimate the available parking both before and after the taking (Tr., v. I, pp. 28-30). Mr. Bruckner stressed, however, that his testimony was based, primarily, upon his own independent "opinion, observations and analysis" and that Mr. Swierczek assisted him by providing scale drawings and by confirming the appraiser's own thoughts (id., p. 31). Mr. Swierczek's conceptual, or proposed, parking plan indicates that 13 parking spaces could be created on Lot 25 before the appropriation if six (6) spaces, including one (1) handicapped accessible spot, were arranged in front of the Commercial Building and seven (7) were placed along the side of the building (Ex. 1, p. 20). There would seem to be no disagreement that seven (7) parking spaces could fit along the side of the Commercial Building, since an aerial photograph of the Subject Property included in Defendant's appraisal report evidences that there were seven (7) parking spaces along the side of the Commercial Building both before and after the appropriation (see Ex. D, pp. 15, 41).
The trickier problem is how to fit the necessary six (6) parking spaces in front of the Commercial Building. One problem identified by both appraisers was that the existing parking spaces before the appropriation were at the edge of Lot 25 closest to and facing Commercial Drive and actually were in the right of way (Tr., v. I, p. 43; Ex. D, pp. 40, 104). Their continued use would be grandfathered as a pre-existing non-conforming use for so long as Lot 25 was used for a commercial purpose (see id., p. 44). As noted, however, Mr. Bruckner sought to establish that Lot 25, in an improved condition, could have been converted to a new use as retail space before the taking without the need for a zoning variance (id., pp. 48-49).
The proposed or conceptual parking plan would put six (6) parking spaces very close to (within 4 ft.) and facing the Commercial Building (see Ex. 1, p. 20 [spaces 8-13]). Mr. Bruckner testified, however, that the configuration depicted in the drawing would need to be changed in order to satisfy various setback requirements (Tr., v. I, p. 44).He explained that there is a "potential problem at the end of space 13" (id., p. 46). That arises because, if Lot 25 is 87 ft. wide along Commercial Drive, and if, as he posited, a 20 ft. driving lane is needed in order to provide access to parking spaces 1-7, and, further, if a 10 ft. setback is required between space 13 and the property line, then only 57 ft. remain available for parking spaces 8-13 [87 - 20 - 10 = 57] (id.). In turn, Mr. Bruckner reasoned that, if each space must be 9 ft. wide as required by the Town of New Hartford, then the six (6) parking spaces numbered 8-13 require 54 ft., leaving only 3 ft. of extra space (id.; see also Ex. P, p. 4). Mr. Bruckner noted, however, that an additional 4 ft. of space is needed to accommodate the hash marks painted on the pavement adjacent to the handicapped space. Thus, even if parking space 13 at the end of the row was designated as the handicapped accessible space, instead of it being placed between spaces 11 and 12 as depicted on the conceptual parking plan, Claimant still would be "short by about a foot" unless it was determined that it is permissible for the hash marks to encroach into the 10 ft. setback along the east property line at the bottom of the drawing (Tr., v. I, p. 46). Nothing in the record establishes, however, that such an encroachment would have been permissible in the absence of a zoning variance.
Thus, the conceptual parking plan included in Claimant's appraisal report at page 20 does not illustrate a proposed layout that would establish the ability to devote Lot 25, as improved, to a retail use before the taking without the need for a zoning variance, and no other sketch or diagram is included in the report that does so.
Nevertheless, Mr. Bruckner believed that the requisite 13 spaces still could be created if the handicapped accessible parking space was moved to space 7 at the side of the Commercial Building (id., p. 47). The 4 ft.-wide hash marks for the newly designated handicapped accessible space 7 could be aligned with the existing 4 ft.-wide walkway in front of the store and, Mr. Bruckner reasoned, spaces 1-7 could be shifted slightly toward the back of the Commercial Building. That way, he said, spaces 8-13 could be fit along the front of the building.
The Court determines, however, that Claimant has failed to establish that spaces 8-13 fit for another reason, namely, it has not been shown, by a preponderance of the credible evidence, that there is enough room between the front of the Commercial Building and the property line along Commercial Drive to accommodate those parking spaces.
