New York State Court of Claims


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New York State Court of Claims

TURIANO v. THE STATE OF NEW YORK, #2000-014-102, Claim No. 70854


Synopsis


Damages awarded for the appropriation of real property.

Case Information

UID:
2000-014-102
Claimant(s):
CHARLES TURIANO
Claimant short name:
TURIANO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
70854
Motion number(s):

Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Goldstein, Goldstein & RikonBy: M. Robert Goldstein, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Victor J. D'Angelo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 7, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is an unassigned claim for the permanent appropriation, pursuant to Environmental Conservation Law §3-0305 and the Eminent Domain Procedure Law, of three unimproved parcels of real property located in Queens County.

The properties are identified on Map No. 9865 A "Project: Q-TWL-Queens 1, Udalls Cove Tidal Wetlands" as Parcels No. 1.1, 1.3 and 1.12. The Court adopts as accurate and incorporates by reference the descriptions of the appropriated properties as shown on the map and description filed in the Queens County Clerk's Office, a copy of which is annexed to the claim.

Although not designated on the taking map as part of the property appropriated from claimant Charles Turiano,[1]
the claim also demands compensation for abutting submerged lands. This area is designated on the taking map as "Lands Former Water Grant-Land of the State of New York." It had previously been conveyed from the State to claimant by letters patent, upon what this Court held was a condition subsequent; and not to have reverted to State ownership. Consequently it is part of the property appropriated from claimant. See, Memorandum-Opinion and Order by Judge Frank S. Rossetti, filed August l4, 1987 (Motion M-35039).
The property is located in the northeastern part of Queens County, in the community of Douglaston, adjacent to the Nassau County border. It borders on a portion of Udall's Cove, which surrounds the southern end of Little Neck Bay, which leads into the western portion of Long Island Sound. The surrounding area is predominantly residential, including one and two family homes, attached row houses and some residential apartment buildings a short distance to the south.

The property which was the subject of the appraisals submitted by both parties consists of 442,771 square feet,[2] The respective appraisals also differ with respect to the area of the claimant's property which was not taken, so that the property remaining after the taking is stated by the claimant to be 125,297 square feet, and by the State to be 123,613 square feet. In the absence of any explanation by either side, the Court adopts the figure stated in the State's appraisal, which is consistent with the taking map. The claimant's rebuttal appraisal (Claimant's Exhibit 3, page 3) also notes this difference, but does not offer any explanation for it.
best understood as consisting of three parts, which the Court has denominated Part A, Part B and Part C, and which, based upon the taking map, the appraisals and supporting documents submitted by the parties, the Court finds are:
Part A: 17,729 square feet, which was taken by the State as parcel 1.1, described on the taking map as Block 8152, Lot 1. It is zoned R-2.

Part B: 284,055 square feet, of which 142,039 square feet was taken by the State as parcel 1.3. Although not so designated on the taking map, the parties agree that the rest of Part B (142,016 square feet), which includes the abutting submerged land described
supra, was also taken from the claimant. The State, in its appraisal, describes the rest of the property as 87,393 square feet of "water grant" and 54,623 square feet of "erosion land." Defendant's Exhibit A, page 27. The 54,623 square feet is further described in the State's appraisal as land located between parcel 1.3 and the land under water. Defendant's Exhibit A, page 37. Part B consists of 87,393 square feet of land under water, and 196,662 of land designated as tidal wetlands; with 189,505 square feet within a C-3 zoning district and 94,550 square feet within a R1-2 zoning district. Defendant's Exhibit A, pages 1-4.
Part C: 140,987 square feet,[3]
of which 17,374 square feet was taken by the State as parcel 1.12. It is zoned C-3.
In addition, the claimant's appraisal also included 30,487 square feet which is described as "land formerly situated in the bed of Little Neck Parkway" (Claimant's Exhibit 2-A, claimant's appraisal transmittal letter, second page). Prior to the taking, in 1954, this land had been conveyed by the claimant to the City of New York for street purposes, although the City never opened it as a street. In 1972, the City of New York closed this mapped but unopened portion of Little Neck Parkway, designating it for park purposes.

