New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2000-004-007, Claim No. 98464


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
HINMAN, HOWARD & KATTELL, LLPBY: N. Theodore Sommer, Esq., of counsel
Defendant's attorney:
BY: John J. Pickett, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 7, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed, unassigned Claim for the partial appropriation of premises owned by the Claimant, located in the Town of Norwich, Chenango County, in a proceeding entitled "DESCRIPTION AND MAP FOR THE ACQUISITION OF PROPERTY NORWICH - OXFORD, STATE HIGHWAY NO. 5414, COUNTY OF CHENANGO". The appropriation map is in evidence as State's Exhibit J. The descriptions thereon are adopted by the Court. The date of the appropriation was June 28, 1993. (
see, Cl. Ex. 1, Addenda, p 70)

Claimant most recently took title to the subject property by Deed dated August 6, 1979 and recorded in the Chenango County Clerk's Office on August 23, 1979 in Liber 590 of Deeds at Page 889. (
see, St. Ex. A, Appendix G)

The subject property was located on the east side of New York State Route 12. The north boundary of the property followed the centerline of Canaswacta Creek which also served as the division line between the City of Norwich to the north and the Town of Norwich to the south. (
see, St. Ex. J) The subject lot was improved with a large wood frame building, part one story, part two story. The entire first floor was utilized as a full service restaurant and the second floor contained an apartment, accessed by an interior stairway from the restaurant. There was a full basement. At least part of the building dated back some 75 years, but the entire structure had been renovated periodically and both appraisers agreed that on the date of the appropriation it was in good condition. Land improvements included asphalt paving, some fencing, two light poles, a septic system, some lawn landscaping and trees. The restaurant/apartment structure was located in relatively close proximity to the existing easterly boundary of Route 12. (see, St. Ex. J)

The size of the lot was the subject of differing views and some confusion at the trial. The deed to Claimant (
see, St. Ex. A, Appendix G) does not supply a definitive answer. Claimant's appraiser concluded that the subject property encompassed .695 acre and that .06 acre of the .695 acre was located within the Canaswacta Creek bed leaving what he referred to as an "effective land area" of .635 acres. (Cl. Ex. 1, p 15) The States appraiser testified that he had been shown a survey of the subject property by the Claimant and, based on that survey, concluded that the subject lot encompassed .724 acres. It was his view that "approximately 6,000 sq. ft. (19%) of the property's total area lies beyond the creek bank; this area is not usable except as a buffer". (St. Ex. A, p 24) Both appraisers arrived at their estimates of the before fair market value of the property with these respective views in mind.

Claimant returned to the witness stand on rebuttal, that is after the State's proof, and produced a survey of the subject property which was prepared in September 1987 and which was received in evidence as Claimant's Exhibit 12.[1]
During rebuttal, Claimant testified that after the survey was prepared in 1987 and before the appropriation in 1993 "the entire parking lot was stripped of all the blacktop...we brought in fill and filled along the creek bank 8 to 10 feet to gain additional parking along the creek bank and then the entire parking lot was re-blacktopped...".[2] During the course of his rebuttal testimony, Claimant was asked if he could estimate how much of the "6,000 feet were no longer part of the bank?". He gave no estimate but simply reiterated that fill was placed 8 to 10 feet deep along the creek bank.

The State's appraiser returned to the stand on surrebuttal. He was asked if he had recalculated damages based on Claimant's rebuttal testimony. He responded that if the parking lot had been expanded by 8 to 10 feet this would have reduced the land area in the creek bed from 6,000 square feet to 4,000 square feet. Asked the effect of this change on damages sustained, he thought it "not significant" noting that it would represent "just a slight change" and that "the market doesn't recognize that small of a difference".

Actually matters could be worse. The State retained an engineer who prepared an analysis of the parking on the subject lot both prior to and after the appropriations, hereinafter described. Indeed, the engineer's report and his schematic diagrams of his view of the parking on the lot both prior to and after the appropriations, appear in the State's appraiser's filed appraisal. (
see, St. Ex. A, appendix F) As noted, Claimant testified that part of the creek bed was filled in to gain additional parking along the creek bank. The Court infers from this that prior to filling in the creek bed, there was no parking area between the restaurant building to the south and the top of the bank of the creek to the north. Whether that was the case or not, the fact of the matter is that both appraisers appraised the subject property, as of the date of the appropriation, based on the assumption that there was room for one line of traffic spaces perpendicular to the creek bed on the north side of the lot. In any event, no one suggested during the course of the trial that there was any additional parking or room for any additional parking on that side of the restaurant, other than two or three slots along the north side of the building. (see, St. Ex. A, appendix F) On the other hand, it appears that both prior to and after the appropriations, there were multiple lines of parking spaces available between the south side of the restaurant and the south property line. (see, Cl. Ex. 1, addenda "PRELIMINARY TRAFFIC MAINTENANCE PLAN" and St. Ex. A, appendix F "EXISTING PARKING LAYOUT PLAN") Thus, it appears to the Court that, quite apart from how many square feet of lot area became usable because of Claimant's efforts in filling in part of the creek bed, both appraisers appraised the property in the before situation with fundamentally similar impressions of the size and utility of existing parking on the subject lot.