By Mr. Bruckner's reckoning there is just enough room (to the very foot) to fit the needed 13 parking spaces. He states that Lot 25 is 115 ft. deep and he imputes a 10 ft. setback from that "arbitrary" boundary line he drew between the Commercial Building and the large building that encroaches at the back of the parcel. Moreover, he states that the back of the Commercial Building also is approximately 10 ft. away from that "arbitrary" line (Tr., v. I, p. 47). That leaves 105 ft. [115 - 10 = 105] from the edge of the imputed setback/back of the Commercial Building. Next, he states that the Commercial Building is 63 ft. deep, or precisely the length he needs in order to fit spaces 1-7, each of which must be 9 ft. wide [7 x 9 = 63] (id., pp. 47-49, 108). In front of the building, the walkway/hash marks on the pavement for the handicapped accessible space is 4 ft. wide. So, at that point, 38 ft. are left until the property line along Commercial Drive is reached [105 - 63 - 4 = 38]. The length of each of parking spaces 8-13 is 18 ft. and Mr. Bruckner reckons that 20 ft. is required in order to provide an access drive for parking spaces 8-13 (id., pp. 47-48). Thus, in Mr. Bruckner's analysis, there is barely enough room to fit spaces 8-13 onto Lot 25, with not an inch to spare [38 - 18 - 20 = 0].
As noted above, however, the Court has determined that Lot 25, in fact, is only 100 ft. deep and, just as important, that line runs at or very nearly along the rear wall of the Commercial Building (see Ex. D, p. 63 [grass berm nearly touches rear wall of Commercial Building visible in bottom photograph]). If Lot 25 is 100 ft. deep and the rear wall of the Commercial Building is at or very near that same depth, and if, moreover, 4 ft. are needed for the walk/hash marks on pavement, then before the taking there were only 33 ft. [100 - 63 - 4 = 33] available in front of the Commercial Building for parking spaces 8-13, or 5 ft. less than the 38 ft. Mr. Bruckner indicated was needed.
Thus, the Court concludes that Claimant failed to establish, by a preponderance of the credible evidence, that the requisite number of parking spaces could be created before the appropriation in order to permit the more intensive highest and best use for retail purposes. The Court further concludes that the highest and best use of Lot 25, in an improved condition, both before and after the appropriation, would be to continue its current use for commercial purposes.
Valuation of the Subject Property
The best evidence of value is a recent sale of the subject property in an arms-length transaction. Absent such evidence, however, courts typically have accepted three approaches to determine the value of real estate: (1) the cost approach; (2) the income capitalization approach; and (3) the sales comparison approach, with the third method being the generally preferred option (Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, supra at 356). "The suitability of comparable sales [however,] is a matter resting in the sound discretion of the Trial Court" (Audino v State of New York, Claim No. 87749, Benza, J., filed February 27, 1998; see Levin v State of New York, 13 NY2d 87, 92 [1963]; Matter of County of Broome [Miller Facilities Corp.], 133 AD2d 984, 986 [3d Dept 1987]).
Claimant's appraiser relied upon the income capitalization approach as his primary indicator of market value because the Subject Property can be classified as an income producing property and, he felt, there was adequate market data to support estimated income, expenses and the capitalization rate. Mr. Bruckner used the cost approach as a secondary valuation method, but noted that it is more difficult to derive accurate estimates of value for older properties using the cost approach owing to depreciation and obsolescence issues. He noted, further, that market participants would not consider the cost approach as the primary indicator of value. Mr. Bruckner rejected the sales comparison approach because he thought there was a lack of recent arms-length comparable sales in the defined market (Ex. 1, pp. 30, 39, 71).
By contrast, Mr. Stropp utilized the sales comparison approach because he thought there was a sufficient number of comparable sales to support a reliable value estimate. He also used the income capitalization approach because he believed there was sufficient rental data within the general market to provide a viable guide to estimate market value. He did not use the cost approach because he did not believe depreciation of the Subject Property could be measured to a reasonable degree of accuracy (Ex. D, p. 21).