Part A is triangular in shape, with its northern edge bordering Nassau County; it is to the east of Parts B and C, separated from them by the "land formerly situated in the bed of Little Neck Parkway."

Part B is irregular in shape, with the Nassau County border on its northern edge; its southernmost portion borders on the northern corner of Part C.

Part C is roughly triangular in shape, bordered on its eastern edge by Little Neck Parkway. Its continuity on the east is interrupted by two separate strips of property not owned by the claimant, which extend approximately half way into the claimant's property. The portion of Part C taken by the State (parcel 1.12) is along its western edge.

The parties, through their appraisals, agree that title to these properties vested in the State on February 29, 1984. The claim was duly filed on April 23, 1985. As required by Court of Claims Act §12(4), the Court has viewed the subject properties.

The Court has determined that there was a
de facto taking by the State when the State Department of Environmental Conservation, by letter dated May 5, 1978, notified claimant of its interest in acquiring the property. Significantly, the letter stated that under ECL §25-0403(2), such notice was sufficient ground "for denial of any permit for any activity regulated by the Tidal Wetlands Act." Claimant's Exhibit 2-B, Item L.
The Court finds that by taking this action, the State prevented clamant from deriving any substantial beneficial use from the subject property, which had become subject to the Tidal Wetlands Act (ECL §25-0101,
et seq.). Matter of Keystone Associates v Moerdler, 19 NY2d 78, 88; City of Buffalo v J.W. Clement Company, 28 NY2d 241. The claimant acquired the subject property prior to the enactment of that statute and the imposition of environmental constraints upon development. Cf., Gazza v New York State Department of Environmental Conservation, 89 NY2d 603, 615; Matter of Anello v Zoning Board, 89 NY2d 535, 540 and Soon Duck Kim v City of New York, 90 NY2d 1, 12.
The letter further stated, "this advice intends to indicate that the State does not wish to have you engaging in development activities on the property, while it is involved in this acquisition proceeding." Claimant's Exhibit 2-B, Item L. The foregoing notification by the State is significantly more than "the manifestation of an intent to take" or a "threat to condemn."
City of Buffalo v J.W. Clement Company, supra at 256.
The record also supports the claimant's position that the denial, by the City of New York, on December 15, 1972, of a work permit needed to complete development of a marina on the property (Claimant's Exhibit 2-B, Item F), following the December 7, 1972 resolution of the New York City Board of Estimate (included as internal exhibit C in Claimant's Exhibit 30), and the October 11, 1972 Report of the New York City Planning Commission (included in Claimant's Exhibit 2-B, Item H), constituted a
de facto taking by the City of New York. In the letter denying the work permit, it is stated: "By resolution dated December 7, 1972, (Cal. No. 16) the Board of Estimate approved a map showing the layout of a proposed Park in the area. The resolution provides, in part, that ‘Mapping of the Park will preclude any further land-fill and building operations, which have already begun in the area. . . .'" The Report of the City Planning Commission includes identical language. In effect, the City had frozen the property and prevented claimant from obtaining any economic benefit from it. Matter of Keystone Associates v Moerdler, supra.
However, the claimant has failed to establish any State involvement in those actions at that time, so as to allow claimant damages for a
de facto taking by the State at that time, in this proceeding. There is no factual or legal basis upon which to hold the State responsible for the City's actions. From the evidence presented, it appears that the State did not actively enter the picture until 1978, after the City, for fiscal or other reasons, was unable to carry out its plans. See, e.g., Claimant's Exhibit 2-B, Item M, Memorandum of Understanding, as of December 29, 1978. Indeed, in bringing a proceeding in 1975 against the City for inverse condemnation, or alternatively for issuance of the work permit (Claimant's Exhibit 2-B, Item H), claimant properly recognized that it was the City of New York which had damaged his property.
The Court is not unimpressed by the cogency of the claimant's contention that the City's actions have deprived him, in some measure, of the value of his property, and that he deserves to be compensated for that. But this Court can only measure what the State, not the City, has taken from him. Indeed to do so might logically lead to a determination that what was taken by the State had already been rendered by the City to be without any value to the claimant, a position which is not taken by the State. The claimant's remedy against the City, if it exists, lies elsewhere.