Although the subject appropriations occurred on June 28, 1993 and the purpose of the appropriations was to facilitate the reconstruction of the bridge carrying New York State Route 12 over the Canaswacta Creek, as of the date of the trial of this Claim at the end of March 2000, the contract for the reconstruction had not yet been awarded. Apparently, during the interim, the Department of Transportation (DOT) weighed various alternative plans to reconstruct the bridge ultimately deciding on an alternate number six. (
see, St. Ex. C) During those intervening years, a lot happened in the neighborhood of the subject property. As of the date of the appropriation, the subject property was serviced by electricity, natural gas and telephone. In addition, it received water from a privately owned water company, but it was the only property on Route 12 south of the Norwich city line that enjoyed that service. (see, Cl. Ex. 1, p 15, fn 3) In 1998, public water and sewer were extended southerly from the city of Norwich on Route 12. Although it is unclear to what extent anticipation of these utilities and their actual installation affected the Route 12 corridor south of the city, there was a great deal of commercial development in that area, subsequent to the date of the subject appropriation. What follows is what the Claimant's appraiser discovered:
Within 500 feet of the subject property on the same side of the road is 34 acres improved as a strip shopping center known as South Plaza. This plaza is anchored by an Ames Department Store, and more recently by a Save-a-Lot grocery store. The plaza is situated behind strip development along the road frontage.

In 1996, a new shopping plaza was developed on the west side of Route 12 opposite South Plaza. Known as Chenango Towne Center and anchored by a Price Chopper grocery store, it is located bout 0.3 miles south of the subject property. Within a half mile of the subject property on Route 12 south of the City line, is a Hess gas and convenience store, a Quick-way gas and convenience store, an NBT branch bank, a Burger King fast food restaurant, etc. Recent developments in this area over the last several years included a Monro Muffler & Brake repair facility, a car wash, and Chenango Towne Center previously referred to. There is a new Sears applicance [sic] and tool store recently constructed. In 1996, Giant Markets of Binghamton, New York bought a 10.75 acre parcel directly across from Wal-Mart, but it remains undeveloped in 1999.

(Cl. Ex. 1, p 13)

From the foregoing, it should come as no surprise that all four of the vacant land sales utilized by the Claimant's appraiser to fix the contributing value of the land in his market approach to value involved transfers of vacant lots on Route 12 in the immediate vicinity and south of the subject property, all occurring
after the date of the subject appropriations.

The State's appraiser analyzed and adjusted seven vacant land sales in arriving at his estimate of the contributing value of the subject land in his market approach. Only one of those sales, his L-4, was located on Route 12 immediately south of the city of Norwich in the area of the subject property and that transfer took place in 1989, prior to the subject appropriation. Of the remaining six sales, only one, his sale L-6 located in a town some distance to the south of the subject and which was a 1995 sale, occurred subsequent to the date of the subject appropriation. In short, none of the State's vacant land sales appear to have been effected by the potential installation of public water and sewer. Since both appraisers agreed that the highest best use of the subject property as of the date of the appropriation was as a restaurant, a conclusion as to which the Court concurs,[3]
the appraisers different approaches to contributing land value produced the following interesting result:
Claimant's Appraiser State's Appraiser
$112,000 Land $63,000
Site Improvements $12,000
Building Improvements
$262,500 Total $230,000

The Claimant's appraiser did not place a separate value on the subject land improvements and he did not value the subject property by the cost approach or the income approach. As can be seen, the State's appraiser did place a separate value on the subject's site improvement and he did value the subject property by the cost approach and the income approach, despite the fact that the subject building improvement was relatively old and the subject property was owner occupied.[4]