Because the Court has determined that Claimant failed to establish, by a preponderance of the credible evidence, that the Commercial Lot, as improved, had a more valuable highest and best use before the appropriation than it did after the taking, the Court makes no award for indirect damages to that property. No indirect damages are claimed in connection with the Restaurant Lot. It is Claimant's burden to prove such indirect damages (Bero v State of New York, 33 AD2d 88, 89 [3d Dept 1969], affd 27 NY2d 977[1970]; Farber v State of New York, 29 AD2d 836, 837 [4th Dept 1968], affd 28 NY2d 676 [1971]). Accordingly, it is not necessary for the Court to evaluate in any detail the appraisers' analyses regarding the value of the Restaurant Building and the Commercial Building and the severance damages asserted to have been sustained by Claimant.
With respect to the methodology to be used to value the Subject Property as vacant, the appraisers are in agreement, each having adopted the sales comparison approach for the vacant land, both before and after the appropriation. Claimant's appraiser did so as part of his cost approach analysis (Ex. 1, pp. 10, 31). They compared Claimant's property to other sales of properties in the surrounding area that they deemed to be sufficiently similar as to provide insight on the proper valuation of Claimant's parcel. Because sales of other properties usually are not directly comparable, however, they also made adjustments to the sale prices of those properties to account for any differences between them and the Subject Property regarding the property rights conveyed, financing terms, conditions of sale, sale date, location, physical characteristics, utilities, zoning, and other factors (Ex. 1, pp. 31-35, 58; Ex. D, pp. 22-23, 42, 80-83). The Court accepts and adopts the appraisers' analyses and determines that the sales comparison approach is the correct one to utilize in assessing the value of the Subject Property as vacant, both before and after the appropriation.
Value of Subject Property as Vacant Before the Appropriation
Claimant's appraiser concluded that the Subject Property, as vacant, had a value before the taking of $260,000 attributable to the land itself (Ex. 1, pp. 32, 71). Defendant's appraiser, by contrast, concluded that the Subject Property had a before value of $320,000 for the land itself (Ex. D, pp. 36, 53).
The Court has considered each of the comparable sales offered by the parties, the adjustments the appraisers made to the sale price in each case, their reasons for doing so, and the resulting adjusted sale prices that formed the appraisers' opinions concerning the value of the Subject Property. The Court has made further adjustments it deemed necessary to take into account differences as discussed below between each comparable sale and the Subject Property. For ease of reference, a chart summarizing the Court's corrections to the comparable sales offered by the appraisers as a vacant parcel follows the narrative discussion below.
In making a land valuation for the Subject Property, Mr. Bruckner selected three properties, two in Oneida County (one in New Hartford and one in Kirkland) and one in Herkimer County (Ilion) (Ex. 1, pp. 31-35). Mr. Stropp chose four properties, all in New Hartford (Ex. D, pp. 22-23, 80-83). The appraisers made only a few adjustments to the comparable sales they selected. While Mr. Stropp considered all of the factors identified in his valuation grid, he determined that no adjustments were necessary for: rights conveyed; financing terms; conditions of sale; sale dates; topography; shape; utilities; zoning; and development potential. He did make adjustments to some parcels for location, land size and frontage (Ex. D, p. 23). Mr. Bruckner, similarly, concluded that no adjustments were required to account for property rights, financing, sales conditions, and dates of sale, and he made adjustments only for site size and zoning (Ex. 1, p. 31).
The two appraisers did have one comparable sale in common, Claimant's Sale No. 1 being the same as Defendant's Sale L-3 (hereinafter, the "Common Comparable Sale"). The Common Comparable Sale consists of two contiguous parcels, tax map numbers 339.011-3-67 ("Parcel 67") and 339.016-1-1 ("Parcel 1") located on Kellogg Road in New Hartford (Ex. 1, pp. 33-33A; Ex. D, p. 82).A slight discrepancy exists concerning the size of the Common Comparable Sale, with Mr. Bruckner stating that it contains 2.56 acres, while Mr. Stropp says it is slightly smaller at 2.49 acres, for a difference of 3,049 sq. ft. (R) [2.56 - 2.49 = 0.07 acres x 43,560= 3,049.2 = 3,049 (R)]. The appraisers agree that the Common Comparable Sale possesses 413 ft. of street frontage.
While the parties disagree as to the street address of the Common Comparable Sale, it is clear that they are referring to the same property based upon tax map numbers and photographs.