The Court is required to value the subject properties according to their highest and best use as of the date of vesting,
Matter of Town of Islip (Mascioli), 49 NY2d 354, 360; Matter of County of Clinton (Gagnon), 204 AD2d 898, 899. "Highest and best use" is generally defined as the "reasonable, probable and legal use . . . which is physically possible, appropriately supported, financially feasible, and that results in the highest value". American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 269 (9th Ed. 1987).
The parties agree that the highest and best use of the property, other than Part A, before the taking is for multi family residential development. They disagree as to the size and type of such development. The claimant contends that the property can be developed for a substantial number of apartments in high rise buildings. The State contends that it can be developed for two or three story townhouses and/or garden apartments. Nonetheless, both sides agree that the ultimate determination of the highest and best use of the property is by calculating the total amount of space which can be built. Specifically, through the application of mathematical calculations dependent upon the zoning designation of the property and other pertinent land use factors about which many witnesses testified, and which was the subject of the respective appraisals, and other documents, the parties have arrived at different numbers of square feet of "floor area" which is the term utilized to define the total amount of space which can be built. In addition, they disagree as to the potential development of Part A.

The claimant has not offered a single development plan for the property before the taking. Rather, in his appraisal, and in the evidence he adduced at trial, he has posited that the property could be developed for residential use in accordance with a series of "scenarios" of varying sizes, each of which includes development of multi family apartment buildings, and (with one exception) single family homes. These scenarios, designated by the claimant's appraisal as I through V, describe successively smaller development, depending upon the amount of floor area available, and dependent upon a variety of land use determinations by one or more governmental entities of the City of New York.

Scenario I, a large scale residential development, contemplates 290 dwelling units in a complex of apartment buildings varying in height from 6 to 14 stories with a total floor area of 322,060 square feet, including many residential amenities. It would require the issuance of a special permit by the New York City Planning Commission and the New York City Board of Estimate.[4] The Board of Estimate, then in existence, consisted of the three City wide elected officials (Mayor, Comptroller, President of the City Council) and the five elected Borough Presidents. New York City Charter, §61, in effect at the time.

Scenario II contemplates an apartment building with heights varying from 9 to 14 stories, with a total floor area of 222,307 square feet, and 7 single family homes. It would require a rezoning, by the New York City Planning Commission and the New York City Board of Estimate, of that portion of the property zoned R1-2, or a zoning variance by the New York City Board of Standards and Appeals;[5]
and it would require the return of the land in Little Neck Parkway to the claimant, by the New York City Board of Estimate, for his use.
Scenario III contemplates the same apartment building with a total floor area of 214,126 square feet, and 4 single family homes. It would require a rezoning, by the New York City Planning Commission and the New York City Board of Estimate, of that portion of the property zoned R1-2, or a zoning variance by the New York City Board of Standards and Appeals.

Scenario IV, a smaller version of Scenario II, contemplates an apartment building with a total floor area of 175,032 square feet, and the 7 single family homes. It would require the return of the land in Little Neck Parkway to the claimant, by the New York City Board of Estimate, for his use.

The return of the land in Little Neck Parkway to the claimant for his use is necessary in Scenarios II and IV in order to permit the development of larger single family homes, and to provide additional area to the zoning lot, which is the starting point for calculating the amount of floor area which can be developed. The rezoning or variance is necessary in Scenarios II and III in order to provide additional area to the zoning lot.

It is the claimant's contention, and the opinion of his expert architect and his zoning expert, that it is reasonably probable that the foregoing approvals would have been obtained. Their opinions were expressed fully and cogently in their testimony and in their reports, and have been considered by the Court.