As can be seen, the principal reason for the $32,500 spread between the Claimant's appraiser's before estimate and the State's appraiser's before estimate lay in their differing views of the contributing value of the subject land, which, in turn, stems from their different approaches to the valuation of the land.[5]

A detailed review of the vacant land sale analyses of the appraisers would serve little purpose. Obviously, the vacant land sales used by the Claimant's appraiser, in terms of location, are, overall, far more probative than the State's appraiser's vacant land sales. On the other hand, the degree to which the prospect of receiving public water and sewer pressured values upward along the Route 12 corridor south of the city of Norwich, subsequent to the subject appropriation, is difficult to evaluate. In this regard, it appears that the subject's on site septic system functioned well. (
see, St. Ex. A, p 24) Although little was said at the trial and little is found in the filed appraisals and other exhibits with regard to the general knowledge in the area of the potential for public water and sewer, the Court finds that, in all probability, Claimant's property benefited from this latent potential, as of the date of the appropriation. After all, the scheme to rebuild the bridge which resulted in the subject appropriations had to have originally been conceived sometime prior to the appropriations in June of 1993 and yet, seven years after the date of the appropriations, the bridge had not been reconstructed. If we take that time sequence as somewhat representative of the progress of public projects, such as extending water and sewer districts, then it seems likely that the potential for public water and sewer had somewhat affected the subject market value, upwards, as of the date of the appropriation. With that thought in mind, and having carefully reviewed the approach to value of both appraisers and in particular the sales utilized by both, the Court finds that the subject property had a before value of $262,000 which the Court allocates as follows: land, $100,000; site improvements, $12,000 and building improvements, $150,000.

The State appropriated Parcel 178 in fee, and Parcel 179, a permanent easement. The fee taking consisted of a narrow strip of land beginning at the north end of the subject property at the centerline of the Canasawacta Creek and extending southerly along the subject frontage 123 feet. This parcel was 9 feet wide at its north end and came to a mathematical point at the southerly end. The parcel was no wider than 9 feet at any point and narrowed gradually as one proceeded to the south. Parcel 178 encompassed a total of .02 acre or approximately by 871 square feet, most of which the Court finds was within the creek bed, i.e., to the north of the top of the southerly embankment of the creek. (
see, St. Ex. J)

The permanent easement, Parcel 179, adjoined the fee taking on the east. The north line of the permanent easement also followed the centerline of the creek and the easement extended southerly to the top of the creek embankment and beyond, into the north parking lot of the subject property. The dimensions of the permanent easement were as follows: along the creek bed from west to east 59 feet, along the east line, 54 feet, along the south line and generally parallel to the creek, 52 feet, and along the fee take east line, 75 feet. The permanent easement encompassed .076 acre. Its purpose was the "constructing, reconstructing and maintaining thereon a stream channel and the appurtenances" and by its wording, Claimant and his title successors were reserved "the right of using said property and such use shall not be further limited or restricted under this easement beyond that which is necessary to effectuate its purposes for, and as established by, the construction and as so constructed, the maintenance, of the herein identified project". (St. Ex. J, sheet 2)

One of the problems, of course, is that, as of the date of the trial of this claim, nothing had been constructed, reconstructed or maintained.

After weighing the effect of the aforedescribed appropriations, the Claimant's appraiser concluded that the highest and best use remained the same, but:
In our judgment, the reasonable conclusion is the property will continue to be used as a restaurant, but at a reduced level, and the restaurant will have an interim period during construction when the construction activity will cause a reduction in the rental value of the property for the duration of the project.

(Cl. Ex. 1, p 61)

In the State's appraiser's view, "The subject's highest and best use is for continued restaurant use. Damages to the property are not sufficient to cause a change in highest and best use". (St. Ex. A, p 66)

The Court finds that the highest and best use of the property remained unchanged.

Before proceeding to the various views expressed during the course of the trial with regard to what
physical changes would be wrought as a result of the construction of the bridge, the following should be kept in mind.