There are 43,560 sq. ft. per acre.
Mr. Bruckner states that the Common Comparable Sale was sold in June 2004 for a price of $642,000, or an unadjusted unit price of $5.76 per sq. ft. [$642,000 /111,513.6 sq. ft. (43,560 sq. ft. x 2.56 acres) = $5.757 = $5.76 (R)] (see Ex. 1, pp. 31, 33). Mr. Stropp reports, however, that the Common Comparable Sale was sold more recently, in April 2005, for $1,350,000, or an unadjusted unit price of $12.45 per sq. ft. [$1,350,000/108,464.4 sq. ft. (43,560 sq. ft. x 2.49 acres) = $12.446 = $12.45 (R)] (see Ex. D, pp. 22, 82).
Only part of the significant discrepancy in reported prices results from Mr. Stropp's use of a later sale. Much of it appears to be attributable to Mr. Bruckner's failure to include the full June 2004 sale price in his calculations. His appraisal report notes that Parcel 67 contains approximately 0.76 acres, with 207.65 ft. of frontage, while Parcel 1 is a 1.8 acre parcel of land with 205.7 ft. of frontage, whose recorded transfer price was $617,000 (Ex. 1, p. 33). Thus, statements in the report that the Common Comparable Sale contains 2.56 acres and has 413 frontage feet reflect the combined totals for Parcel 67 and Parcel 1 [0.76 acres + 1.8 acres = 2.56 acres; and 207.65 ft. + 205.7 ft. = 413.35 ft. = 413 ft. (R)] (see Ex. 1, p. 33). Yet, Mr. Bruckner uses only the sale price of Parcel 67 [$642,000] to determine the unadjusted unit price per square foot [$642,000/111,513.6 sq. ft. = $5.757 = $5.76 (R)]. As Mr. Bruckner noted, however, the recorded transfer price of Parcel 1 was $617,000 (id.). The total sale price of $1,259,000 [$642,000 + $617,000] for the Common Comparable Sale results in an actual unadjusted unit price per square foot of $11.29 [$1,259,000/ 111,513.6 sq. ft. = $11.29], much closer to Mr. Stropp's sale price of $1,350,000 and his unadjusted unit price figure of $12.45.
Given that Mr. Stropp identified a later sale, as well as Mr. Bruckner's omission of Parcel 1's sale price in his calculations, the Court adopts Defendant's figures and determines that the sale price of the Common Comparable Sale was $1,350,000 for a parcel that contains 2.49 acres, or 108,464 sq. ft., resulting in an unadjusted unit price per sq. ft. of $12.45.
Both appraisers made positive adjustments to reflect the larger size of the Common Comparable Sale on the theory that a property that is larger than the Subject Property will sell for a lower price per unit of comparison (see Ex. 1, p. 31; Ex. D, p. 23). The Court finds that Mr. Bruckner's adjustment [+25%] is too high and that Mr. Stropp's [+10%] is too low. Rather, the Court determines that an adjustment of +15% more accurately reflects the larger size (108,464 sq. ft.) of the Common Comparable Sale compared to the Subject Property. Mr. Bruckner also makes a +10% adjustment to account for zoning differences, however, he states that the Common Comparable Sale is zoned for retail business and both appraisers note that a Walgreen Pharmacy and a Dunkin Donuts store have been built there (Ex.1, p. 33; see Ex. D, p. 82). Moreover, Mr. Stropp includes two other comparable sales (Sales L-1 and L-4) located near the Subject Property on Commercial Drive, for which he made no zoning adjustments, each of which has the same zoning designation as the Common Comparable Sale (see Ex. D, pp. 80, 83). The Court finds that no adjustment for zoning is warranted. The Court does adopt Mr. Stropp's +10% adjustment for location because he said the Common Comparable Sale is on a "less traveled roadway" (id., p. 23; see Tr., v. II, p. 29).
The trial transcript misquotes Mr. Stropp as stating that the Common Comparable Sale was on a "trafficked roadway" (Tr., v. II, p. 29), whereas the Court record (the digitally-recorded transcript of the trial testimony) evidences that Mr. Stropp, in fact, said that the location was on a " less -trafficked roadway"(Court record at 10:39:01[emphasis supplied]).
