Opinion
January 14, 1971
Appeal from the Court of Claims.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Henry, JJ.
Judgment unanimously reversed on the law and facts, without costs, and a new trial granted in accordance with the following Memorandum: Claimants have been awarded direct and consequential damages for the appropriation of 26.431 acres of land with residence and farm buildings located about one-half mile west of the Village of Baldwinsville in the Town of Van Buren. The property, which was zoned "Agriculture" permitting use for one-family dwellings, lay on both sides of Route 31 and was between two residential areas. Water, electricity, gas and telephone services were available. Part of claimants' land had been sold off as building sites before the appropriation. The Town of Van Buren has been experiencing an unusually high population growth for some years accompained by a stimulation of residential development. Despite these facts, the State's appraiser, who was not a real estate broker and had neither bought nor sold land in this area, valued the property before taking on the basis of a highest and best use as rural residence site and agricultural, with residential potential for a very small portion fronting on Route 31. Such testimony was not supported by the physical evidence, and the agricultural use ascribed by the appraiser was properly rejected by the court except as an interim use. This witness' testimony that consequential damage to the remaining property was more than offset by special benefit was also unsubstantiated in view of the comparables used as the basis for this conclusion. Neither may the award be sustained on the basis of valuation testimony given by claimants' appraiser. Although he arrived at a value based on the market data approach, he did not make an adjustment between the comparables relied upon by him and the subject property, either on a dollar and cents basis or by any other competent proof. ( Geffen Motors v. State of New York, 33 A.D.2d 980.) He also used an erroneous method of valuation when he employed a front foot basis rather than a raw acreage plus increment for potential basis for land which he classified as potential residential development. ( Hewitt v. State of New York, 18 A.D.2d 1128; County of Niagara v. Donohue, 35 A.D.2d 286.) Further, this expert relied heavily on sewer facilities which he assumed were available to claimants' property, but which in fact were not available, in fixing its value for potential residential use. In addition, he failed to take into account and to adjust value by reason of the existence of a permanent easement across the property. Both of these errors were alluded to by the trial court in its decision, yet the court perpetuated the errors by adopting the per acre value testified to by this witness. A new trial should be held at which the parties may introduce proper proof from which claimants' damages may be determined.