But in support of his contention that actions taken by the City of New York should be attributed to the defendant so as to charge the State with having,
de facto, taken the claimant's property nearly 12 years prior to the date of vesting (discussed, supra), the claimant has placed on the record uncontroverted documentary evidence of actions by the City of New York, which demonstrate that the City sought to prevent the claimant from developing his property. See, e.g., Claimant's Exhibit 2-B, Items D and F; Claimant's Exhibit 33. Yet at the same time, based upon the opinions of his expert architect and zoning expert, the claimant asks the Court to find that it would have been reasonably probable that a variety of discretionary actions by several New York City entities would have permitted extensive development of the property.
Most particularly, it is contended by the claimant that the New York City Planning Commission and the New York City Board of Estimate would have provided, as of the time of the taking herein, the approvals necessary for a large scale residential development (scenario I). Such a conclusion is unsupported by the record before the Court, which includes evidence that, in late 1972, the New York City Planning Commission and the New York City Board of Estimate had specifically acted so as to preclude the development of the property, and that in 1975 a certificate authorizing commencement of a condemnation proceeding by the City of New York was issued.
See, Claimant's Exhibits 2-B (Item H), 30 and 33.
Nor, to the extent that scenarios II and IV would have required the return of a portion of Little Neck Parkway by the New York City Board of Estimate, and scenarios II and III would have required a rezoning by the New York City Planning Commission and the New York City Board of Estimate, or a variance by the New York City Board of Standards and Appeals, does the record support the conclusion that it is reasonably probable that these actions would have taken place.

These conclusions do not, as suggested by counsel for the claimant in his post trial brief, amount to using "steps taken by a potential condemner preliminary to a condemnation . . . to depreciate the value of the property in the condemnation." The State, in this proceeding, is not responsible for the actions of the City.

The Court is not prepared to treat the City's announced intention in 1975 to condemn the property which is the subject of this proceeding as precluding any development of the property, for the purpose of determining its highest and best use as of the time of the taking by the State, years later. But to the extent that the highest and best use of the property as suggested by the claimant is dependent upon discrete, non-ministerial approvals and actions by the City of New York, the City's clearly stated policy with respect to development of the property, introduced into evidence by the claimant, cannot be ignored.[6]

Scenario V, a smaller version of Scenario III, contemplates an apartment building with a total floor area of 165,246 square feet,[7]
and 4 single family homes on Part A. It is the claimant's contention that this development is consistent with existing zoning and land use requirements and could proceed without any discretionary approvals.
Highest and best use of Part A
It is the State's contention, in the first place, that no development of the 4 single family homes on Part A could take place because the portion of Little Neck Parkway, ceded by the claimant to the City of New York for use as a street, had been mapped for use as a park. The State contends that the highest and best use of Part A, therefore, is the potential sale to adjacent property owners to enlarge their yards, since they are the only persons with any use for the property, because it is only accessible to the rear of these properties.

Consistent with zoning requirements, the development of single family homes on Part A contemplated by Scenario V requires that the portion of Little Neck Parkway be an open street. It is the claimant's position in this regard that the mapping of it, in 1972, by the City Planning Commission and the Board of Estimate as part of a planned park did not modify its status, which could only be accomplished by commencement of a condemnation proceeding by the City. But those actions by the City, as well as the issuance, in 1975, of a certificate authorizing the commencement of such a proceeding, lead to the conclusion that relevant City agencies would not have regarded it as an open street.
See, Claimant's Exhibit 3, addendum to Rebuttal Memorandum, Zoning Resolution definition of "street."
The Court finds, therefore, that the highest and best use of Part A is as three lots to be sold to the three adjacent property owners, consistent with the opinion of the State's appraisal.

The Court finds the value of Part A before the taking to be $51,000, based upon the State's appraisal, the only evidence in the record of its value for the use the Court has found.

Highest and best use of Parts B and C
The State contends that only 84,592 square feet of floor area is available for residential development on Part C, while the claimant's scenario V (using correct figures, see footnotes 2 and 3,
supra) contemplates the development of 165,246 square feet of floor area, based upon a zoning lot of 330,492 square feet (189,505 square feet zoned C-3 in Part B, and all of Part C (140,987 square feet[8]) which is zoned C-3.
It appears from the testimony and reports of the several experts at trial, that, in its simplest formulation, the amount of floor area which can be built is determined by a calculation which is dependent upon the area of the zoning lot, its zoning designation, and the reservation of some calculable portion of the zoning lot for open space.

