This is a timely filed claim for damages caused by the partial appropriation
of claimant's property, pursuant to Section 30 of the Highway Law and the
Eminent Domain Procedure Law. The subject property is described on the
appropriation maps entitled "Genesee Street, Part 1, S.H. 1212, Erie County, Map
No. 214, Parcel No. 251" and "Genesee Street, Part 1, S.H. 1212, Erie County,
Map No. 215 T.O., Parcel No. 252", filed in the Erie County Clerk's Office on
May 19, 1998, to which the parties stipulated, and the court finds to be the
date of taking. Said maps and the property descriptions set forth therein are
adopted by the court and incorporated herein by reference. This claim has not
been assigned or submitted to any other court, tribunal or officer for audit or
At the time of the appropriation herein, claimant, Michael P. Brunner, owned
the property located at 3343 Genesee Street in the Town of Cheektowaga, Erie
County, New York, which property is the subject of this appropriation claim.
The claimant acquired title to the property by deed recorded in the Erie County
Clerk's Office on January 18, 1991, in Liber 10255 of Deeds, Page 411. There
was no dispute as to the ownership of the property.
The subject property is a level, slightly irregular parcel of land with
improvements. Prior to the appropriation, claimant's property measured 35.14
feet along the north line on Genesee Street, 34 feet along the south line,
157.98 feet along the east line of Meadow Place, and 150.17 feet along the west
line. The area contained 5,239 square feet, as calculated by defendant's
appraiser, which the court adopts. The subject property is improved with a
one-story, masonry, automobile repair garage. The building also contains a
partial basement. Claimant's appraiser calculated the total building area to be
1,601 square feet, while defendant's appraiser calculated it at 1,612 square
feet. Since defendant's appraiser utilized a survey and his own measurements,
and it is unclear what measurements claimant's appraiser utilized, the court
will adopt defendant's total building area. Other land improvements prior to
the taking included an asphalt paved area along the front and east side of the
building, a stone and dirt parking area at the rear of the property, chain
linked fencing, and a self-standing illuminated sign identifying claimant's
business. The subject property is zoned "NS", Neighborhood Service District.
The automobile repair business on the subject property is a grandfathered legal,
non-conforming use within this particular zoning district. At the time of the
taking, the property was assessed at $93,800.00, with $20,900.00 assigned to
land and $72,900.00 to improvements. The equalization rate for the Town of
Cheektowaga in 1998 was 64.96%.
The appropriation took a strip of land along Genesee Street, containing 278
square feet. This reduced the setback of the building on the subject property
from an average of 30 feet to 23 feet along Genesee Street. Consequently, after
the taking, the property contained 4,961 square feet. The acquisition also took
land improvements consisting of 278 square feet of asphalt pavement, and the
free standing illuminated sign.
The court has viewed the property.
Both appraisers agreed the highest and best use of the subject property, in
both the before and after situations, was for its continued use as an automobile
Claimant, Michael P. Brunner, testified he purchased 3343 Genesee Street on
January 18, 1991 and paid $135,000.00. He used the property and its
improvements to operate his automotive repair business. Claimant stated he sold
the subject property, along with the improvements, in September 1998 for
The main element of damages for this claim are indirect or consequential
damages. These indirect damages result from the loss of parking in front of the
automotive repair shop caused by the appropriation. Claimant's appraiser's
position was that the appropriation eliminated all vehicular parking in front of
the building. However, he never quantified the total number of parking spaces
eliminated in either his appraisal or his trial testimony. Defendant's
appraiser maintained that, prior to the taking, the property had two legal
parking spaces in front of the building. According to defendant's appraiser,
the taking eliminated one of the front parking spaces, and limited the options
for sign relocation. He also stated the taking hindered snow removal in front
of the building, in that there would be minimal areas for the placement of
plowed snow in the after situation. He acknowledged this could possibly
eliminate all front parking during the winter months. In addition to the
indirect damages just described, there are direct damages because of the taking
due to the land and improvements acquired.
Both appraisers relied primarily on the sales comparison approach in reaching
their damage figures. In the before situation they first examined the property
as unimproved land, and each used three comparable sales. Two comparable sales
were common to each appraisal. The methodology of both appraisers and their
adjustment factors in establishing the before land value appear to be reasonable
and logical. Claimant's appraiser, Howard P. Schultz, arrived at an unimproved
land value of $5.50 per square foot. Defendant's appraiser, Roger P. Pigeon,
arrived at a land value of $4.75 per square foot. Since both appraisers are
relatively close to each other for the value of the unimproved land in the
before situation, it seems it would be merely splitting hairs to analyze each of
their adjustment factors for their comparable sales. Therefore, the court
elects to adopt a mean figure between the two appraisers figures for the
unimproved land value before the taking. This would be $5.10 per square foot,
for a total rounded figure for the 5,239 square feet of land area of $26,700.00.
For the improved land sales analysis in the before situation, both appraisers,
once again, utilized three comparable sales. One of these comparable sales was
common to each appraisal. Mr. Schultz's improved sales analysis was based upon
a per square footage analysis of the subject property and the comparable sales.
After analyzing the comparable sales and utilizing various adjustment factors,
Mr. Schultz arrived at an improved land sales price in the before situation of
$100.00 per square foot. All of the adjustment factors used by Mr. Schultz
appear to be reasonable and fully explained. However, the court believes Mr.