Thus, the Court finds an aggregate net adjustment of +25% for the Common Comparable Sale to be more appropriate [+15% (land size) + +10% (location) = +25%], which equates to a price of $15.56 per sq. ft. [$12.45 (unadjusted unit price) + 25% ($3.113) = $15.563 = $15.56 (R)].
Mr. Bruckner made no adjustments to Claimant's Sale No. 2 (Ex.1, p. 31). The Court finds that a +10% adjustment is required in order to account for the larger size of the parcel (70,567 sq. ft.) and the lower per-unit sales price of such larger properties, resulting in an aggregate net adjustment of +10%, which equates to a price of $11.69 per square foot [$10.63 (unadjusted unit price) + 10% ($1.063) = $11.693 = $11.69 (R)].
Mr. Bruckner, likewise, made no adjustments to Claimant's Sale No. 3 (Ex.1, p. 31). The Court finds that a +10% adjustment is required in order to account for the larger size of the parcel (54,450 sq. ft.), resulting in an aggregate net adjustment of +10%, which equates to a price of $12.12 per square foot [$11.02 (unadjusted unit price) + 10% ($1.102) = $12.122 = $12.12 (R)].
Turning to Defendant's comparable sales, the Court adopts and makes no further adjustments to either Defendant's Sale L-1, which includes a +10% adjustment for size that is offset by a -10% adjustment for frontage, resulting in no net aggregate adjustment and an indicated value for Sale L-1 of $7.46 per sq. ft., or to Sale L-2, which includes a +10% adjustment for size, resulting in an aggregate net adjustment of +10% and an indicated value for Sale L-2 of $13.43 per sq. ft. [$12.21 (unadjusted unit price) + 10% ($1.221) = $13.431 = $13.43 (R)] (Ex. D, p. 22).
Mr. Stropp made offsetting adjustments to Defendant's Sale L-4 of +10% for land size and -10% for frontage (Ex. D, p. 22). The Court accepts Defendant's adjustment for frontage, but determines that an adjustment of +15% more accurately reflects the larger size (118,483 sq. ft.) of Sale L-4 compared to the Subject Property, which results in an aggregate net adjustment of +5% [+15 % (land size) + -10% (frontage) = +5%] and equates to an indicated value for Sale L-4 of $17.28 per square foot [$16.46 (unadjusted unit price) + 5% ($0.823) = $17.283 = $17.28 (R)].
The Court arrives at a fair market value of the Subject Property, as vacant land, before the appropriation, based upon a preponderance of the evidence, which includes the corrections that the Court deemed necessary in order to account properly for the differences between the Subject Property and the comparable sales proposed by the appraisers (as discussed above), and after having reviewed the exhibits and listening to the witnesses testify and observing their demeanor as they did so.
The following chart summarizes the corrections made by the Court.
Corrected Vacant Before Sales Summary
Claimant's Sale No. 1/ Defendant's Claimant's Claimant's Sale L-3 Defendant's Defendant's Defendant's Sale No. 2 Sale No. 3 Sale L-1 Sale L-2 Sale L-4 (The Common Comparable Sale) $12.45 Unadjusted Sale Price (Defendant's $10.63 $11.02 $7.46 $12.21 $16.46 per sq. ft. figure) Size of +15% +10% +10% +10% +10% +15% Land Zoning 0% 0% 0% 0% 0% 0% Location +10% 0% 0% 0% 0% 0% Frontage 0% 0% 0% -10% 0% -10% ________ ________ ________ ________ ________ _______ Aggregate Net +25% +10% +10% 0% +10% +5% Adjustments $3.11 $1.06 $1.10 $0.00 $1.22 $0.82 Court's Corrected $15.56 $11.69 $12.12 $7.46 $13.43 $17.28 Sale Price per sq. ft.
The Court determines that the fair market value of the Subject Property, prior to the appropriation and as vacant land, was $13.00 per square foot, for a total fair market value of $321,100 [$13.00 x 24,700 sq. ft. (size of Subject Property before the appropriation)].