The 165,246 square feet of floor area in claimant's scenario V would require 247,869 square feet of open space, which, according to the claimant's experts, is well within the amount available for this purpose, calculated by them to be 383,259 square feet. The claimant's calculation is based upon the inclusion in the area available for open space all of the area subject to the appraisal, including Little Neck Parkway, except for 90,000 square feet of land under water.
See, "Scheme Two" included in Item JJ of Claimant's Exhibit 2-C.
The parties experts agreed that only space which is "accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot," as defined in section 12-10 of the Zoning Resolution (quoted in Addendum G to Claimant's Exhibit 6), can be utilized to satisfy open space requirements. They disagree as to whether a significant portion of the affected property is accessible and usable.

The State's expert architect testified that none of the property which the Court has designated Part B (284,055 square feet) is available to satisfy the open space requirement because it is land under water or wetlands. Although the force of his report (Defendant's Exhibit A, Addendum 1) was undermined by his concession at trial that he had utilized the incorrect zoning regulations in his report, his opinion concerning whether the area of Part B can be used to satisfy the open space requirement is unaffected, and is supported by other evidence in the record.

The starting point for the parties difference on this issue, is the conflicting testimony concerning whether land under water can be used in calculating the area used to satisfy the open space requirement. Each side called as a witness one of two former City officials who were experienced and knowledgeable in land use determinations by City agencies.

The claimant called Mr. Berger,[9]
who was the Brooklyn Borough Superintendent of the New York City Department of Buildings in 1984. He testified that it was his opinion that until March 6, 1984, 6 days after the taking herein, land under water could be used in determining the amount of open space available. He based his opinion upon his experience and upon a memorandum from the New York City Buildings Commissioner, dated March 6, 1984, a copy of which was included as Addendum G to Claimant's Exhibit 6.
The defendant called Mr. Patrissi, a private consultant in land use and zoning matters, who worked from 1968 through 1973 as a plan examiner for the New York City Department of Buildings, during which time he reviewed building applications to assure compliance with zoning regulations. For 22 years thereafter he was a zoning engineer in the technical review unit of the New York City Department of City Planning, including 9 years as chief engineer, during which time he advised within that department on matters involving land use and zoning. It was his opinion that at the time in question land under water could not be used to satisfy the open space requirement. He also testified that whether wetlands could be used to satisfy the requirement, would depend upon an interpretation of the definition as it pertained to a particular plan. He interpreted the Esnard memo as restating pre existing policy, as a result of a change in the Zoning Resolution in 1973.

The Esnard memo does not establish that the policy was that land under water could be used in the calculation of open space prior to the date of the memo. Rather the memo is better understood as clarifying the effect of a change in the Zoning Resolution in 1973. Moreover, in the context of conflicting, but credible, testimony by two former New York City officials, it would appear that the memo clarified what was at best - from the claimant's standpoint - an uncertain policy which therefore would have been subject to application by New York City officials, who would reasonably be expected to do so in conformity with the consistent City policy, for nearly 12 years prior to the taking herein, with respect to the use of the claimant's property.

What emerges from the conflicting testimony is the inescapable conclusion that the "accessible and usable" requirement is subject to interpretation. It is equally clear from the record, once again viewed in the context of the City's consistent policy with respect to the development of the subject property, that any such interpretation by the City would have sought to minimize the amount of floor area the claimant could develop.

The Court has considered the legal argument of the claimant's zoning expert in this regard that any ambiguity in a zoning provision must be resolved in favor of a property owner. Claimant's Exhibit 3, Rebuttal Memorandum, pages 4-5. But the policy purportedly enunciated in the Esnard memo, upon which claimant relies, is itself an interpretation which presumably was intended to resolve what had come to be regarded as an ambiguity in the zoning resolution, at least with respect to land under water. Claimant's zoning expert does not suggest that the policy in the Esnard memo is not valid.

Having considered the foregoing testimony as well as the maps, photos and descriptions of the property which are part of the record, the Court finds that it is not reasonably probable that any of the area of Part B (284,055 square feet) would have been considered "accessible and usable" so it cannot be included in the amount available for open space.