Absent statutory authority, e.g., Village Law, § 6-616, subd. 2, the State, in general, is not liable for damages resulting from a change in grade, unless the change in grade results in unsuitable access. (
Selig v State of New York, 10 NY2d 34; Chemung Canal Trust Co. v State of New York, 90 AD2d 889) Where, however, there is a change of grade and a direct taking, consequential damages reflecting, in part, the change in grade are recoverable. (Matter of Board of Supervisors of County of Chenango [Bainbridge Unadilla State Highway], 168 Misc 407; cf., Levine v State of New York, 29 AD2d 572; Mitchell v State of New York, 20 Misc 2d 374)

Consequential damages attributable to a mere diminution in the quality of access are not compensable, where suitable access remains (
Priestly v State of New York, 23 NY2d 152; Lundquist v State of New York, 33 AD2d 950; Laken Realty Corp. v State of New York, 29 AD2d 1027; Red Apple Rest. v State of New York, 27 AD2d 417), unless the development potential of the remainder is diminished (Matter of County of Rockland [Kohl Indus. Park Co.], 147 AD2d 478), a contention no one makes in this Claim since both appraisers concluded that the subject property had previously achieved its highest and best use, i.e., its actual use.

Less desirable or more cumbersome internal traffic patterns, resulting from an appropriation or the exercise of police power, which reduces or limits access to the public highway does not result in consequential damages, if the remaining access is suitable. (
Penningroth v State of New York, 35 AD2d 1024)

"Damage caused by the limitation of access resulting from a combination of the power of eminent domain and the police power retains the characteristic of
damnum absque injuria which is peculiar to an exercise of the police power". (Vol. 1, Nichols on Eminent Domain, § 1.42 [17], p 1-573 [emphasis in original])

Lessening of visibility from the highway is not compensable (
Acme Theaters v State of New York, 26 NY2d 385; Forest City Enterprises, Inc. v State of New York, 91 AD2d 839)

When the state erects a guide rail along part of an adjoining property owner's highway frontage pursuant to the State's police power, thereby
reducing access to the adjoining property, no compensable consequential damages result since "[t]he rights of an abutting owner are subordinate to those of the State in the regulation of public highways for the benefit of the public and any inconvenience must be borne by adjoining landowners". (Northern Lights Shopping Ctr. v State of New York, 20 AD2d 415, 419, affd 15 NY2d 688, cert. denied 382 US 826 [citations omitted]; see also, Ingber v State of New York, 187 AD2d 826)

Finally, mere inconvenience with regard to access during construction is not compensable (
Welbilt Corporation v State of New York, 80 Misc 2d 439; 2A Nichols on Eminent Domain [Revised 3d ed], § 6.09 [2])

Before discussing the trial testimony with regard to what the various witnesses
perceived would be the changes that would occur as a result of the construction of the bridge, it is instructive to review how the two appraisers perceived what those changes would be, as explained in their respective appraisals, because those perceptions formed the basis for their respective after valuations of the subject remainder.

In arriving at his estimate of after value, the Claimant's appraiser concluded that the construction project "will result in the elimination of unrestricted access to the property from the highway, to be replaced with two curb cuts. The project will raise the level of the highway in front of the premises, beginning at the south end of the property and rising gradually to the north end of the property". (Cl. Ex. 1, pp 51-52) The Claimant's appraiser also concluded that the construction would "result in a retaining wall along the highway boundary directly in front of the building. On the other side of the retaining wall will be a five foot wide sidewalk, with the edge towards the subject building topped by a railing". (Cl. Ex. 1, p 52) Finally, Claimant's appraiser assumed that "During the term of construction, essentially the entire road frontage of the subject property will be closed off, with traffic rerouted to the west side of the highway over a temporary bridge. The area in front of the subject will be under construction, as well as being used for contractor staging as well as providing a work area for the project". (Cl. Ex. 1, p 52)

In reaching his conclusions with regard to after value, the State's appraiser concluded that there would be a change in road grade which would "negatively impact the property". (St. Ex. A, p 63) He based this conclusion on his belief that the property would remain at grade with Route 12 at the southerly end but would be "some 2.3' below grade to the north". (St. Ex. A, p 63) He further concluded that a curb would be constructed along the entire length of the subject frontage but that there would be an 80 foot wide southern driveway and a 20 foot wide northern driveway providing access to the remainder. The State's appraiser concluded that the "steeper entrance" at the northerly end of the property caused by the increase of the elevation of the road would cause "a reduction in the overall quality and utility of subject's access" noting that entrance grades into the subject property's parking areas "will be increased, as vehicles have to turn off the elevated drive into these spaces". (St. Ex. A, p 63)

With regard to the permanent easement taking, the Claimant's appraiser held the view that this taking "results in direct damages as the owner's right to use the property has been subordinated to the rights of the State". (Cl. Ex. 1, p 52)

In the State's appraiser's view, the area encumbered by the permanent easement taking was
damaged by the removal of part of the ownership rights limiting the owner's use of the area. While the owner can still use it for parking some of the time, he does not have exclusive use of the land as if it were owned in fee. These types of restrictions are similar to utility easements which limit any development on the easement and basically allow auxiliary surface uses. Such encumbered areas are typically damaged by 75%.