Before Valuation of Land Improvements
The appraisers each valued the paved surface of the property at $2.00 per sq. ft. Mr. Bruckner determined that there was 15,200 sq. ft. of paving [10,000 sq. ft. for the Restaurant Building (25 spaces x 400 sq. ft. = 10,000 sq. ft.) and 5,200 sq. ft. for the Commercial Building (13 spaces x 400 sq. ft. = 5,200 sq. ft.)], valued at $30,400 [$2.00 x 15,200 sq. ft. = $30,400 ($20,000 for the Restaurant Building and $10,400 for the Commercial Building)] (see Ex. 1, p. 38), while Mr. Stropp calculated that there was 19,000 sq. ft. of paving valued at $38,000 [$2.00 x 19,000 sq. ft. = $38,000] (Ex. D, p. 23).
Each of the appraisers also assigned a value of $5,000 to landscaping and miscellaneous site improvements (Ex.1, p. 38; Ex. D, p. 23). Mr. Stropp also added $3,000 for a 10 ft. high sign on a single post that was outside the Restaurant Building (see Ex. D, pp. 23, 66 [top photograph]). Mr. Bruckner did not include an amount for the sign in his value for landscaping (Tr., v. I, p. 117).
The Court credits Defendant's figures over those of Claimant and adopts Defendant's valuation for the paving [$38,000]. It further adopts Defendant's uncontroverted value for the sign [$3,000]. Finally, the Court adopts the value of miscellaneous improvements proffered by both appraisers [$5,000]. Thus, the Court determines that the value of the improvements to the land itself, before the taking, was $46,000 [$38,000 + $3,000 + $5,000 = $46,000].
Allocation of Before Valuation
The Court finds that the fair market value of the Subject Property, as vacant before the appropriation, as well as the improvements thereto, was $367,100 [$321,100 (vacant land) + $46,000 (improvements to the land itself) = $367,100], without regard to the value of the Restaurant Building and the Commercial Building.
Value of Subject Property as Vacant After the Appropriation
Claimant's appraiser concluded that the Subject Property, as vacant, had a value after the taking, of $236,530 [$10.00/sq. ft. x 23,653 sq. ft.], or $236,500 (R) (Ex. 1, p. 59; see also p. 71). As noted above, however, according to Mr. Bruckner's own measurements the actual size of the Subject Property after the appropriation should be 23,632 sq. ft. [26,000-2,368]. In that case, Mr. Bruckner's value of the Subject Property as vacant after the appropriation should be reduced slightly from $236,530 to $236,320 [$10.00/sq. ft. x 23,632 sq. ft.]. Defendant's appraiser, by contrast, concluded that the subject property had an after value of $290,000 for the land itself [$13.00/sq. ft. x 22,332 sq. ft. = $290,316 = $290,000 (R)] (Ex. D, pp. 42, 53). The appraisers each relied upon the same comparable sales in the after condition as they did in the before situation, and made no further adjustments to those sales to reflect any changed circumstances to the Subject Parcel after the taking. Thus, they arrived at the same per-unit valuations for the land after the taking as they had in the before condition (see Ex. 1, pp. 31-32, 58-59; Ex. D, pp. 22-23, 42). The Court, likewise, determines that the fair market value of the subject property, after the appropriation and as vacant land, did not change and remained $13.00 per sq. ft.
The parties agreed that the Fee Parcel consisted of approximately 2,368 sq. ft. Thus, the Court determines that the size of the Subject Property after the appropriation was 22,332 sq. ft. [24,700 sq. ft. (size before taking) - 2,368 sq. ft. (Fee Parcel) = 22,332 sq. ft.]. The Court further concludes that the total fair market value of the Subject Property, after the appropriation and as vacant land, was $290,316 [$13.00 x 22,332 sq. ft. (size of Subject Property after the appropriation)].