Nor does the record support the inclusion of the portion of Little Neck Parkway in this calculation; it is not owned by the claimant.
See, Claimant's Exhibit 3, Warman letter, addendum, Zoning Resolution definition of "zoning lot."
Thus, only the area in Part C is available to satisfy the open space requirement. Based upon the statement in the claimant's appraisal that less than 5% of Part C is under water (
see, Claimant's Exhibit 2-A, page 19), there is 133,938 square feet available, much less than the 247,869 square feet of open space required.[10]
As a consequence, the amount of floor area available for development before the taking would be some amount less than 165,246 square feet which, consistent with the configuration of the development, maximizes the utilization of the 133,938 square feet available to meet the open space requirement.

The starting point for this calculation, by the Court based upon the evidence, is the height of the building, with respect to which the Court is guided by the testimony of the claimant's expert architect concerning the maximum height of a building being determined by the application of a "theoretical sky exposure plane" (Transcript, pages 133-135;
see, also, Claimant's Exhibit 3, Warman letter, page 3), and the fact that the tallest building in any of his proposed scenarios was 14 stories. There is no credible evidence in the record that a height of 14 stories was prohibited, or that it would have required any discretionary action on the part of the City of New York. At trial, the defendant's expert architect testified that he would limit the building height to six stories for reasons related to the cost of construction (Transcript, page 524), which differed from his report (Addendum 1 to Defendant's Exhibit A), in which he appears to limit the height to two stories because of zoning requirements which he conceded at trial were inapplicable.[11] The State's appraiser conceded that if the open space is available, a 14 story building could be developed (Transcript, pages 619-620).
Consistent with the testimony and exhibits concerning the methodology employed in making such a calculation, a 14 story building with a footprint of 6088 square feet would utilize 85,232 square feet of floor area, requiring 127,848 square feet of open space, which could be provided on the 133,938 square feet available. A floor area larger than 85,232 would require either more open space, which is not available, or more than 14 stories on a smaller footprint, which is not supported by the record. As noted,
supra, the State's expert architect, although utilizing a different methodology, concluded that there was 84,592 square feet of floor area available.
In accordance with the foregoing, therefore, the Court finds that the highest and best use of the property before the taking, is for the development of a multi residence apartment building, consisting of 85,232 square feet of floor area.

Value of Parts B and C before the taking
Both parties' appraisals utilized the sales comparison method to value the amount of floor area which can be developed, and agreed that the pertinent measure is the value of each square foot of floor area which can be built, regardless of the type of development. Claimant: Transcript, page 583; State: Transcript, page 408. Both calculated the sales price per square foot of floor area of each of their respective comparable sales of land by dividing the sales price by the amount of floor area, making adjustments to account for pertinent differences from the subject property, to arrive at a value for sales price per square foot of floor area.

The adjusted sales price per square foot of all the comparable sales in both appraisals ranged from $10.28 to $42.03, with a mean value of $21.04 and a median value of approximately $19.00.

The claimant's appraisal considered 11 sales in which the adjusted sales price per square foot ranged from $14.22 to $42.03, with a mean value of $24.41 and a median value of $22.27 Claimant's Exhibit 2-A, page 79.[12]
The State's appraisal considered 5 sales in which the adjusted sales price per square foot ranged from $10.28 to $19.77, with a mean value of $13.62 and a median value of $12.93. Defendant's Exhibit A, page 47. The value arrived at by the claimant's appraisal was $24 per square foot; the State's appraisal determined the value to be $14 per square foot.
The Court has considered five of the foregoing comparable sales. It has not considered the claimant's sale #M6 in which the property was zoned for development of single family homes, and is thus not truly comparable. The Court has not considered the State's sales #1 and #2, the force of which was undermined by evidence that the same properties had been valued differently in a prior appraisal prepared for the State (Claimant's Exhibit 5). Nor has the Court considered the claimant's sale #M10 and the State's sales #4 and #5, where the amount of floor area was significantly larger or smaller than the floor area of 85,232 on the subject property. Given the range and the number of the sales remaining, the Court has only considered those which took place within 18 months of the taking herein, thus eliminating the claimant's sales #M1, #M8, #M9 and #M11, which took place either before September 1982 or after August 1985. (This would also have eliminated claimant's sale #M10 and the State's sales #4 and #5.) Nothing about any of the sales eliminated from consideration is sufficiently similar to the subject property to otherwise warrant their inclusion.

