Opinion
October 31, 1967
Appeal by the McKownville Fire District in the Town of Guilderland, and cross appeal by 1250 Western Corp. from the order and judgment of Supreme Court, Albany County, which confirmed the report of the Commissioners of Appraisal herein. The respondent-appellant, 1250 Western Corp., has withdrawn its cross appeal. In March, 1965, the defendant, Potter Club Alumni Association, Inc., made a contract to sell certain real property known as 1248-1250 Western Avenue in the Town of Guilderland, Albany County, New York to Donald Bowman Associates for the sum of $63,000 plus the real estate commission. The contract was conditional on a change of the zoning ordinance from residential to commercial, and on the granting by the Town of Guilderland of a building permit for the construction of a one-story office building containing 10,000 square feet of office space. After these conditions had been met, the property was sold to 1250 Western Corp., wholly owned by Bowman on July 2, 1965 for the sum of $67,000. The appellant-respondent had been offered the property for a proposed new fire house in February, 1965 for the sum of $63,000 which it had refused. On June 15, 1965 a referendum was held in the fire district on the proposition of purchasing the property for the fire district by condemnation which was approved by the voters and, on October 28, 1965, the Commissioners of Appraisal were appointed, and the hearings commenced on December 3, 1965 and were concluded on January 5, 1966. The commissioners made an award of $102,000 which has been confirmed by the court. The appellant contends that the award is grossly excessive; that the award is based on inadmissible evidence in support of a valuation based on capitalization of income; and, that the use of comparables by the respondent was not within the definition of "comparable sale". The appellant's expert witness testified that the valuation of the property was $50,000 based on his appraisal made in March, 1965 using as comparable sales properties in the area that were sold in 1961 or earlier. The respondent's expert witness testified and submitted a written appraisal report setting forth a front foot valuation for the subject property of $145,800 compared with a recent sale in the immediate area, and a square foot valuation of $226,000. He also testified to a capitalization of income valuation of $152,000 and chose as his final opinion the front foot valuation of $145,800. He further stated that the property was worth an additional $20,000 because of the respondent's plans to exploit the property. Mr. Bowman, the sole stockholder of the respondent, testified that he engaged an architect and a general contractor who made plans for erecting an office building on the subject property, and that they had been instrumental in effecting the zoning change. In addition, on May 26, 1965, an executed lease for a substantial portion of the proposed building was submitted to the respondent which eventually was returned, unsigned by the respondent, because of the referendum vote on June 15, 1965. The main contention of the appellant is that the award is excessive because it is approximately $40,000 in excess of the sale price of the property which was consummated less than four months prior to the condemnation. However, consideration must be given to any increment in the value of property which might result from evidence in the record that the owner had plans for and intended to exploit the property for a higher and better use. ( Levin v. State of New York, 13 N.Y.2d 87.) The award is sustainable on the evidence of valuation based alone on comparable sales. "The power of the courts to review an award of the commissioners is strictly limited, and every intendment is in favor of the action of the commission. ( Adirondack Power Light Corp. v. Evans, 226 App. Div. 490.) * * * The courts will reject a determination of the commissioners only for irregularity in the proceedings, or if based on an erroneous principal of law (see Matter of City of New York [ Northern Blvd.], 258 N.Y. 136, 155), or, if it `shocks not only one's sense of justice, but one's conscience' ( Matter of City of New York [ Old Third Ave.], 241 App. Div. 13, appeal dismissed 265 N.Y. 503)." ( Matter of Huie [ Fletcher-City of New York], 2 N.Y.2d 168, 171.) Inasmuch as the award here falls within the range of the differing valuations of the experts, and was predicated on relevant factors, we do not see how we can say that, as a matter of law, the award is so obviously wrong that it shocks the sense of justice or the conscience of the court. ( Matter of Huie [ Fletcher-City of New York], supra.) We are, therefore, of the opinion that the evidence in this record is legally sufficient to sustain the award. Order and judgment affirmed, with costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.