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
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,
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
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
The property which was the subject of the appraisals submitted by both parties
consists of 442,771 square feet,
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
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
, 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,
of which 17,374 square feet was taken by the State as parcel 1.12. It is zoned
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
The Court has determined that there was a
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,
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,
.). 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
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
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
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.
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
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
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,
, 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
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.
, 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
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
Scenario V, a smaller version of Scenario III, contemplates an apartment
building with a total floor area of 165,246 square
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.
, 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,
) 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
) which is zoned
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
, "Scheme Two" included in Item JJ of Claimant's Exhibit
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 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,
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
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.
, 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 (
, 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
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;
, 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
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,
, the State's expert architect, although utilizing a different
methodology, concluded that there was 84,592 square feet of floor area
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
Value of Parts B and C before the
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
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
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,
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.
, 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
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
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.
, 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
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
Summary of damages