Two of the remaining sales (the claimant's sale #M2 and the State's sale #3) are the same sale. The Court has considered it as claimant's sale #M2, utilizing the correct initial sales price per square foot of $15.97 (Transcript, page 639).

For the five sales considered by the Court, the adjusted sales price per square foot in the claimant's appraisal ranged from $14.22 to $36.82, with a mean value of $20.54 and a median value of $15.44.

In arriving at a value to ascribe to each square foot of floor area, the Court has modified some of the adjustments made by the appraisal in the five sales it has considered (the claimant's sales #M2, #M3, #M4, #M5 and #M7. The adjustments for time, based upon a growing market during the period in question (Claimant's Exhibit 2-A, page 69), are adopted. Where necessary, the claimant's adjustments for size and soil have been modified to reflect that the subject property consists of 85,232 square feet, not 165,246.
See, Claimant's Exhibit 2-A, page 71, comments re soil and size. Given the nature of the subject property, the claimant's adjustments for location, water access and riparian rights in the claimant's sales #M3, #M4, #M5 and #M7 are duplicative; a single adjustment of +20% is adopted. The claimant's upward adjustments for corner/block do not appear warranted, and they have been eliminated.
Consistent with the foregoing, the time adjusted sales price for each of the five sales (Claimant's Exhibit 2-A, page 33) are adjusted as follows: #M2: -5% for size, with a final adjusted sales price of $16.60; #M3: +20% for location, +5% for size, -15% for soil, with a final adjusted sales price of $13.59; #M4: +20% for location, -5% for soil, with a final adjusted sales price of $16.58; #M5: +20% for location, -5% for size, with a final adjusted sales price of $13.63; #M7: +20% for location, -10% for soil, with a final adjusted sales price of $32.41.

Consideration of the five comparable sales adjusted in accordance with the foregoing results in a range of values from $13.59 to $32.41, with a mean value of $18.56, and a median value of $16.58. The Court has given additional weight to the claimant's sales #M3 ($13.59) and #M4 ($16.58), both of which resulted in the development of high rise apartment buildings.

On the basis of the foregoing, the Court finds the per square foot value of the floor area available for development to be $16.00.

Highest and best use of the remainder
The remainder of the property after the taking consists of 123,613 square feet in Part C.

Upon the record before the Court, it appears that the parties do not disagree that the highest and best use of the remainder of the property after the taking is for multi family residential development, although they appear to disagree as to the type. Nor do they disagree as to the method for calculating the floor area available to develop. The claimant's expert architect contemplates the development of 63,411 square feet of floor area, based upon the remainder of the claimant's property consisting of 126,822 square feet. Transcript, page 179. As noted previously, the size of the remainder of the claimant's property is actually 123,613 square feet.
See, footnote 2, supra. Applying the claimant's expert architect's methodology to the correct area, the square feet of available floor area is 61,807, which is the same amount to which the State's expert architect, utilizing the same methodology, testified at trial. Transcript, page 525.
The Court finds that the highest and best use of the remainder of the property after the taking is for the for the development of a multi residence apartment building, consisting of 61,807 square feet of floor area.

Both appraisals again utilized the sales comparison method to value the amount of floor area which can be developed, and offered the same comparable sales, as for before the taking. Although they again disagreed as to the particular type of development on the subject property, they again agreed that the pertinent measure of value is the amount of floor area which can be built. The claimant's appraisal again arrived at a value of $24, and the State's appraisal again arrived at a value of $14.

The Court has considered only the same five sales as set forth previously, and has made adjustments in the same fashion as discussed previously, as a result of which the final adjusted sales price of each sale is the same as before the taking, on the basis of which the Court finds the per square foot value of the floor area available for development after the taking to be $16.00.

Recapitulation of Damages
The value of the property taken from the claimant as Part A is $51,000.

Before the taking, the highest and best use of the property comprising Parts B and C is for the development of 85,232 square feet of floor area of multi family residential development, at a per square foot value of $16.00, for a total value of the property of $1,363,712. After the taking, the highest and best use of the remainder of the property (a portion of Part C) is for the development of 61,807 square feet of floor area of multi family residential development, at a per square foot value of $16.00, with a total value of $988,912. The direct damages as a result of the taking of the property in Parts B and C is $374,800.

Summary of damages:
Part A $ 51,000
Parts B & C $374,800
Total $425,800

In accordance with the foregoing, the claimant is entitled to a total award of $425,800, with statutory interest from May 5, 1978 until August 29, 1984, and from April 23, 1985 to the date of this decision and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002, and Court of Claims Act §19(1).

The award to claimant is exclusive of the claims, if any, of persons other than the owner of the appropriated property, his tenants, mortgagees and lienors having any right or interest in any streams, lake, drainage or irrigation ditch or channel, street, road, highway or public or private right-of-way or the bed thereof, within the limits of the appropriated or contiguous thereto, and is exclusive of any claims, if any, for the value of or damage to easements and appurtenant facilities for the construction, operation and maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, ssewer and electric lines.

LET JUDGMENT BE ENTERED ACCORDINGLY



July 7, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1]The subject properties had been owned jointly by claimant Charles Turiano and his late brother, Vincent Turiano. Upon Vincent's death, his interest vested in Charles.

[2] The claimant's appraisal states this to be 445,981 square feet. Claimant's Exhibit 2-A, page 1. Upon examination of the taking map, the Court adopts the figure 442,771 square feet, the figure used in the State's appraisal. According to the taking map, parcel 1.1 consists of 17,729 square feet, and parcel 1.12 consists of 17,374 square feet. In the claimant's appraisal the areas of these parcels are stated to be 17,730 and 18,899, respectively. The claimant's rebuttal appraisal (Claimant's Exhibit 3, page 3) notes these as differences, without explanation, between the respective appraisals, but does not refer to the taking map.


[3] Incorrectly stated in the claimant's appraisal to be 144,196 square feet; see footnote 2, supra.

[4] The City Planning Commission is composed of seven members, appointed by the Mayor of the City of New York; the Director of City Planning serves as the chair. The membership must consist of at least one resident of each of the five boroughs of New York City. New York City Charter, §192, in effect at the time.


[5] The Board of Standards and Appeals is composed of six members appointed by the Mayor of the City of New York, five of whom must have requisite professional qualifications in planning, architecture or engineering. New York City Charter §661, in effect at the time.
[6] The Court is not unaware that consideration of evidence of this City policy in this proceeding has the ultimate effect of reducing the amount of damages due to the claimant from the State. But this Court can only calculate the damages as a result of the taking by the State. As already noted, the claimant's remedy for the actions taken by the the City is against the City, and it lies elsewhere.
[7] This is the correct figure, not 166,832 as stated in the claimant's appraisal. The incorrect figure is based upon Part C consisting of 144,196 square feet which, as noted previously (footnote 3, supra), is incorrect.
[8] Not 144,196 square feet, as stated in claimant's appraisal; see, footnote 3, supra.
[9] The defendant's motion to strike the testimony of Mr. Berger, on the ground that he never filed a report in accordance with §206.21(c) of the Uniform Rules for the Court of Claims, is denied. While it may be that his testimony falls outside the requirements of that Rule, the remedy of striking his testimony is inappropriate, since the State called Mr. Patrissi, who also had not prepared a report in advance of trial, to testify in response.
[10] In this regard the probability of the granting of a variance allowing the floor area in the R1-2 portion of Part B to be used on the portion zoned C-3 (discussed, supra), is ultimately irrelevant, insofar as such a variance would also increase the amount of open space required, but not, in accordance with the foregoing, increase the amount available to meet the requirement. Nor, as argued by claimant's zoning expert, would the denial of a variance have constituted a taking, since it is the accessibility of the property, not its designation as R1-2, which is determinative of whether it could have been used in connection with the property zoned C-3.
[11] It is this error which is the basis for the claimant's motion to strike the report, as well as the reports of the State's appraiser and zoning expert on the ground that they relied upon it. The error does not provide a basis for striking the reports, although it affects the weight given to them, and to the experts' testimony at trial.
[12] The claimant's appraiser testified that the correct time adjusted value for #M8 was $20.18, not $25.92 as stated in his appraisal.