Opinion
February 25, 1971
Appeal from a judgment in favor of claimant, entered July 24, 1969, upon a decision of the Court of Claims. On January 10, 1966 claimant acquired a parcel of land having about 564.16 feet on the north side of U.S. Route No. 6 in the Town of Southeast, Putnam County, paying therefor the sum of $55,000. This parcel adjoined the access ramp connecting Route 6 to Route 22 and Interstate Route 87, but had no access to the ramp. The parcel was triangular in shape, contained about 44,729 square feet, and was about 196 feet deep along the ramp or westerly side of the parcel. The parcel was improved with two buildings, one being a gasoline service station about 20 years old in fair to poor condition previously occupied by a major oil company, and the second being a one-story frame barn which was very old and in poor condition. Both buildings were located near the westerly line of the property. On April 26, 1967 the State appropriated in fee without the right of access, a strip of land one foot wide and extending from the westerly line of the parcel easterly along the northerly line of Route 6 a distance of 300 feet. After the appropriation, 264.16 feet of the parcel had access to Route 6 with said access along the narrow portion of the triangle and where the parcel had a maximum depth of about 58 feet. The zoning ordinance of the Town of Southeast designated this area as H-2, Highway Business. The permitted uses under this classification consisted among others of manufacturing, warehouses, office buildings, trucking terminals, restaurants, gasoline stations, used car lots, automobile dealers and stores. The State appraiser felt that the highest and best use would be as a gasoline service station, and arrived at a before value of $58,000, and an after value of $30,000 for total damages of $28,000. He attributed $500 to direct damages and $27,500 to consequential damages which he stated were not compensable since he contends that a commercial highest and best use remained after the taking. Claimant's appraiser testified that the westerly 175 feet of the parcel had a highest and best use as a gasoline service station, and the easterly 265 feet had a highest and best use for some other permitted roadside commercial use, such as a restaurant or bank. He assigned a before value of $90,000 to the westerly 175 feet, and $27,000 to the easterly 265 feet of the parcel. He was also of the opinion that after the taking the westerly 175 feet no longer had a highest and best use as a gasoline service station, and that the highest and best use then was for some other commercial use consistent with the zoning ordinance. He determined the after value of the entire parcel to be $40,200 and total damages to be $76,800, assigning $800 to direct damages, and $76,000 to consequential damages. The court determined that the "highest and best use of subject property before the appropriation was a single ownership dual use of gasoline service station for the west 175 ± feet of frontage and general highway commercial use of the east 389 ± feet of frontage. The highest and best use of subject property after the appropriation was a limited general highway commercial use consonant with the existing zoning. The appropriation destroyed the before gasoline service station use." The before value of the property was found to be $94,700. In arriving at this value the court assigned $71,700 to 24,730 square feet of gasoline station land; $16,000 to 20,000 square feet of general commercial land and $7,000 for building improvements. The after value of the land and buildings was found to be $35,500 and $7,000 respectively, resulting in damages of $52,200. Direct damage was found to be $600 and consequential damages $51,600. The State now contends that, since 264 feet of access remained on U.S. Route 6 after the appropriation, it was error as a matter of law to award consequential damages for destruction of use. This argument is predicated upon the theory that the highest and best use should have been determined to be commercial rather than a specific commercial use, to wit, a gasoline service station. This argument, however, ignores the fact that there are higher or lesser commercial uses to which a parcel of land may be put; that some land is more suitable for one purpose than another; and that the suitability of the land for a particular purpose has a direct relationship on its value. The State's appraiser recognized this since he arrived at consequential damages of $27,500, obviously, since the land was no longer suitable for a gasoline service station and was suitable only for some lesser commercial use. Under the circumstances, the court properly determined that the remaining access was unsuitable as distinguished from merely circuitous and awarded consequential damages. ( Priestly v. State of New York, 23 N.Y.2d 152; Lundquist v. State of New York, 33 A.D.2d 950.) The State also contends that, since the property was purchased only 20 months prior to the appropriation for $55,000, it could not reasonably increase to a value of $94,700 in such a short time absent special circumstances and improvements. Evidence of the purchase price and the assessed valuation of the property were, of course, relevant to the issue of value ( Vasile v. State of New York, 30 A.D.2d 1042, affd. 24 N.Y.2d 969), but these are only some of the factors to be considered. The State's appraiser in his appraisal stated that land values in the area had undergone a tremendous increase in value in a short period of time, and admitted on cross-examination that the land value situation in the vicinity of the property could be described as "very explosive". Thus, special circumstances were available for consideration by the court. The before value found by the court is also within the range of the expert testimony, and the decision of the court reflects the fact that all the evidence concerning value and the facts surrounding the purchase were considered. We find no basis for disturbing this determination. The final argument of the State is that the court erred in considering a dual use of the property under the zoning ordinance then in effect. In this regard the State contends that the property could not be so used under the ordinance. The Building Inspector of the Town of Southeast, who was charged with the responsibility of enforcing the ordinance, testified, however, that the property could be devoted to a dual use providing the whole remained in common ownership. The court, therefore, properly found on the evidence that a dual use was permissible. The judgment and award should, therefore, be affirmed. Judgment affirmed, with costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur. [ 60 Misc.2d 199.]