After Valuation of Land Improvements
Both appraisers continued to value the paved surface of the property at $2.00 per sq. ft. Mr. Bruckner determined that a total of 2,100 sq. ft. of paving was lost as a result of the taking (Ex. 1, p. 49). According to his cost approach analyses, 1,400 sq. ft. of that paving was lost at the Restaurant Building, leaving 8,600 sq. ft. with a value of $17,200 [$2.00 x (10,000 sq. ft. - 1,400 sq. ft.) = $17,200] (see Ex. 1, p. 60). He further determined that 700 sq. ft. was lost at the Commercial Building, leaving 4,500 sq. ft. of paving with a value of $9,000 [$2.00 x (5,200 sq. ft. - 700 sq. ft.) = $9,000] (see id.). Thus, Mr. Bruckner valued the paving, after the taking, at $26,200 [$17,200 + $9,000]. Mr. Stropp, by contrast, stated that there was 17,200 sq. ft. of paved area after the appropriation, which he valued at $34,400 [$2.00 x 17,200 sq. ft.] (Ex. D, p. 42). By Mr. Stropp's calculations, 1,800 sq. ft. of paving was lost as a result of the taking [19,000 sq. ft. (before) - 17,200 sq. ft. (after) = 1,800 sq. ft.] (id., pp. 23 and 42).
Mr. Bruckner continued to ascribe a value of $5,000 to landscaping and miscellaneous site improvements (Ex.1, p. 60), while Mr. Stropp indicated there was a slight diminution in the value of those items to $4,600, attributable to a loss of 568 sq. ft. of lawn area (Ex. D, pp. 42 and 53).
The Court adopts Defendant's valuation for the paving [$34,400]. It further adopts the value of miscellaneous improvements proffered by Defendant [$4,600]. Thus, the Court determines that the value of the improvements to the land itself, after the taking, was $39,000 [$34,400 + $4,600 = $39,000].
Allocation of After Valuation
The Court finds that the fair market value of the Subject Property, as vacant after the appropriation, as well as the improvements thereto, was $329,316 [$290,316 (vacant land) + $39,000 (improvements to the land itself) = $329,316], without regard to the value of the Restaurant Building and the Commercial Building.
Temporary Easement
Claimant's appraiser determined that the value of the temporary easement was $4,254 [$15,470 (1,547 sq. ft. x $10.00 per sq. ft.) x 10% = $1,547 x 2.75 (two years and nine months) = $4,254.25 = $4,254 (R)] (see Ex. 1, p. 71). Defendant's appraiser determined that the value of the temporary easement was $4,000 [$20,111 (1,547 sq. ft. x $13.00 per sq. ft.) x 10% = $2,011.10 x 2.00 (two years) = $4,022.20 = $4,000 (R)] (Ex. D, p. 53).
The parties agreed that the Temporary Easement Parcel consisted of approximately 1,547 sq. ft. and they further agree that the annual rental fee for such easements is estimated at 10% (Ex. 1, p. 71; Ex. D, p. 37; see Ex. C). As noted earlier, the Court adopts Mr. Bruckner's stated period of the temporary easement which was two years and nine months (Ex. 1, p. 49). Moreover, the Court has determined the fair market value of the Subject Property as vacant land, both before and after the appropriation, to be $13.00 per sq. ft. Thus, the Court further concludes that the value of the temporary easement imposed upon the Subject Property is $5,530.53 [$20,111 (1,547 sq. ft. x $13.00 per sq. ft.) x 10% = $2,011.10 x 2.75 (two years and nine months) = $5,530.53].
Total Direct Damages and Temporary Easement
Claimant's appraiser states that total direct damages were $26,530 (Ex. 1, pp. 7, 71). As noted above, however, the items that make up that figure, land and improvements, actually add up to $31,530 [$23,530 + $8,000]. Moreover, the $23,530 figure for diminution in the value of the vacant land, appears to be incorrect. Mr. Bruckner rounded the value of the Subject Property as vacant after the appropriation from $236,530 to $236,500 (R) (id., p. 59) and stated that rounded amount in his reconciliation and allocation of damages summary of values and damages (id., p. 71 [Estimated Value After the Appropriation-Land Value: $236,500]). In that case, then the figure should be $23,500 [$260,000 - $236,500 = $23,500]. If, instead, the exact after amount is used, then the allocation of damages attributable to the land would be $23,470 [$260,000 - $236,530 = $23,470] (id., pp. 32, 59). In addition, as discussed above, the $8,000 diminution in the value of the paving also appears to be incorrect.Mr. Bruckner stated that the rental value of the temporary easement was $4,254.