Schultz failed to take into consideration a necessary adjustment factor for
total land area. This would result in a downward adjustment of Mr. Schultz's
final sales price. This adjustment is necessary because the subject property
contains 5,239 square feet, while Mr. Schultz's three comparable sales contain
substantially more area. Comparable sale number one contains 11,572 square
feet; comparable sale number two 19,348 square feet; and comparable sale number
three 33,041 square feet. As stated by defendant's appraiser, Mr. Pigeon, a
downward adjustment for land area is mandated because the larger land areas of
the comparable sales would create a property enhancement for the storage of
cars. The court believes a downward adjustment of $9.00 per square foot to Mr.
Schultz's adjusted improved land sale price is reasonable and fair under the
circumstances. This would yield a rounded figure of $146,700.00 ($91.00 per
square foot x 1,612 square feet) for the value of the subject property, as
improved, in the before situation.
Defendant's appraiser, Roger P. Pigeon, analyzed his three improved comparable
sales on a whole to whole basis, instead of square footage as utilized by
claimant's appraiser. The court has reviewed all of Mr. Pigeon's comparable
sales along with his price adjustments, and is particularly drawn to comparable
sale number one. This is the sale of a gas/auto repair station, located at the
corner of George Urban Boulevard and Cherokee Drive, Cheektowaga, New York. The
sale took place in August 1995 for $160,000.00. Sale number one is located west
of the subject property, less than one-half mile from it. Like the subject
property, it is located in an area having both residential and some commercial
development around it. Sale number one is further similar to the subject
property, in that it is a one story concrete block structure with a flat roof,
as is the subject property, with the inconsequential exception, that subject
property is a masonry structure. Both properties are considered generally
level. Sale number one has two service bays, a small office, and a storage
area. Subject property has three service bays, a small office, and a storage
area. Looking at photographs of both subject property and sale number one, they
appear quite similar to each other. However, it is noted sale number one has
two operable gas pumps.
The major difference between Mr. Pigeon's comparable sale number one and the
subject property appears to be the total land area involved. The subject
property contained 5,239 square feet, while sale number one contained 15,191
square feet. As stated by Mr. Pigeon, the increased area makes the property
more desirable because of the ability to park cars being served by the auto
repair station. Because of this, Mr. Pigeon adjusted sale number one downward
$47,300.00 or 29.5% for total land area. In the court's view, this adjustment
is too severe, especially in light of Mr. Pigeon's downward adjustment for total
land area for his comparable sale number two. The land area for sale number two
is 12,178 square feet, and Mr. Pigeon's downward adjustment was $32,900.00 or
17.7%. The court does not believe the difference in total land area between Mr.
Pigeon's comparable sale number one and comparable sale number two is that
significant to mandate such a discrepancy in downward adjustments.
Consequently, the court would adjust Mr. Pigeon's total land area downward
adjustment for comparable sale number one to $32,000.00 or 20%.
Mr. Pigeon's total net adjustments for comparable sale number one are
$29,700.00, resulting in a net value to this sale of $130,300.00. When the
court's downward adjustment to total land area is inserted, the net adjustments
to comparable sale number one become $14,400.00. This would yield a total
comparable value for sale number one of $145,600.00. As previously stated, the
court has focused on Mr. Pigeon's comparable sale number one, because of its
proximity and similarity to the subject property.
Giving consideration to both claimant's and defendant's improved before values
as modified by the court, $146,700.00 and $145,600.00 respectively, the court
finds the before value of the subject property to be $146,000.00.
The parties have stipulated the after value of the subject property is
$125,000.00, which was the sale price for the subject property in September
1998. This diminution in value appears to reflect the indirect/consequential
damages to the subject property brought about by the loss of parking in front of
the auto repair shop. Claimant's position is the taking by the defendant
removed all front parking. The defendant maintains only one of two front
parking spaces was lost because of the taking. The defendant also acknowledges
all front parking may be lost during winter months after the taking because of
increased snow removal difficulty. Exhibits H & D are photographs of the
subject property after the taking and under its new ownership. These
photographs show the availability of parking in front of the auto repair shop.
Therefore, the court adopts Mr. Pigeon's analysis of the indirect damages caused
by the loss of parking after the taking. Both appraisers used their same unit
land value after the taking that they used before the taking. The court will
also use its before unit land value of $5.10 per square foot in the after
Both appraisers assigned values for the direct damages to the property,
consisting of 278 square feet of asphalt paving and the self-standing sign.
However, neither their appraisals or their testimony gave the court any guidance
as to how each appraiser arrived at the figure used. Claimant's appraiser
calculated the asphalt paving at $1.75 per square foot, while defendant's
appraiser assigned a value of $1.00 per square foot for it. Claimant's
appraiser valued the sign at $5,000.00, and defendant's appraiser valued it at
$2,327.00. Unfortunately, the court is left to guess at which of these
valuations is more accurate. It appears to the court the only alternative is to
find some median ground between the figures used by each appraiser. Therefore,
the court finds the value of the asphalt paving to be $1.40 per square foot, and
the value of the sign to be $3,700.00.
Both appraisers agreed the value of the temporary easement is $100.00, which
the court adopts as its value.
Based upon the foregoing, the court finds the value of claimant's property
before the appropriation was $146,000.00, and after the appropriation was
$125,000.00, for total damages sustained by the claimant in the amount of
$21,100.00, including the temporary easement. Said damages are calculated as
Land: 4,961 s.f. @ $5.10/s.f. $ 25,300(R)
Land: 278 s.f. @ $5.10/s.f. $ 1,400(R)
Asphalt Paving: 278 s.f. @ $1.40/s.f. 400(R)