(St. Ex. A, p 63)

Charles Debnar, a DOT regional design engineer, testified at the trial and addressed the contemplated bridge reconstruction work that would transpire in connection with alternate six.[6]
Debnar testified that the contract to perform the work would probably be awarded in May 2000 (shortly after the trial of the Claim) and that the DOT expected the project to be completed in September 2000. Asked if the reconstructive bridge work contemplated a "retaining wall in front of the building" he responded that it would. Asked how high the wall would be he testified, "Directly in front of the front entrance, where the door is, it's approximately one and one half feet high. It starts south of that point, probably a foot high and it will go maybe to not quite two feet to where the driveway opening is on the north end". Asked the purpose of designing the retaining wall, he responded, apparently not hearing the question, that it was "to provide enough room for parking and traffic to go through in front of Hands Inn" noting that the wall would be constructed "approximately where the existing edge of pavement is now". He testified that, directly in front of the restaurant, the existing parking spaces, prior to the appropriations, were partly on the highway right of way. (see, St. Ex. J) It was his view that the construction, as completed, would not interfere with Claimant's use of the highway right of way on the side of the wall away from the highway. He testified that there would be a "pedestrian fence, it's not a guide rail" installed along the top of the retaining wall which would apparently be some three and a half feet high. He estimated that the curb cut which would service the subject property at the southerly end would be "approximately 80 feet wide" which he viewed as being "much wider" than a typical curb cut and which was designed as a result of discussions with Mr. Moore. He estimated that the curb cut at the north end of the subject property would be "approximately 30 feet wide" which he thought "a little wider" than a typical 24 foot wide curb cut. According to Debnar the centerline of the highway directly at the north curb cut would be 2.4 feet higher after construction and it was his view that the highway would be 2.3 feet higher at the east edge of the pavement, opposite the curb cut. Because of this it was his view that there would be a driveway which would "be connected to the existing parking lot at a grade, we anticipate somewhere around eight percent" which he viewed as being within normal design standards. He noted that a lesser grade could be installed but that would involve going outside of the State's right of way and actually extending the driveway and the grade thereof into the Claimant's parking lot.

Debnar was asked about access to and from the subject property during construction. He testified, "we must maintain ingress and egress during construction". He noted that Route 12 itself would be widened in front of the subject property from two 12 foot lanes and eight foot shoulders to three 12 foot lanes, one lane being a center turning lane. However, he testified that the highway would not move closer in proximity to Claimant's property, but would be extended outward to the west to accomplish this. He estimated that the retaining wall to be constructed would be approximately 28 to 30 feet from the front of the restaurant.

On cross-examination Debnar was asked about the permanent easement. He testified that, during construction, it would be used to gain access to the stream bed and he thought that construction equipment would be on the easement "for a short time maybe". He testified, that after the project was completed, the permanent easement would be used to make "repairs to the stream bank and possibly to the bridge". Debnar also agreed on cross-examination that, directly in front of the restaurant, the retaining wall with the railing on top would be approximately five feet high. Asked about the grade from the highway onto the subject property before the appropriation, Debnar estimated that, from the shoulder, it was "probably about a four and a half, five percent grade and it came down to the existing parking lot".

On re-direct Debnar was asked his estimate of how frequently the permanent easement would be utilized, after the initial construction, and he testified that it would be "hard to anticipate" since it would depend on"storms". Nonetheless, it was his view that the DOT might utilize the permanent easement every "five or six years or more".

The State retained a consulting engineer to analyze the subject's available on-site parking both prior to and subsequent to the appropriations. The engineer's report and schematics of his opinion with regard to the pre-appropriations and post-appropriations parking are found in State's Exhibit A, appendix F. The engineer, O'Conner, also testified at the trial. He was of the view that the proposed 80 foot wide curb cut at the southerly end of the property would maintain "the rest of the parking area in its existing state". Indeed, he was of the view that, with a minimum of revamping, the subject lot would support 46 parking spaces after the appropriation and construction, the same number as before. (St. Ex. A, appendix F, c.f., Existing Parking Layout Plan with Reconfigured Parking Lot Layout Plan) He was also of the view that the slope into the subject property, through the curb cut at the north end, would be something in the neighborhood of eight degrees. He opined that, before the construction, the slope was more like two degrees to four degrees. He thought the slope could be "possibly lessened" to something in the neighborhood of six degrees by extending the driveway slope outside of the State right of way and into the parking lot "another 20 to 25 feet".

The Claimant's appraiser explained his views on damages sustained at the trial. First, he noted that the fee and permanent easement taking resulted in direct damages. It was his view that the loss of the "unrestricted access across its entire road frontage" and the fact that the highway level would be raised "2.5 feet at the north end of the property" would "result in indirect damages due to loss of parking spaces, restriction on the circulation within the property and the reduction in the ease of access to and from the property". He noted changes anticipated by the proposed construction such as the sidewalk and the retaining wall with the railing on top. He opined that these "improvements result in indirect damage" because he believed they caused a loss of parking spaces, increased operating costs and, in his view, increased the risk of liability to Claimant. (
see, Cl. Ex. 1, p 56) Further, he thought that the actual construction would have a "significant impact" on the subject property which would reflect "a reduced rental value of the property during the time that construction takes place". He noted that the wall would start near the north end of the south curb cut and extend northerly along the entire frontage of the subject property. He believed that the subject property would be adversely affected because of this, since he thought it likely that snow would be plowed over the newly constructed retaining wall into the area remaining between the retaining wall and the front of the restaurant. (see, Cl. Ex. 1, p 54) He was of the view that the six parking slots that were found immediately in front of the restaurant prior to the appropriation were imperiled, and he initially opined that some might survive at a sharper angle to the front of the restaurant. (see, Cl. Ex. 1, p 53-54) Ultimately, however, he even rejected this possibility because he believed that snow plowed over the wall into the remaining space between the wall and the front of the restaurant, (which, it will be recalled, Debnar estimated between 28 to 30 feet wide) would, as a practical matter, "eliminate the parking spaces in front of the building". (Cl. Ex. 1, p 54) He was also of the view that because of the limitation on the space between the wall and the front of the restaurant, the parking would have to be eliminated in order to allow drivers of vehicles to drop patrons off at the entrance to the restaurant. (Cl. Ex. 1, p 54) He foresaw problems with tractor trailers, presumably supplying the restaurant, entering and exiting the subject property through the curb cuts. (Cl. Ex. 1, p 56) Claimant's appraiser testified that, although he recognized that "business losses are not compensable", he thought the impact of construction complications "so significant" that the subject property would "essentially not be rentable during the period of time that this construction takes place".

Based on the same sales that he analyzed in arriving at his before value, Claimant's appraiser arrived at an after value of $206,000 of which the sum of $100,600 represented contributing land value. He broke down his damages as follows:

Direct Damages:
0.017 acre @ $177,000/acre $ 3,009 (fee)
0.055 acre @ $177,000/acre X 90% $ 8,762 (P.E.)
Total Direct Damages: $11,771
Indirect Damages to Improvements: $49,789
Total Taking Damages: $56,500
Temporary Loss of Rental Value: $19,889[7]
Just Compensation: $76,389

The State's appraiser was asked about the "negative effects" of the appropriation. He noted that the available access along the front of the property was reduced from 229 feet "to two driveways".[8]
He noted the change of grade. He testified that, having recognized that the permanent easement would be utilized "for continued maintenance" he discussed this "with the engineers" and reached the conclusion that the easement area that would be "restricted...from the owner's usage, would be very minimal, if at all". It was his view that six parking spaces would be on all or part of the permanent easement and that all "would still be available for use by the patrons of Hands Inn".

On cross-examination, the State's appraiser agreed that he arrived at a 10 percent reduction in the contributing land value in the after situation because of difficulties caused by the increased grade of the highway and the limitation of access. It was his opinion that, although the land and buildings suffered consequential damages, none of the consequential damages were the result of any adverse effect on the subject's parking capacity. In this regard he accepted the consulting engineer's cost to cure estimate to basically reconfigure and re-stripe the parking lot in the amount of $500. (
see, St. Ex. A, p 86 and appendix F, the engineer's report and appendix B attached thereto)

Based on the same comparable sales that he utilized in arriving at the before value of the subject, the State's appraiser concluded that the after value was $210,000.[9]
Of the $20,000 in damages, he found that $5,000 represented direct damages and $15,000, consequential damages. Of the direct damages he concluded that the sum of $4,000 represented the direct taking of fee and the permanent easement square footage and the sum of $1,000 represented damage to site improvements encompassed by both the fee taking and the permanent easement taking. He found consequential damages to the subject lot remainder in the amount of $7,000 because of "[l]oss in marketability due to elevation change with road grade" (St. Ex. A, p 86) and $8,000 in consequential damage to the building because of "loss of marketability due to elevation of grade". (St. Ex. A, p 86) He arrived at the total damages in the amount of $20,500 by factoring in a cost cure in the amount of $500, derived from the O'Connor parking study.

Needless to say, when the Claimant took the stand on rebuttal and enlarged the parking lot, it complicated the appraisal problem considerably, since both appraisers were unaware that this had happened. Further complicating matters is the fact that the Claimant's appraiser placed no value whatsoever on that part of the subject lot that he considered within the creek bed (.06 acre,
see, Cl. Ex. 1, p 15), whereas the State's appraiser valued what he originally thought was in the creek bed at 50 cents per square foot. (see, St. Ex. A, p 37) In arriving at the before value of the subject property, the Court has accepted the State's appraiser's conclusion, arrived at during the course of the trial (see supra, pp 3-4), that there were actually 4,000 square feet of the subject land area in the creek and not 6,000 square feet. Thus, the Court allocated land value in arriving at an overall value of $262,000 as follows:
Land: 4,000 square feet @ .50 per square foot $ 2,000
27,537 (R) square feet @ $3.56 per square foot $ 98,000 (R)
Land Improvements: $ 12,000
Building Improvements: $150,000

The Court did not review in detail the vacant land sales analysis of the appraisers in the before situation, being of the view that it would serve little purpose, and, of course, there was near agreement between the appraisers with regard to the contributing value of the subject building. Beyond that, as noted (
supra, p 8, fn 5) the Claimant's appraiser did not place a separate value on land improvements. There would be less point in reviewing the sales analyses of the appraisers in the after situation. All of the sales, to the extent that they were comparable to the subject before the appropriation, were less so after the appropriation, due to the unusual nature of the takings and the projected construction within the confines of those takings. The Court has carefully reviewed the exhibits in evidence and the testimony of both appraisers with regard to after value and finds that the subject property had an after value of $229,340, after benefiting from a $500 cost to cure, which the Court allocates as follows: land, $84,340; site improvements, $10,000; and building improvements, $135,000.

The Court finds that the Claimant sustained damages in the total sum of $33,160 allocated as follows:

Parcel 178 (fee) 300 square feet (in creek) x 50¢ $ 150.00
Parcel 178 (fee) 571 square feet (in parking lot) x $3.56 $2,033.00

Parcel 179 (P.E.)1,500 square feet (in creek) x 50¢ x 90% $ 675.00

Parcel 170 (P.E.) 1,811 square feet (in parking lot)
x $3.56 x 90% $5,802.00 (R)
Site improvements: $2,000.00
Total Direct Damages: $10,660.00

Land $7,000.00
Buildings $15,000.00
Damages: $32,660.00
Cost to Cure:
$ 500.00
Total Damages: $33,160.00

In reaching this result, the Court has carefully weighed the applicable law in making the following findings. First, in the Court's view, while it is still physically possible to park cars in front of the restaurant, it is no longer practical. The reality is, however, that had there been no appropriation, the State could have erected a guide rail along the outside edge of the existing right of way, in front of the restaurant, thereby interdicting that parking and Claimant would not have sustained any compensable damages. One must keep in mind that when vehicles parked prior to the appropriation, perpendicular to the front of the restaurant, part of the vehicle would have been within the State's existing right of way. Second, the Court has assigned a value to that part of the subject land found within the confines of the creek, as did the State's appraiser. That land served as a buffer, separating the subject from land owned by a County industrial development agency to the north (
see, St. Ex. J) but also, in light of the size of the Canaswacta Creek, it almost certainly had some aesthetic value as well. Third, while the Court has not awarded damages simply because of the highway grade change in the abstract, the reality is that access to the property in the after situation at the north end could well be regarded as unsuitable, unless the grade of the driveway into the parking lot is extended well beyond the State's taking. That step or improvement, while facilitating ingress and egress would, in the Court's view, eliminate some of the parking slots in the northwest corner of the subject lot along the embankment of the creek. (see, St. Ex. A, appendix F, RECONFIGURED PARKING LOT LAYOUT PLAN)[10] Fourth, the Court finds that the permanent easement which, according to the State's engineer, sliced through six parking spots (see, St. Ex. A, appendix F, RECONFIGURED PARKING LOT LAYOUT PLAN) had an adverse effect on the subject remainder, in particular the subject building. While it may or may not be true that the easement area would be utilized by the DOT in future years at a frequency of five to six years, (see supra, p 17) it is reasonable to infer that when the DOT's easement rights are exercised, heavy equipment will be brought on to that easement area to clean the stream bed, repair the bridge structure or for any other reason which the DOT views as appropriate. Under the circumstances, the area blacktopped within that easement faces a precarious future. It is reasonable to infer that these affected parking slots were important to the restaurant operation. Otherwise, it would be hard to understand why Claimant added them, prior to the appropriations.

The Court has made no award for a loss of rental value of the subject property which loss Claimant's appraiser's projected might have occurred during construction in the amount of $19,889 (
see, Cl. Ex. 1, pp 65 through 67), since this is simply an attempt to circumvent the well established rule that inconvenience caused by construction, when tied into an appropriation, is not compensable (see, Welbilt Corp. v State of New York, 80 Misc 2d 439, 443), but with this
proviso. The construction had not commenced at the time of the trial and thus the level of inconvenience caused by the construction was, at that time, impossible to evaluate. "However, if the temporary obstruction is a result of unreasonable, unnecessary, arbitrary or capricious acts or conduct by the one in charge of the improvement or construction, the abutting landowner has a right of action for damages resulting from such interference with access to his property". (Id., p 43) In other words, Claimant may, depending on the degree that access is impaired during construction, have a right of action for damages.

The Court has viewed the property.

Claimant is awarded the sum of $33,160 with interest thereon from June 28, 1993, the date of taking, to January 11, 1996 (six months subsequent to the date of personal service
see, St. Ex. G; L 1971, ch 967) and from June 15, 1998 (the date of filing) and thereafter pursuant to CPLR §§ 5001, 5002 and 5003 and Court of Claims Act § 19, subdivision 1, subject to Court of Claims Act § 19, subdivision 4 and EDPL 514.

The award to the Claimant herein is exclusive of the claims, if any, of persons other than owners of the appropriated properties, their tenants, mortgagees or lienors having any right or interest in any stream, lake, drainage, 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 or appurtenant facilities for the construction operation or maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer or railroad lines.


September 7, 2000
Binghamton, New York

Judge of the Court of Claims

He most likely did show this survey to the State's appraiser because it is reproduced in his appraisal. (see, St. Ex. A, p 23).
The subject of permits was not broached at the trial (see, ECL §§ 71-1107 and 15-050). Unless otherwise indicated, all quotations are from the Court's trial notes or from the trial electronic recording cassettes.
The State's appraiser concluded that the highest and best use included restaurant use "supplemented with the rental of the second floor apartment" (St. Ex. A, p 30), whereas the Claimant's appraiser did not make reference to the apartment in his appraisal, insofar as highest and best use is concerned, but rather regarded the highest and best use as a restaurant. (Cl. Ex. 1, p 27)
The State's appraiser arrived at his estimate of the contributing value of the site improvements by the cost approach. (see, St. Ex. A, p 38)
The Claimant's appraiser made no mention of site improvement contributing value in his market analysis, both with regard to his vacant land sales and improved sales, and of course he did not do a cost approach analysis. Thus, it is not entirely clear how he reflected the contributing value of the site improvements in his overall estimate of before value. One infers that the site improvement contributing values are reflected in his overall value and are derived from a comparison of improved sales to the subject.
As noted, the alternate 6 construction plans are in evidence as State Exhibit C. The particularly relevant information found in these plans is on sheet 27, sheet 33, sheet 37, sheet 39, sheet 45 and sheet 49.
Claimant's appraiser arrived at his estimate of rental loss as follows: $206,000 (after value) X a capitalization rate of 10% = $20,600 a year, (which he regarded as net income) or $1,716.67 per month. He then concluded that the present value, of the annual rental as of the date of the appropriation would have been $19,889. (see, Cl. Ex. 1, p 67)
In arriving at his 229 foot estimate of useable frontage, the State's appraiser scaled the available frontage not interdicted by an existing guide rail which extended southerly from the existing bridge along the subject's frontage, at its north end, on the appropriation map. (St. Ex. J)
The State's appraiser valued the subject property both in the before and after situation by the income and cost approaches, but the Court has given his value conclusions derived from these methods little weight.
According to O'Connor an 8Εgrade into the parking lot would cut through four parking slots located along the bank of the creek. That is pretty steep for practical parallel parking.