Mr. Bruckner's cost approach analysis appears to result in an actual diminution to the land improvements of $4,200 [$30,400 (before) - $26,200 (after)] (see Ex.1, pp. 38, 60).
Defendant's appraiser determined that there were $37,000 in total direct damages [$30,000 diminution in the value of the vacant land ($320,000 [before] - $290,000 [after]) + $7,000 in site improvements ($3,600 diminution to the value of the paving [$38,000 (before) - $34,400 (after)]) + $3,000 for the loss of the sign in front of the Restaurant Building + $400 for a slight diminution in the value of the landscaping attributable to a loss of lawn area ([$5,000-$4,600])]. In addition, Mr. Stropp stated that the temporary easement rental value was $4,000 (Ex. D, pp. 23, 42, 53).
The Court finds that there were $37,784 in direct damages [$30,784 diminution in the value of the vacant land ($321,100 [before] - $290,316 [after]) + $7,000 in site improvements ($3,600 diminution to the value of the paving [$38,000 (before) - $34,400 (after)] + $3,000 for the loss of the sign in front of the Restaurant Building + $400 for a slight diminution in the value of the landscaping attributable to a loss of lawn area [$5,000 - $4,600])]. In addition, the Court finds that the temporary easement rental value was $5,530.53 [$20,111 (1,547 sq. ft. x $13.00 per sq. ft.) x 10% = $2,011.10 x 2.75 (two years and nine months) = $5,530.53]. Thus, the Court further finds that the total direct damages and temporary easement rental value was $43,314.53 [$37,784 + $5,530.53 = $43,314.53].
No Indirect Damages or Cost-to-Cure
Claimant determined that there were $103,770 in indirect severance damages (Ex. 1, p. 71), while Defendant determined that there were none (Ex. D, p. 53). For the reasons discussed above, the Court concludes that there were no indirect damages. Because there were no indirect damages, the Court also concludes that Claimant is not entitled to $2,000, as proposed by Defendant, as a cost-to-cure damages by re-striping the parking lot.
Allocation of Damages
The allocation of damages made by the Court in this Claim are summarized in the table that follows:
+--------------------------------------------------------+ ¦ ¦Before Taking¦After Taking¦Damages ¦ +------------------+-------------+------------+----------¦ ¦Land Value ¦$321,100.00 ¦$290,316.00 ¦$30,784.00¦ +------------------+-------------+------------+----------¦ ¦Paving ¦$ 38,000.00 ¦$ 34,400.00 ¦$ 3,600.00¦ +------------------+-------------+------------+----------¦ ¦Sign ¦$ 3,000.00 ¦$ 0.00 ¦$ 3,000.00¦ +------------------+-------------+------------+----------¦ ¦Landscaping ¦$ 5,000.00 ¦$ 4,600.00 ¦$ 400.00 ¦ +------------------+-------------+------------+----------¦ ¦Temporary Easement¦- ¦- ¦$ 5,530.53¦ +------------------+-------------+------------+----------¦ ¦Total Award ¦- ¦- ¦$43,314.53¦ +--------------------------------------------------------+ Conclusion
Accordingly, it is the finding of the Court that Claimant is entitled to an award of $43,314.53, with statutory interest thereon from the vesting date of September 12, 2006 (date of appropriation) EDPL §§ 514, 705; CPLR 5001, 5002; see Sokol v State of New York, 272 AD2d 604 (2d Dept 2000); Mordecai v State of New York, 118 AD2d 763 (2d Dept 1986); De Laus v State of New York, 19 Misc 3d 1133(A) (Ct Cl 2008).
It is directed that, to the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).
The award to Claimant herein is exclusive of the claims, if any, of persons other than the owners of the appropriated properties, their tenants, mortgagees or lienors having any right or interest in any stream, lake, drainage and irrigation ditch or channel, street, road, highway, or public or private right-of-way, or the bed thereof, within the limits of the appropriated properties, or contiguous thereto, and is exclusive also of claims, if any, for the value of or damage to easements and appurtenant facilities for the construction, operation, or maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer, or railroad lines.
Except as addressed above, all other motions and cross-motions upon which the Court previously reserved decision are hereby denied. All objections upon which the Court reserved determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
July 16, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims